Pepsi Cola Bottling Co.

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1008 (N.L.R.B. 1991)

1008
301 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted only to some of the judge’s findings regard-
ing employees Bobby Boyd, Johnny Waddell, Larry Blanken, Francisco Vega,
Sam Sanders, and Ernest E. Delph.
The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We do not rely on the statement in par. 20, sec. C, 8,b, of the judge’s deci-
sion that ‘‘the Company made no showing that it had disciplined any em-
ployee for negligence in the operation of a forklift.’’ Nor do we endorse any
implication in that paragraph that the Respondent might be required to prove
that another employee was disciplined for conduct identical to Larry
Blanken’s. We agree, however, with the judge that the Respondent has failed
to rebut the General Counsel’s prima facie case. The Respondent has not
shown a practice of similar discipline for comparable conduct; i.e., there is no
showing that any other employee was suspended or discharged for negligent
operation of a forklift. Much of the evidence proffered by the Respondent re-
lated to incidents that involved discipline of other union supporters or that oc-
curred after Blanken’s discriminatory discipline. And some of those incidents
involved seemingly more serious mishaps, but resulted in less severe discipline
than that meted out to Blanken.
In adopting the judge’s finding that the Respondent violated Sec. 8(a)(4) and
(1) of the Act by discharging employee Delph, we do not rely on the judge’s
conclusion concerning what might be a ‘‘reasonable approach’’ to the problem
for which Delph was ostensibly discharged. We find, instead, that the General
Counsel presented a prima facie case that Delph’s testimony in a Board pro-
ceeding was a motivating factor in the discharge and that the Respondent did
not show, by a preponderance of the evidence, that even in the absence of
that testimony, the Respondent’s general manager would have inflexibly ap-
plied the hygiene rules so as to mandate Delph’s discharge.
Further, in regard to the judge’s finding that the Respondent’s discharge of
employee Delph violated Sec. 8(a)(4) and (1) of the Act, Member Oviatt notes
that Delph was allegedly discharged for violating the plant’s hygiene policy
at a time when Delph was not working in the plant. On the morning of May
21, 1987, after being off work because of an injury, Delph reported to the Re-
spondent’s facility with a doctor’s note to seek reinstatement. At that time, he
was discharged for violating the Respondent’s ‘‘hygiene standards.’’ Thus, at
the time of discharge, Delph was not ‘‘on the clock’’ and had not been rein-
stated, yet he was charged with violating a plant policy. In Member Oviatt’s
view, this fact lends support to the judge’s finding that the Respondent seized
on Delph’s hygiene problem as a pretext for discharging Delph.
2 We have modified the judge’s recommended Order and substituted a new
notice to conform to the judge’s Conclusions of Law.
Pepsi Cola Bottling Company, Inc. of Norton and
Teamsters Local Union No. 549, a/w Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL–CIO and Ernest E. Delph. Cases 5–CA–
17875, 5–CA–17992, 5–CA–18028, 5–CA–18079,
5–CA–18210, 5–CA–18250, 5–CA–18284, 5–CA–
18294, 5–CA–18582, 5–CA–18641, and 5–CA–
18917
February 28, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On June 7, 1990, Administrative Law Judge Leon-
ard M. Wagman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pepsi
Cola Bottling Company, Inc. of Norton, Norton, Vir-
ginia, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer Bobby Boyd, Johnny Waddell, Larry
Blanken, Francisco Vega, Sam Sanders, and Ernest E.
Delph immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed,
and make them whole with interest for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.’’
2. Substitute the following for paragraph 2(b).
‘‘(b) Make whole with interest Bobby Boyd, Terry
Henderson, Carlos Fields, Kenneth Allen, Robert Falin,
Francisco Vega, Richard Shular, Bobby Blanken, Ron-
ald Blanken, Kenneth Blanken, Sam Sanders, and Er-
nest E. Delph for any loss of pay they may have suf-
fered as a result of the discriminatory reductions in
their work hours, suspensions, or layoffs, in the man-
ner set forth in the remedy section of the decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
1009PEPSI COLA BOTTLING CO.
1 Unless otherwise stated, all dates occurred in 1986.
WE WILL NOT issue warnings, written or verbal, dis-
charge, suspend, lay off, reduce existing work hours,
or otherwise discriminate against any employee for ac-
tively assisting or supporting Teamsters Local Union
No. 549, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO, or any other union.
WE WILL NOT issue written warnings, discharge,
suspend, lay off, otherwise reduce work hours, or issue
warnings, or otherwise discriminate against employees
because they appear and give testimony at a National
Labor Relations Board hearing.
WE WILL NOT threaten employees with a production
shutdown, plant closure, discharge, acts of physical vi-
olence or other specified or unspecified reprisals be-
cause they signed authorization cards for, are members
of, handbill for, or otherwise assist or support, Team-
sters Local 549 or any other union.
WE WILL NOT coercively interrogate employees re-
garding their union activities, membership, or sym-
pathies.
WE WILL NOT engage in surveillance of our employ-
ees’ union activities using television cameras, monitor
devices, or any other means.
WE WILL NOT create the impression that our em-
ployees’ union activities are and other concerted activi-
ties are under our surveillance.
WE WILL NOT promulgate rules concerning our em-
ployees’ right to wear uniforms or to curtail their
union activity.
WE WILL NOT discipline employees for discussing
their employment status, or their wages, hours, and
conditions of employment, or the possible advantages
of collective bargaining and union representation.
WE WILL NOT require employees to remove from
their clothing, insignia pertaining to Teamsters Local
549 or to any other union.
WE WILL NOT tell employees that they are disloyal
if they support Teamsters Local 549 or any other
union.
WE WILL NOT solicit employees to revoke their
signed union authorization cards supporting Teamsters
Local 549 or any other union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Bobby Boyd, Johnny Waddell, Larry
Blanken, Francisco Vega, Sam Sanders, and Ernest E.
Delph immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed
and make them whole with interest for any loss of
earnings and other benefits suffered as a result of the
discrimination against them.
WE WILL make whole with interest Bobby Boyd,
Terry Henderson, Carlos Fields, Kenneth Allen, Robert
Falin, Francisco Vega, Richard Shular, Bobby
Blanken, Ronald Blanken, Kenneth Blanken, Sam
Sanders, and Ernest E. Delph for any loss of pay they
may have suffered as result of the discriminatory re-
duction in their work hours, suspensions, or layoffs.
WE WILL remove from our files any reference to the
unlawful discharges, suspensions, and warnings, verbal
or written, and notify the employees in writing that
this has been done and that the discharges, suspen-
sions, and warnings will not be used against them in
any way.
PEPSI COLA BOTTLING COMPANY, INC.
OF NORTON
Thomas M. Lucas, Steven E. Nail, and Paula S. Schaefler,
Esqs., for the General Counsel.
Mark M. Lawson and Kurt J. Pomrenke, Esqs. (White, Elliott
& Bundy), of Bristol, Virginia, for the Respondent.
Charles Moore, International Representative, of Blountville,
Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Big Stone Gap, Norton, and Coeburn, Vir-
ginia, on November 4–7, 11, 12, 13, 18, 19, and 20, Decem-
ber 9, 10, 11, 12, 16, and 17, 1986, and on January 6, 7,
8, and 9, March 24 and 25, and September 30, 1987. On De-
cember 21, 1987, upon the parties’ motion, I ordered the
record reopened to receive Joint Exhibit 1, which is cap-
tioned, ‘‘Unofficial Merger of Third Consolidated Complaint,
Amendment Granted at Trial and Consolidated Complaints.’’
Upon a charge filed by the Union, Teamsters Local Union
No. 549, a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, on February
28, 1986,1 and two amended charges, the Acting Regional
Director for Region 5 issued a complaint on May 19, alleg-
ing that Respondent, Pepsi Cola Bottling Company, Inc. of
Norton (the Company), had violated Section 8(a)(1) of the
National Labor Relations Act (the Act) by threatening em-
ployees with a 2-week production shutdown, by interrogating
employees, threatening them with unspecified reprisals, cre-
ating an impression among its employees that their union ac-
tivities were under surveillance, telling employees that they
were disloyal if they supported the Union, soliciting its em-
ployees to revoke their union cards, installing television cam-
eras and monitor recorders to engage in surveillance of its
employees’ union activities, and by issuing an oral warning
to an employee. The complaint also alleged that the Com-
pany violated Section 8(a)(3) and (1) of the Act by issuing
written warnings, suspending, discharging, and laying off
employees because they supported or assisted the Union.
Upon the Union’s further charges and amended charges,
filed on and after April 14, the Acting Regional Director and
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 At various points in its brief, the Respondent has moved to correct the
transcript in certain respects. Having read the transcript and considered the Re-
spondent’s proffered corrections, I find them warranted, and grant the motions
to correct.
the Regional Director for Region 5, respectively, issued
amended consolidated complaints alleging that the Company
had engaged in further violations of Section 8(a)(1) and (3)
of the Act. In addition, upon the Union’s charges and amend-
ed charges in Cases 5–CA–18582 and 5–CA–18641, the Re-
gional Director issued a consolidated complaint on March 10,
1987, which included allegations that the Company sus-
pended, discharged, laid off and disciplined employees be-
cause they testified at the unfair labor practice hearings be-
fore me in Cases 5–CA–17875, 5–CA–17992, 5–CA–18028,
5–CA–18079, 5–CA–18210, 5–CA–18250, 5–CA–18284, and
5–CA–18294.
Finally, upon a charge filed by Ernest E. Delph, an indi-
vidual, on June 5, 1987, in Case 5–CA–18917, the Regional
Director issued a complaint on July 28, 1987. This complaint
alleged that the Company had violated Section 8(a)(4), (3),
and (1) of the Act, by discharging Delph. The Company, by
its answers to the complaints, denied committing the alleged
unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs2
filed by the General Counsel and the Company, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Company, a Virginia corporation, with a plant and
warehouse at Norton, Virginia, and distribution centers at
Maxwell, Virginia; Tazewell County, Kene Mountain, Vir-
ginia; Loyall, Kentucky; and Bristol, Tennessee, is engaged
in the manufacture, sale, and distribution of bottled and
canned soft drinks. In the course and conduct of its business,
the Company annually purchases and receives at its Norton,
Virginia facility products, goods, and materials valued in ex-
cess of $50,000 directly from points outside the State of Vir-
ginia. In addition, the Company annually sells and ships
from its Norton, Virginia facility products valued in excess
of $50,000 directly to points outside the State of Virginia.
The Company admits, and I find, it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Company admitted, and I find, that Teamsters Local
Union No. 549, a/w International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Union began an organizing campaign among the
Company’s employees in December 1985, when International
Representative Charles Moore met with Johnny Waddell, his
son David, and two other company employees. Moore re-
sumed his organizing effort on February 16, when he held
a meeting at a restaurant with 50 to 55 employees. Nineteen
employees agreed to join an organizing committee. Two days
later, Moore attempted, unsuccessfully, to deliver a letter to
the Company’s president, George Hunnicutt Sr., announcing
the organizing campaign and listing the 19 employees on the
organizing committee. The Union mailed a copy of that same
letter, which the Company received on February 21. On the
following day, George Hunnicutt Sr., in a letter to the em-
ployees and their families, announced receipt of the Union’s
letter, listed the 19 employees on the organizing committee,
and expressed the Company’s opposition to the campaign’s
objective.
Moore conducted a second organizing meeting with com-
pany employees on February 23. By letter dated February 25,
and received by the Company 3 days later, the Union pro-
vided the names of 22 more employees who had agreed to
assist the Union’s campaign. Following this meeting, em-
ployees began handbilling in front of the Company’s Norton
facility.
The Union pursued its organizing campaign in March. It
held more meetings and enlisted the assistance of five more
company employees. By letters dated March 6 and 20, re-
spectively, the Union provided the Company with these addi-
tional names.
The Union’s organizing effort did not achieve its goal. A
petition for a representation election resulted in a hearing in
March. However, the record does not show that an election
occurred, or that the Union otherwise sought recognition as
the collective-bargaining representative of the Company’s
employees.
The issues presented in these cases are whether a prepon-
derance of the testimony shows that the Company during and
after the Union’s organizing effort violated Section 8(a)(1) of
the Act by:
(a) Coercively interrogating employees regarding
their union membership, union activities or sentiment
toward the Union;
(b) Threatening its employees with reprisals because
of their union membership, union activities or support
for the Union;
(c) Creating the impression among its employees that
their union activities were under its surveillance;
(d) Telling employees that they were disloyal be-
cause they supported the Union;
(e) Soliciting employees to revoke their union au-
thorization cards;
(f) Installing television cameras and monitor record-
ers to engage in surveillance of its employees’ union
activities;
(g) Threatening employees with discharge because
they distributed union badges to other employees;
(h) Promulgating a new rule concerning the wearing
of uniforms for the purpose of curtailing its employees’
union activity;
(i) Threatening employees with discharge because
they were handbilling on behalf of the Union while in
its uniform;
(j) Threatening employees with discharge because
they were engaged in union activity;
1011PEPSI COLA BOTTLING CO.
3 Sec. 7 provides in pertinent part:
Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection.
Sec. 8(a)(1) of the Act provides:
It shall be an unfair labor practice for an employer . . . to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in
Section 7.
4 Sec. 8(a)(3) of the Act provides in pertinent part:
It shall be an unfair labor practice for an employer by discrimination in
regard to hire or tenure of employment or any term or condition of em-
ployment to encourage or discourage membership in any labor organiza-
tion.
5 Sec. 8(a)(4) of the Act provides:
It shall he an unfair labor practice for an employer to discharge or other-
wise discriminate against an employee because he has filed charges or
given testimony under this Act.
6 I based my findings regarding Mullins’ interrogation of Baker upon the
latter’s full and forthright testimony. Mullins denied discussing union activity
with Baker in 1986. However, neither Mullins nor any other witness disputed
Baker’s account.
(k) Threatening employees with physical violence
and discharge because of their union membership,
union activity or sentiment toward the Union;
(l) Coercively asking employees whether they had
signed cards for the Union;
(m) Threatening employees with discharge if they
signed cards for the Union;
(n) Disciplining an employee because of his union
activity, or other concerted activity protected by Section
7 of the Act,3 and by:
(o) Ordering employees to remove union insignia
from their outer garments.
Section 8(a)(3)4 and (1) of the Act by:
(a) Issuing written warnings to employees Larry
Blanken, John Horne, Bobbie Blanken, Sam Sanders,
Francisco Vega, and Bobby Boyd;
(b) Reducing the hours worked by mechanics Bobbie
Blanken, Ronnie Blanken, Kenneth Blanken, Richard
Shuler, and Gary Sturgill;
(c) Suspending employees Ernest E. Delph, Francis
Vega, Robert Falin, Terry Henderson, and Kenneth
Allen;
(d) Discharging employees Terry Henderson, Fran-
cisco Vega, Bobby Boyd, Jeff Ritchie, and John Horne;
(e) Laying off employee Carlos Fields;
(f) Changing the working hours and shifts of em-
ployees Bobby Boyd and Johnny Waddell;
(g) Constructively discharging employee Johnny
Waddell, and;
(h) Issuing an oral warning to employee Robert
Falin.
and Section 8(a)(4), (3),5 and (1) of the Act, by;
(a) Suspending employees Ernest E. Delph and Sam
Sanders;
(b) Issuing written warnings to employees Ernest E.
Delph and Sam Sanders;
(c) Laying off employees Ernest E. Delph and Sam
Sanders, and;
(d) Discharging employees Ernest E. Delph and Sam
Sanders.
B. Interference, Restraint, and Coercion
On Monday, February 17, Assistant Operations Manager
Robbie Mullins approached employee John C. Baker at the
Company’s Norton, Virginia facility and began questioning
him. Mullins asked Baker if he had attended the meeting.
Baker, who had in fact attended the Union’s meeting on the
previous day, asked, ‘‘What meeting?’’ Mullins responded:
‘‘You know what meeting, that union meeting.’’ Baker per-
sisted in claiming he didn’t know what Mullins was talking
about. At this, Mullins concluded the exchange with a few
comments, including his assertion that he knew that Baker
had signed.6
In determining whether Mullins’ questioning of Baker vio-
lated Section 8(a)(1) of the Act, as alleged, I have looked to
the teachings of Rossmore House, 269 NLRB 1176, 1178 fn.
20 (1984), enfd. sub nom. Hotel Employees & Restaurant
Employees Local 11 v. NLRB, 760 F.2d 1006, 1007–1009
(9th Cir. 1985). In that case, the Board stated that the test
for evaluating the coercive impact of interrogation requires
consideration of all the surrounding circumstances.
Here, a supervisor singled out Baker, during worktime, on
company property, and repeatedly pressed him to admit that
he had attended a union meeting. However, the employee
adamantly refused to admit that he had in fact gone to the
meeting. At this, the supervisor made remarks which strongly
suggested that he knew that Baker had attended the meeting
and had signed a union authorization card. Absent was any
showing that Mullins’ inquiry had any valid purpose or that
he had assured Baker against reprisal at the Company’s
hands.
The manner in which Mullins phrased his questions and
his assertion that he knew that Baker had ‘‘signed,’’ pro-
vided a coercive overtone to the incident. For they suggested
that Baker’s union activity on the previous day had been
under surveillance. Upon considering this coercive overtone
and the Company’s union animus, as shown by its subse-
quent unfair labor practices, found elsewhere in this decision,
I find that Mullins’ interrogation of Baker violated Section
8(a)(1) of the Act. Gerkin Co., 279 NLRB 1012 fn. 3 (1986).
