Pepsi Cola Bottling Co.

National Labor Relations Board - Board Decisions

May 14, 1979

242 N.L.R.B. 265 (N.L.R.B. 1979)

PEPSI COLA BOTTLING COMPANY
Pepsi Cola Bottling Company and General Teamsters,
Chauffeurs, Warehousemen & Helpers, Local 982,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America. Cases
31-CA-7907, 31-CA-7931, and 31-RC-4077
May 14, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On February 14, 1979, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,2 as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Pepsi
Cola Bottling Company, Mojave, California, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Charlie Easttom, Kenneth Towne and
Steven Peffly immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
Following the Administrative Law Judge's Decision, Case 31-RC-4077
was inadvertently severed and remanded to the Regional Director prior to
decision by the Board. On March 8, 1978. the Acting Regional Director
ordered that the representation case be transferred to the Board and be
reconsolidated with the unfair labor practice cases. We nov. adopt the Ad-
ministrative Law Judge's recommended Order remanding the representation
proceeding to the Regional Director to open and count the challenged bal-
lots and issue the appropriate certification.
to their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings suffered by reason of their discharges, in the
manner set forth in the Section herein entitled 'The
Remedy.'"
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that Case 31-RC-4077 be,
and it hereby is, remanded to the Regional Director
for Region 31 to open and count the ballots of Ken-
neth Towne, Steven Peffly. Charlie Easttom, and
Charles Van de Voorde, and thereafter to prepare
and cause to be served on the parties a revised tally of
ballots, including therein the count of said ballots,
upon the basis of which he shall then issue the appro-
priate certification.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing at which all parties had an op-
portunity to present evidence and cross-examine wit-
nesses, the National Labor Relations Board has
found that we violated the National Labor Relations
Act, and has ordered us to post this notice. We intend
to abide by the following:
The National Labor Relations Act gives all em-
ployees the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or issue written disci-
plinary warnings or otherwise discriminate
against our employees in regard to their hire or
tenure of employment or any condition of em-
ployment because they have supported or en-
gaged in activities on behalf of General Team-
sters, Chauffeurs, Warehousemen and Helpers,
Local 982, or any other labor organization.
WE WILL NOT interrogate employees about
their union sympathies or activities or about the
union sympathies or activities of other employ-
ees.
WE WILL NOT threaten employees with dis-
charge because of their union sympathies or ac-
tivities.
242 NLRB No. 48
265
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE Wll.L. NOT promise employees improved
terms and conditions of employment or promise
them that their grievances will be remedied in
order to discourage them from supporting a
union.
WE WII.LL NOF order employees not to wear
union buttons or threaten them with trouble if
they wear union buttons.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them under Section
7 of the Act.
WE WILL offer Charlie Easttom, Kenneth
Towne, and Steve Peffly immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE
wIt L. make them whole for any' loss of earnings
suffered by reason of their discharges, with inter-
est.
WE wl.l. remove from our records the unlaw-
ful written disciplinary warnings issued to Char-
lie Easttom. Kenneth Towne, Steven Peffly, and
Quintin Christie, and any reference thereto.
PEPSI COl.A Bor1i.IN(; COMPANY
DECISION
SIAl EMIN I ()F li CAS
JERROI I) H. SIIAPIRO, Administrative Law Judge: The
hearing in this consolidated proceeding, which took place
October 24 25, 1978, was based on unfair labor practice
charges and a representation petition filed by the General
Teamsters, Chauffeurs. Warehousemen & Helpers. Local
982, International Brotherhood of Teamsters. Chauffeurs.
Warehousemen & Helpers of America. herein called the
Union.' The charge in Case 31 -CA 7907 was filed April 13.
1978, and the charge in Case 31 CA- 7931 was filed April
24, 1978. The General C(ounsel of the National Labor Rela-
tions Board herein called the Board, by the Regional Direc-
tor for Region 31. issued a consolidated complaint in the
unfair labor practice proceeding on September 8, 1978,
which was amended at the hearing, alleging that Pepsi Cola
Bottling Company, herein called Respondent,: has engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the National Labor Relations Act, herein
called the Act. Respondent filed a timely answer, which it
amended at the hearing, denying the commission of the
alleged unfair labor practices.
On March 15. 1978, the Union filed a representation pe-
tition in Case 31 RC-4077 seeking an election in a unit of
I In its answer to the complaint Respondent admits that the Union is a
labor organization within the meaning of Sec. 2(5) ,of the Act.
I Respondent admits that it meets the Board's applicable discretionary
jurisdictional standard and is an employer engaged in commerce within the
meaning of Sec. 2(6) and (7) of the Act. Accordingly. I find that it will
effectuate the policies of the Act for the Board to assert its jurisdiction over
the unfair labor practice cases
employees employed at Respondent's MoJave acility. Pur-
suant to a Stipulation For Certification Upon C'onsent Elec-
tion, an election by secret ballot was conducted on April 25.
1978, among the employees in an agreed-upon bargaining
unit. The tally of ballots showed that there were approxi-
mately 12 eligible voters, that 12 ballots were cast, that 4 of
the ballots were cast for and 4 against the Union, and that
4 ballots were challenged. The challenged ballots were sufl
ficient to affect the results of the election, so on September
II 1978, the Regional Director for Region 31 issued a re-
port on challenged ballots and an Order consolidating the
representation case with the unfair labor practice cases in
order to resolve the issues raised by the challenges. The
Regional Director also ordered that after a Decision hb an
administrative law judge the representation case be trans-
ferred and continued before the Board.
Upon the entire record, from my observation of the de-
meanor of' the witness, and having considered the post-
hearing briefs. I make the following:
FINDIN(iS (I IA( I
I. IlE AIl.[FI(;E) UNFAIR L.ABOR PRA('II('[S
A. The Setting and Questions 7To Be Decided
Respondent manufactures and distributes soft drinks. It
operates a production facility in Bakersfield. California,
and distribution warehouses in Bakersfield and Mojave.
California. Stanley Papstein. Respondent's general sales
manager. exercises overall supervision of Respondent's
business. His office is located in Bakersfield, which is about
60 miles from Mojave. The day-to-day operations at Moja-
ve are supervised by a sales manager who hires. fires, makes
work assignments, and generally supervises the work of the
employees employed at that facility. )uring the time period
involved in this case, except for a hiatus of 8 weeks as dis-
cussed infra. Anthony Chisholm was the manager of the
Mojave facility. He was manager since November 1976 and
supervised the approximately 8 to 10 workers employed at
that location. This case involves the Union's effort to orga-
nize these employees. It is the General Counsel's conten-
tion, as alleged in the consolidated complaint, that in re-
sponse to the Union's organizational campaign Respondent
discharged three employees because of their union activi-
ties, issued written disciplinary warnings to four employees
because of their union activities, threatened employees with
reprisals because of their union activities, interrogated em-
ployees about their own and other employees' union activi-
ties, created the impression that the employees' union ac-
tivities were being kept under surveillance, directed
employees to stop wearing union buttons, changed an em-
ployee's terms and conditions of employment because of his
union activities, and suggested to employees that Respon-
dent would grant improved employment benefits if they did
not support the Union.
B. The ict.s: ,4 Chronologv
In 1977 Respondent's Mojave manager, Chisolm, made it
plain to new employees that Respondent was opposed to
union representation and would retaliate against employees
who supported a union. Employee Easttom credibly testi-
266
PEPSI COlA BOTITLING COMPANY
fled that at the time of his hire, in March 1977, Chisholm
warned that if he had any ideas about union representation
or talked about a union he would he discharged. Similarly,
employee Towne credibly testified that at the time of his
hire, in June 1977. Chisholm told him that he liked to em-
ploy younger applicants because older employees "got
ideas." and as an example of this. he stated that one of
Respondent's employees had recently tried to persuade
other employees to support a union so Respondent dis-
charged him.'
On February 6 Chisholm was terminated as the manager
of the Mojave facility and given the option of transferring
to Respondent's Bakersfield facility. On either February 7
or 8, 1978.4 General Manager Papstein introduced Conner
Regal to the employees as the person in charge of the Mo-
jave warehouse. Papstein said nothing about Chisholm's
employment status, since Chisholm had not decided
whether to accept the transfer to Bakersfield.
During the first 3 days of March route salesmen Pefily.
Easttom. Christie, Peterson. and Towne signed cards autho-
rizing the Union to represent them for purposes of' collec-
tive bargaining. On March 3, after work. the five card sign-
ers attended a union meeting at ('hristie's home where two
union representatives spoke to them.
Within I or 2 days after the emloyees had met with the
union representatives at Christie's home, Chisholm spoke to
employee Towne about the meeting. While at the Mojave
warehouse. ('hisholm invited Towne to join him after work
at Reno's Bar, a Mojave drinking establishment. During
their conversation at Reno's, ('hisholm asked whether
Towne had "anything to do with that meeting the other
night." Towne professed ignorance. Chisholm indicated
that he did not believe Towne, and stated that he felt
Towne knew about "that union meeting" which had been
held the other night. Towne admitted that there had been
such a meeting. Chisholm asked whether Towne had an-
thing to do with the meeting. l'owne replied that he had
attended it because he wanted to hear what was said. Chis-
holm told Towne that Respondent would not go for a union
and warned that when Respondent learned about the
Union. Towne would be discharged. Chisholm suggested
that Towne visit Respondent's owner and advise him about
the employees' grievances and see whether the employees
could work out something with Respondent's owner. Chis-
holm explained to Towne that this was a better way than
union representation to handle the employees' grievances.
and that b handling them in this fashion Towne would not
lose his job.'
On approximately March 10 Chisholm. in a conversation
Chisholm did not specifically den) having ,oiced these statements when
he hired Towne and Easttom rather, he generally testified that he never told
prospective or new employees that the) would he ill advised It consider
union representation .Since Towne and ]{asttosm impressed me as credible
witnesses when they testified about the statements they attributed Io Chis-
holm. I have credited their testimony.
Unless otherwise specified all dates in this Decision refer to 1978
s The description of this conversation is hased on Towne's estimony Chis-
holm acknowledged having a conversation with Towne about the Union at
Reno's Bar in earl) March. hut he testified that the nl) thing said about the
Union was that Towne volunteered the information that the employees were
having meetings at Christie's home I have rejected Chisholm's version be-
cause in his bearing and demeanor Towne impressed me as a more credible
witness. In so concluding, and in considering Twne's further testimony
about his March 30 cersalion with Chisholm. infti, I have taken into
with employee Christie at Reno's Bar, stated "I hear you
guys are going to go union." Christie indicated this was
true. Chisholm remarked that Respondent's owner "is not
going to go for it." Christie explained to Chisholm why the
employees felt that they had no choice but to seek union
representation. Chisholm stated that he wished the employ-
ees had spoken to him before going to the Union because
Respondent's owner "would just as soon give up the terri-
tory than go union." Chisholm asked when the next union
meeting was scheduled and whether he could be present.
Christie indicated that he would let Chisholm know when
the next meeting took place.,
On March 15 Respondent's District Sales Manager
Jerald Mason. who was visiting the Mojave warehouse, in-
vited employee Peterson, who had worked under Mason's
supervision in 1975 and 1976 when Mason was manager. to
join him ftr a cup of coffee. While in Mason's automobile
on their waly for coffee, Mason stated that he had always
been honest with Peterson and wanted Peterson to be hon-
est with him. Mason then stated that he understood that the
employees "were going union" and asked whether it was
true. Peterson indicated this was true. Mason asked what
the Union had to offer the employees. Peterson described
what the Union had to offer. Mason ended the conversation
by stating "it s going to be hard: it is not going to be easy:
that's not a threat, but it is not going to be easy for ou
guys to go union."'
On approximately March 23 Peffly. Peterson. Christie.
t'asttom, and Towne. the employees who had signed union
cards and attended the union meeting at Christie's house.
were directed by Respondent to read Respondent's work
rules and policies and to sign a statement lor Respondent
indicating that they had read and agreed to abide b, them.'
account the act that in his initiail affidavit given he Board lowne slated that
he had neser discussed the non with ( hisholm Howsever. Towne. n tesli-
fying about these cnversatins. testiftied In a straightforward, candid marin-
ner and impressed me as being an hnesl witness, whereas ('hisholm did nol
I The description of this conversation s based upon Christie's estimon
('hisholm acknowledged that he dlscussed the Union at Reno's ar with
('hrisile. hut he testified thai it .ta (Chrlstie who Initiated the convervation
by asking what (hisholm elt would happen II the emplo)ees supported ho
tinion. Chisholm further iesiitied that in response he warned Christie that
Respondenl's owner would shut the plant down and suggested to Christie
that the employees' remeds their grievances b talking about them with
Respondent's owner When Christie stated I was t* late tIr the emphlsee,
to do that as they had already signed up tir the nion. (Chisholm testified
that he stated "God be with !ou" and epressed a willingness to go with the
employees to talk with Respondent's ow, ner I have rejected ('hlsholm's testi-
mon) because Christie. in bearing and demeanor. nimpressed me as .a more
credible witness
' The description of this conversation is based upon Peterson's testimon
Mason acknowledged that he spoke t Peterson about the Union during
March while in his car on the wa? for coffee. but he presented an entirely
different version. I have rejected his testimons because Peterson Impressed
me as a more credible witness
"Peterson signed this statement on Mirch 23. Christie, March 23: Peties.
March 24. 1astiom. March 27: and Towne. March 28 I reject Papslein'
tesilmony. presented for the first time during cross-examin tion, that during
March one of the loaders was alo required to re-sign such a statement
Thus. G.C. FEsh 12, stipulated into evidence. constitutes n admission by
Respondent that Peffis. Easitorm. Towne. Peterson, and ('hristie were the
only emplo,)ees who were required in March to re-sign a statement that they
had read Respondent's work niles and policies and would abide bh them
There is no indication n that elhhit that a loader. whoi Papsten signifi-
cantl) failed to identif, was also required to re-sign such a statement Under
the circumstances, absent corroboration. I reject Papslein's lestimon! n this
point. In addition. as I have observed. intrna all of Papstein's testimosny about
this subject is extremel vgiue. evasle, and contradictory
267
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Each of these employees had previously signed such a state-
ment at about the time they started working as route sales-
men.
On approximately March 27 employees Easttom and
Towne received written disciplinary warnings.
On either March 29 or March 30 Papstein asked em-
ployee Christie whether the union button he was wearing
on his work jacket was a part of the "dress code." Christie
indicated that he did not know and asked whether it was a
part of the "dress code." Papstein answered, "no." Christie
asked whether Papstein wanted him to remove the button.
Papstein answered, "yes, that's right." Christie removed the
button and placed it in his pocket.9
On March 30 at about 9 p.m. Towne spoke to Chisholm
over the telephone under the following circumstances. Ear-
lier in the evening Towne phoned the warehouse to have
the loaders place some merchandise on his truck which he
had forgotten to load. At this time he was asked if he knew
where Peffly was since it was 9 p.m. and raining very hard,
and it was unusual for a route salesman to be cut that late.
Towne stated that he would see if he could locate Peffly. He
phoned Peffly's house without success, then phoned Reno's
Bar where Respondent's employees socialized. Peffly was
not there. However, Chisholm, who was at the bar, spoke to
Towne. Towne asked whether Chisholm knew the where-
abouts of Peffly, as the loaders wanted to know when he
was returning to the warehouse. Chisholm indicated that he
had no idea where Peffly was and asked "what do you
really want him for?" Towne repeated what he had stated
previously. Chisholm again indicated that he did not feel
this was the real reason Towne was looking for Peffly.
When Towne insisted that he only wanted to know if Peffly
was all right as it was rather late for him to be out making
deliveries, Chisholm abruptly shifted the topic of conversa-
tion to the Union. He stated that he intended to talk to
Respondent's owner for the purpose of getting the employ-
ees better working conditions including better wages and
shorter working hours, and that because of this the employ-
ees would not have to have union representation and could
just forget about the Union.
On March 30 when Peffly eventually returned to the
warehouse at about 9:30 p.m. he was summoned into the
warehouse office by Chisholm who had driven from Reno's
Bar to the warehouse. Chisholm asked Peffly why Towne
had been trying to contact him that night and asked
whether there was a union meeting being held that night.
Peffly stated that he knew nothing about a union meeting.
Chisholm warned Peffly that if he learned that he was lying
about this Chisholm would discharge him. Peffly assured
Chisholm that he was telling the truth. Chisholm stated that
Respondent expected its employees to be loyal and trust-
worthy. Peffly agreed. The conversation ended when Chis-
holm told Peffly to return to complete his paperwork.' 0
9 Papstein's instruction that Christie remove his union button is based
upon Christie's testimony. Papstein denied giving this instruction, but testi-
fied that he only asked whether the button was a part "of his dress code" or
"part of the uniform," and that Christie did not answer nor did Papstein say
anything more. I have rejected Papstein's testimony because Christie im-
preued me as a more credible witness.
10 The description of what took place on the evening of March 30 is based
on the testimonies of Towne and Peffly. Chisholm testified that one evening
in late March, but not March 30, he spoke to Towne over the phone from
Reno's Bar, Towne asked whether he had seen Peffly but did not indicate
On or about April 3 Chisholm actively resumed his posi-
tion as the manager of the Mojave facility.
During the week of April 3 Chisholm, on two separate
occasions, spoke to employee Peffly about the union button
Peffly was wearing. The first time, in the presence of Van de
Voorde, Chisholm instructed Peffly to remove the union
button he was wearing on his jacket, stating to Peffly that it
was not part of his uniform. Peffly removed the button.
About 2 days later Chisholm asked whether Peffly liked his
union button. Peffly indicated that he liked the button. In
response Chisholm stated that he hoped the union button
would get Peffly out of trouble when he got into trouble.
Peffly asked what Chisholm meant by this remark. Chis-
holm answered that Peffly should interpret it however he
wished."
On April 4 employees Peffly and Towne were issued writ-
ten disciplinary warnings. On April 6 Easttom and Towne
were issued written disciplinary warnings. On April 10
Towne and Christie were issued written disciplinary warn-
ings and Easttom and Towne were discharged. On April 19
Peffly was issued written disciplinary warnings and was dis-
charged.
On April 25 the representation election was conducted in
Case 31-RC 4077 which, as described above, resulted in a
tie vote.
C. Analysis and Conclusionary Findings
I. Respondent's responsibility for Chisholm's conduct
In March 1978, as I have found supra, Chisholm interro-
gated employees about their union activities and indicated
to employees that Respondent was opposed to the employ-
ees being represented by the Union and would discharge
them if they supported the Union. Respondent takes the
position that it was not responsible for Chisholm's conduct
during March because he was not the manager of the Moja-
ve facility and was not even employed by Respondent dur-
ing that period. I am of the opinion that Chisholm's March
statements are attributable to Respondent even if he was
not employed by Respondent. For, in view of the Act's
guarantee to employees of "complete and unhampered free-
dom of choice" as to bargaining representation, the test of
employer liability is not "the strict application of the rules
of respondeat superior," but whether "the employees woald
have just cause to believe that solicitors ... were acting for
and on behalf of management." International Association of
Machinists; Tool and Die Makers Lodge No. 35, etc. v.
N.L.R.B., 311 U.S. 72, 80 (1940). Nor is it controlling
why he was looking for Peffly, and that there was no discussion between
them about union activity. Chisholm also testified that later that evening he
rode to the warehouse with Van de Voorde who had been waiting in the bar
for Peffly to return so that he could check in his truck. Chisholm testified that
upon reaching the warehouse he asked Peffly whether the employees were
having a union meeting that night, explaining to Peffly that Towne had been
trying to reach him. I have rejected Chisholm's testimony because when
Towne and Peffly testified about the events of March 30 they impressed me
as being honest witnesses, whereas Chisholm did not.
" The description of Chisholm's remarks about Peffly's union button are
based upon Peffly's testimony. Chisholm admitted speaking to Peffly about
his union button early in April, but testified that he did not tell him to
remove it but simply asked whether it was a part of his uniform. I have
rejected Chisholm's testimony inasmuch as Peffly, in bearing and demeanor,
impressed me as the more credible witness.
268
PEPSI COLA BOTTLING COMPANY
"whether the specific acts performed were actually autho-
rized or subsequently ratified." Section 2(13) of the Act;
N.L.R.B. v. Ace Comb Company and Ace Bowling Company
Division of America Corporation, 342 F.2d 841, 844 (8th Cir.
1965). The following facts considered in the light of this
principle establish Respondent's liability for Chisholm's co-
ercive conduct in March.
(a) Although Papstein introduced Connor Regal to the
employees as the person in charge of the Mojave facility,
Papstein said nothing to the employees about Chisholm's
employment status, and the record reveals that Respondent
never told the employees that Chisholm was no longer in its
employ. In fact, the record reveals that during March a
person high up in Respondent's management hierarchy.
employees of Respondent, and one of Respondent's princi-
pal customers, were under the impression that Chisholm
was still employed by Respondent. Respondent's district
sales manager, Mason, who spent a substantial amount of
time in March working at the Mojave facility, testified that
the reason Chisholm was not present at that facility during
March was because he was absent due to sickness. Employ-
ees Van de Voorde and Towne testified that during the
period that Connor Regal worked at the Mojave facility
that they were under the impression that Chisholm was ab-
sent from work due to his vacation. The testimony of Irene
Rasmussen, the supervisor for one of Respondent' principal
customers who regularly spoke with the manager of the
Mojave facility, indicates that she was not informed that
Chisholm had been replaced of had been terminated.