On February 18, the Union sent a notice to the Company
that employee John C. Baker, among others, was a member
of the Union’s organizing committee and was assisting in the
organizing campaign. The Company received the notice
shortly thereafter, and on Fehruary 22, issued a letter to its
employees, announcing its opposition to the Union, and list-
ing the employees on the organizing committee, including
Baker.
On March 4, Baker came to work at the Company’s Nor-
ton plant in the same automobile with employees Bobby
Boardwell and Michael Stallard. The three employees were
scheduled to begin work at 3 p.m. They arrived about 2 p.m.,
went to the breakroom and began drinking coffee.
Shortly before the beginning of their shift, Operation Man-
ager Roy Almaroad came into the breakroom and told Baker,
Stallard, and Boardwell to clock in. One of the employees
told Almaroad that they were finishing their coffee and want-
ed to wait. Almaroad left the breakroom.
Almaroad returned shortly, instructed Stallard to clock in,
and took him to the bottling line. As Stallard began working,
Almaroad told him to ‘‘watch about running around with
John Baker,’’ Almaroad also warned, in substance, that asso-
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Mullins denied having any conversations with Delph during 1986 about
any union activity. However, Mullins did not deny questioning Delph about
a union meeting. Counsel for the Company did not examine Mullins on the
topic. Nor did counsel for the General Counsel.
In contrast to Mullins, Delph provided a reasonably detailed recollection of
the alleged interrogation, in a straightforward manner. Therefore, I have cred-
ited Delph’s testimony in this regard.
8 I based my findings regarding Mullins’ alleged interrogation of Falin upon
the latter’s testimony. On direct examination, Mullins answered ‘‘No’’ when
asked if he ever had any discussions with Falin about union activity. However,
Mullins did not deny interrogating Falin about signing a union authorization
card. Moreover, while testifying about this incident, Falin appeared to be giv-
ing his recollection in full. Accordingly, I rejected Mullins’ denial and credited
Falin’s account.
9 I based my findings of fact regarding Dale Kennedy’s remarks upon
Stapleton’s candid and consistent testimony. In rejecting Kennedy’s denial, I
noted that company counsel, in preparing him for the hearing, had com-
promised the sequestration of witnesses by revealing that Stapleton had testi-
fied, accusing Kennedy of threatening a plant shutdown. I also noted Ken-
nedy’s attempt before me to bolster his denial by spontaneously and vehe-
mently stating: ‘‘I’m surprised Mr. Stapleton would say something like that.
He’s a liar.’’ Kennedy also detracted from his credibility by punctuating his
denial with gratuitous assertions that ‘‘I’m not an owner down there. I
wouldn’t even know about anything like that.’’ In sum, Kennedy did not per-
suade me that he was a frank witness.
ciation with Baker would get Stallard into ‘‘trouble’’ and
‘‘lead [him] down a dim road.’’
By telling employee Stallard to stay away from John
Baker, a known union supporter, and warning of trouble and
a dim dark road as the alternative, Almaroad was attempting
to coerce Stallard into refraining from union activity in
league with Baker. Almaroad’s warning carried the implied
threat of economic reprisal against Stallard if he defied the
warning. I find that by Almaroad’s warning regarding asso-
ciation with John Baker, the Company violated Section
8(a)(1) of the Act. Tennessee Cartage Co., 250 NLRB 112,
117, 120 (1980).
On February 16, the Union held a meeting in Norton, Vir-
ginia, with 50 to 55 employees. On or about February 17,
Robbie Mullins came to employee Ernie Delph’s workstation
at the Company’s Norton plant and asked him how the union
meeting had gone. Delph replied that he didn’t know and
that he had not been there. Mullins rejected Delph’s re-
sponse, insisting that Delph knew that he had been at the
meeting.7
The considerations which persuaded me that Mullins’ in-
terrogation of Baker was unlawful have led me to the same
finding here. Accordingly, I find that Mullins’ questioning of
Delph regarding his attendance at a union meeting violated
Section 8(a)(1) of the Act.
Employee Robert Falin signed an authorization card for
the Union in January or February. The Union named him as
a member of the organizing committee in its letter to the
Company dated February 18. I find that on or about February
20, Supervisor Robbie Mullins asked Falin if he had signed
a union card. At the time of the questioning, Falin was work-
ing at the Company’s Norton plant. Falin began his answer,
saying that he liked Mullins as a friend. He added: ‘‘[B]ut
what you asked me is a Federal offense.’’ Mullins walked
away without further comment.8
I have determined the coerciveness of Robbie Mullins’
question in accordance with Board policy. Thus, I have con-
sidered all the surrounding circumstances, including Falin’s
open and active support for the Union, the locus of the ques-
tioning, the absence of any assurance against reprisal, and the
supervisor’s failure to provide Falin with any valid reason
for asking him if he had signed a union card. An important
factor in my assessment was the evidence of union animus
as reflected by the Company’s subsequent unfair labor prac-
tices. I noted the Company’s threats of economic reprisals,
its unlawful discharges, and other discriminatory treatment of
union supporters. I find that, on balance, the surrounding cir-
cumstances rendered Mullins’ question impermissibly coer-
cive. See Rossmore House, 269 NLRB at 1177–1178 fn. 20.
That Falin considered Mullins to be his friend was not de-
cisive in my review of the circumstances surrounding this in-
cident. The Board has recognized that a social or personal
relationship between the supervisor and an employee is only
one of the factors to be weighed in determining whether such
interrogation is unlawful. Isaacson-Carrico Mfg. Co., 200
NLRB 788 (1972). Here, I find from Falin’s testimony that
Mullins was direct and did not couch his question in terms
indicating that he had any special regard for Falin. This was
not a friendly conversation. In sum, I find that Mullins’ inter-
rogation of Falin was coercive conduct violative of Section
8(a)(1) of the Act.
Soon after the union activity began, Dale Kennedy, the
Company’s brand manager for Seven-Up and Dr. Pepper, a
supervisor, approached employee Samuel Stapleton and stat-
ed:9
Those boys are trying to get the union in. George is
going to fix them. He’s going to shut the bottling line
down for two weeks.’’
Kennedy’s remarks came in the wake of the Company’s
announcement on February 18, in a notice posted at the Nor-
ton plant, that it would shut down its three production lines
on February 26 or 27. Stapleton admitted seeing notice of a
plant shutdown close in time to Kennedy’s quoted remarks.
The Company’s notice attributed the shutdown only to eco-
nomic considerations. An employee listening to Kennedy’s
warning was likely to credit the supervisor with special
knowledge because of his position in the Company’s man-
agement, and thus discount the economic reasons given in
the notice.
There are two George Hunnicutt’s mentioned in the tran-
script. George E. Hunnicutt Sr. is the Company’s president.
His son, George E. Hunnicutt Jr., is the Company’s execu-
tive vice president and general manager. The record shows
that the Company’s management and its employees referred
to George Sr. as ‘‘George’’ and that they commonly referred
to George Jr. as ‘‘Pedro.’’
At the time Dale Kennedy made the quoted statement to
employee Stapleton, both of them knew that ‘‘George’’ re-
ferred to George E. Hunnicutt Sr. Therefore, Stapleton under-
stood that Kennedy was warning that George E. Hunnicutt
Sr. would shut production down in retaliation for the union
organizing effort among the Company’s employees.
Dale Kennedy’s warning constituted a threat of economic
reprisal attributable to the Company. I also find that this
threat tended to restrain, coerce, and interfere with employ-
ees engaged in union activity protected by Section 7 of the
Act. Accordingly, I find that Kennedy’s warning violated
Section 8(a)(1) of the Act.
On February 18, quality control employee Vivian K.
Rasnake signed a card for the Union. On the following day,
1013PEPSI COLA BOTTLING CO.
10 My findings regarding Almaroad’s conversation with Rasnake on Feb-
ruary 19 are based upon her credible testimony. Rasnake appeared to be can-
didly giving her full recollection of the incident.
11 Roy Almaroad denied that he had ever asked any employees if they want-
ed to get their union cards back. Instead, he testified that in early March,
Ritchie asked Almaroad how he could get his union card back. However,
Almaroad admitted that he provided Ritchie with a form letter advising the
Union that the signatory employee was revoking his or her authorization card.
Further, Almaroad’s sketchy testimony left uncontradicted the bulk of Ritch-
ie’s detailed testimony regarding conversations between them about the latter’s
union card in February and March.
Of the two witnesses, Ritchie appeared more conscientious about providing
his best recollection. Accordingly, I have credited Ritchie’s testimony regard-
ing his conversations with Almaroad in February and March regarding his
union card.
as she walked through the Company’s Norton plant, toward
her workstation, she approached the Company’s operations
manager, Roy Almaroad. Almaroad, who was seated near the
production line, asked Rasnake to sit with him. He looked
at Rasnake and asked: ‘‘How much have you had to do with
all of this?’’ Rasnake answered: ‘‘With what?’’ Almaroad re-
plied: ‘‘You know what I’m talking about.’’
Rasnake assumed that Almaroad was talking about union
activity, which had become a matter of general discussion at
the plant. With that topic in mind, she said; ‘‘Well, you
knew about it before I did, I’m sure. I didn’t know anything
about it.’’
Almaroad said he was ‘‘glad to hear that’’ and offered
‘‘some friendly advice.’’ Almaroad continued:
You stay away from it, don’t have anything to do
with it, it’s just bad news. And nobody can force you
to sign anything.10
Rasnake testified that in view of the common discussion
of the union campaign at the time, she assumed that
Almaroad was referring to the Union in his warning to her.
In light of the surfacing of union activity including the meet-
ing on February 17, and Rasnake’s credited assertion, I find
that it was reasonable for her to assume that the company
management, including Almaroad, was aware of the Union’s
campaign. I also find that Rasnake reasonably inferred that
Almaroad was referring to the union campaign in his quoted
remarks to her.
In light of the Company’s subsequent unfair labor prac-
tices, including unlawful discharges, Almaroad’s advice to
Rasnake regarding participation in union activity carried a
‘‘sinister meaning.’’ Ohmite Mfg. Co., 217 NLRB 435 fn. 2
(1975). His admonition to ‘‘stay away’’ and not to ‘‘have
anything to do with [the Union]’’ together with the warning
that ‘‘its just bad news,’’ when considered in the context of
the Company’s unlawful conduct in opposition to the Union,
amounted to a threat of reprisals against Rasnake and other
employees who might assist or support the Union. I find,
therefore, that Almaroad’s advice to Rasnake violated Sec-
tion 8(a)(1) of the Act. Bay State Ambulance & Hospital
Rental, 280 NLRB 1079, 1083 (1986).
Company employee Jeff Ritchie, who worked at the Nor-
ton plant, signed a card for the Union in February. Soon
thereafter, Operations Manager Almaroad came to Ritchie’s
workstation, took him aside, and asked him if he had signed
a union card. Ritchie admitted that he had. At this, Almaroad
urged Ritchie to get the card back. Otherwise, Almaroad
warned, Ritchie faced trouble and loss of his job. He in-
structed Ritchie to come to his office that same day and pick
up a paper containing such a request, addressed to the Union.
Ritchie did not comply with Almaroad’s instruction.
Two or three days later, Almaroad stopped at Ritchie’s
machine and questioned him about his union card. Almaroad
asked if Ritchie had sent a request for his card to the Union.
When Ritchie answered, no, Almaroad told him to return to
work. Almaroad went on to assure Ritchie that he would pro-
vide the necessary paper. It was almost lunchtime when the
conversation ended. Almaroad returned to Ritchie with the
request letter in time for Ritchie to take it with him as he
went to lunch.
Ritchie took the request letter to his automobile parked
outside the plant. After leaving the request there, he had
lunch and returned to work. Ritchie never signed the request.
Early in March, Almaroad asked Ritchie if he had sent the
withdrawal letter to the Union. Ritchie replied no, and that
he had not had time to do so. Almaroad warned Ritchie that
he had to retrieve his card ‘‘because it’s going to cost you
your job.’’11
I find that when he asked Ritchie if he had signed a union
card, and, in the same conversation, solicited revocation of
Ritchie’s authorization card and threatened him with dis-
charge if he did not do so, Almaroad was attempting to re-
strain and coerce him and thus cause him to refrain from fur-
ther union activity. I also find that Almaroad, by urging
Ritchie to send the revocation request to the Union on the
two subsequent occasions, and by threatening him with dis-
charge if he did not do so, again sought to eradicate em-
ployee participation in protected union activity. Accordingly,
I find that by Almaroad’s coercive interrogation, his solicita-
tion of withdrawal of support for the Union, and by his
threats of reprisal if such support were not withdrawn, the
Company violated Section 8(a)(1) of the Act. Sealectro
Corp., 280 NLRB 151, 158–159 (1986).
The Company again engaged in unlawful interrogation and
solicitation of withdrawal of support from the Union, after
employee Richard Shular had attended two union meetings
and signed a union card. I find from his credible and
uncontradicted testimony, that in late February, Loading Su-
pervisor Allen Young asked Shular if he had signed a union
card. When Shular said he had, I find from his testimony,
that Young pursued the matter further. Young, in substance,
offered to get the card back from the Union if Shular so de-
sired. Young also offered to leave a paper near Shular, for
the latter’s signature, which Young would pick up later and
use to retrieve the union card.
I find that by interrogating him about his union activity
and soliciting his withdrawal of support from the Union,
Young interfered with, restrained, and coerced Shular in the
exercise of rights guaranteed in Section 7 of the Act. I fur-
ther find, therefore, that the Company thereby violated Sec-
tion 8(a)(1) of the Act.
Vivian Rasnake attended one of the Union’s organizing
meetings for the Company’s employees on February 23. On
the following morning, Company President George Hunnicutt
Sr. met Rasnake at the Norton plant and requested produc-
tion information from her. Rasnake went to the laboratory,
where she kept such records, but was unable to locate them.
She returned to George Sr. and reported that she was unable
to locate the pertinent records.
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 My findings of fact regarding Rasnake’s encounters with George
Hunnicutt are based upon her credible and uncontradicted testimony.
13 I based my findings of fact regarding the allegation that Chris Morris in-
terrogated employee Sowers, upon the latter’s testimony. In assessing the
credibility of Morris and Sowers, I considered the substance of their testimony
and their demeanor. Sowers seemed to be providing his full recollection in a
straightforward manner. In contrast, Morris did not provide any details of spe-
cific conversations. Instead, Morris denied initiating any conversations with
employees regarding union activity during the Union’s campaign. Morris as-
serted that employees initiated all conversations he had with them regarding
the union campaign. I also noted that when Respondent’s counsel questioned
him about these conversations, Morris seemed reluctant to identify anyone ex-
cept Eddie Jennings. Absent from Morris’ testimony is any reference to a con-
versation with Dwayne Sowers.
George Sr. invited Rasnake into an office and began to
speculate as to the whereabouts of the missing records. He
said he had an idea where they were; that Rasnake had given
some information to union people. He asserted that Rasnake
had been to a union meeting on the previous day and ‘‘had
her own private little meeting with one of the Union guys.’’
He added: ‘‘I was informed of this.’’
Rasnake immediately denied that there had been a private
meeting and left the office. She returned to the laboratory
and renewed the search for the production records. She found
them and returned to George Sr. Upon seeing Rasnake and
the records, he apologized. He also said that he did not in-
tend to make accusations. He concluded by inviting her to
return later in the morning.
When Rasnake returned to George Sr., he looked at her
and said he thought she ‘‘should be faithful’’ to him. He
went on:
I want to know where you stand with this thing, and
I want a commitment from you by the end of this
week, and you remember where your pay check comes
from. 12
By his remarks about Rasnake’s attendance at the Union’s
meeting, and his assertion that he ‘‘was informed of this,’’
George Sr. strongly suggested that he was maintaining sur-
veillance of his employees’ union activities. I further find
that by thus creating the impression that it was engaged in
such unlawful conduct, the Company violated Section 8(a)(1)
of the Act. Link Mfg. Co., 281 NLRB 294 (1986); Teledyne
McCormick Selph, 246 NLRB 766, 773 (1979).
In the context of his remarks about her attendance at the
previous evening’s union meeting and his suggestion that she
divulged company production records to the Union, George
Sr.’s quoted remarks also ran afoul of the Act. His message
was that he deemed Rasnake’s adherence to the Union to be
disloyalty to him and his company; that she had until the end
of the week to renounce her adherence; and that if she failed
to do so, the Company would soon inflict an economic re-
prisal upon her. By thus equating support for the Union with
disloyalty and threatening her with an undisclosed economic
reprisal if she failed to renounce the Union, the Company
violated Section 8(a)(1) of the Act. Peavey Co., 249 NLRB
853, 858 (1980).
The Company employed Samuel Stapleton as a night
watchman at its Norton facility from August 1985 until
March 22, when he voluntarily resigned. I find from his
uncontradicted testimony that in February Operations Man-
ager Roy Almaroad asked him what he thought about the
Union. I also find from Stapleton’s uncontradicted testimony,
that during the same period, Sales Manager Joseph (Huck)
Hunnicutt posed the same question to him. In both instances,
Stapleton remained silent. In neither instance of interrogation
did the supervisor give assurance against reprisal by the
Company. Nor was there any showing that the supervisors
provided any lawful purpose for their questions. From these
circumstances, and the added impact of the Company’s resort
to unlawful threats and other unfair labor practices in its
antiunion campaign during February and thereafter in 1986,
I find that this interrogation was coercive. Accordingly, I
find that the Company’s interrogation of Stapleton violated
Section 8(a)(1) of the Act.