Rather, she testified that during March she regarded Chis-
holm as the person responsible for seeing to it that Respon-
dent's vending machines were in good working condition.
Respondent's payroll records indicate that the person who
maintained these records believed that Chisholm, from
February 6 through 26, was an employee of Respondent."
Despite the General Counsel's request made at the start of
the hearing, Respondent failed to produce the payroll rec-
ords from February 26 to April 3: hence, I infer that they
likewise would have indicated that Chisholm was treated as
an employee during this period. I also note that the payroll
records for the period from February 6 through 26, which
list Chisholm as an employee, significantly fail to mention
Connor Regal.' 3
(b) Chisholm's March 1978 statements to employees Pef-
fly, Towne, and Christie which express Respondent's oppo-
sition to union representation were similar to Chisholm's
previous statements made to Towne and Easttom in 1977
when he stated that Respondent would discharge employ-
ees who supported a union. Accordingly, the employees in
March 1978 had good reason to believe that in continuing
to speak in derogation of union representation, Chisholm
was still speaking on behalf of management.
(c) It is undisputed that in March Chisholm was present
at the Mojave warehouse on a number of occasions and was
2 Papstein testified that he was unable to explain why Chisholm was
treated as an employee for payroll purposes during this period.
"3 Respondent's failure to explain this omission makes Respondent's con-
tention that Regal was hired as Chisholm's replacement suspect. I also note
that in its answer to the complaint Respondent admitted that Chisholm was
employed as the manager of the Mojave facility during March. It was not
until the day of the heanng that Respondent amended its answer to assert
that dunng the greater part of February and during March Chisholm was
not employed as the manager.
observed there by the employees, thus leading them to be-
lieve that his employment relationship with Respondent
had not been severed. This is particularly true in the case of
his March 30 conversation with Peffly which took place at
the Mojave warehouse in the manager's office. In this re-
gard I also note that the frequency of Chisholm's visits to
the Mojave warehouse increased substantially from March
23 through 31, as it was during that period that he worked
in the warehouse with District Sales Manager Mason re-
routing routes.'
(d) It is undisputed that on April 3, after an absence of
only 8 weeks, Chisholm resumed the duty of supervising the
employees as the manager of the Mojave facility. Each em-
ployee to whom Chisholm had spoken to in March about
the Union was still employed, so even if in March they did
not think Chisholm was speaking to them on behalf of man-
agement, they most certainly would have concluded that
this was the case following his return.
Based on the foregoing, particularly on the fact that after
only a brief hiatus Chisholm resumed his role as manager, I
am of the view that the employees to whom he spoke about
the Union in March had just cause to believe that in speak-
ing to them he was acting for and on behalf of manage-
ment. By removing Chisholm from his position as manager
for only a brief period and then reinstating him, it is my
view that Respondent placed him in a position where the
employees could reasonably believe that he was speaking
on behalf of management when he spoke to them about the
Union during the brief period that he was not the manager.
This is especially true where, as here, Respondent did not
notify the employees that Chisholm's employment relation-
ship with Respondent had been severed and where mem-
bers of management, employees, and even a customer
thought that Chisholm was continuously in Respondent's
employ, and the coercive statements that he voiced about
the Union were consistent with those he had previously
voiced to employees when he admittedly was managing the
facility. It is for these reasons considered in their totality
that I find Respondent is responsible for Chisholm's March
statements concerning the Union made to employees Peffly,
Towne, and Christie.
2. Respondent's conduct which violated Section 8(a)(1) of
the Act.
(a) As described supra, soon after the employees' union
organizational meeting, Chisholm interrogated employee
Towne about Towne's knowledge of and participation in
that meeting. This interrogation had no legitimate purpose;
Chisholm did not inform Towne of such a purpose nor did
he give him assurances against reprisal: rather, he warned
that Respondent would discharge Towne if it learned he
was a union adherent. In these circumstances the interroga-
tion violated Section 8(a)(1) of the Act. Likewise the threat
that Towne would be discharged because of his union ac-
tivities violated Section 8(aX1) as did Chisholm's suggestion
14 Based upon the credible testimony of Towne: Chisholm testified that he
worked in Mojave with Mason and Papstein only 2 days, March 30 and 31.
I have rejected his testimony because Towne impressed me as a more credi-
ble witness. In addition, neither Papstein nor Mason corrorborated Chis-
holm's testimony.
269
I)t'('ISIONS OF NA'I'IONAI. LABOR RELAI IONS BOARI)
that Towne take the employees' grievances to Respondent's
owner rather than remedy them with union representation.
Implicit in this suggestion is the promise that Respondent
would remedy the employees' grievances if the employees
abandoned their support lor the Union.
(b) On March 10, as described .upra, ('hisholm told em-
ployee Christie that he had learned the employees intended
to support the Union. This statement placed Christie in the
position of having to reveal his union sentiments and activi-
ties and those of the other route salesmen. When Christie's
answer indicated that he and the other route salesmen in-
tended to support the Union Chisholm interrogated him
about the next union meeting. This interrogation had no
legitimate purpose; ('hisholm did not indicate that it had a
legitimate purpose nor did he give Christie assurances
against reprisals. Quite the opposite, he warned Christie
that Respondent would just as soon close its business rather
than have its employees represented by a union. In these
circumstances the interrogation violated Section 8(a)(1) of
the Act. In addition, Chisholm's warning that Respondent
would close if the employees supported the Union consti-
tutes a blatant threat that the employees would be dis-
charged if' they supported the Union thus, it also violates
Section 8(a)( 1).
(c) On March 15, as described upra, District Sales Main-
ager Mason asked route salesman Peterson whether he and
the other route salesmen supported the Union. When Peter-
son answered in the affirmative, Mason in effect asked why
the employees were supporting the Union. Mason's interro-
gation of Peterson was calculated to cause him to reveal his
union sentiments and those of other employees. It occurred
in the context of Respondent's other unfair labor practices
and was without a legitimate purpose, and Mason indicated
to Peterson that the employees would have a difficult time
in securing union representation while employed by Re-
spondent. In light of these circumstances I am of the view
that the interrogation violated Section 8(a)( ) of the Act.
(d) On either March 29 or March 30. as described supra,
General Sales Manager Papstein instructed route salesman
Christie to remove his union button. Christie complied. The
record does not reveal that there were any special circum-
stances which would allow Respondent to curtail the statu-
tory right of an employee to wear a union button. Accord-
ingly, by engaging in this conduct Respondent violated
Section 8(a)( ) of the Act. See. e.g. The Oh)io Ma tic
Home, 205 NLRB 357 (1973).
(e) On March 30, as described upra. Chisholm told
route salesman Towne that the employees did not need a
union and could forget about union representation because
Chisholm intended to speak to Respondent's owner for the
purpose of getting the employees better terms and condi-
tions of employment. This constitutes a blatant promise of
improved working conditions to discourage the employees
from supporting the Union. By engaging in this conduct
Respondent violated Section 8(a)( 1) of the Act.
(f) On March 30, as described supra., Chisholm asked
employees Peffy whether the employees were holding a
union meeting that evening and threatened to discharge
m Chisholm's and Chrislie's friendship does not lessen the coercive impact
of Chisholm's conduct. See, e.g.. (aster Mold M.lachitne (orpant, Inr. 148
NLRB 1614, 1621 (1964).
him if he learned that Pefll had been disloyal to Respon-
dent by supporting the Union. ('hisholm's interrogatiot of
Peffly about the union meeting ann his threat to discharge
him if' he supported the Union violated Section 8(a)( I) of
the Act.
(g) During the first week in April, as described .supro
('hisholm directed P'efti to take off his union button. and 2
days later Chisholm asked whether Peffly liked his union
button. When Pefily answered in the affirmative, (Chisholm
stated that he hoped when Peffty got into trouble the union
button would get him out of' it. Peffly asked what ('hisholm
meant bh this remark. ('hisholm answered that Peffly
should interpret it however he wanted. I find that Respon-
dent violated Section 8(a)(1) of the Act when ('hisholm
asked whether Peffly liked his union button, directed himrn to
remove the button, and implied that wearing the union but-
ton would cause Peffmy to get into trouble with Respondent.
(h) General Counsel alleges that Respondent violated
Section 8(a)( I ) of the Act when Chisholm changed a condi-
tion of employee Easttom's employment on April 3 b re-
quiring him to wear leather hard sole shoes instead of tennis
shoes. It is the General C(ounsel's position that Chisholm
engaged in this conduct for the purpose of retaliating
against Fasttom because he was a union adherent. The
lfacts which are pertinent to an evaluation of this contention
can be stated briefly.
Respondent's policy since at least 1974 has been that the
employees must wear black leather hard sole shoes. This is
an unwritten policy. It is not included among the written
work rules with Respondent distributes to the employees.
It is undisputed that the aforesaid policy has not been
strictly enforced. Employees have been allowed to wear ten-
nis or canvas shoes rather than hard sole leather shoes. One
of these employees was Easttom, who wore tennis shoes
during the entire 12 months of his employment. The only
time anxone from management spoke to him about this was
in January 1978 when (hisholm told Easttom that he could
continue to wear tennis shoes so long as they were black.'"
At this time Easttom switched from wearing white to black
tennis shoes. Likewise it is undisputed that another em-
ploee. Craig Moore, who the record indicates was em-
ploNed by Respondent during 1977 and 1978 for about 12
months, was also allowed by ('hisholm to wear tennis shoes
during his entire term of employment.
On February 6. as described sopra, (hisholm ceased
managing the Mojave facility temporarily for 8 weeks.
Upon his return on April 3 one of his first acts was to
summon Easttom and instruct him to wear hard sole
leather shoes in place of his tennis shoes.
I agree with the General ('ounsel that when ('hisholm
instructed Easttom to wear hard sole leather shoes that he
was not motivated by legitimate business considerations,
but acted because he desired to punish Easttom for sup-
porting the Union. In reaching this conclusion I was influ-
enced by the following factors in their totalit:.
{i) Chisholm knew that Easttom was one of the employ-
ees who supported the Union. Thus, as described supra. in
March ('hisholm learned that Respondent's route salesmien
16 Based upon astlom's testimony. I hae rejected ('hishlm's tesimon 3
that in Januars 1978 he directed F.astt,m to replace his tennis shoes ith
hard sole leather shoes ILasoiln Impresed r as the more credible ,uines.
270
P I'PSI (CO I-A B() I.N( ( ()\M PANY
had held a union organizational meeting at Christie's homne.
Also. as described upr, in response to ('hisholm's interro-
gation anld Masonl's interrog;ation. route salesmen C(hristie
and Peterson confirmed Chisholm's and Mason's suspicions
that Respondent's route salesmen were union adherents.
These circumstalnces, plus the small size of the emrplo3 mient
complement and the small size of' the comn11un1ini in w hich
the Mojaxe facilit is located and the fact that during
1March ('hisholm v as interrogating emplo,ees about the
empIrloees uion activities, .arrailt a indling that ('his-
holm kne that asttonl and the four other route salesmen
who had attended the union organizational meeting were
union adherents.
(ii) As described .pr.a, Chisholm was openl' hostile
toward union representation and threatened to retaliate
against emplo'ees who supported he Union. In fact. as
fotund i/i-a, Respondent violated Section 8(a)( I ) and (3) on
March 27 and April 6 when it issued written disciplinary
warnings to Easttom because of his union acti ities.
(iii) The timing of Chisholm's instruction to Easttomn
about the wearing of leather hard sole shoes is suspect. It
was on the first day of Chisholm's return to work as man-
ager, after having learned that Easttom was a union adher-
ent, that ('hisholm abruptly revoked permission that he had
been previously granted to Easttom to wear tennis shoes
instead of leather hard sole shoes.
(iv) Chisholm offered no explanation for his abrupt en-
forcement of Respondent's leather shoe rule in asttom's
case when. for the past 12 months, it had allowed him to
wear tennis shoesf?
In summation, for 12 months Respondent allowed
Easttom to continually wear sneakers instead of leather
hard sole shoes at work. This privilege was abruptly re-
voked by manager Chisholm on Chisholm's first day back
at work after learning that Easttom w; a union adherent.
Chisholm. who vehemently opposed union representation
for the employees. had threatened to take reprisals against
employees who supported the Union. and. in fact. issued a
written disciplinary warning to Easttom because of his
union activities. These circumstances, plus Chisholm's fail-
ure to explain why, after 12 months of condoning Easttom's
sneakers, he suddenly required Easttom to wear leather
hard sole shoes. establish that but for Easttom's prounion
sentiments, Chisholm would not have required him to wear
leather hard sole shoes instead of sneakers. B engaging in
this conduct I further find that Respondent violated Section
8(a)( I) of the Act, as alleged in the complaint.'"
"1 In its brief Respondent argues that "the explanation for what occurred
is the return of Chisholm. who having been removed from his position for
failure to supervise, upon return, supervised closes the policies of the Com-
pany." I reject this explanation inasmuch as it is not hased upon Chisholm's
testimony. C'hisholm did not testify about his reason for suddenly requiring
Easnom to wear hard sole leather shoes. Also. I note that ('hisholm, accord-
ing to Respondent's evidence, was not reinstated as manager with the under-
standing that he would be more strict in his enforcement of Respondent's
work rules; rather, the record reveals that Chisholm was reinstated because
his replacement had suddenly quit. which left Respondent without a man-
ager. Chisholm was reinstated with the understanding that, as originally
indicated, he would be transferred to Respondent's Bakersfield facility when
he succeeded in selling his home.
m1 I note that the complaint does not allege that this conduct violated
Section aXh3) of the Act
3. Respondent's condiuct hich iolated Section 8(ax) I)
and (3) of the Act
(a) iTi isiltcl lislos ,liltlrl Illt ltl,i
It is undisputted that ater route salesmen asttoi.
lowne. ('hristie. and Pefilv had commenced their uion
ctivities the! recel ed written disciplinar s uarninlgs.
lowne s as issued arnings on March 27 and April 4. 6.
anld 1(: Pefflb on April 4 and 19: aistiom oin larch 27 and
April 6: and ('hristie on April 10. The complaint alleges
that these written warnings were issued because of the em-
ployees' union activities. The tollowing flactors when con-
sidered in their totalit persuade me that the General C'oun-
sel has established ;i primla a/lcic cLase in support of' this
allegation.
Shortly after Pefly. Towne, Easttom. Peterson. and
Christie attended the union organizational meeting at
('hristie's home and signed union cards. Respondent
learnied that the, were union adheretnts. " Within I motith
of its receipt of the Inion's representation petition all the
definlite knovledge that there ould he a representation
election in the near future. Respondent issued 1 written
disciplinarx warnings to 'lowne, Petly. Christie. anld
EasttonL. There is no evidence that Respondent issued een
a sinlgle ritten warning to an empl(yee who was not a
union adherent. Also there is no evidence, other thail one
written warning issued to Towne in August 1977. that Re-
spondent issued a written warning to either Peffl. Christie.
Easttom. or Towne prior to their union activities. And, the
person who issued irtuall 5 all of the disputed written
warnings, C'hisholmn. as openly hostile to the emploees
being represented by a union and threatenied to retaliate
against employees who support ia union.
Also significant in evaluating Respondent's motivation in
issuing the disputed ritten arlings is the flct that on
approximlatel\ March 23. each of' the five route salesmen
who signed a uion crd and attended the union organiztl-
tional meetilg Aas required to read the C'ompany's work
rules and policies and to sign a statement indicating that
they had read and agreed to abide b them. even though
they had previousl, signed identical statements when they
started work as route salesmen. Respondent did not require
an, of the other employees to reread its rules and policies
and sign a second statement acknowledging that they
would obey the rules.2v Included among the employees who
were exempt from signing a second statement acknowledg-
ing he had read Respondent's work rules and would obey
them was Pollack. the only route salesman who was not a
P I he evidence upon which this conclusion is based has been discussed in
the previous section which deals with Respondent's requirement that
Eastom wear hard sole leather shoes. I also note that the record. as de-
scribed supra. establishes that Towne and Christie, on March 5 and 10.
respectively. admitted to Chisholm that they were union adherents. .ikewise,
by virtue iof wearing a union button during the week of April 3. Peffl admit-
ted to Chisholm that he was a union adherent.
20 When they start work all of Respondent's employees are required to
read Respondent's work rules and policies and sign a statement indicating
that they have done so and will obey the rules.
271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union adherent. Respondent thiled to present evidence ex-
plaining why only those employees who were union adher-
ents were required to reread Respondent's work rules and
acknowledge in writing for a second time that they would
obey them. 2 Against the background of Respondent's ani-
mus, the foregoing circumstances warrant the inference that
it was because of the employees' union activities that Re-
spondent required them to re-sign statements acknowledg-
ing that they had read Respondent's work rules and would
obey them, and is evidence that Respondent had made up
its mind to issue written warnings to these employees be-
cause they were union adherents.
Based on the foregoing, I am satisfied that on the issue of
whether Peffly. Towne, Christie, and Easttom were issued
written disciplinary warnings because of their union activi-
ties, the General Counsel has established a primaJciie case.
This imposed upon Respondent the burden of going for-
ward with evidence which justified each of the disputed
warnings sufficiently to rebut the General Counsel's prima
facie case. See N.L.R.B. v. Miller Redwood Company, 407
F.2d 1366. 1369 (9th Cir. 1969).
Quintin Christie
On April 10 route salesman Christie was issued a written
warning for "missing stops." Respondent failed to present
any evidence to establish that Christie was guilty of this
alleged misconduct. Christie credibly testified that he was
not guilty. Therefore I find that Respondent failed to rebut
the General Counsel's prima facie showing that Christie's
warning was illegally motivated. I further find that this fail-
ure reinforces the inference drawn from the General Coun-
sel's prima facie case that but for his union activities,
Christie would not have been issued this warning. Accord-
ingly, I conclude that by issuing this warning Respondent
violated Section 8(a)(1) and (3) of the Act.
Charlie Easttom
On March 27 Easttom was issued a written warning by
Conner Regal who, as described above, was acting as man-
ager in Chisholm's absence. The warning states that
Easttom did not stock sufficient soft drinks for one of his
customers.
On April 6 Easttom was issued a written warning by
Chisholm which states, in substance, that he failed to clean
a customer's display, and at another customer's facility he
did not stock sufficient soft drinks and failed to keep the
customer's merchandise clean.
21 Papstein testified that as of March 23 Respondent employed six route
salesmen. The record establishes that in addition to the five route salesmen
who signed union cards and attended the Union's organizational meeting,
that the sixth one was Pollack.
22 I have rejected Papstein's testimony that the reason for Respondent's
conduct was that the personnel files for Respondent's Mojave employees had
gotten lost. Papstein was not a convincing witness when he testified about
this subject. He was vague about significant matters, appeared to be evasive,
and his testimony was contradictory and conflicted with what he had told
the Board in a pretrial affidavit. In addition, Respondent failed to produce
its bookkeeper who, according to Papstein, discovered the loss of the em-
ployees' statements. Nor did Papstein explain why the personnel files of only
the union adherents, rather than all of the employees' personnel files, sud-
denly disappeared.
Respondent did not present any evidence to substantiate
the allegations set forth in either warning. In view of this I
find that Respondent has failed to rebut the General Coun-
sel's primaliacie showing that the issuance of these warnings
was illegally motivated. I further find that this failure rein-
fbrces the conclusion drawn from the primaficie case that
but lbr his union activities Easttom would not have been
issued these warnings. Accordingly, I find that by issuing
them Respondent violated Section 8(a)( ) and (3) of the
Act.
Kenneth Towne
On neither March 20 or 27 route salesman Towne was
issued a written warning b Conner Regal who, as de-
scribed above, was the manager during Chisholm's brief
absence. The warning stated, in substance, that Towne had
failed to properly merchandise soft drinks.
On April 4 Towne was issued a written warning by Chis-
holm which, in substance, stated that he failed to properly
merchandise soft drinks for one of his customers.
On April 6 Towne was issued a written warning by Chis-
holm which, in substance, stated that he failed to properly
merchandise soft drinks for two of his customers.'3
Respondent did not present any evidence to substantiate
the allegations set forth in any one of the aforesaid written
warnings.2 4 In view of this I find that Respondent has failed
to rebut the General Counsel's prima facie showing that the
issuance of these warnings was illegally motivated. I further
find that this failure reinforces the conclusion to be drawn
from the General Counsel's primafilcie case that but for his
union activities Towne would not have been issued the
aforesaid warnings. Accordingly, I find that by issuing these
warnings Respondent violated Section 8(a)( 1) and (3) of the
Act.