In February, Dwayne Sowers, a route driver employed at
the Company’s Harlan, Kentucky warehouse, became inter-
ested in the Union’s campaign. During February, he attended
several union meetings and signed a card for the Union. He
also signed a poster supporting the Union, which was dis-
played on a bulletin board at the Harlan warehouse during
February. The warehouse manager, Chris Morris, saw the
poster with its signatures, including Sowers’.
At least twice during February, after the poster had ap-
peared on the bulletin board with Sowers’ signature on it,
Chris Morris approached Sowers before a union meeting and
asked if he planned to attend. Following such meetings, Mor-
ris asked Sowers if he had gone to the meeting and how
many others had attended. At times, Sowers refused to an-
swer, saying that it was none of Morris’ business. On some
occasions, Sowers answered that he had attended the meet-
ing. Morris told Sowers that he, Morris, knew how many
employees went to the union meetings. At one point, Morris
asserted that there was 100-percent attendance. Sowers did
not volunteer information about union activities to Chris
Morris.
In the course of his remarks to Sowers regarding the union
meetings, Morris warned, in substance, that if the Union’s
campaign succeeded, the Company might shut down its Har-
lan facility and transfer its function to Norton. Morris as-
sured Sowers of continued employment at Norton. The dis-
tance between Norton and Harlan is approximately 70 miles,
which would translate into an approximately 1-1/2-hour truck
drive from Harlan and about 1-hour’s drive from Sowers’
home.13
I have considered all the circumstances surrounding Mor-
ris’ interrogation of Sowers regarding the union meetings. I
have noted that at the time of Morris’ interrogation, he knew
of Sowers’ open support for the Union, that Sowers consid-
ered Morris to be a friend, and that Morris assured him of
continued employment at Norton, if the Company closed its
Harlan warehouse. I have also considered that Morris was
not a senior member of the Company’s management. How-
ever, Morris’ unlawful warning that the Company might shut
down the Harlan warehouse if the Union’s campaign suc-
ceeded, and the Company’s resort to other unlawful
antiunion conduct, including reprisals, as found later in this
decision, provided a coercive background for Morris’ interro-
gation of employee Sowers.
In sum, I find that under all the circumstances, Morris’ re-
peated questioning was likely to restrain or coerce Sowers in
the exercise of his statutory right to support a labor organiza-
tion. I further find, therefore, that by Morris’ interrogation of
Sowers, the Company violated Section 8(a)(1) of the Act.
1015PEPSI COLA BOTTLING CO.
14 I have credited Stallard’s recollection of his encounter with Huck
Hunnicutt on February 22. Stallard impressed me as a frank witness, conscien-
tiously trying to give his best recollection. His testimony was consistent and
he seemed genuinely concerned about its accuracy.
In contrast, Huck’s testimony is impaired by serious inconsistencies. First,
Huck testified that Stallard initiated the conversation regarding the revocation
of union authorization cards. Huck also testified that Stallard asked him if he
knew how to get a card back. At first, Huck testified that he went into the
office, got the form for Stallard, and gave it to him. According to Huck’s ini-
tial rendition, when Stallard first approached him, Huck asked Stallard if he
had punched in. When Stallard said no, Huck directed him to do so and to
load 9 cases of 32-ounce returnable Pepsi Cola into the pickup truck. In a sec-
ond version, Huck testified that before Stallard loaded the pickup, he and
Stallard went into the office, where Huck got the revocation form, and while
there, he told Stallard to clock in and load the truck. When asked if he person-
ally gave the form to Stallard, Huck testified: ‘‘No. I believe Pedro did.’’
These infirmities in Huck’s testimony suggested that his recollection of this
incident was faint at best, and that he was improvising.
In short, of the two witnesses who testified about the conversation and cir-
cumstances leading up to the mailing of the revocation form on February 22,
Stallard impressed me as being more reliable. Accordingly, I have accepted
his testimony.
15 I have accepted Fultz’ testimony, notwithstanding his poor memory as to
dates. Fultz gave his testimony candidly. Also, as he gave his uncontradicted
recollection of this encounter with Almaroad, Fultz seemed to be reliving it.
See Rossmore House, 269 NLRB at 1177–1178, fn. 20. I
also find that his coercive threat that the Company would
close the Harlan warehouse if the employees supported the
Union, also violated Section 8(a(1) of the Act.
Morris similarly violated the Act when he questioned Har-
lan route salesman Eddie Howard about union meetings. I
find from Howard’s credible testimony that on February 24,
and on five or six subsequent occasions, Morris questioned
him about union meetings. The first incident occurred at the
Company’s Harlan warehouse on the morning after Howard
had attended his first union meeting. Morris asked Howard
if he had been at the meeting. Howard did not answer.
Thereafter, on the morning following each union meeting
Morris pursued the same line of questions. Morris asked
Howard if he had gone to the meeting, who else had gone,
and what was said at the meeting, Howard answered that he
‘‘didn’t know nothing.’’ Indeed, Howard never disclosed to
Morris what went on at the union meetings.
I also find from Howard’s testimony that Morris repeat-
edly warned him that if the Union succeeded, the Company
would close the Harlan warehouse. Morris also stated that
Howard and the other Harlan employees would then have to
choose between working at Norton or quitting. If Howard
elected to work at Norton, he would have a daily commuting
round trip of approximately 140 miles. His home is only
about 1 mile from the Company’s Harlan warehouse.
I find that Morris’ interrogation of employee Howard oc-
curred in circumstances which rendered it coercive. Howard
attended union meetings and signed a card. However, his
name did not appear on the poster on the Harlan warehouse
bulletin board announcing support for the Union. Nor was
there any showing that Howard otherwise openly supported
the Union at the Harlan warehouse. Although Howard had
friendly conversations with Morris, he thought of him more
as a supervisor rather than as a friend. Thus, Howard was
reluctant to share with Morris any information about the
union meetings he had attended. The unlawful warning
which accompanied Morris’ interrogation of Howard was a
major factor in setting the tone of the surrounding atmos-
phere. Employees were likely to repudiate the Union if the
price of their support was the inconvenience of a 140-mile
round trip between home and workplace. The final pieces of
the backdrop for this interrogation were the Company’s fur-
ther unlawful attempts to squelch employee support for the
Union, including economic reprisals against known union ac-
tivists. I find, therefore, that by Morris’ repeated interroga-
tion of employee Howard about his union activity, and Mor-
ris’ threat of economic reprisal, the Company violated Sec-
tion 8(a)(1) of the Act.
On February 22, at the Company’s Norton facility, em-
ployee Michael Stallard, who, had signed a union card, was
loading soda pop into Sales Manager Joseph (Huck)
Hunnicutt’s pickup truck. Huck and Stallard began talking
about the union campaign. Huck said he couldn’t ask Stallard
any questions about the Union. However, he began talking
about employees signing union authorization cards and get-
ting them back. Huck asked Stallard if he had signed a card.
When Stallard said he had, Huck said he had a form in the
office which Stallard could sign and use to get his card back
from the Union. Stallard and Huck went to the office where
they met Huck’s brother, Pedro. Stallard filled out the form
and spoke of mailing it to the Union. Huck advised Stallard
to send the revocation by certified mail. After further discus-
sion, Huck agreed that regular mail would suffice. Huck took
Stallard to the Norton post office in his pickup truck, gave
him money for a stamp, and waited while Stallard mailed his
revocation form. Stallard got back into Huck’s pickup truck
and the two delivered the soda pop.14
I find that Huck’s conduct violated the Act. For, after ask-
ing Stallard if he had signed a union card, Huck, who was
a supervisor at the time, solicited him to withdraw his signed
union authorization card. Huck then helped Stallard to do so,
providing the form, a ride to the post office, and the price
of a postage stamp. By thus soliciting an employee’s with-
drawal of his signed authorization card, and assisting him,
the Company violated Section 8(a)(1) of the Act. Craddock-
Terry Shoe Corp., 187 NLRB 33, 37 (1970). I also find that
Huck’s questioning of Stallard as to whether he had signed
a card for the Union, coming in the context of an unlawful
solicitation and other unfair labor practices, also violated
Section 8(a)(1) of the Act.
Employee James Fultz was not a union activist and did not
sign a union card during the Union’s 1986 organizing cam-
paign among the Company’s employees. I find from Fultz’
and Roy Almaroad’s testimony and the Company’s records,
received in evidence, that the Company employed Fultz in
March and May. I also find from Fultz’ testimony that in
March, at the Norton plant, Operations Manager Roy
Almaroad asked Fultz if he had signed a union card. When
Fultz answered no, Almaroad advised him that ‘‘it would be
best for you not to.’’15
I agree with the General Counsel’s contention that
Almaroad’s questioning of Fultz was unlawful. Almaroad
questioned Fultz in an atmosphere of union animus resulting
from company unfair labor practices. In addition, Almaroad’s
advice suggested that signing a union card would be detri-
mental to Fultz. Such a remark to Fultz by a high-ranking
supervisor, at a time when the Company was inflicting eco-
nomic reprisals upon union activists, as found later in this
decision, was likely to discourage him from signing a union
card or otherwise helping the Union. Accordingly, I find that
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 In finding Almaroad’s remarks to Fultz included an implied threat viola-
tive of Sec. 8(a)(1) of the Act, I noted that the complaint did not allege that
they did so. However, the facts necessary to this finding were uncontroverted
and were fully litigated at the hearing. In these circumstances, it is within my
authority to recommend a remedy of such a violation and thus to effectuate
the purposes of the Act. See, e.g., St. Joseph Hospital East, 236 NLRB 1450
(1978).
17 The facts regarding Pedro’s confrontation with Rasnake are essentially un-
disputed.
18 The General Counsel’s brief asserts that employees George Taylor and
Chico Vega wore jewelry while working in the syrup room. However, the
record does not show that they worked in the syrup room after the promulga-
tion of the Pepsi-Cola Company’s jewelry prohibition. Accordingly, in assess-
ing the evidence supporting the General Counsel’s contention of disparate en-
forcement of that rule, I have not included Rasnake’s testimony that she saw
Taylor and Vega wearing watches while they worked in the syrup room.
Rasnake could not remember when either of these employees worked in the
syrup room.
Almaroad’s question and his thinly veiled warning of eco-
nomic reprisal violated Section 8(a)(1) of the Act.16
I find from employee Bobby Ray Worley’s uncontradicted
testimony that he signed a union card during the Union’s
1986 organizing campaign among the Company’s employees.
I also find from Worley’s testimony that he advised Super-
visor Robert Mullins that he had done so. Finally, I find
from Worley’s testimony that Mullins offered a form letter,
addressed to the Union, which declared that the signatory
was revoking any authorization or membership application he
or she might have executed in the Union’s favor. Mullins
told Worley he could use the form to revoke his card or
throw it away if he did not wish to get his card back. He
did not express any interest in finding out how Worley
would dispose of the form.
Under Board law, the Company, acting through Supervisor
Mullins, could lawfully provide employee Worley with a
form letter to revoke his union card even though Worley had
not solicited such a form, so long as the Company made no
attempt to find out if he used it nor offered any assistance
or otherwise pressured hinn into using the form to revoke his
card. Mariposa Press, 273 NLRB 528, 529 (1984). Here, I
find that Supervisor Mullins’ conduct did not exceed those
limits. Indeed, Mullins plainly told Worley he could use the
form letter or discard it. I find, therefore, that Mullins did
not violate Section 8(a)(1) of the Act, as alleged in the com-
plaint. Accordingly, I shall recommend that this portion of
the complaint be dismissed.
On March 27, Pedro Hunnicutt confronted employee Viv-
ian Rasnake at the Company’s Norton plant and ordered her
to remove a union button from her shirt.17 The button, which
was about the size of a silver dollar, said ‘‘Vote Teamsters’’
and was colored red and black. Pedro pointed to the button,
stated that the Company had rules against the wearing of
jewelry, and that the button was jewelry. Rasnake protested
that she understood the prohibition extended only to jewelry
worn on hands and arms. Pedro renewed his order, and
added that he feared that the pin would fall off into a sugar
tank or a syrup vat and contaminate their contents.
At the time Pedro ordered the removal of her union but-
ton, Rasnake was a quality control employee. Her work re-
quired that she remove samples of high fructose corn syrup
from tanker trucks and from a tank in the Company’s syrup
room. The Company uses high fructose corn syrup in the
manufacture of its products.
When removing syrup from a tank Rasnake leaned over an
open manhole in the top of the tank, and reached down with
a ladle. According to Pedro’s testimony, he ordered Rasnake
to remove the union button because he feared it would wind
up in the syrup. It was his view that, as she reached down
with a ladle, Rasnake would rake the button across the edge
of the manhole and pull it off into the syrup below. Pedro
also testified that in his discussion with Rasnake about the
button, he called her attention to the quality control policy
in the Pepsi-Cola Company’s manuals which the Company
had on hand.
The Pepsi-Cola Company’s policy toward personal adorn-
ment is recited in its statement of good manufacturing prac-
tices, which it had promulgated to the Company in mid-
1985. In a statement of policy regarding personal cleanliness,
the Pepsi-Cola Company required employees to remove
‘‘jewelry from the hands and arms.’’ The Food and Drug
Administration Regulations accompanying them in the record
direct the removal of ‘‘all insecure jewelry’’ and the removal
from hands of ‘‘any jewelry that cannot be adequately sani-
tized.’’ Finally, the FDA Regulations direct the taking of
‘‘any other necessary precautions to prevent contamination.’’
Neither the Pepsi Cola Company’s statement of good manu-
facturing practices, nor the FDA Regulations single out the
handlers of high fructose corn syrup for more stingent con-
straints.
Pedro’s union animus, as shown by his unfair labor prac-
tices found elsewhere in this decision, the Company’s earlier
unlawful attempts to discourage Rasnake’s union activity,
and the Company’s implementation of the jewelry prohibi-
tion cast serious doubt on his expressed reason for demand-
ing removal of Rasnake’s union button. Prior to March 27,
and thereafter, the Company’s enforcement of Pepsi-Cola’s
prohibition against the wearing of jewelry was lax.
Pedro conceded that he had seen other employees wearing
union buttons at the Norton plant and that he had ignored
them. I also find from Rasnake’s uncontradicted testimony
that during her employment by the Company, as a quality
controller from September 1982 until April 23, she was
aware of, and complied with, the prohibition against wearing
jewelry on hands and arms. However, quality control em-
ployee Agnes Martin, who worked with Rasnake in the syrup
room, and extracted syrup samples from truck tanks and the
syrup room tank, habitually wore a watch and two rings at
work, both before and after March 27. Employee Greg Hill,
who worked in the syrup room after the promulgation of the
Pepsi-Cola Company’s prohibition against jewelry in 1985,
regularly wore a watch at work.18
While there was no direct evidence that Pedro or
Almaroad observed these violations, the record shows they
were active supervisors, who regularly circulated through the
Company’s Norton plant. Therefore, I find it likely that they
observed Martin, Hill, and Taylor, but neglected to enforce
the rule against them. It was only when a union button ap-
peared on Rasnake’s shirt that Pedro attempted to implement
the prohibition against jewelry. I find that by disparately ap-
plying its jewelry prohibition against Rasnake because she
wore a button expressing support for the Union, the Com-
pany violated Section 8(a)(1) of the Act. Pay ’N Save Corp.,
247 NLRB 1346 (1980).
On March 8, 15 days after receiving the first letter herald-
ing the Union’s organizing campaign, the Company, for the
first time in its history, installed four fixed television cam-
1017PEPSI COLA BOTTLING CO.
eras at its Norton, Virginia plant. The cameras were deployed
as follows: two in protective boxes hung from the rafters
over the loading dock; one in a protective box mounted in
the staging area, high on the wall adjacent to the loading
dock; and, one behind a wall and a clock in the quality con-
trol laboratory.
The Company linked the cameras to a switcher, a monitor,
a VCR, and a video cassette recorder. The switcher con-
trolled the length of time and order in which each camera
was turned on. Thus, whoever was watching the monitor
would see the field of vision of each of the operating tele-
vision cameras for from 6 to 10 seconds at a time. The VCR
was attached to a time lapse recorder. When the VCR system
was switched into the system, the film would record what
each camera saw in sequence, for 6 to 10 seconds at a time.
The monitor was located in the vicinity of the plant office,
in a separate room, to which Pedro, Roy Almaroad, and se-
curity guard W. A. Jones had access.
In April, the Company added five fixed cameras to it tele-
vision circuit. All five were in plain view. The five were in-
stalled as follows: one in the can filler room; one in the
syrup room; one in the nonreturnable bottle filler room; one
in the returnable bottle filler room; and, one in the bottle
cleaner/washer area.
When the Company completed its television system it had
nine cameras. However, due to the switcher’s limitation, only
eight cameras were operating at any given time.
One of the loading dock cameras looked east and the other
looked west. Trucks entered from either side of the loading
dock area. The camera facing east showed parked trucks and
the top of the east door. If there were no trucks, the camera
showed the dock area and the east door. When trucks were
parked, the camera showed the trucks parked closest to it and
unobscured portions of the other trucks on the east end. The
camera facing west showed the back door of the loading
dock, and any trucks lined up behind the dock. These two
cameras would show employees loading both sides of a
truck. The camera covering the staging area, adjacent to the
loading dock, focused on the pallets of products assembled
there for easy access to the loading dock.