Steven Peffly
On April 4 route salesman Peffly was issued a written
warning by Chisholm which stated, in substance, that he
had failed to service one of his customers, Pacific Tele-
phone, the previous Friday, and as a result the customer
had no soft drinks to sell over the weekend. Respondent did
not present any evidence to establish that Peffly was guilty
of this misconduct. In view of this I find that Respondent
has failed to rebut the General Counsel's primafacie show-
ing that this warning was illegally motivated. I further find
that this failure reinforces the conclusion to be drawn from
the prima facie case that but for his union activities Peffly
would not have been issued this warning. Accordingly, I
find that by issuing this warning Respondent violated Sec-
tion 8(a)( 1) and (3) of the Act.
On April 19 Peffly was issued a written warning by Chis-
holm, dated April 17, which stated Peffly "has been told not
23 A fourth warning, dated April 7 and issued to Towne on April 10, is
discussed infra, in the section which discusses Towne's termination.
24 The sole testimony presented by Respondent about these warnings was
Chisholm's conclusionary testimony that he issued Towne a written warning
for not merchandising a store. Chisholm also testified that he issued another
warning to Towne for skipping a stop, but he did not testify about the
particulars of this alleged warning, and no evidence was presented to estab-
lish that such a warning was ever issued. Accordingly, I reject his testimony
that such a warning was ever issued.
272
PEPSI COLA BOTTLING COMPANY
to come in before 3:30 p.m. and on April 17 he came in at
3 p.m. anyway."'2 Peffly testified he returned from his deliv-
eries to the warehouse on April 17 before 3:30 p.m. How-
ever, Respondent presented no evidence that Peffly was
ever warned about returning early or that Peffly had previ-
ously engaged in this conduct. In view of this I find Respon-
dent has failed to rebut the General Counsel's prima Jcie
showing that but for Peffly's union activities this warning
would not have been issued. Accordingly, I find that by
issuing this warning Respondent violated Section 8(a)(1)
and (3) of the Act.
On April 19 Peffly was issued three additional written
warnings. The warnings dated April 18, unlike the other
warnings issued to Peffly, concerned his work at Edwards
Air Force Base, where he serviced Respondent's vending
machines. These warnings stated that Peffly failed to re-
place empty soft drink containers with full containers;
failed to clean a machine which was so dirty that it had
mold and mildew in the precool compartment; failed to
check with Irene Rasmussen. Edwards Air Force Base's
vending machine supervisor, to determine which vending
machines needed to be serviced; and failed to service sev-
eral vending machines which, as a result, ran out of soft
drinks. The evidence which is pertinent to an evaluation of
whether Respondent had legitimate reasons for issuing
these warnings and even absent Peffly's union activities
would have issued them, is as follows:
For several years Respondent has had a contract with the
United States Army and Air Force Exchange Service to
furnish soft drinks to the personnel at Edwards Air Force
Base. This contract is a significant one and constitutes a
substantial portion of Respondent's business. The soft
drinks are sold through vending machines located in the
various buildings at Edwards Air Force Base. The person
employed by the exchange service to supervise the services
provided by the several vendors who do business at the base
is Irene Rasmussen.
On March 6 Peffly started servicing Respondent's vend-
ing machines at Edwards. He replaced route salesman Pe-
terson who, for about 2 years, had serviced this route. Dur-
ing Peterson's tenure there were occasional complaints
made by Rasmussen to Respondent about his work, but the
complaints were not excessive. In general Rasmussen was
satisfied with Respondent's service. This changed when Pef-
fly took over the route. Rasmussen, a disinterested witness
who impressed me with her sincerity, testified that through-
out his employment she complained to both Chisholm and
Papstein about Peffly's work. In particular she complained
about the fact that the vending machines were dirty, as they
were not being cleaned by him, and that there were an
excessive number of empty vending machines which indi-
cated that Peffly was not servicing them. Papstein credibly
testified that in late March he met with Rasmussen and her
supervisor, and that they were extremely critical of Respon-
dent's service at Edwards Air Force Base, particularly
about the excessive number of vending machines which
were empty. They also indicated to Papstein that the quar-
U Peffly's undenied and credible testimony is that this warning was handed
to him for his signature on April 19 with three other written warnings per-
taining to his work at the Edwards Air Force Base. I also note that Respon-
dent's General Manager Papstein corroborated this testimony.
terly report issued by the exchange service, which evaluated
Respondent's service for the first 3 months of 1978, would
be extremely critical.
In response to the aforesaid criticisms about Respon-
dent's service. Papstein and Chisholm met with Peffly early
in April, at which time Papstein warned that he did not
intend to allow Peffly's poor work performance to jeopar-
dize Respondent's contract with the exchange service for
Edwards Air Force Base, and that he expected Peffly to
keep the vending machines clean and fully stocked and to
check daily with Rasmussen about customer's complaints.
Papstein also warned Peffly that if his work did not improve
he would be discharged. 6
During the week of April 10 Respondent received the
quarterly report issued by the Army and Air Force Ex-
change Service which evaluated Respondent's service at
Edwards Air Force Base for the first 3 months of 1978. The
report informed Respondent, among other things, that dur-
ing this 3 month period there were 73 complaint calls from
customers involving empty vending machines, and out of 96
machines inspected by Rasmussen 39 were dirty. The report
also warned Respondent "that immediate action is neces-
sary to reduce the number of complaints for empty and
dirty/unsanitary machines" and that "positive action must
be taken to eliminate complaints of this nature."2 ' In com-
parison with prior quarterly reports, this one was the most
critical ever received by Respondent concerning empty and
dirty machines.
On April 18 Peffly was absent from work so Respon-
dent's utilityman Van de Voorde serviced his route. While
servicing Peffly's route Van de Voorde discovered an exces-
sive number of empty vending machines. By checking the
prior delivery dates, he determined that they were empty
because Peffly had failed to service them as scheduled. In
addition, he discovered machines were dirty, found mold
growing inside the precool compartment of one machine,
and also observed that there was old merchandise in that
machine. Rasmussen told him that Peffly had not been call-
ing her so she could advise him about machines that were
empty or which otherwise needed servicing. That evening,
when Van de Voorde returned to the Mojave warehouse, he
reported to Chisholm what he had discovered. Chisholm,
after verifying this report with Rasmussen, instructed Van
de Voorde to write out a warning notice concerning Peffly's
improper conduct, and, since Chisholm would not be avail-
able until the evening of April 19, to have Peffly sign the
warnings. Chisholm also instructed Van de Voorde that
since he would not be at the warehouse until the latter part
of April 19, that Van de Voorde should pull Peffly off of the
route with pay and substitute for Peffly, and that Chisholm
upon his return on April 19 would speak with Peffly about
the warnings. Van de Voorde wrote out the warning no-
26 Based on a composite of the testimonies of Papstein. Chisholm, and
Peffly. However, to the extent that Peffly's testimony is inconsistent with
Chisholm's and Papstein's, I have credited the latter two as they impressed
me as more credible witnesses when testifying about this meeting.
27 An analysis of the logs and inspection reports which were attached to
the quarterly report reveals that of the 73 customer complaints about empty
vending machines, 40 were voiced during the 21 workdays Peffly serviced the
base and 33 during the 44 workdays Peterson serviced it. Regarding the 39
dirty machines. 10 were discovered during Peffly's tenure and 29 during
Peterson's.
273
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
tices, and the next morning at the start of the workday, he
issued them to Peffly and had him sign them.
To recapitulate, the record reveals that immediately after
Peffly commenced servicing the Edwards Air Force Base
account, one of Respondent's most important accounts, Re-
spondent received complaints about his work from that cus-
tomer which were more serious and extensive than any
complaints made in the past. The customer put Respondent
on notice that its service would have to improve. Respon-
dent, in turn, verbally warned Peffly that his work at Ed-
wards Air Force Base would have to improve or he would
be discharged: however, subsequent to this warning, on
April 18, Respondent discovered that Peffly was still doing
the same things which the customer had been complaining
about. It was at this point that Respondent decided to is-
sue him the April 19 written disciplinary warnings. There is
insufficient evidence that in issuing these warnings Respon-
dent was guilty of disparate treatment. These circumstances
in their totality persuade me that Respondent had rebutted
the General Counsel's primafacie case and established that
Peffly would have been issued these warning notices during
the normal course of business even absent his union activi-
ties.,8
Based on the foregoing I find that the General Counsel
has not proven by a preponderance of the evidence that the
reason for the issuance of the Edwards Air Force Base dis-
ciplinary warnings to Peffly was a pretext and that the real
reason was Peffly's union activities. Accordingly, I shall rec-
ommend that this portion of the consolidated complaint be
dismissed.
b. The discharge
(I) Towne's discharge
On April 7 when route salesman Towne returned to the
warehouse at the end of the workday he did not remove the
empty cardboard containers or the hand truck from his
truck. Nevertheless, utilityman Van de Voorde checked the
truck in.
On the next workday, April 10, at the start of the work-
day Chisholm called Towne into his office and handed him
a written disciplinary warning for not removing the empty
cardboard containers and hand truck from his truck. Chis-
holm asked whether Towne agreed with the warning.
Towne indicated his disagreement and asked what the con-
sequences would be if he signed the warning. Chisholm an-
swered, "I think you know." Towne stated, "out the door,
right." Chisholm nodded his head in the affirmative. Towne
signed the warning and left the premises under the impres-
sion that he had been terminated.29
2 I note that the record establishes that even prior to the employees' union
activities Respondent issued written warnings to its employees for unsatisfac-
tory work. I reject General Counsel's contention that from September 1974
until March 1978 only two employees were issued such warnings. The warn-
ings referred to by the General Counsel were stipulated into evidence as
samples of the warnings issued during this period, not as the sole warnings
issued. Indeed, it is undisputed that in August 1977 Towne received a written
warning. Also I reject General Counsel's contention that Respondent's fail-
ure to issue a written warning to Peterson establishes disparate treatment.
Edwards Air Force Base's complaints to Respondent about Peterson's work
were sporadic, whereas the complaints voiced about Peffly were continuous.
291 reject Chisholm's testimony insofar as it can be construed as denying
that he did not indicate to Towne that Towne correctly assumed that on
Based on the foregoing I find that on April 10 Respon-
dent discharged Towne, ostensibly for failing to clean out
his truck. 0 I also find that the record establishes that the
real reason for Towne's discharge was his union activities.