The camera in the quality control laboratory focused on
the entrance. Employee Vivian Rasnake discovered this cam-
era behind a clock on the laboratory’s wall. The lens peered
through a portion of the clock’s case, where paint had been
scraped away.
Four of the remaining five cameras focused on production.
The syrup room camera, which was mounted on a steel sup-
port column, had ‘‘an extremely wide angle lens.’’ The lens
put in view the openings of all mixing tanks in that room,
the entrance from the storage part of the syrup room and part
of the entrance to the nonreturnable filling room.
The camera in the nonreturnable filling room focused on
the discharge and the in-feed of the filler. This camera also
televised bottles as they went between the filler and the cap-
per.
The camera in the returnable filling room was mounted 8
to l0 feet above the floor in a corner. It picked up the in-
feed and discharge of the filler, the empty bottle inspection,
the manual inspector, and the filler operator. The filler oper-
ator and the manual inspector were ‘‘basically the only peo-
ple that work in that room.
A television camera, mounted on the ceiling of the can
filling room, pointed straight down. It televised the empty
cans coming into the can filler and the filled unlidded cans
as they flowed between the filler and the seamer. The camera
focused in on the cans. The filler operator was usually out
of the picture. Occasionally, the camera showed the opera-
tor’s hands as he tended cans on the line.
The television camera in front of the bottle washer looked
down through a narrow area between the returnable and non-
returnable filler rooms and the rest of the production area.
The camera’s field of view included the bottle conveyor car-
rying the washed empty unsealed bottles from the front of
the washer into the returnable filling room. The camera
would show the washer discharge operator at work.
I find from Roy Almaroad’s testimony that, assuming the
four production line cameras and the bottle washer camera
were operating, approximately six employees would be in
view. I also find from his testimony that the Company has
never operated all of its production lines simultaneously, and
that, at most, four employees working in the areas covered
by those five cameras would be on camera at any given time.
Neither Almaroad nor any other witness provided similar es-
timates of the numbers of employees who might be televised
by the four original cameras.
The Company did not send any notice or otherwise an-
nounce the installation of the television system to its employ-
ees. Almaroad did not think it was necessary to tell them
about it. Nor did the Company advise quality control em-
ployees Agnes Martin, Jerry Heard, and Vivian Resnake
about the television camera hidden behind the clock in their
laboratory.
On Saturday, March 8, night watchman Samuel Stapleton
observed the installation of the first four TV cameras at the
Company’s Norton plant. He watched as the workmen ran
TV wire into a concealed room.
On two or three occasions on the same day, Stapleton at-
tempted unsuccessfully to find out more about what he be-
lieved was a TV system. He questioned Pedro. At first,
Pedro answered that he would let Stapleton know what was
going as soon as he, Pedro, found out. In their last discus-
sion, Stapleton stated that he knew what the Company was
doing.
Pedro responded: ‘‘[Y]ou may see what I’m doing, but
until I see fit to tell you what I’m doing, I expect you to
keep your suspicions to yourself.’’
Soon after the installation of the five TV cameras in April,
three employees asked Pedro to explain their purpose. Pedro
explained that there was concern growing out of ‘‘the second
Tylenol tampering episode and the public’s perception about
the safeness of our product, and that anybody who did tam-
per might find himself on the film.’’ Pedro went on to state
that ‘‘the primary reason for those cameras was to dem-
onstrate that there had been no tampering. To show that it
didn’t happen in our plant.’’
The General Counsel contends that the Company used its
television cameras and monitoring system to engage in sur-
veillance of its employees’ union activities. The Company
denies that union activity had anything to do with the instal-
lation and subsequent use of its TV system. Instead, asserts
the Company, it installed the TV system to protect its prod-
ucts from contamination and pilferage and to protect its
equipment from damage and pilferage.
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The circumstances surrounding installation of the TV sys-
tem at the Company’s Norton, Virginia plant provide support
for inferences that it was intended as a means of watching
for union activity and as an object of concern to employees,
which, if unexplained, would lead them to conclude that
management was on the lookout for union activists. Although
Pedro and his father, George E. Hunnicutt Sr., had consid-
ered such a system for 2 years, they waited until March 8,
only 18 days after the inception of the Union’s organizing
campaign to install a 4-camera system with monitoring and
videotaping components. By that time the Company’s man-
agement had already shown its strong hostility toward the
Union and prounion employees by repeated violations of the
Act. Further, the Company made no announcement of its in-
tention to install the system and its reasons for doing so.
The Company asserts that union activity played no part in
the decision to install the TV camera system. George
Hunnicutt Sr. flatly denied that the Union had anything to do
with his decision to authorize its installation.
Included among the reasons urged by the Company for the
installation of its TV system are pilferage and vandalism.
There is much testimony offered to lend credence to these
proffered reasons. I have credited W. A. Jones’ testimony
that when he first urged George Hunnicutt Sr. to install a TV
system at the Company’s Norton plant in 1981, he mentioned
theft and vandalism as the reasons. In its brief, the Company
points to testimony of members of management that since
the TV system’s arrival, vandalism and pilferage have dimin-
ished. Roy Almaroad testified that he favored installation of
the TV system as a preventive against product contamination,
pilferage, and vandalism. In his testimony regarding the rea-
sons for installing the TV system, Pedro asserted that the
Company had ‘‘experienced a considerable amount of pilfer-
age and vandalism.’’
However, concerns about pilferage and vandalism do not
assist the Company’s defense. For, according to George
Hunnicutt Sr., who made the decision to install the TV sys-
tem, and ordered Pedro to implement it, only the danger of
product contamination motivated him. Thus, George Sr. testi-
fied that two incidents, in which Tylenol was contaminated,
caused him to discuss such a system with A. W. Jones, but
that two reports of ground glass in cans of company products
‘‘triggered off the purchase of [the cameras].’’ Therefore, it
was George Sr.’s expressed concern on which I focused
when I considered the issue of motivation.
Pedro’s testimony conveys the same fear of contamination
as the catalyst in his effort to implement his father’s order.
Thus, Pedro testified that the two Tylenol contamination re-
ports caused him to look into the installation of a TV system.
He also testified that he did not act with any urgency on the
project until glass particles appeared in a can of Sunkist Or-
ange, in February.
The Company’s placement of the first four TV cameras on
March 8 suggested that protection from contamination of its
products was not their purpose. Thus, the Company placed
none of the cameras along the production lines, where un-
sealed cans and uncapped bottles were vulnerable to con-
tamination. Instead, the Company furtively hid a camera be-
hind an innocent clock in the quality control lab pointed at
an entry door, suspended two cameras, concealed in boxes,
from the rafters overlooking the loading dock and placed the
fourth, concealed in a box, overlooking the staging area.
Vivian Rasnake and her two colleagues, who worked in
the quality control lab, did not produce anything for public
consumption. However, Pedro, George Hunnicutt Sr., and
Roy Almaroad were aware of Rasnake’s support for the
Union before February 28, when the Company received a let-
ter from the Union announcing that fact. I have found that
as early as February 19, the Company revealed its suspicion
of Rasnake’s prounion sentiment, when Almaroad warned
her to stay away from the Union. On February 24, in re-
marks to Rasnake, George suggested that the Company was
already keeping her union activity under surveillance. In light
of the Company’s interest in Rasnake’s union activity, and
the concealment of the camera in the quality control lab, se-
creted behind a clock, and pointed at the lab’s entrance, I
find that the Company was attempting to watch Rasnake to
see if she was engaging in union activity and identify em-
ployees who might be joining her in such activity.
The two TV cameras covering the loading dock were like-
ly to focus on driver-salesmen, forklift operators, and other
employees as they mingled during the loading of company
products in capped bottles and sealed cans into delivery
trucks or during the performance of tasks related to loading.
Many employees listed as union activists on the letters which
the Company received from the Union on February 21 and
28 worked on the loading dock or were present there during
their working hours. I have also found that on February 17,
Assistant Operations Manager Robbie Mullins interrogated
forklift driver John Baker regarding his union activity.
Further, in February and early March, there were repeated
manifestations of company interest in identifying union sup-
porters and persuading them to abandon the Union. The
record is replete with instances in February and early March,
prior to the arrival of the four TV cameras, in which the
Company’s management, including Pedro, his brother Huck,
and Almaroad, interrogated employees about their union ac-
tivity or solicited the withdrawal of their union authorization
cards. This unlawful conduct showed the motive for the
placement of the two cameras on the loading platform. I find,
therefore, that the Company installed the two TV cameras on
the loading platform to assist in the eradication of union sup-
port among its employees.
Similarly, I find that the Company focused the fourth cam-
era on the staging area to show forklift drivers and laborers
mingling as they worked. Here were likely opportunities for
union supporters to hand out authorization cards and
prounion literature. Here, again, employees named in the
Union’s letters of February 21 and 28 would be visible on
the TV monitor.
Nor do I credit the Company’s claim that it installed the
remaining five cameras to prevent contamination of its prod-
ucts. Granted, that four of those cameras point at the produc-
tion process, and that the fifth is aimed at the returnable bot-
tle washer. Nevertheless, the Company’s failure to explain
the presence of the TV system to all but three employees,
and its tardy installation 2 months after Pedro claimed he
was galvanized into action in February by the appearance of
glass particles in a can of Sunkist Orange, cast serious doubt
on its explanation. Here, again, the Company’s persisting re-
sort to conduct violative of the Act in its effort to eradicate
employee support for the Union, points to the real motive be-
hind the installation of the five additional TV cameras.
1019PEPSI COLA BOTTLING CO.
I find from Roy Almaroad’s testimony that he, George
Hunnicutt Sr., and Pedro had access to the TV monitor since
its installation on March 8. I also find from Almaroad’s testi-
mony that he frequently reviewed 20 or 30 minutes of tele-
vision tape showing activity on the night shift. There was no
showing that George Sr. or Pedro watched the monitor, or
reviewed any TV tape.
Security officer W. A. Jones also admitted watching the
monitor during the night shift, as part of his duties. However,
there was no showing that he participated in the Company’s
antiunion campaign or that he was looking for union activity
when he looked at the monitor.
However, I find that Almaroad, while reviewing the video
film, was on the lookout for union activity. Given
Almaroad’s demonstrated hostility toward the employees’
union activity and his leading role in the Company’s
antiunion campaign, there can be little doubt that he was in-
terested in uncovering union activity. His resort to unlawful
interrogation, as found above, reflected a desire to identify
union supporters and activists for that purpose. Viewing the
night shift TV film would certainly provide opportunities to
spot a conversation between suspected union supporters, or
the movement of authorization cards or prounion literature
from one hand to another, on the loading dock or in the stag-
ing area. I also find it likely that Almaroad monitored the
entrance to the quality control laboratory and the other areas
of the plant covered by the TV system, during the day shift
for the same purpose.
In sum, I do not credit George Hunnicutt Sr.’s testimony
that the Union had nothing to do with his decision to install
a TV system. Nor do I credit his and Pedro’s testimony that
reports of glass particles in the Company’s products triggered
that decision and its implementation. Instead, I find that the
Company installed the nine television cameras and its moni-
toring system to assist in its antiunion campaign. I further
find that Roy Almaroad engaged in surveillance of employ-
ees’ union activity and that the Company thereby violated
Section 8(a)(1) of the Act. Intermedics, Inc., 262 NLRB
1407, 1415 (1982).
The sudden, unexplained presence of television cameras at
the Norton plant, in the midst of the antiunion campaign, was
likely to give employees the impression that the Company
was looking for union supporters. Rasnake, who had suffered
unlawful interrogation and warnings, only became aware of
the television camera in her workplace when she discovered
its lens pointed at her through a clock. The Company,
through Pedro, provided an economic explanation to only
three of its employees. The bulk of the Company’s Norton
employees were left to draw their own conclusions as to the
Company’s purpose in suddenly pointing TV cameras at
them. I find that by its conduct the Company created the im-
pression among its employees that their union activity was
under surveillance, and thus violated Section 8(a)(1) of the
Act. Conair Corp., 261 NLRB 1189, 1276 (1982).
The amended consolidated complaint did not allege that
the Company violated Section 8(a)(1) of the Act by creating
the impression of surveillance. However, I find that this con-
duct was sufficiently related to the sustance of the amended
consolidated complaint as to warrant a specific finding of a
violation of Section 8(a)(1) of the Act. Alexander’s Res-
taurant, 228 NLRB 165 (1977). The Company’s creation of
the impression of surveillance was but one facet of its cam-
paign to eradicate the Union’s support among its employees.
I also note that the Company’s conduct in creating the im-
pression of surveillance was fully litigated at the hearing and
that the Company had ample opportunity to offer, and in fact
did offer, evidence on this conduct.
In late February or early March, the Company for the first
time posted regulations regarding the wearing of uniforms
bearing product logos or trademarks. Included in these regu-
lations, which Pedro prepared were the following:
1. Employees should wear only approved uniforms.
The Company only orders approved uniforms, but the
mixing of items from the approved uniform at two dif-
ferent franchisors or with any item not a part of the ap-
proved uniform would be in violation of this regulation.
2. Employees who wear uniforms and meet the pub-
lic must refrain from wearing any badges, signs, logos,
slogans, or insignia of any type which did not come on
their uniform from the factory.
3. Employees should wear their uniforms only while
actually engaged in the performance of their duties as
employees or while in transit directly to or from work.
Do not wear your uniform at any other time or place
except as expressly authorized in advance by an officer
of this company. Any employee who is observed to be
wearing a uniform while in a disreputable place or
while engaging in conduct which reflects adversly upon
that uniform and/or the products it is identified with
will be in violation of this regulation. This regulation
prohibits wearing the uniform while engaging in any
personal business, or in any public demonstration of
any kind. While this Company respects the rights of its
employees to engage or not to engage in union activity,
we must point out that this regulation will operate to
prohibit the conducting of union activities in public
places by any employee while wearing a uniform.
The General Counsel contended that the Company promul-
gated the quoted rules to curtail its employees’ union activ-
ity, and thereby violated Section 8(a)(1) of the Act. The
Company urges dismissal of this allegation on the ground
that these regulations constituted a longstanding policy de-
signed to protect the reputations of its products’ trademarks
and logos.
The right of employees to wear union insignia is protected
by Section 7 of the Act. Republic Aviation Corp. v. NLRB,
324 U.S. 793, 801–803 (1945); Virginia Electric & Power
Co. v. NLRB, 703 F.2d 79, 81–82 (4th Cir. 1983). The pro-
mulgation of a rule prohibitlng the wearing of such buttons
constitutes a violation of Section 8(a)(1) in the absence of
evidence of ‘‘special circumstances’’ showing that such a
rule is necessary to maintain ‘‘production, discipline, or cus-
tomer relations.’’ Albertson’s, Inc., 272 NLRB 865, 866
(1984).
When read together, regulations 1 and 2 quoted above,
prohibit all company employees from wearing union insignia
on their uniforms, whether at work, on a break, or on their
own time, and whether they paid for them, or the Company
provided them. The Company has not made any effort to
show that the wearing of union insignia by its employees
would interfere with production, impair plant discipline, or
have an adverse impact on its customer relations. Thus, the
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Ryan testified that he intended to tell Boyd to keep his mouth shut while
he was on the job. However, neither his testimony nor Boyd’s showed that
Ryan expressed that intention. In any event, I find from Ryan’s testimony that
the Company did not have a no-solicitation rule at the Norton plant at the time
he spoke to Boyd, or at any time material to these cases.
20 Supervisor Ryan admitted discussing Boyd’s solicitation of Dale Kennedy
and warning Boyd to keep his mouth shut and do his job. However, by his
answers to leading questions Ryan denied saying anything to Bobby Boyd
about Rasnake and Baker being fired. The frank and straightforward manner
in which Ryan made his admission contrasted sharply with his ‘‘No, sir’’ in
answering the carefully worded questions which the Company’s counsel asked
when directly examining him about remarks he might have made about
Rasnake and Baker. This contrast and the uneasiness with which Ryan an-
swered these leading questions caused me to doubt the reliability of these de-
nials.
Boyd’s recollection of who was present at the conversation, and Ryan’s
exact words did not square with his affidavit of August 7. However, his testi-
mony as to the warning was essentially consistent with what he had said in
that affidavit. In this instance, Boyd seemed to be sincerely trying to give his
full recollection of Ryan’s remarks. Accordingly, I have credited Boyd’s testi-
mony regarding Ryan’s warning that he had heard that the three union sup-
porters would be fired.
Company has not shown circumstances which would excuse
the quoted strictures against the wearing of union insignia.
Accordingly, I find that by promulgating those rules, the
Company violated Section 8(a)(1) of the Act.
The third regulation prohibits employees from wearing
uniforms bearing logos or trademarks of the Company’s
products while engaging in union activity during nonworking
time, outside the plant. Again, the Company has not provided
any business reason which would outweigh the Section 7
right of its employees to engage in union activity in a uni-
form bearing a product identification. That the Company had
prohibited one employee from buying anymore uniforms be-
cause he was intoxicated while wearing one or that it had
disciplined an employee for wearing a uniform while stand-
ing in front of a ‘‘girlie’’ show did not warrant imposition
of the third regulation. For neither of those incidents in-
volved a right protected by Section 7 of the Act. I find that
the third regulation is an excessive impediment to employee
union activity, and that by promulgating this rule, the Com-
pany violated Section 8(a)(1) of the Act.
C. The Alleged Discrimination
1. Bobby Boyd
a. The facts
The Company employed Bobby Boyd for varyiny periods
totaling 28 years between 1954 and his discharge on July 3.
From 1954 until December 1985, Boyd was a forklift oper-
ator. From January until his discharge, the Company em-
ployed him as a general laborer. In the course of his employ-
ment, prior to July 3, the Company had discharged or laid
him off six times.
Boyd became a union supporter in February. He signed a
union card on February 16. On February 28, the Company
received a letter from the Union listing Boyd as a member
of its organizing committee.
In March and April, Boyd handbilled for the Union three
or four times, at the corner of 12th Street and Park Avenue,
just outside the Company’s Norton plant. He participated in
this union activity with employees Vivian Rasnake, Larry
Blanken, and Francisco Vega.
In late March or early April, after Boyd had handbilled for
the Union in his Pepsi-Cola uniform, Pedro confronted him
at the plant, said that he had heard that Boyd was giving out
union badges on company time, and threatened to lay Boyd
off. Boyd protested that he had not handed any union badges
out. Pedro told Boyd that he could not pass out union badges
during work hours, but did not carry out his threat. There
was no showing that the Company had any no-distribution
rule posted or in effect at the time of this incident.
During the same conversation, Pedro noted that Boyd was
wearing a union badge. Pedro ordered Boyd to remove the
badge and enjoined him from wearing it on his Pepsi-Cola
uniform thereafter. Boyd removed the badge.
On April 2, Boyd handilled for the Union outside the Nor-
ton plant, dressed in a Pepsi-Cola hat and a Pepsi-Cola shirt.
The next day, when Boyd arrived at work, he met Pedro at
the timeclock. Pedro warned that he would send Boyd home,
the next time Boyd handbilled in his Pepsi-Cola uniform.
Later, on April 3, Pedro issued a correction notice to
Boyd. The correction notice stated that the reason for its
issuance was that Bobby Boyd had broken a rule or regula-
tion. The notice went on to explain the specifics of Boyd’s
infraction, as:
participating in public demonstration in uniform. You
were previously verbally warned for being intoxicated
in public while you were in uniform.
The notice went on to advise Boyd that this was his ‘‘final
warning,’’ and that the ‘‘next incident of misconduct will re-
sult in dismissal.’’
On April 4 or 5, Supervisor Jerry Ryan, while getting
ready for supper at his home, heard Boyd, who was residing
there, talking to Diane Ryan, Jerry’s sister-in-law, about his
expectations from the Union. At this point, Ryan asked Boyd
if he had offered a union card to Supervisor Dale Kennedy.
Boyd admitted that he had done so in the breakroom, after
Kennedy had bought a cup of coffee for him. At this, Ryan
responded: ‘‘Bobby, that ain’t no joking matter. If you don’t
keep your mouth shut and do your job, they’ll—you’ll get
fired.19 They’ll get rid of you.’’ Ryan also said he had heard
that Boyd, and employees Vivian Rasnake and John Baker
would be fired. He urged Boyd to abandon the Union for the
sake of his job.20
On Friday, May 16, Boyd moved a route truck from the
loading area and backed into a space outside the plant, on
12th Street. Boyd noticed that Pedro’s automobile was
parked out in the street and was in the way. Boyd went into
the plant and asked Pedro’s permission to move his auto.
Pedro rejected Boyd’s assistance and went out to move his
car.
As Pedro approached his auto from the rear, on the driv-
er’s side, he noticed a crease along the top of the fender,
which, according to Pedro, was 2-1/2 to 3 feet long and one-
eighth of an inch deep. According to Operations Manager
Roy Almaroad, who arrived on the scene soon after Pedro
had seen the damage, ‘‘there was a deep gash down the side
of Pedro’s car that was probably three or four feet long.’’
Huck, Pedro’s brother, testified that he ‘‘saw where it was
scraped.’’ When asked if there was a dent, he testified:
‘‘Small—yeah. It was pushed in.’’
Pedro examined the damage closely and found fiberglass
particles from a truck fender in the crease and on the ground
below. He then checked the trucks parked at the end of the
1021PEPSI COLA BOTTLING CO.
21 Pedro testified that after he had concluded that Boyd had hit his auto, he
‘‘was mad about it,’’ and that he told Boyd ‘‘to just get out of my sight and
stay away from me for the rest of the day.’’ Pedro neither admitted nor denied
that he sent Boyd home for the rest of the day. Indeed, counsel did not ask
him if he had sent Boyd home. I relied upon Boyd’s credible and
uncontradicted testimony for my findings that Pedro sent Boyd home at about
3:45 p.m., on May 16, that Boyd began work that day at 1 p.m., and lost 8
hours’ work as a result of the suspension.
22 Bobby Boyd testified that on Sunday, the day before he received the writ-
ten warning, Huck Hunnicutt and D. R. Robinson assured Boyd that he had
nothing to worry about because he had not struck Pedro’s car. Also, according
to Boyd’s testimony, Robinson said that Roy Almaroad’s son-in-law had hit
Pedro’s car. However, neither Huck Hunnicut nor D. R. Robinson have cor-
roborated this testimony. In his testimony before me, Boyd persisted in deny-
ing that he hit Pedro’s auto. The vehemence with which Boyd expressed that
denial suggested to me that he has flatly refused to consider the evidence
showing that he probably scraped and dented a fender on Pedro’s car. It also
seemed likely that Boyd’s mindset had skewed his recollection of conversa-
tions with Huck Hunnicutt and Robinson on May 18.
23 I based my findings of fact regarding Huck Hunnicutt’s interrogation of
Bobby Boyd on July 2, upon the latter’s uncontradicted testimony.
24 I find from Pedro’s and Hunnicutt Sr.’s testimony that the elder Hunnicutt
made the decision to discharge Boyd based on his own observation and assess-
ment of the latter’s treatment of the case of 32-ounce bottles. According to
Roy Almaroad’s testimony, the Hunnicutts, Pedro and George Sr., told him,
prior to the discharge, that Boyd ‘‘had thrown some cases of 32-ounce bottles,
from a distance across on to the floor, breaking the bottles.’’ According to
George Sr., he saw Boyd ‘‘take this case of thirty-two ounce bottles and abso-
lutely slam them down on the floor.’’ However, Pedro testified that his father
told him that Boyd had pitched cases. In sharp contrast with these observa-
tions, the discharge notice issued to Boyd on the same day asserted only that
he had dropped a case ‘‘from waist-high.’’ These inconsistencies cast serious
doubt on the reliability of George Hunnicutt Sr.’s testimony before me regard-
ing what he saw as he approached Boyd on the loading dock on July 3.
At the hearing, over the objection of counsel for the General Counsel, I re-
ceived the affidavit of company employee William G. Cheek in evidence as
offered by the Company. I accepted the affidavit under the business record ex-
ception to the hearsay exclusionary rule.
However, in her brief, counsel for the General Counsel renewed the objec-
tion on two grounds. First, she urged that the affidavit is hearsay, and not ad-
missible as a record of regularly conducted activity, made in the course of the
Company’s business, within the meaning of Sec. 803(6) of the Federal Rules
of Evidence. Counsel also contended that the exception to the hearsay rule
based upon the unavailability of the declarent does not apply here, as there
has been no showing that Cheek was not available, as required by Sec. 804
of the Federal Rules of Evidence. Upon reconsideration of my ruling in light
of the cited provisions of the Federal Rules of Evidence, I find that the affi-
davit is hearsay and thus is not admissible. Accordingly, I revoke that ruling
and order that it be withdrawn from evidence and placed in the rejected ex-
hibit file.
In any event, even if I retained the affidavit in evidence, I find that its con-
tents raised questions as to its credibility. Thus, I noted that in the second sen-
tence of the second paragraph of his affidavit, Cheek asserted that Boyd
‘‘‘threw’ the empty 32 oz. case of empty bottles.’’ However, in the next sen-
tence, Cheek stated that Boyd ‘‘was dropping the cases from a waist-high po-
sition.’’ I also noted that Cheek stated that he heard ‘‘the sound of breaking
bottles,’’ an assertion missing from Hunnicutt Sr.’s testimony and the dis-
charge notice. Thus, even if I retained the affidavit as an exhibit, I find that
its contents are unreliable and would not credit them.
Finally, I considered Boyd’s testimony and the discharge notice as bases for
findings of fact. I noted that they agree that Boyd dropped one case of 32-
ounce bottles, and are not far apart as to where he dropped it from, in relation
to his body. However, Boyd testified that he bent over as he dropped the case,
and that it was only 2 or 3 feet above the dock’s platform. Of all the witnesses
who testified regarding this incident, Boyd impressed me as being the most
ingenuous. Accordingly, I have credited his testimony where it differs from
the discharge notice and the testimony of George Hunnicutt Sr., and the other
witnesses, with regard to his treatment of the case of 32-ounce empty bottles
on July 3.
street, and found that unit number 8304’s front fender had
paint flakes of the same color as his auto.
Pedro returned to his auto and soon saw Bobby Boyd
parking another truck. As Boyd passed by, Pedro asked him
if he had parked 8304. Boyd answered yes. Pedro asked if
he had ‘‘just now parked it.’’ When Boyd again said yes,
Pedro accused him of hitting the auto. Boyd vigorously de-
nied the accusation. With the assistance of Roy Almaroad,
who walked up after Boyd’s denial, Pedro convinced himself
that Bobby Boyd had hit his car.
Pedro sent Bobby Boyd home at about 3:45 p.m., telling
him to come back on Monday. On May 16, Boyd began
work at 1 p.m. As a result of Pedro’s action, Boyd lost about
8 hours’ work on that date.21
On Monday, May 19, Boyd returned to work. Pedro and
Roy Almaroad issued a written warning to Bobby Boyd. The
warning stated that the reason for its issuance was ‘‘Improper
Conduct.’’ The portion of the form provided for an expla-
nation of the reason for the corrective action contained the
following:
Backed into private vehicle while parking Company
truck. Did not report accident. Would not admit action
when confronted with proof of collision. He had been
previously warned for reckless operation of forklift and
prohibited from operating same in future because he
said he didn’t see person he almost ran over.
In the space set aside for describing the corrective action,
Pedro and Almaroad inserted:
written warning. Further misconduct will result in se-
vere discipline. Prohibited from operation any equip-
ment belonging to this company from now on.22
On July 1, Huck issued a verbal correction notice to Boyd
for loafing instead of sorting bottles, and for insubordination.
There is no allegation before me that this disciplinary action
violated the Act.
On July 2, Boyd attended a union meeting at the Norton
Holiday Inn. On the following day, at work, Huck Hunnicutt
asked Boyd if he had attended the union meeting on the pre-
vious evening. Boyd answered: ‘‘I sure did.’’23
Later, on the same day, Boyd was on the loading dock,
stacking cases of empty 32-ounce glass bottles on pallets.
Boyd was using one pallet per stack of four cases. At one
point, he was holding a case of empties at about the middle
of his body, somewhat bent over, 2 or 3 feet above the floor,
and saw that he had no pallet below. He released the case
and it landed on the floor without breakage. As he worked,
Boyd had his back to George Hunnicutt Sr. who was walking
down the loading dock toward him.
Boyd saw George Hunnicutt Sr. approaching. When
Hunnicutt Sr. got to Boyd, he began to scold him. ‘‘God
damn you, don’t throw my bottles down like that! I ought
to wear you out with my damn walking cane!’’ As he spoke,
Hunnicutt Sr. raised his cane and drew it back. He warned
‘‘I ought to ram this up your God damn ass if you throw
my bottles down like that.’’ Boyd had never seen George Sr.
‘‘that wild before.’’24
Management trainee Robinson testified that Boyd broke
bottles when he dropped them on July 3, and that he, Robin-
son, saw the damage. However, there was no showing that
Robinson told George Sr. of the breakage on that day or any
other time. In his testimony before me, George Sr. dis-
claimed any knowledge of breakage attributable to Boyd’s
asserted misconduct.
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Boyd protested, denying that he had thrown the bottles
down. He explained that he had dropped the bottles so that
he could look for a pallet. Hunnicutt Sr. did not accept this
explanation.
Pedro started down the loading dock and saw his father at
the other end, punctuating his speech with his cane. When
Pedro arrived at the scene, his father told him that ‘‘Bobby
had been standing, pitching the cases down from waist
high.’’ Absent from Hunnicutt Sr.’s remarks to Pedro was
any mention of damage resulting from Boyd’s handling of
the 32-ounce bottles. Nor did Pedro see any breakage as he
listened to his father. Finally, Hunnicutt Sr. instructed Pedro
to: ‘‘Take him back there and fire him.’’
Pedro instructed Boyd to punch out and go to the
breakroom. Boyd complied. Pedro prepared a separation of
employment notice, which Almaroad handed to Boyd. The
completed form indicates that the Company discharged Boyd
for insubordination, carelessness, and willful misconduct. The
notice also provides the following explanation of the stated
reasons:
Observed by G. Hunnicutt, Sr. to drop case of empty
bottles onto dock floor from waist-high. No attempt to
bend over and set them down. No attempt to set them
on pallet he dropped them beside. This constitutes overt
and willful misconduct. It is unsafe (creates hazard
from flying glass) and abusive of company property (to
drop glass bottles onto a concrete floor from that height
is outrageous). Previously warned on 5/19/86 for unre-
ported accident with truck and refusal to report or admit
accident. Displayed same attitude on this occasion. Was
recalcitrant and insolent when his conduct was chal-
lenged, just as he was on 5/19.
Boyd accepted the separation notice, but refused to sign it.
He left the plant and has not worked for the Company since
July 3.
b. Analysis and conclusions
The General Counsel argued that the Company issued
written warnings to Boyd on April 3 and May 19, suspended
him on May 16, and discharged him on July 3, all because
of his union activity, and that the reasons proffered by the
Company were pretextual. The Company seeks to avoid find-
ings that its adverse actions against Boyd were not in re-
sponse to union activity or prounion sentiment, by showing
that it punished Boyd in each instance because of job-related
misconduct.
Under Board policy, where the record shows that the
Company’s hostility toward union activity was a motivating
factor in a decision to take adverse action against an em-
ployee, the adverse action will be found to be unlawful un-
less the Company is able to demonstrate, as an affirmative
defense, that it would have taken the adverse action even in
the absence of the protected activity. NLRB v. Transportation
Management Corp., 462 U.S. 393, 402–403 (1983), affg.
Wright Line, 251 NLRB 1083 (1980), enfd. on other grounds
662 F.2d 899 (lst Cir. 1981), cert. denied 455 U.S. 989
(1982). Where it is shown that the business reasons advanced
by the Company for its actions were a pretext—that is, that
the reasons either do not exist or were not in fact relied
upon—it necessarily follows that the Company has not met
its burden and the inquiry is logically at an end. Wright Line,
251 NLRB at 1084.
Boyd’s union activity came to the Company’s attention at
the end of February, when it received written notification
from the Union that he had become a member of its orga-
nizing committee. During the next 2 months, he openly
handbilled for the Union on three or four occasions, just out-
side the plant.
The Company’s initial hostile reaction to Boyd’s union ac-
tivity occurred in late March or early April, at the plant.
Pedro threatened to lay Boyd off for distributing union
badges at the plant, on company time. Pedro also prohibited
Boyd from passing out union badges during work hours. The
Company did not have any no-distribution rule prior to this
confrontation with Boyd. Assuming that the rule itself was
otherwise valid, its promulgation and enforcement specifi-
cally against Boyd’s union activity showed that its purpose
was not to maintain production and discipline. Instead, I find
that Pedro’s threat of layoff and his promulgation of the no-
distribution rule were both aimed at inhibiting Boyd’s
handbilling. This attempt to restrain, coerce, and interfere
with Boyd’s union activity showed that the Company was
annoyed by Boyd’s open support for the Union. I also find
that by this conduct, the Company violated Section 8(a)(1)
of the Act. Harry M. Stevens Services, 277 NLRB 276, 282
(1985).
During the same encounter, Pedro ordered Boyd to remove
a union badge he was wearing on his uniform and told him
not to wear it on his Pepsi-Cola uniform again. In his re-
marks to Boyd, Pedro did not give any business reason for
requiring removal of the union badge, while engaged in gen-
eral labor at the Norton plant. Nor did Pedro do so in his
testimony before me. Here, again, Pedro showed that Boyd’s
overt support for the Union was an annoyance. I also find
that by requiring Boyd to remove a union badge from his
uniform, the Company violated Section 8(a)(1) of the Act.
Overnight Transportation Co., 254 NLRB 132, 133 (1981).
The Company again showed its hostility toward Boyd’s in-
sistence on handbilling near the plant, when Pedro met him
at the Norton plant’s timeclock on April 3. In an effort to
thwart Boyd’s union activity, Pedro invoked the Company’s
unlawful prohibition against employees wearing Pepsi-Cola
uniforms in public places while engaged in union activity.
Pedro warned, in substance, that if Boyd handbilled for the
Union in his Pepsi-Cola uniform again he, Pedro, would lay
him off. By Pedro’s enforcement of the regulation, which I
have found violative of Section (a)(1) of the Act, the Com-
pany again violated that provision of the Act. Mack’s Super-
markets, 288 NLRB 1082, 1100 (1988).
Later, that same day, the Company disciplined Boyd by
issuing a correction notice to him. The notice stated that
Boyd had violated a rule or regulation and specified that he
had participated ‘‘in public demonstration in uniform.’’ The
notice also warned that the Company would dismiss Boyd
for the next incident of misconduct. Absent was any ref-
erence to union activity or handbilling.