Respondent's assertion that Towne was discharged as a
result of his failure to clean out his truck on April 7 is
significantly beclouded by the fact that prior to April 7
Towne had engaged in identical conduct and was not criti-
cized or disciplined. Towne, who testified in a straightfor-
ward and convincing manner and impressed me as a sincere
witness, testified that although he normally removed the
empty cardboard containers from his truck, that prior to
April 7 on several occasions he had failed to do this but was
not spoken to or criticized." Indeed. Respondent's witness
Van de Voorde admitted that prior to April 7 Respondent
had absolutely no problem with Towne about the cleanli-
ness of his truck as "he kept a real good truck." 2 The fur-
ther testimony of Van de Voorde corroborates Towne's tes-
timony that Respondent, prior to Towne's union activities,
had condoned Towne's conduct when he failed to remove
empty cardboard containers and the hand truck from his
truck. Thus, although trucks are not supposed to be
checked in until the empty cardboard containers and hand
truck have been removed, on April 7 Van de Voorde
checked in Towne's truck even though this material was
still on the truck. 3
account of his failure to clean out the truck, Chisholm intended to send him
"out the door." Towne, who testified in a straightforward and convincing
fashion and impressed me as an honest and reliable witness, was a more
credible witness than Chisholm. I also reject the testimony of Respondent's
witnesses Van de Voorde and Wahlgemuth, neither one of whom impressed
me as having a reliable memory of this incident. Van de Voorde failed to
remember that Towne, as Towne and Chisholm testified, asked Chisholm
whether the written warning meant that he would be "out the door." Like-
wise, it is plain that Wahlgemuth's memory of this incident is unreliable.
Thus, in an affidavit furnished the Board shortly after the occurrence, Wahl-
gemuth stated "I do not remember what was said between [Chisholml and
[Towne] .... I am very vague as to what was said or what Towne did after
receiving the write up, only that he left the office." In explaining his poor
memory Wahlgemuth testified that he was not paying much attention to
what was going on because the matter was of no concern to him, and that at
the time he was busy "looking over" his own paperwork.
0 I reject Respondent's contention that Towne voluntarily quit his em-
ployment. It is my view that by stating to Towne that "he was out the door,"
Chisholm created a situation which was calculated to lead a prudent person
to believe that his tenure had been terminated even though Chisholm did not
directly and specifically tell Towne that he was discharged. See, generally,
N.L.R.B. v. Hale Manufacturing Co., 570 F.2d 705 (8th Cir. 1978).
1 I reject Papstein's testimony that in March he asked Towne to remove
excess cardboard from his truck. Initially Papstein was vague as to whether
he ever spoke to any of the route salesmen about cleaning their trucks. He
testified "probably I done it once," then testified he remembered speaking to
either Pefity or Towne, and then testified he was "sure" he had spoken to
Towne. In beanng and demeanor, Papstein, while presenting this testimony,
gave me the distinct impression that he was fabricating it. As noted supra,
Towne credibly testified that prior to April 10 he was not spoken to about
cleaning out the excess cardboard from his truck.
32 This testimony makes Papstein's testimony that he spoke to Towne
about the cleanliness of his truck extremely suspect.
11 I reject Van de Voorde's testimony that on April 7, when he checked in
Towne's truck, that he specifically indicated to Towne that he should remove
the cardboard containers and hand truck. Towne, who testified he received
no such order, impressed me as a more credible witness. In addition, as I
have described infra, Van de Voorde's testimony and Chisholm's testimony
concerning the events which took place on April 7 are in hopeless conflict,
which indicates to me that they are not trustworthy witnesses concerning
matters which took place on that day.
274
PEPSI COLA BOTTLING COMPANY
Aside from the fact that prior to April 7 Towne had kept
a clean truck, that on the few occasions when he had failed
to remove the trash from his truck he had never been spo-
ken to or disciplined, and that his truck was checked in on
April 7 even though the empty cardboard containers and
hand truck had not been removed, the inference that the
reason for Towne's disciplinary warning and discharge was
not his failure to clean out the truck is substantiated further
by the inconsistencies reflected in the testimonies of Re-
spondent's witnesses. Although it would seem that disci-
plinary action, when predicated on bona fide grounds,
would produce harmonious explanations. Respondent's
witnesses gave sharply conflicting testimonies concerning
the events which supposedly prompted Respondent to disci-
pline and discharge Towne on April 10.
Concerning the events of April 7 which led to Towne's
written warning and discharge. Chisholm testified that on
April 7 at the end of the workday. "I happened to go out
and inspect [Towne's] truck" and discovered it was full of
trash and a hand truck; so. Chisholm further testified, he
instructed Towne to remove the trash and the hand truck
but that Towne refused. Chisholm then testified that he told
Van de Voorde to instruct Towne to remove the trash and
the hand truck, and that Chisholm observed Van de Voorde
tell this to Towne but Towne refused to obey this order and
left the warehouse. Chisholm's story does not ring true. I
find it difficult to believe that if Towne were guilty of the
gross insubordination attributed to him that Chisholm
would not have issued him a disciplinary warning and dis-
charged him for insubordination rather than for just failing
to clean out his truck?' Moreover, Chisholm's version of the
events which took place on April 7 was not corroborated by
Respondent's witness Van de Voorde. Thus, according to
Van de Voorde, it was only after Towne left the warehouse
on April 7 that Van de Voorde discovered that Towne had
not removed the trash from his truck at which time, Van de
Voorde testified, he notified Chisholm who accompanied
Van de Voorde to Towne's truck to verify the fact that
Towne had not cleaned it.
Against the foregoing background. I find merit to the
General Counsel's contention that the real reason for
Towne's April 10 written warning and discharge had noth-
ing to do with his failure to clean out his truck: rather, I
find that but for Towne's union activities he would not have
been either issued a written warning or discharged. That
the real reason for Towne's disciplinary warning and dis-
charge was his union activities is vividly demonstrated by
the sequence of events which took place immediatley prior
to his warning and discharge. Early in March when Chis-
holm interrogated Towne about his union activities, he dis-
covered that Towne was a union adherent and threatened
to discharge him if he continued to support the Union: and
thereafter, later in March and during the week of April 3,
Respondent issued three separate disciplinary warnings to
Towne because of his union activities.
Based on the foregoing I find that the moving cause be-
hind the written warning issued to Towne on April 10 and
his discharge on that day was his union activities, therefore.
4 I note that Towne, who was a more credible witness than Chisholm.
denied that he was instructed to clean out his truck on April 7.
by engaging in this conduct I find that Respondent violated
Section 8(a)( 1 ) and (3) of the Act.
(2) Easttom's discharge
The circumstances surrounding Easttom's discharge fol-
low. On April 3. as described supra. Chisholm instructed
Easttom to stop wearing tennis shoes at work and to wear
hard sole leather shoes. Chisholm indicated that upon the
receipt of his next paycheck, which he was scheduled to
receive April 7, he would comply with Chisholm's instruc-
tion. However, Easttom's paycheck amounted to only $45.
so he was unable to purchase a pair of shoes. Because of
this fact he arrived for work on April 10 wearing his usual
tennis shoes. At that time, in the presence of utilityman Van
de Voorde. Chisholm asked why Easttom was not wearing
leather shoes. Easttom explained that his paycheck had
been so small that he could not afford to purchase the
leather shoes but would do so when he received his next
paycheck. Chisholm replied: "hit the road."" Easttom left
the office and went into the drivers' room where he re-
moved certain personal belongings from his desk, and, be-
cause he was upset about the treatment he had received
from Chisholm. stated that he was tired of "this shit" and
was going to "quit." His remarks were overheard by Re-
spondent's repairman Klingenburg.
On April 10 Easttom went to the Union's office in order
to complain about his treatment by Chisholm. He was in-
structed by a union business agent to return to the ware-
house for the purpose of speaking to Chisholm about his
employment status. That same afternoon Easttom returned
to the warehouse where he spoke to Chisholm who, in re-
sponse to Easttom's inquiry, indicated that Easttom had
been "fired." 3 6
Based on the foregoing I find that on April 10 Chisholm
discharged Easttom, ostensibly for failing to comply with
Chisholm's instruction to wear leather hard sole shoes in-
" Based on Easttom's testimony Chisholm testified that on April 10 when
Easttom indicated he could not afford to purchase the leather shoes that
Chisholm told him Io go home and not return for work until he had gotten
the shoes. Van de Voorde. called b Respondent to corroborate Chisholm.
testified that Chisholm issued Easttom a wntten warning for his failure to
wear leather shoes. This testimony conflicts not only with Easttom's but also
with Chisholm's Also. in his initial testimony Van de Voorde significantl;
omitted any instruction by Chisholm that Easttom should go home until he
purchased the shoes. Rather, he testified that when Chisholm questioned
Easttom about the shoes that Easttom did not answer but just laughed and
walked out of the room without waiting for Chisholm to say anything fur-
ther. It was only in response to a leading question that Van de Voorde
testified that Chisholm told Easttom to go home until he got his leather
shoes. I have credited Easttom because he impressed me as a more credible
witness than either Chisholm or Van de Voorde.
3 Based on the testimonies of General Counsel's witnesses Easttom and
Christie, who impressed me as more credible witnesses than Respondent's
witnesses Klingenburg and Chisholm. who testified that Chisholm Informed
Easttom that he understood Easttom had quit and, in reply., Easttom ac-
knowledged that this was true. In addition to observing that Easttom and
Christie seemed to be more sincere than either Klingenburg or Chisholm
while testifying about this episode, I also note that the record establishes that
Chisholm could not have known Easttom had expressed an Intention to quit
his employment. Thus. Klingenburg, who Chisholm testified was the person
who informed him that Easttom had indicated he had quit. denied furnishing
this information to Chisholm. Klingenburg. who impressed me as a more
credible witness than Chisholm on this matter. testified that he was "posi-
tive" that he did not tell Chisholm what he had overheard Easttom saN in the
dri'ers' r,oom
275
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
stead of tennis shoes." I have previously found, spra, that
Chisholm's instruction that Easttom wear hard sole leather
shoes rather than tennis shoes was not motivated by a legiti-
mate business consideration but by Chisholm's desire to
retaliate against Easttom for supporting the Union. A /irti-
ori, by discharging Chisholm for failing to obey this unlaw-
ful instruction Respondent discharged him because of his
union activities, therefore, by engaging in this conduct Re-
spondent violated Section 8(a)(1) and (3) of the Act.