The circumstances in which the Company issued the cor-
rection notice to Boyd leave no doubt as to its motive. Ear-
lier on the same day on which the Company issued the cor-
rection notice, Pedro had verbally disciplined Boyd for
handbilling outside the Norton plant, in his Pepsi-Cola shirt
and hat. There is no showing in the record before me, that
1023PEPSI COLA BOTTLING CO.
prior to April 3, Boyd participated in any other public activ-
ity in his uniform which could be characterized as a ‘‘public
demonstration.’’ Thus, I find that it was Boyd’s handbilling
for the Union which provoked the Company into issuing the
correction notice. I also find that the Company’s resort to the
characterization of the handbilling as a ‘‘public demonstra-
tion’’ was an attempt to escape a finding by the Board that
the correction notice was an unlawful reprisal. However, the
record leaves no doubt that the quoted words were a euphe-
mism for his open demonstration of support for the Union.
Thus, I find that the reason for disciplinary action stated in
the correction notice was a pretext and that the real reason
was Boyd’s handbilling for the Union. Accordingly, I find
that by issuing the correction notice, with its warning of dis-
charge, the Company violated Section 8(a)(3) and (1) of the
Act. E.R. Carpenter Co., 284 NLRB 273–276 (1987).
Boyd’s union activity was the subject of discussion, one
or two evenings later, on April 4 or 5, when he and Super-
visor Jerry Ryan met at dinner. Boyd admitted that he had
offered a union signature card to a company supervisor in the
Norton plant’s breakroom. Ryan’s immediate response was to
scold Boyd for soliciting the signature. I also find that the
unmistakable message in Ryan’s remarks was that Boyd had
better stop voicing support for the Union and soliciting sig-
natures on its behalf lest the Company fire him. Ryan also
said he had heard that Boyd and employees Rasnake and
Baker would be fired. Ryan summed up by urging Boyd to
abandon the Union for the sake of his job. Ryan’s remarks
were but another manifestation of the Company’s hostility
toward Boyd’s union activity. I also find that the Company,
by Ryan’s repeated warnings of discharge in the context of
his attempt to discourage employee union activity, violated
Section 8(a)(1) of the Act. Link Mfg. Co., 281 NLRB 294,
297, 298 (1986).
The Company’s unlawful threats and warnings in April did
not convince Boyd to abandon the Union. Indeed, as late as
July 3, Boyd told Huck Hunnicutt that he had attended a
union meeting on the previous evening. The General Counsel
contends that the Company used the incident on May 16 to
punish Boyd for supporting the Union. The Company argues
that it disciplined Boyd only for the reasons set out in the
correction notice of May 19. The Company’s previous treat-
ment of Boyd, his continued loyalty to the Union, and the
timing of this correction notice while the organizing cam-
paign was on, presented strong evidence that his layoff and
the correction notice were unlawful reprisals.
Analysis of the correction notice’s contents suggests that
the Company was anxious to inflate the gravity of Boyd’s al-
leged misconduct. Thus, the correction notice stated that
Boyd ‘‘[h]ad been previously warned for reckless operation
of a forklift and prohibited from operating same in future be-
cause he said he didn’t see person he almost ran over.’’
However, I find from Roy Almaroad’s testimony that in late
1985, he stopped Boyd from operating forklifts because of
poor vision. Absent from Almaroad’s testimony is any ref-
erence to a warning for reckless operation of a forklift. Nor
is there any showing that the Company treated the forklift
problem as a disciplinary matter, when it first arose.
Indeed, I find from Almaroad’s testimony, that the Com-
pany originally treated Boyd’s faulty operation of forklifts
only as a manifestation of a disability. According to
Almaroad’s credited testimony, ‘‘on a couple of occasions,’’
Boyd had not seen people walking in the plant, as he oper-
ated a forklift. Fearing that Boyd would hit someone,
Almaroad prohibited him from driving forklifts. It was not
until the correction notice dated May 19, that the Company
treated this precautionary order as a disciplinary warning.
Moreover, the Company did not claim, nor did the record
show, that Almaroad’s prohibition included Boyd’s operation
of trucks in and around the Norton plant. Boyd’s operation
of a company truck had nothing to do with Almaroad’s pro-
hibition. The addition of this irrelevant afterthought to the
scolding Boyd had suffered on May 16, evidenced the Com-
pany’s fear that his accident on that date might not be per-
ceived as sufficient reason for a correction notice and an
early dismissal from work.
In light of the Company’s earlier unfair labor practices
against him, the contrast between the treatment it accorded
Boyd in late 1985, and that which it inflicted on him in May,
provided significant evidentiary support for the General
Counsel’s contention. Thus in late 1985, when there was no
union activity at the Company’s Norton plant, at least twice,
Almaroad observed Boyd operating a forklift in a manner
dangerous to people walking through the plant. Yet, the
Company did not punish Boyd for that conduct. However, in
May, while the union campaign was on, and after Boyd had
shown Pedro that he was a union activist, a scrape and a
one-eighth-inch-deep dent on the side of an automobile pre-
cipitated an immediate suspension for the remainder of
Boyd’s workday and a written warning.
The Company argued that the record did not show that
Boyd suffered disparate treatment for his misconduct of May
16. I do not agree.
In support of its position, the Company provided evidence
showing the punishment it imposed on five employees for
driving accidents. Thus, the Company showed that in June,
it discharged employee Evans for insubordination and care-
lessness. The separation notice, received in evidence, recited
that he had been reckless and abusive to company equipment
and had threatened a physical attack upon Roy Almaroad. A
written warning issued to employee Steve Philpot in January
warned of discharge if he again drove a forklift in an ‘‘un-
safe manner.’’ In May, the Company issued a correction no-
tice to employee Howard Pickett for his unsafe driving of a
forklift in the syrup room. The notice, received in evidence,
reported that this conduct broke a safety rule and warned of
discipline or dismissal if Pickett drove a forklift into the
syrup room again. Incidentally, the correction notice reported
that Pickett’s action knocked over a 5000-gallon sugar tank.
I also find from Roy Almaroad’s full and forthright testi-
mony that there were 700 to 800 gallons of corn syrup in
the tank at the time, of which 300 to 400 gallons were lost.
In June, the Company issued a correction notice, which in-
cluded a warning of discharge, to Chris Dutton for reckless
operation of a scrubber, when he ran into a pallet of cans.
Finally, the Company showed that it had issued a warning
to employee Jimmy Pitts in October, for driving a forklift
carelessly while stacking pallets. Pitts’ careless driving
pushed out a section of wall approximately 24 inches. The
record did not disclose whether any of the five employees
filed an accident report. Nor was there any showing that the
Company laid off Philpott, Pickett, Dutton, or Pitts imme-
diately after it learned of their asserted misconduct.
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Far from assisting the Company’s defense, the five inci-
dents presented to show that Boyd did not suffer disparate
treatment, showed that he did. Unlike the five employees
named in the preceding paragraph, Boyd’s alleged mis-
conduct did not impact upon company property and did not
cause consequential damage. There was no showing that
Pedro could not use his auto after Boyd scraped some of its
paint off and inflicted a one-eighth-inch dent on its body.
Nor did the Company show the cost of repairing that dam-
age. Further, the correction report issued to Boyd on May 19,
did not characterize his alleged misconduct as ‘‘reckless.’’
That term appears for the first time in the Company’s
posthearing brief. Nor did that correction notice claim, as did
the Company’s brief, that Boyd lied about his responsibility
for the damage to Pedro’s auto. Finally, unlike Boyd, there
was no showing that any of the same five employees suf-
fered a layoff immediately after the Company satisfied itself
of their culpability. Yet as soon as Pedro had completed his
investigation on May 16, and had satisfied himself that Boyd
had damaged his auto, he sent Boyd home.
In sum, I find that the Company seized upon the damaging
of Pedro’s auto, Boyd’s neglect to file an accident report,
and his denial of responsibility for it, as a pretext for pun-
ishing a known union activist. I further find the Company
violated Section 8(a)(3) and (1) of the Act when it sent him
home on May 16, and, again, when it issued a correction no-
tice with its warning of further discipline on May 19.
The amended consolidated complaint alleged that the
Company also violated Section 8(a)(3) and (1) of the Act by
discharging Bobby Boyd on or about July 3. The record
shows that on July 3 George Hunnicutt Sr. decided to dis-
charge Boyd, that he ordered Pedro to do so, and that Pedro
prepared the separation notice, which Roy Almaroad handed
to the employee on that same day. The Company defended
the decision to discharge, urging that it was a lawful re-
sponse to Boyd’s misconduct on that day, which included
abuse of Company bottles, recalcitrance, and insolence.
There can be little doubt that on July 3 George Hunnicutt
Sr. was fully informed of Boyd’s sentiment toward, and ac-
tivity on behalf of, the Union. On February 28, the Company
received a letter from the Union which included a list of em-
ployees who had volunteered to help in the organizing cam-
paign. Boyd’s name appeared on that list. George Sr.’s testi-
mony showed that he soon became familiar with that letter.
The record showed that George Sr., as company president,
was active in its management. He kept a watchful eye on its
Norton plant. George Sr., Huck, and Pedro were all con-
cerned about the Union’s campaign and the union activity of
the Company’s employees. They showed this concern by
their active opposition to the campaign. The record also
shows that George Sr. and Pedro conferred on important
matters, such as the installation of the television system and
Boyd’s discharge on July 3. I also find it likely that when
Huck worked at the Norton plant during the union campaign,
he had contact with Pedro and George Sr. From these cir-
cumstances, I find that Huck and Pedro kept their father,
George Sr., informed of whatever they knew of Boyd’s union
activity.
The record reflects George Sr.’s opposition to the Union.
Five days before the Union sent its letter announcing that
Bobby Boyd was one of its active supporters, George Sr.
signed and issued an antiunion letter to his employees. As
found above, on February 24, George Sr. showed his interest
in his employees’ union activity, when he violated Section
8(a)(1) of the Act by telling employee Vivian Rasnake that
he knew she had attended a union meeting and had talked
to a union representative. On that same day, George Sr. ex-
hibited hostility toward his employees’ union activity, when
he told Rasnake that he equated union support with dis-
loyalty to him and voiced an implied threat of economic re-
prisal if she chose the Union. A further instance of George
Sr.’s willingness to resort to unfair labor practices to squelch
union activity among his employees was his decision to in-
stall a television surveillance system at the Company’s Nor-
ton plant in March and April.
George Sr.’s hostility toward the union organizing cam-
paign and its employee support had an ample target in Bobby
Boyd. There can be little doubt that Bobby Boyd’s
handbilling just outside the plant in his Pepsi uniform, and
his distribution of union badges inside annoyed Pedro and
George Sr. Indeed, as found above, in early April, after Boyd
had offered a union card to a supervisor in the Norton plant’s
breakroom, Supervisor Ryan warned him of discharge if he
continued to talk about the Union. This warning suggested
that the Company’s higher management was more than an-
noyed by Boyd’s union activity.
Soon after Boyd’s arrival at work on July 3, Huck
Hunnicutt came to his workstation and asked if he had at-
tended a union meeting on the previous evening. Boyd an-
swered yes. Within a few hours George Sr. directed Pedro
to discharge Boyd. The timing of the discharge so soon after
Boyd’s encounter with Huck, by itself, was sufficient to
arouse at least a suspicion of unlawful motive. However,
given the evidence showing George Sr.’s prior knowledge
and strenuous opposition to his employees’ union activity,
this interrogation, which I find violative of Section 8(a)(1) of
the Act, and the timing of the discharge provided a prima
facie showing that Boyd’s persistence in supporting the
Union provoked George Sr. into getting rid of him.
The Company sought to show that it discharged Boyd be-
cause he engaged in willful misconduct in his treatment of
bottles and was ‘‘recalcitrant and insolent when his conduct
was challenged, just as he was on 5/19.’’ However, review
of George Sr.’s testimony cast doubt on the explanation re-
cited in the notice of separation which Pedro prepared.
Granted that Pedro accurately portrayed his father’s descrip-
tion of how Boyd treated the bottles. However, the assertion
that Boyd was recalcitrant and insolent on July 3, to the
same degree as he was on May 19, is unfounded.
First, I note that George Sr.’s testimony did not even sug-
gest that Boyd was insolent or recalcitrant during their en-
counter on July 3. Nor was there any showing from Pedro’s
testimony that he witnessed any such misconduct after he
came upon his father and Boyd on that date. Nor did the cor-
rection notice, dated May 19, report insolence or recal-
citrance. Here, as in that correction notice, the Company, in
an effort to mask its actual motive for punishing Boyd, has
exaggerated the extent of his asserted misconduct.
According to George Sr.’s testimony, he was ‘‘a little in-
furiated’’ by what he perceived as Boyd’s intentional and
willful attempt to break bottles, and reacted by instructing
Pedro to discharge him. According to Pedro, his father
thought of the Company’s bottles as his ‘‘crystal.’’ To show
that Boyd’s punishment was an instance of its even-handed
1025PEPSI COLA BOTTLING CO.
25 Webster’s Seventh New Collegiate Dictionary p. 1021.
treatment of employees who mishandle bottles, the Company
introduced into evidence a correction notice, drafted by
Pedro, and dated August 19, which it issued to Roy
Almaroad’s son, Brian, for throwing a case containing three
or four 2-liter plastic bottles from the top of a palletizer. The
notice shows that the Company issued it for ‘‘Improper Con-
duct’’ and for ‘‘Breaking a Rule or Regulation.’’ The expla-
nation of the Company’s reason for issuing the corrective no-
tice originally read as follows:
Was clearing jamb on 2-liter palletizer. Threw dam-
aged cases down onto floor to get them out of the way.
Most of bottles in those cases were undamaged. Threw
3 or 4 cases down. Distance from top of machine is ap-
proximately 10 feet. This is destruction of property.
Should have handed cases down to another worker.
In the portion of the correction notice form set aside for:
‘‘Type of corrective action given,’’ Pedro wrote:
WRITTEN WARNING. At best, this is very poor
judgment and disregard of company property rights. At
worst, this is wanton destruction of property. WILL BE
DISCHARGED IF THIS IS REPEATED. SUSPEN-
SION UNDER CONSIDERATION. WILL ADVISE.
After Pedro completed the correction notice, he spoke to
Bryan and learned that three or four bottles were involved
in the incident. Pedro immediately wrote ‘‘bottles’’ over the
typed ‘‘cases’’ only after ‘‘3 or 4.’’ Everywhere else on the
document, Pedro left ‘‘cases’’ unchanged.
Focusing on the punishment which Pedro inflicted on
Bryan Almaroad, I note that it mattered not whether the mis-
conduct involved three or four cases or three or four bottles.
For, upon discovering that bottles rather than cases were in-
volved, Pedro did not rescind the correction notice with its
warnings of possible suspension immediately, and of dis-
charge for a repetition of the asserted misconduct. Thus, it
appears that as of August 19, George Sr. and Pedro consid-
ered the throwing of bottles to be serious misconduct, but not
serious enough to warrant immediate discharge. This raises
the question of why George Sr. insisted on discharging Boyd
for dropping a case of bottles ‘‘from waist-high.’’
Pedro’s attempt to explain the difference between Bryan’s
treatment and that inflicted on Boyd does not withstand scru-
tiny. First, according to Pedro, Bryan did not suffer discharge
because the incident ‘‘involved 3 or 4 bottles of merchandise
instead of a caseless [sic] than a full case.’’ However, as
pointed out above, when Pedro filled out the notice showing
that three or four cases had been thrown, there was only a
threat of discharge for a repetition of the asserted conduct.
When Pedro discovered his error, he did not change the cor-
rective action portion of the correction notice. This failure to
mitigate the punishment suggested that Pedro and George Sr.
were primarily concerned about the mishandling of bottles,
quantity of destruction. However, in attempting to justify the
harsher treatment accorded Boyd, Pedro drew attention to the
fact that glass bottles cost $6 to $8 per case empty while the
plastic bottles abused by Bryan cost about $3 per case. The
contrast between Pedro’s conduct and his testimony about
‘‘crystal’’ cast doubt on his credibility as he attempted to ex-
plain the disparity between Bryan’s punishment and Boyd’s.
Comparison of the language Pedro used in recording the
reasons for disciplining Boyd and Bryan with his testimony
before me, suggested that he was exaggerating the serious-
ness of Boyd’s conduct and minimizing Bryan’s. Pedro testi-
fied that Bryan was contrite and provided an explanation
showing that he had acted to keep production going. Accord-
ing to Pedro, Bryan had shown poor judgment, but had acted
to help production. Pedro also insisted that Bryan had not
‘‘engaged in any willful conduct.’’ In contrast, the separation
notice issued to Boyd on July 3 stated that his dropping of
the case of bottles was ‘‘overt and willfull [sic] mis-
conduct.’’ In this context, the normal definition oi ‘‘willful’’
is ‘‘done deliberately.’25 Thus, according to Pedro, when
Boyd dropped a case of empty bottles over the dock floor
‘‘from waist high,’’ that was deliberate misconduct however,
when Bryan threw three or four bottles to the plant floor
from a platform, 10 feet above, as described in the correction
report, that was not deliberate misconduct.
On direct examination, Pedro sought to correct his dis-
torted interpretation. Contrary to what he had written on Au-
gust 19, he testified that Bryan had dropped the 2-liter plastic
bottles. When he testified about the difference between
Boyd’s conduct and Bryan’s, Pedro asserted that Boyd ‘‘just
threw the bottles on the floor.’’ According to the separation
notice Pedro prepared on July 3, Boyd dropped the bottles.