(3) Peffly's discharge
On April 19 when Peffiy arrived for work he was sum-
moned to Chisholm's office by utilityman Van de Voorde.
and in the presence of employees Pollack and Wahlgemuth,
he was given four written warnings. Three were dated April
18 and involved his work at Edwards Air Force Base, and
the fourth was dated April 17 for returning from his route
early'. There was very little conversation. Peffly questioned
Van de Voorde about the warnings, and at Van de Voorde's
request signed them and asked whether they meant he was
fired. Van de Voorde answered "yes" and asked Peffly for
the keys to his locker and the vending machines. Peffly gave
him the keys and left.38
Peffly's discharge took place in the following context. On
March 30, Chisholm, in violation of Section 8(a)(1) of' the
Act, threatened to discharge Peffly if he learned that Peffly
was disloyal to Respondent by supporting the Union. The
next week, the week of April 3. Chisholm observed Peffly
wearing a union button, and in further violation of Section
8(a)(1) directed him to remove the button and implied that
wearing the button would cause Peffly to get into trouble
with Respondent. Chisholm again violated the Act when,
on April 4 and 19. he issued written warnings to Peffly
because of his union activities. These circumstances estab-
lish a prima facie showing that Peffly's April 19 discharge
was motivated by Respondent's animus against him be-
cause of his union activities. This showing imposed upon
Respondent the burden of going forward with evidence to
justify Peffly's discharge. I am of the opinion for the reasons
set forth below that Respondent has not rebutted the Gen-
eral Counsel's prima facie case.
" I reject Respondent's contention that Easttom voluntarily quit his em-
ployment. If there was any doubt about whether Chisholm's instruction that
Easttom "hit the road" would logically lead a prudent person to believe his
employment had been terminated (see NL.R.B. v. Hale Manufacturing Co.,
supra,) the doubt was removed by Chisholm's later unequivocal indication to
Easttom that he had been "fired." I also note. according to the credible
testimony of route salesman Towne, that Chisholm at the start of the work-
day on April 10 informed Van de Voorde to "get Easuom out of here, I don't
want him here any more." (Emphasis supplied.) This is additional evidence
that Easttom was discharged.
's Based on Peffly's testimony. I reject Van de Voorde's testimony that
Peffly admitted he was guilty of everything stated in the warnings. became
irate, and in a loud voice swore at Van de Voorde and called him a son of a
hitch. Peffly while testifying about this conversation, impressed me as a more
credible witness. In addition, Respondent's witness Wahlgemuth did not cor-
roborate Van de Voorde: rather, consistent with Peffly's testimony. Wahlge-
muth testified "there was not too much conversation" between Peffly and
Van de Voorde, that Peffly asked several questions about the warnings, then
signed them and left. In my view, if Peffly had raised his voice and berated
Van de Voorde and admitted he had engaged in the conduct set forth in the
warnings. I am convinced that Wahlgemuth would have remembered
Regarding the identity of the person who decided to dis-
charge Peffl. Papstein gave testimony for Respondent that
was self-contradictory and inconsistent with Chisholm's tes-
timon F and Van de Voorde's testimony. Papstein testified
the discharge was the result of "an understanding between
myself and Tony Chisholm." but he also inconsistently tes-
tified that Chisholm had nothing to do with the decision, as
Papstein made it by himself. Papstein further testified that
he communicated his decision to Chisholm with instruc-
tions to discharge Pleffiy. Chisholm, called as a witness by
Respondent. failed to corroborate Papstein but testified to
the contrary that he never discharged Peffly nor gave in-
structions that Peffly was to be discharged. Likewise, the
testimony of Van de Voorde, a witness called by Respon-
dent, is to the effect that Papstein had nothing to do with
Peffley's discharge which, according to Van de Voorde, was
the result of an unauthorized frolic on the part of Van de
Voorde.
Regarding the reason for his decision to discharge Peffly.
Papstein's testimony was inconsistent. Thus, he testified
that "the only reason" for his decision was Peffly's poor
service at Edwards Air Force Base: but he then testified
that while the quarterly report received by Respondent
from the base exchange service, which was extremely criti-
cal of Respondent's service, was the thing which triggered
his decision to fire Peffiy. that the report would not have
resulted in Peffly's discharge if Peffly had not been issued
written warnings for misconduct engaged in prior to the
receipt of the quarterly report.3?
Regarding the timing and the execution of Peffly's dis-
charge. Papstein failed to explain why, if the receipt of the
quarterly report from the base exchange service triggered
the discharge. Peffly was not discharged when the report
was supposedly received on April 124° or at the very' least by
April 14. which was the end of the work week. In addition.
Papstein's testimony that upon receipt of the report he in-
structed Chisholm to discharge Peffly was contradicted by
Chisholm's testimony. Not only did Chisholm fail to cor-
roborate Papstein. but he testified that he never discharged
or gave instructions that Peffly was to be discharged. And,
as described .supra, Chisholm and Van de Voorde testified
for Respondent that on April 18 Chisholm told Van de
Voorde to issue four written warnings to Peffly on April 19,
and that since Chisholm would not be available until later
that day that Van de Voorde should service Peffly's route
and instruct Peffly to wait for Chisholm's arrival at the
warehouse at which time Chisholm would talk to him about
the warnings. Thus, it is clear from Chisholm's testimony
and actions that he never received any instruction from
Papstein to discharge Peffly. Nor is there an iota of evi-
dence that Chisholm, intended to discharge Peffly on April
19. C('hisholm did not testify that this was his intention. In-
deed, the fact that Chisholm chose to issue Peffly written
warnings on that date for his poor work performance at
Edwards and intended to discuss the warnings with him
9 The only written warning issued by Respondent to Peffly prior to Re-
spondent's receipt of the quarterly report was the illegal one issued by Chis-
holm on April 4. stating that he had failed to make a delivery.
4 The quarterly report, on its face, indicates that it was prepared for mail-
ing on pril 7. and there is no es idence that it was not mailed on that date.
Initially. Papstein testified that he received the report "shortly after April 7"
but later testified it was received approximately on April 12.
276
PPI'SI (COlA BOTTLING( C()MPANY
indicates that Chisholm intended to give Petils another
chance to improve his work performance.
Finally, the evidence presented by Respondent to explain
how Peffly's discharge came about is patentl5 implausible.
If Chisholm's testimonv and Van de Voorde's testimon is
credited, then Peffly's discharge was the result of a mistake.
They testified that Van de Voorde v*as a rank-and-file em-
ployee who was without the authority to discharge employ-
ees and had not been granted the authority to fire Pefl 5, but
had been onl\ commissioned by Chisholm to perrillrm the
ministerial act of handing Peffl' the written warnings au-
thorized hby Chisholm and to instruct Peffl 3 to sign the
warnings and wait at the warehouse tor Chisholnl to return
and talk to him about the warnings. Ihlo ever. Van de
Voorde testified that he discharged Pefil* in a it of anger.j
Chisholm and Van de Voorde further testified that after
effecting this unauthorized discharge that Vall de Voorde
never told Chisholm what he had done. Apparentl thex
would have me believe that even though Van de Voorde
discharged Pefflt on a frolic of his own. that he tailed to
notify Chisholm: or theN would have me believe that hen
Peffiy failed to come to the warehouse and speak to (lhis-
holm about his warnings that Chisholm cid not e en ques-
tion Van de Voorde, but presumed Petflv had quit: or theN
would have me believe that if Chisholm did question Valn
de Voorde that Van de Voorde failed to inform him that he
had fired Peffly. I do not believe that I have to he this nais e.
In short. as in the case of Papstein's testimony concerning
Peffly's discharge. I am convinced that the testimonies of
Van de Voorde and Chisholm concerning Pefil's discharge
were fabrication.42
In summation, I am persuaded that an ealuation of the
evidence presented by Respondent to justift Pleffie's dis-
charge reveals that in such significant are;as as the identit\
of the person who decided upon Peffi3's discharge. the date
this decision was reached, the reason for the decision. and
the manner in which it wvas effectuated the evidence is in-
consistent, self-contradictory. implausible. withoult corrobo-
ration where corroboration should have been readilb avail-
able, and presented by witnesses who did not impress me as
credible. It is for these reasons that I reject Respondent's
contention that Peffly was discharged for legitimate busi-
ness considerations. Although it would seem that a dis-
charge predicated on bona fide grounds would produce har-
monious explanations and a straightforward story
describing the discharge. Respondent's witnesses presented
1 Van de Voorde testified. in substance. hal he v:as angry hecause he had
to service Peffly's route that day.
42 In addition to the above-described incnsistencies. elf-conradictions.
and implausibilities, which are characteristic of Respondent's case-in-chief
justifying Peffly's discharge, I note that each of the witnesses who testified for
Respondent concerning Peffl)'s discharge-Papslein. Chishlm. nd Van de
Voorde-in manner and demeanor while presenting teslirnony pertianing
Peffly's discharge, impressed me as an evasive and unreliabhle witness
4)1 recognize and have carefully considered hat on April 19. the dale ,if
his discharge, Peffl received four hona fide disciplinar. warning, ftr his
poor work at Edwards Air Force Base. and that earlier that salme monlh he
was threatened wiih discharge if his work at Fdwards did noi impro e I am
satisfied, however. as foulnd upr. that on April 19 Reponden did not niend
to discharge Peffl hut merel intended i ge hirn four discipln.ar warn-
ings for his poor work at Edwards. As I have discussed in detil Ulqra. the
evidence which Respondent presented to eplain Pefts's di.charge is unbe-
lievable, which reinforces the General Counsel's prima la, , howi g that the
moving cause of Peffl?'s discharge was his union activllles
a stors characterized by inconsislencies and improbahil-
ilies.
Based upon the lforegoing I find that Respondent failed
to rebut the General ('ounsel's prilial /lc(i showing that the
movinig cause of Petlv's discharge was his union activities.
and I further find that this failure reinforces the conclusion
that but for his union activities Peffly would not have been
discharged.M4 Accordingly. I find that by discharging Peffly
Respondent violated Section 8(a)( I ) and (3) of the Act.
11. II (11 \1 I(i I) BAI I () Is 1 111 Rl PRlSIN I I 11
( ASI
I'he ballots of (harlie asttom. Kenneth lToine. and
Steven PettIN were challenged by the Board agent who con-
ducted the election hecause their names did not appear on
the eligibility list prepared b Respondent. I have found.
supr,. Respondent unlasfull discharged each of them in
violation of Section 8(a)( 1 ) and (3) of the Act, therefore I
shall recommend that the challenges to their ballots be
o, erruled.
The ballot of Charlie Van de Voorde Aas challenged b}
the Unionl on the ground that he as a statutor 3 supervisor.
I an of' the view that the record ails to establish that Van
tie Voorde as a statutor supersisor.
Van de Voorde begaln ork lor Respondent at its \Mojave
warehouse in about Julk 1974. lie unloaded trucks for I
month, worked as a route salesman for I-1 /2 years. and for
the remainder of his emploNment. which includes the time
material to this case, worked as a utilityman. As route sales-
man he received a salar) plus conimission. As utilityman he
received nlL a salar . This resulted in his earning less
moneN than hen hlie v orked as at route salesman. During
the period th;li he soorked as a utilit)man Van de Voorde
was givien the title of' route mnanager. "5 and during "some of
the time" ad an oltice of his o n.
While emplo\ed as route manager. Van de Voorde nor-
mally perfiorled all of' the jobs necessary to the operation
of the varehouse. tle fixed ending machines. installed
them, trained new emploNees. loaded trucks when loaders
were absent. serviced routes when route salesmen v ere ab-
sent. and checked in trucks at the end of the workday.
The lUnion contends that Van de Voorde was a statutor)
supervisor within the meaning of Section 2(11) of the Act ~
because he possessed the authorit, to discipline and to fire
emplo ees. to recommend employees' promotions, and to
responsibly direct emplo ees. I disagree.
' I also note hat Paptein's admission at the hearing hal Peffly would not
have been discharged but for the writien warnitng of April 4 b itself estab-
lishes a sIlation of the Act. inasmuch as I hase found, s.pra, that this
,warning .as isstled becaiuse of' Peffls's union activities. In vie of this. Pap-
stein's adnmission constitutes an admlssion that but for Peffl's union activi-
ties he would not have been discharged
,' Based on the lestimonies of Towne and Peffl, who impressed me as
more credible witnesses Ihan Van de Volrde, whose denial I have rejected.
, Sec. 211 defines a. supervisor as
In? Indisldual haling aluthoril n Ihe interesl of the employer. to
hire, transfer. suspend. laloff, recall, promolte. dscharge. assign, reward.
or discipline other emplolees. or responsibillty to direct them. or to
adjust their griesanes. or effectilels iio recommend such action, if in
connectlon with the forcgonmg the exercise if such authority is not
merel , of a routine r clericall natulre, hbut requires the use of Indepen-
dlenl J Lldglmllc
277
I)[('ISIONS OF: NAIlIONAI. I.ABOR REI.AIIONS BOARI)
Regarding the contention that Van de Voorde possessed
authority to discharge employees, the sole evidence of this
is his testimony that he discharged Petfl. However. Vlan de
Voorde also testified that he lacked the authority to do this
but acted in a moment of anger on a frolic of his own. As I
have indicated, supra, I am of the opinion that Van de
Voorde's testinmony pertaining to Peflyr's discharge is a lfb-
rication; however, since there is a lack of aflirmative evi-
dence that he possessed the authority to discharge employ-
ees, I reject this contention.
Regarding the contention that Van de Voorde possessed
the authority to discipline employees or to effectively rec-
ommend their discipline, the record indicates that in those
instances where Van de Voorde was connected with the
issuance of a written disciplinary warning, it was Respon-
dent's policy that the manager of the Mojiave acility con-
duct an independent review prior to the issuance of the
warning and to affix his signature on the warning. And in
those instances where Van de Voorde verbally reprimanded
an employee, there is no evidence or contention that his
verbal reprimands affected the employees' employment sta-
tus.
Regarding the contention that Van de Voorde responsi-
bly directed employees, the Union points to the fact that he
instructed new employees and inspected the work of all em-
ployees. Simply because an experienced employee gives in-
struction to less knowledgeable ones, in order that they may
effectively perform their work, does not confer supervisory
status within the meaning of the Act.47 Nor does the ftact
that Van de Voorde inspected the work of employees con-
stitute, per e, the exercise of independent judgment suffi-
cient to confer supervisory status, especially where, as here.
the evidence does not establish that he has the authorit to
discipline the employees without the manager's approval
after an independent investigation.
Regarding the contention that Van de Voorde has the
authority to recommend that employees be promoted, the
record fails to establish that he had the authority "eflee-
tivev to recommend such action" (emphasis supplied) as
required by Section 2( 1 ) of' the Act.
Based on the foregoing and whole record. I find that the
evidence in its totality does not establish that Van de
Voorde possessed a single indicia of supervisory authority
enumerated in Section 2(11 ) of the Act.4 Accordingly, I
shall recommend that the challenge to his ballot he over-
ruled.
IItt. li RIMLY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
7 Ltikewise, the fact that when C(hisholm was not in the warehouse Van de
Voorde was authorized to deal with employees problems is simply a kind of
routine direction custonmarily exercised by an experienced employee oer
those with less experience and does not confer supervisory status within the
meaning of the Act.
' In so concluding, I have considered the fact thai Van de Vox)rde had the
title off route manager. that some of the time he had his ,ow ,,office, that some
of the employees regarded him as a supervisor. and that employee Peftly
received tinme off from work b asking Van de Voorde's permission. Absent
es idence of actual possession o( supervisory authoritl, these secondary indi-
cia oI supervision are not controlling.
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged Kenneth
Towne. Steven Petffly, and Charlie Easttom in violation of
Section 8(a) I) and (3) of the Act, I recommend that Re-
spondent be ordered to offer them reinstatement and to
make them whole for any loss of earnings and other benefits
resulting from their discharge. by payment to them of a
sum of money equal to the amount they normally would
have earned as wages and other benefits, from the dates of
their discharges, to the dates on which reinstatement is of-
fered. less net earnings during that period. The amount of
backpay shall be computed in the manner set forth in F W.
Wtool/worth Company, 90 NLRB 289 (1950). with interest
thereon to he computed in the manner prescribed in Florida
Steeccl Corporation. 231 NLRB 651 (1977). See, generally.
Isis Plumring & eating Co.. 138 NLRB 716 (1962).
CON( I.USI()NS O() LASS
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)( I) of the Act by:
(a) Interrogating employees about their union sympa-
thies and activities, and about the union sympathies and
activities of other employees.
(b) Threatening employees with discharge because of
their union sympathies or activities.
(c) Promising employees their grievances would be reme-
died if they abandoned the Union.
(d) Promising employees improved terms and conditions
of employment for the purpose of discouraging them from
supporting the Union.
(e) Instructing employees not to wear union buttons.
(f) Threatening an employee with trouble if he wore a
union button.
(g) Requiring an employee to wear leather shoes rather
than tennis shoes for work because of his union activities.
4. Respondent violated Section 8(a)( I ) and (3) of the Act
by issuing written warnings to the employees named herein
on the dates opposite their names because of the employees'
union activities: Quintin Christie .... April 10, 1978: Char-
lie Easttom ..... March 27 and April 6, 1978; Kenneth
Towne ....... Late March and April 4. 6. and 10, 1978:
Steven Peffiy ....... April 4 and 19. 1978.
5. Respondent violated Section 8(a)( 1) and (3) of the Act
by discharging Charlie Easttom and Kenneth Towne on
April 10. 1978. and Steven Peffly on April 19. 1978, because
of their union activities.
6. Except as set forth above. Respondent has not other-
wise violated the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law.
and upon the entire record. and pursuant to Section 10(c) of
the Act I hereby issue the following recommended:
278
PEPSI OI.A HBOl lIING ()OMPANY
ORI)ER 4
The Respondent. Pepsi Cola Bottlinrg Compans. MoJa.e.
California. its officers. agents, successors. and assigns, shall:
I. Cease and desist ronil
(a) Discharging or issuing written disciplinar 5 a;lrninings
or from otherwise discriminating against its emplo_ees in
regard to hire and tenure of enmplo sment or any condition
of emplo\ ment hecause they have supported or engaged in
activities on hehalf of General Teamsters. (hauffeurs.
Warehousemen and Helpers. Iocal 982. International
Brotherhood otf ''eamsters. C(hauffeurs. Warehousemen and
Helpers of America. or anN other labor organization.
(b) Interrogating employees about their union s npa-
thies and activities and about the union smpathies and
activities of other emplosees.
(c) Threatening employees with discharge because of'
their union sympathies and activities.
(d) Promising employees improved terms and conditions
of employment, and that their grievances will be remedied
in order to discourage them from supporting a union.
(e) Ordering employees not to ear union buttons and
threatening them with trouble if they wear union buttons.
(f) In any other manner interfering with, restraining. or
coercing its employees in the exercise of the rights guaran-
teed them under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer Charlie Easttom. Kenneth Toune. and Steven
Peffly immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantiall) equivalent
ones, without prejudice to their seniority or other rights and
privileges, and make each of them whole for an' loss of
earnings suffered by reason of their discharges, in the man-
ner set forth in the section herein entitled "The Remed'."
49 In the event no exceptions are filed as provided b Sec 102.46 of the
Rules and Regulations of the National abor Relations Board, the findings.
conclusions, and recommended Order herein shall. as provided n Sec 102 48
of the Rules and Regulations, be adopted h he Board and become its
findings, conclusions. and Order. and all objections thereto shall he deemed
waived for all purposes
th) Expunge and physically remoxe front its records and
files all of the written disciplillarN uLarning s tounl unlawful
herein hich ere issued to Ouintinl ('hristie. ('harlie
lEasttoni. Kenneth Toos e. and Stc·cn Pettils and ans refer-
ence thereto.
e) P'reserse ;nd. uipon request. make axaiblc to the
Board or its aents. or exatlni tliotn and cop ig. ll pa.-
roll records. social securit Iplla mellt recirds. [i tnccrds.
personllel records lnl reports. and all other records neces-
sar to a;lnals/e the amnlount t bickpa due andil the righlt of
reinstateIelit under the reins l tils ()rder
(d) Post at its place oft' business in lMoJave. ('alitfrnia.
copies of the attached notice marked "Applendix.i' ( Ioples
of said notice, onl formsl proitldc b! the Regional )lIrctor
for Region 31. after heing dul? signed hbs RespotlndeLn's rep-
resentaties, shall be posted hb Respondent lilniediialel
upon receipt thereof and be maintained bhs it for 60 con-
secutive dass thereafter. in conspicuous places. including- all
places where notices to employees are custonlmaril posted.
Reasonable steps shall be taken hb Respondent to insure
that said notices are not altered, defaced, or covered bh ani
other material.
(e) Notitl the Regional I)irector for Region 31. in nrit-
ing. within 20 dass from the date of this Order, what steps
have been taken to conipln herewith.
It Is It RlltlR ORt)IRI:I) that the coimplaint be dismissed
as to those llegations not specifically found herein.
It Is It R t 11t:H )RI)I RtI) that (Case 31 RC 4077 be ad it
hereb is. remanded to the Regional Director ftr Region 31
to open and count the ballots of' Kenneth Towne. Steven
Pemfi5. Charlie Easttomn. and Charles Van de Voorde. aind
thereafter to prepare and cause to be ser-ed on the parties a
revised talls of ballots, including therein the count ft' said
ballots. upon the basis of uhich he shall then issue the ap-
propriate certification.
') In the eeni that this Order is enforced bh a Judgmentl .i niied
Slates court o aIppeals. the Uords in the notice reading "Posled h order of
the National Il.abor Rel ations Board" shall rea;d Posted Pursualnt to a Judg-
ment o the L niled States (Court Appeals tlntoring aIr order oI the Na-
iional abor Relalons Board "
2 79