Comparison of Boyd’s separation notice with George Sr.’s
testimony before me also shows that, between July 3 and the
hearing before me, the Company’s president embellished the
account he had given to Pedro on the earlier date. According
to Pedro’s explanation on the separation form, his father saw
Boyd ‘‘drop a case of empty bottles onto dock floor from
waist-high.’’ Pedro also reported that this ‘‘constitutes overt
and willfull [sic] misconduct.’’ George Sr. testified that he
‘‘saw Bobby [Boyd] take this case of thirty-two ounce bot-
tles and absolutely slam them down on the floor.’’
In a further effort to show aggravation, George Sr. testified
that ‘‘it appeared to [him] that [Boyd] was trying to infuriate
me in handling that merchandise in that rough manner.’’ At
another point, George Sr. went further, he testified that he
became ‘‘a little infuriated about what [Boyd] was doing be-
cause it appeared to me that he was purposely, intentionally,
and willfully attempting to break those bottles and I believe
that he had in mind just to antagonize me doing it.’’ This
testimony portrays malice on Boyd’s part which was absent
from the separation of employment form which Pedro drafted
20 after obtainiLng his fathers account of the incident. How-
ever, I fail to see how Boyd could have intended to antago-
nize George Sr. For, Boyd was working with his back toward
the elder Hunnicutt, as the latter advanced toward the
dropped pallet. This attempt to camouflage the real reason
for George Sr.’s fury on July 3, dealt a fatal blow to George
Sr.’s credibility and the Company’s attempt to rebut the evi-
dence supporting the General Counsel’s contention.
Had Boyd not been a persistent union activist, I have no
doubt that on July 3, George Sr. would have scolded, or
given a correction notice to, this longtime employee for mis-
handling a case of glass bottles. However, I find that George
Sr.’s fury, and his threat of physical harm, when he raised
his cane as if to strike Boyd did not come from the mis-
handling of bottles.
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 My findings of fact regarding Waddell’s employment and union activity
were based upon the uncontradicted testimony of Charles Moore and Johnny
Waddell.
27 While conflicts arose between Waddell’s testimony and Pedro’s regarding
their confrontation on July 2, I accepted Waddell’s version. In assessing the
reliability of Pedro’s testimony here, I noted his lack of respect for these pro-
ceedings. Pedro, who is a member of the Virginia bar, showed this disrespect
by leaving the witness chair, without permission, to assist the Company’s
counsel during the argument of an evidentiary issue pertaining to the alleged
discrimination against Waddell. However, the decisive factor in my assessment
of Pedro’s credibility, where Waddell was concerned, was my conclusion that
his explanation of the Company’s failure to reemploy Waddell did not with-
stand scrutiny. In later portions of my findings of fact, I have credited Pedro’s
uncontradicted testimony regarding Waddell, where documents corroborated it.
In contrast to Pedro, Waddell seemed respectful toward these proceedings.
Further, Waddell appeared to be testifying from his best recollection in a forth-
right manner. In sum, Waddell impressed me as the more reliable witness re-
garding his treatment at the Company’s hands.
The Company argues that I should reject Waddell’s testimony regarding
Almaroad’s remarks to him as he left the plant on July 2. In support of its
position, the Company points to an inconsistency between Waddell’s testimony
and his sworn statement given to a Board agent before the hearing. Compari-
son shows that his testimony before me that Almaroad told him that the Com-
pany would call him if it needed him, was not included in his prehearing affi-
davit. However, when asked why this additional remark was absent from his
affidavit, Waddell answered, apologetically, that he had forgotten it. Having
found him to be a credible witness, I accepted this explanation. I also noted
that although the Company examined Almaroad extensively, counsel did not
give him an opportunity to contradict Waddell on this topic.
Instead, I find from all the evidence recited above, that
George Sr.’s great hostility arose from Boyd’s insistence on
supporting the Union. This hostility motivated George Sr. to
seize upon the dropped case of bottles as pretext for ridding
the Company of an annoyance. I further find that by dis-
charging Boyd because of his union adherence and support,
the Company violated Section 8(a)(3) and (1) of the Act.
Limestone Apparel Corp., 255 NLRB 722 (1981). I also find
that by brandishing his cane, in this context, as if he intended
to strike Boyd, George Sr. was giving vent to his strong feel-
ing against Boyd’s union activity, and thereby violated Sec-
tion 8(a)(1) of the Act.
2. Johnny Waddell
a. The facts
The Company employed Johnny Waddell as a laborer for
3 years. Johnny Waddell first became involved with the
Union in December 1985, when he, his son David, and two
other employees met with an International representative of
the Teamsters. On February 21, the Company received a let-
ter from the Union announcing that a group of employees,
including Johnny Waddell, would be assisting the Union’s
campaign. Waddell signed a union card, attended union
meetings, openly campaigned for the Union outside the Nor-
ton plant, and obtained a fellow employee’s signature on a
union card.26
On June 19, Waddell suffered an attack of hepatitis while
at work and was hospitalized until Monday, June 21. He re-
turned to work on July 2, with a note from Dr. Charles A.
Fulton, dated July 1. The note announced that Waddell had
been under Dr. Fulton’s care and could return to work on
July 2. Waddell gave the note to Operations Manager Roy
Almaroad. Almaroad accepted the note without comment.
Waddell went to the breakroom briefly, punched in, and went
to work on the loading dock, sorting empty bottles.
Pedro and Almaroad soon appeared on the loading dock.
Pedro instructed Waddell to punch out and go to the
breakroom. In the breakroom, Pedro said that because
Waddell was employed at a food plant and had suffered hep-
atitis, he could not return to work until the Company had re-
ceived a letter from a doctor. At Pedro’s request, Waddell
signed a statement authorizing release of medical information
regarding Waddell’s medical condition, and any treatment he
had received during the last 5 years. Pedro took the signed
release and left the breakroom.
Before leaving the breakroom, Waddell asked Roy
Almaroad if another doctor’s excuse would be necessary
when he returned to work. Almaroad said, ‘‘No,’’ adding
that the Company had replaced Waddell and that ‘‘if we
need you, we’ll call you.’’ The Company never recalled
Waddell.27
By letter dated July 7, but sent on the next day, Pedro re-
quested that Dr. Fulton send to him ‘‘a letter indicating
whether Mr. Waddell has a communicable disease which
would interfere with his employability in a food plant such
as ours.’’ Pedro included copies of the medical records re-
lease which Waddell had signed on July 2. Dr. Fulton re-
ceived the letter and its contents.
On July 11, the Company received a physician’s certificate
of health which Dr. Fulton had completed that same day for
the Virginia Employment Commission (VEC), in connection
with a claim for unemployment benefits which Waddell had
filed on July 9. The completed form recited that Waddell had
suffered from hepatitis ‘‘A,’’ but could now perform any
work and had no physical limitations.
Also, on July 11, the Company received a form from the
VEC, showing that Johnny Waddell had filed a claim for un-
employment benefits. The form stated that Waddell was as-
serting that the Company had discharged him, and that his
last workday had been June 25. The left-hand front side of
the form and the first two lines of the right-hand front side
had been completed. The remainder of the left-hand front
side and the back of the form were to be completed by the
Company. Pedro instructed his sister, Strawberry, who was
responsible for payroll records, to hold the form until July
15, ‘‘because by then, he will probably be back to work, and
we will just tell them he is back to work and they will close
the file.’’ When July 15 arrived without word from Waddell,
Pedro directed Strawberry to fill out the employer’s portion
of the VEC form.
On Pedro’s instructions, Strawberry completed the form,
indicating that the Company had given a definite return date
to Waddell. However, in the space provided for that date, she
wrote, ‘‘[U]pon Doctor’s Release.’’ On the reverse side of
the document, Strawberry rejected ‘‘discharge’’ and ‘‘vol-
untary quit’’ as reasons for Waddell’s separation from the
Company’s employ. She checked the box next to ‘‘other.’’
In the space provided for remarks, Strawberry wrote:
Mr. Waddell was off sick & has failed to supply a Doc-
tors Release stating he is in satisfactory health to work
in a food plant.
Strawberry mailed the form to the VEC on July 15.
Pedro telephoned Dr. Fulton’s office on July 15, and was
told that Fulton was out of town that week, on vacation, and
would return on July 21. It was Pedro’s intention to find out
1027PEPSI COLA BOTTLING CO.
28 Pedro testified that on July 21, in a telephone conversation with Dr. Ful-
ton, he learned that the doctor had given a written release to Waddell, but
could not remember when. Pedro also testified that on the same date, he tele-
phoned Sherry Vanover of the Virginia Employment Commission, who told
him that Waddell had filed his claim on July 9, that she had a letter from
Dr. Fulton in Waddell’s file, and ‘‘that she had received it the week before.’’
According to Pedro, at his request, Vanover gave a copy of the undated, hand-
written, clearance letter to the Company on the same day. Pedro also testified
about a telephone call he made to Dr. Fulton’s office on July 22, during which
he learned about the doctor’s letter of July 22. According to Pedro, he re-
ceived that letter on July 24. I have credited this uncontradicted testimony,
which was in part corroborated by Dr. Fulton’s testimony showing when that
letter was prepared.
However, Dr. Fulton, who testified in an earnest and candid manner, denied
having any telephone conversation with Pedro regarding Waddell. I have,
therefore, Further, company witness Sherry Vanover’s credible testimony did
not include any reference to a telephone conversation with Pedro regarding
Waddell.
In an effort to cast doubt on Dr. Fulton’s testimony, the Company (R. Br.
p. 5) asserted that Waddell contradicted Fulton’s denial of a telephone con-
versation with Pedro. The Company was referring to Waddell’s testimony that
on or about July 5, while he was visiting Dr. Fulton’s office, the doctor told
him that he had conversed with Pedro by telephone and had cleared Waddell,
but that Pedro wanted a written clearance. However, in light of Pedro’s letter
of July 7 setting out the need for a clearance, without any reference to a phone
conversation, and his testimony that he had not heard from Dr. Fulton as of
that date, I have rejected this portion of Waddell’s testimony.
My impression that he was less than a candid witness when testifying about
his decision not to reemploy Waddell, together with the factors recited above,
persuaded me to reject Pedro’s testimony regarding conversations with Dr.
Fulton, and a converstion with Vanover on July 21.
29 I based my findings regarding the preparation of the two letters regarding
Waddell on Dr. Fulton’s testimony. In contrast with Sherry Vanover, who ex-
pressed uncertainty under cross-examination as to when her office received
copies of these letters, Dr. Fulton seemed confident as he carefully testified
about the sequence and timing of the two letters. Vanover cast serious doubt
on her testimony during direct examination, when, on cross-examination, she
testified that she could not recall when the handwritten letter came in. On redi-
rect examination, she could not recall when the Company picked up a copy
of the handwritten letter. I also noted that Vanover admitted that neither the
VEC certificate of health form, nor the copy of Dr. Fulton’s handwritten letter,
which were in Waddell’s claim file, had a time stamp showing when each was
received at her office.
Waddell also seemed confused about the timing of the handwritten letter.
Accordingly, I rejected his recollection of when he received that letter. How-
ever, as he seemed more certain about Dr. Fulton’s earlier letter, and as the
record supports his recollection of when and how he received it, I have cred-
ited Waddell’s testimony that he received Dr. Fulton’s letter to Pedro, dated
July 22, by mail prior to July 24.
I have also credited Dr. Fulton’s testimony regarding the manner in which
Waddell obtained the undated, handwritten letter, which he prepared. Waddell
seemed mnre uncertain than the doctor about how and when he had received
that letter from Dr. Fulton. However, I find from Waddell’s testimony, that
he took the handwritten letter to the VEC, after receiving it at Dr. Fulton’s
office.
According to Pedro, he received the handwritten clearance letter on July 21,
after Vanover told him about it. In an earlier footnote, I rejected his testimony
about a conversation with Vanover on that date. (See fn. 28, above.) I have
also found that Dr. Fulton did not prepare that letter until July 22, at the ear-
liest. Accordingly, I have rejected Pedro’s assertion that he received a copy
of that letter on July 21.
30 The testimony of Pedro and Waddell conflicted on where they were
standing when the offer of the letter was made. I find it unnecessary to resolve
this conflict. The remaining findings of fact regarding their meeting, the hear-
ing, and Waddell’s VEC claim were undisputed.
why he had not received an answer to his letter regarding
Waddell.
On July 16, the Union filed the unfair labor practice
charge in Case 5–CA–18210, one of the cases listed in the
heading above, alleging, inter alia, that the Company had
violated Section 8(a)(3) and (1) of the Act by discharging
Johnny Waddell on or about July 2, to discourage employee
support for the Union. The charge form carried the Union’s
name and address. The Company received a copy of the
charge on July 21.
On July 21, Waddell came to Fulton’s office with an in-
surance form and mentioned the need for some contact be-
tween the doctor and Pedro to enable him to return to work.
Dr. Fulton completed the doctor’s portion of the insurance
form, stating that Waddell had been unable to work from
June 19 until July 2, because of hepatitis. He immediately re-
turned the insurance form to Waddell. Waddell was seeking
benefits under an insurance policy providing for payment of
installments on the purchase of a truck, in the event Waddell
could not work because of illness.
Dr. Fulton did not return Pedro’s call of July 15.28 Instead,
on July 21, he dictated a letter to Pedro, bearing in mind
Waddell’s need for clearance to return to work. The letter as-
serted that Waddell had completely recovered from hepatitis
‘‘A’’ and did not have hepatitis ‘‘B.’’ Dr. Fulton also de-
clared that Waddell was not infectious and could safely work
on foodstuff. The letter was prepared in final form, dated
July 22, and mailed to Pedro on that date. Pedro received it
on July 24. Dr. Fulton mailed a copy to Waddell.
On July 22 or 23, Dr. Fulton prepared a handwritten letter
addressed: ‘‘To whom it may concern’’: The letter said, in
substance, that Dr. Fulton had treated Waddell for hepatitis
‘‘A,’’ that Waddell had recovered, and that he could work
on food without fear of spreading infection. Waddell re-
ceived the letter at Dr. Fulton’s office, after it was written,
and took it to the VEC.29
The VEC scheduled a hearing on Waddell’s unemploy-
ment compensation claim for July 24. I find from Waddell’s
and Vanover’s testimony that Waddell visited VEC’s office
on that date. In light of that circumstance, I also find that
during that visit, Waddell delivered to Vanover a copy of the
handwritten release prepared by Dr. Fulton.
On July 24, either in the VEC office, or on the parking
lot near that office, prior to the scheduled commencement of
the hearing, Waddell offered a copy of Dr. Fulton’s clearance
letter, dated July 22, to Pedro. Pedro rejected the offer, say-
ing he already had one. He did not offer to reemploy
Waddell. The hearing did not take place. Waddell did not
pursue his VEC claim further. 30
On the afternoon of the same day, Waddell appeared at the
Company’s office with his insurance claim form to have the
Company fill out the employer’s portion. Pedro met him.
Concealed inside Pedro’s shirt pocket was a microcassette re-
corder. Unknown to Waddell, Pedro intended to record their
conversation.
Pedro began by asking Waddell: ‘‘John, how’s come you
never have brought us a doctor’s release here in all this
time?’’ Waddell answered: ‘‘Cause I never did get nary one
from him, Pedro.’’ Pedro then referred to the Dr. Fulton’s
letter to Pedro, dated July 22, and asked if Waddell received
a letter from Dr. Fulton before that one. Waddell insisted that
the July 22 letter, which he had received ‘‘yesterday’’ was
the first. Pedro challenged Waddell, saying: ‘‘Well now, the
doctor claims he . . . he give you one earlier than that.’’
Waddell denied having received such a letter. Pedro ac-
knowledged that he had received a note ‘‘on the little bitty
piece of paper’’ which Waddell had brought from Dr. Fulton
on July 2. Pedro then insisted that Dr. Fulton had said that
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 I based my findings regarding Wright’s conversation with Pedro on her
forthright testimony, which Pedro corroborated in large part.
he had given Waddell ‘‘another one.’’ After Waddell uttered
a negative sound, Pedro retorted: ‘‘Because I called him,
. . . here, . . . uh . . . two-three times.’’ Waddell insisted:
‘‘Well I swear that is the only one I got.’’ Pedro again
pressed Waddell, and the latter held his ground.
Pedro asked: ‘‘Well what. . . . What is this thing
there. . . . You got a . . . You owe somebody money and
that’s insurance on the loan?’’
Waddell answered: ‘‘Yeah, my . . . truck payment.’’
Pedro said that the Company would fill in its portion of
the insurance form to show that Waddell had last worked on
June 19 and had not returned. Pedro added: ‘‘Because that
is the truth, we have to put the truth.’’
Pedro asked if Waddell thought the Company had fired
him. Waddell said he ‘‘did not think that was true.’’
Pedro pointed out that he had received something from the
employment commission saying that Waddell had been dis-
charged. Waddell replied: ‘‘Well, I had to get me some kind
of money.’’
In further discussion, Waddell stated that he had not re-
ceived any letter from the Company, saying that he had been
replaced and had no job. He also conceded that he had not
received any letter from the Company, saying that he had
been discharged.
Finally, Pedro asked if the doctor had not ever given
Waddell ‘‘an excuse before the one dated yesterday, the
22nd day of July?’’ Waddell answered: ‘‘No, that is the only
one. Like I said, I got that letter yesterday evening.’’
On July 24 or 25, Waddell brought the Credit Life Insur-
ance Company disability form back to Finance One, the
company which had financed his truck. Under the policy
Waddell had with Credit Life, if he were disabled for 15
consecutive working days, the insurer would make install-
ment payments on his behalf, from the first day he was un-
able to go to work, until his doctor released him to return.
Finance One’s employee, Teresa Wright, reviewed
Waddell’s form and noted the absence of a date showing his
return to work. She also saw that Dr. Fulton had released
Waddell on July 2 and that the Company had written ‘‘has
not returned’’ on its portion of the form. Wright asked
Waddell why he was not working. He said he didn’t know.
Wright telephoned the Company and asked for Strawberry
Hunnicutt, whose signature appeared on the insurance claim
form. When Wright asked why Waddell had not returned to
work, Strawberry turned the phone over to Pedro. Wright
asked why Waddell had not returned to work. Pedro an-
swered, ‘‘He’s not resumed work.’’ Wright repeated her
question. Pedro repeated his answer. Referring to the insur-
ance form, Wright said she could read that herself. She again
pressed Pedro for an explanation.
Pedro answered:
Look lady, I don’t know if you’re aware of this
union situation here or not, but I don’t want you as a
witness to it.
Wright said all she wanted to know was if Waddell could
go back to work. Pedro replied that Waddell hadn’t brought
‘‘his work excuse back.’’ Wright reminded Pedro of the doc-
tor’s release Waddell had brought to the Company on July
2. Pedro repeated that Waddell had not brought a doctor’s
release. Wright responded: ‘‘In other words, if he brings his
doctor’s excuse back, he can return to work.’’ Pedro replied:
‘‘That’s the problem.’’ At this point, the conversation ended.
Once off the phone, Wright told Waddell that all he need-
ed to get back to work was a doctor’s release. Waddell told
her about his attempt to return to work on July 2. After
Wright told him that he did not qualify for the insurance
benefits he was seeking, Waddell departed.31
b. Analysis and conclusions
The Company’s management first learned of Waddell’s
union activity on February 21, when it received a letter from
the Union, listing him as a member of the organizing com-
mittee. Waddell also handbilled for the Union outside the
Norton plant. Pedro’s demonstrated interest in his employees’
union sentiment and his daily involvement in the Norton
plant’s operation lead me to find that he was aware of
Waddell’s prounion sentiment and his union activity on and
after February 21.
Prior to the arrival of a copy of the Union’s unfair labor
practice charge sheet, on July 21, the Company showed no
hostility toward Waddell, which could be attributed to union
animus. Neither Pedro, nor any other member of manage-
ment, coercively interrogated Waddell, threatened him, or
otherwise attempted to persuade him to abandon the Union.
There was no allegation and no showing that Almaroad’s
statement on July 2, that the Company had replaced Waddell
and would recall him when he was needed, violated the Act.
Contrary to Almaroad’s remarks, as late as July 15, the
Company showed that it intended to reemploy Waddell, as
soon as his physician provided a written release stating that
he was free of hepatitis. Thus, on July 2, and again on July
7, Pedro took steps to assist Waddell in obtaining a proper
clearance letter from Dr. Fulton.
Even after Waddell filed a claim with VEC, on July 9, al-
leging that he had been discharged, Pedro remained benevo-
lent toward him. On July 11, Strawberry had the VEC’s Em-
ployer’s Report of Separation and Wage Information form,
showing Waddell’s claim and his assertion that the Company
had discharged him. Pedro told her to hold it until July 15,
pending Waddell’s probable return to work. Finally, when
Strawberry filled the form out on July 15, she indicated that
the Company had told him that he could return to work
‘‘upon Doctor’s release.’’
However, on July 21, the Company received a copy of an
unfair labor practice charge form, which alleged, among
other violations of the Act, that the Company had discharged
Waddell on July 2 to discourage employee support for the
Union. The form showed that the Union was the charging
party. I have no doubt, and find, that Pedro saw the copy of
the Union’s charge on the day it arrived.
The arrival of the Union’s charge on July 21 brought an-
other message to Pedro. It told him that Waddell went to the
Union for help after Pedro turned him away from his job on
July 2. More important, the charge form reminded Pedro that
Waddell had allied himself with the Union. In view of Pe-
dro’s strong hostility toward the Union, these revelations un-
doubtedly raised his ire.
After July 21, Pedro’s attitude toward Waddell became
hostile. In contrast with his earlier efforts to facilitate
1029PEPSI COLA BOTTLING CO.
Waddell’s reemployment at the Norton plant, Pedro did not
offer reemployment when they met on July 24, or at any
time thereafter. When he met Waddell, Pedro had already re-
ceived Dr. Fulton’s letter of July 22. That letter satisfied the
Company’s need for assurance that Waddell was free of hep-
atitis and could safely work on or near food. Instead, Pedro
devoted himself to defeating the allegation that the Company
had unlawfully discharged Waddell. In this endeavor, Pedro
used Waddell.
The General Counsel contended that the Company violated
Section 8(a)(3) and (1) of the Act on and after July 2, by
refusing to permit him to return to work, and thus construc-
tively discharging him. However, I find that the evidence did
not sustain a prima facie showing that Waddell was entitled
to reemployment prior to the Company’s receipt of the re-
lease in Dr. Fulton’s letter, dated July 22. The General Coun-
sel did not challenge either Pedro’s stated concern on and
after July 2 about Waddell’s hepatitis, or Pedro’s insistence
upon a doctor’s release as a condition for reemployment.
Waddell was not entitled to return to work for the Company
until Dr. Fulton’s release reached Pedro.
It was only when Pedro met Waddell on July 24 and did
not offer to reemploy him, that a prima facie case of unlaw-
ful discrimination arose. For at that juncture, 3 days after a
copy of the Union’s unfair labor practice charge had arrived
at his office, Pedro’s attitude toward Waddell changed from
benevolence to hostility. In light of Pedro’s demonstrated
hostility toward the Union, I find that Waddell’s adherence
to the Union was a motivating factor in Pedro’s decision to
withhold reemployment from him on July 24.
The Company asserted that it refused to reemploy Waddell
because he was dishonest in dealing with Pedro and volun-
tarily quit. The key factor in the Company’s explanation was
Waddell’s failure to give a copy of Dr. Fulton’s handwritten
release to Pedro. According to the Company, this omission
and his untruthful denial that he had received the handwritten
release showed that he was dishonest and did not want his
job back. I find that this explanation does not withstand anal-
ysis.
That Pedro did not advise either Waddell, Finance One, or
the VEC of these reasons on July 24, suggested that they
were afterthoughts. On that day, Pedro had two chances to
tell Waddell why the Company would not reemploy him,
once when they met at or near the VEC’s office, and later
at the Company. On neither occasion did Pedro explain why,
despite the arrival of a valid doctor’s release, the Company
was not reemploying Waddell. Moreover, if Pedro had of-
fered reemployment, a refusal would have removed any
doubt as to the latter’s intention.
When Teresa Wright called to ask why Waddell had not
returned to work, Pedro could have given her the reasons
stated here. He chose not to. Before me, Pedro gave self-
serving declarations, testifying that he withheld these reasons
because of concern for Waddell’s interests. However, I have
found from Wright’s testimony that Pedro voiced concern
only about ‘‘this union situation here,’’ and the possibility
that she might be ‘‘a witness to it.’’ Thus, Pedro’s concern
was the unfair labor practice charges resulting from the
Union’s organizing campaign.
Pedro testified that under Virginia law the Company
would have been charged for the cost of Waddell’s unem-
ployment benefits. However, there was no showing that
Pedro or the Company notified VEC that Waddell’s claim
was false. Instead, Pedro set about preparing a tape recording
which would ultimately play a part in the Company’s defense
against an unfair labor practice charge.
A second factor casting doubt on the Company’s expla-
nation was Pedro’s assertions that he had telephone con-
versations with Dr. Fulton or someone in his office about a
handwritten doctor’s release. In his conversation with
Waddell, on July 24, Pedro asserted that he had called and
spoken to Dr. Fulton two or three times, and that the doctor
had told Pedro that he had given a doctor’s release to
Waddell prior to the release dated July 22. In his testimony,
Pedro asserted that he had telephoned Dr. Fulton on July 21,
and that the doctor said he had already written another re-
lease for Waddell to supplement the release which Waddell
had presented on July 2. Pedro also testified that he called
Dr. Fulton on July 22, ‘‘spoke to one of his girls,’’ who told
him about a third release which he would quickly receive in
the mail. However, I have found from Dr. Fulton’s testimony
that he never had a telephone conversation with Pedro about
Waddell. Yet, on a tape, recorded without Waddell’s knowl-
edge, Pedro told him that there had been two or three such
conversations. It was the very same tape which the Company
offered, and I received, as an exhibit in these proceedings.
Pedro’s surreptitious recording of Waddell’s responses to
Pedro’s assertions that he had two or three conversations
with Dr. Fulton and Waddell’s admission that he was trying
to get some money to pay installments due on his truck sug-
gested an intent to improvise a pretext for the refusal to re-
employ Waddell. Pedro’s remarks to Teresa Wright later,
that same day, about the Union and his fear that she was a
potential witness, add support to that inference. For they
came in answer to her quest for an explanation of why
Waddell had not returned to work. They also show that
Pedro had identified Waddell as a union supporter. Here was
direct evidence of the unlawful motive behind the Com-
pany’s refusal to reemploy Waddell.
Pedro’s references to a second letter on the tape convinced
me that he learned about Dr. Fulton’s handwritten release,
earlier on July 24, after a visit to the VEC. I found no cred-
ible testimony showing that Pedro knew about the hand-
written release prior to that day. I also noted that Pedro did
not mention that release to Waddell when they met at or near
the VEC. It seems likely that Pedro visited the VEC office
after Waddell had left a copy of the handwritten, undated re-
lease there, and after Waddell had offered a copy of Dr. Ful-
ton’s release, dated July 22 to Pedro.
Pedro testified, in substance, that when he learned about
Dr. Fulton’s handwritten release and noted that Waddell had
failed to offer it to the Company, he, Pedro, decided to use
the tape to investigate. However, instead of showing a copy
of that release to the suspect and seeking an explanation,
Pedro attempted to portray Waddell as a dishonest person for
purposes of contemplated litigation. Nor did Pedro take the
opportunity, which the tape presented, to offer reemployment
to Waddell and thus put an end to the matter. Pedro pre-
ferred to contrive an explanation for his failure to reemploy
Waddell.
The Company’s claim that Waddell quit his job, is un-
founded. According to the Company, Waddell absented him-
self from work for more than 3 consecutive days without
presenting a proper medical excuse, and thus, under its pol-
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 The Company’s summary of its payroll records shows that Boyd worked
on 9 days during the 2 weeks beginning on July 5. However, it is undisputed
that the Company discharged Boyd on July 3 and has not reemployed him
since that date. The record offered no explanation for this apparent error in
the summary. The General Counsel did not challenge the accuracy of the sum-
mary and the record does not disclose any other ground for doubting its reli-
ability.
33 Finding Boyd’s testimony regarding his starting times to be confusing due
to self-contradictions and unresponsive answers, I rejected it. Instead, I based
my findings regarding changes in Boyd’s starting time in 1986, on the Com-
pany’s compilation of its uncontradicted payroll records.
34 I have rejected Waddell’s uncertain and scant recollection of his starting
times in 1986, and when they changed, as a reliable source of evidence. In-
stead, I have relied on the Company’s summary, except where it showed start-
ing times for periods after June 20.
On direct and cross-examination, Bobby Boyd testified about changes in his
starting time in 1985. Counsel for the General Counsel and Respondent’s
counsel were careful to focus Boyd’s attention on his experience with starting
time changes in 1985. However, on redirect examination, Boyd testified that
all the changes he had previously mentioned occurred in 1986. Boyd went on
to assert that prior to 1986, the Company had not changed his starting time.
Boyd’s contradiction of his former testimony came in answers to leading ques-
tions by counsel for the General Counsel. This repudiation of earlier testimony
cast serious doubt on the reliability of his testimony regarding whether he ex-
perienced changes in starting time in 1985. Accordingly, I have not credited
his testimony on that topic.
icy, it considered him to have quit. In support of its conten-
tion, the Company pointed to testimony which, if credited,
would show that Waddell had a handwritten clearance before
July 16, and as early as July 11. However, I have found that
Dr. Fulton prepared it on July 22 or 23. I have also found
that at when the two first met on July 24, Pedro did not
know that there was a handwritten clearance.
In any event, by July 23, pursuant to Waddell’s authoriza-
tion, which he provided on July 2, the Company had re-
ceived a proper release from Dr. Fulton. On the following
day, when Waddell offered a copy of this release to Pedro,
he was attempting to satisfy the condition of reemployment
which Pedro, himself, had set on July 2. Indeed, when Straw-
berry completed the VEC’s Employer’s Report of Separation
and Wage Information on July 15, she indicated that the
Company intended to reemploy Waddell ‘‘upon Doctor’s re-
lease.’’ In sum, I find that the Company had no ground for
believing that Waddell had quit.
I find from the foregoing, that the Company’s explanation
of its refusal to reemploy Waddell on and after July 24, was
wholly pretextual. I also find, therefore, that the Company,
by constructively discharging Waddell because he had allied
himself with the Union, violated Section 8(a)(3) and (1) of
the Act.
3. Boyd’s and Waddell’s shift changes
a. The facts
The Company’s records show that from the 2-week pay
period beginning on January 4, until the end of the 2-week
pay period beginning on June 21, it assigned eight different
starting times to Bobby Boyd, who was a laborer. From Jan-
uary 4 until March 14, his most frequent starting time was
6 a.m. From March 15 until March 28, his starting time was
3 p.m. From March 29 until June 20, Boyd’s workday began
at 9 a.m. on 25 days, at 11 a.m. on 18 days, at 10 a.m. on
3 days, and at 1 p.m. on 4 days. From June 7 until his dis-
charge on July 3,32 Boyd began work at 1 p.m. on 13 days.33
The Company’s records show that, from January 4 until
June 19, it assigned six different starting times to Johnny
Waddell, who was a laborer. From January 4 until the 2-
week pay period ending February 14, Waddell started his
workday at 9 a.m. twice, at 11 a.m. 14 times, at 12 p.m. 7
times, and at 3 p.m. twice. From February 15 until April 11,
Waddell’s workday began at 3 p.m. 29 times, at 11 a.m. 3
times, at 12 p.m. once, and at 2 p.m. once. From April 12
until June 19, the Company’s records show that Waddell’s
workday began at 9 a.m. 27 times, at 10 a.m. 4 times, at 11
a.m. 20 times, and at 1 p.m. 4 times. As found above,
Waddell was hospitalized on June 19, and did not return to
work at the Company, except for a brief time on July 2.34
The Company’s records of starting times for six other em-
ployees, who were laborers, show that beginning on January
4, their starting times changed with varying frequencies dur-
ing the year. The six employees included Terry Henderson,
Gary Wells, Larry Blanken, John Baker, Allen Young, and
Ray Kilgore. The Union did not list Wells, Kilgore, or
Young as active supporters of its organizing campaign in the
letters it sent to the Company in February and March. The
Union listed Henderson, Blanken, and Baker in its letter to
the Company, dated February 18.
b. Analysis and conclusions
I find that the General Counsel has failed to make a prima
facie showing that Boyd’s or Waddell’s support for the
Union was a motivating factor in the Company’s changes in
their starting times in 1986. The record shows that the Com-
pany changed the shifts of six other employees with varying
frequencies during 1986. There was no allegation that the
three prounion employees among the six suffered their
changes because of their union sentiment or union activity.
Nor was there any showing that the three employees, who
apparently did not support the Union, received better treat-
ment in the changing of their starting times. Finally, the
credited evidence shows that the Company was changing
Boyd’s and Waddell’s starting times during January and the
first half of February, before the Union began identifying its
supporters to the Company. Accordingly, I find it unneces-
sary to consider the Company’s explanation of the changes
in Boyd’s and Waddell’s starting times in 1986. I shall rec-
ommend dismissal of the allegations that by those starting
time changes, the Company violated Section 8(a)(3) and (1).
4. The discharge and suspension of Terry Henderson
a. The facts
The Company employed Terry Henderson as a stacker or
loader from November 1985 until March 20. On occasion,
Henderson also sorted bottles. As a stacker, Henderson
would load merchandise on a pallet according to a loadsheet.
A loadsheet listed the beverages and quantities of each to be
loaded on a delivery truck. When the load was assembled on
a pallet, a forklift would move the loaded pallet into its as-
signed delivery truck. Allen Young was Henderson’s imme-
diate supervisor.
On February 6, Roy Almaroad issued a verbal correction
report to Henderson for poor work performance. In the ex-
planation section of the report, Almaroad reported giving
Henderson a 3-day layoff ‘‘for standing around & talking.’’
He also reported that he had spoken to Henderson about this
misconduct, and added: ‘‘[I]t can not [sic] be tolerated
1031PEPSI COLA BOTTLING CO.
35 The facts regarding Henderson’s employment and union activity were not
in dispute.
36 My findings regarding the conversation between Almaroad and Henderson
regarding the antiunion pamphlet are based upon the latter’s uncontradicted
testimony.
37 Huck testified that 5 minutes after he had finished scolding Henderson
for loafing, he caught Henderson standing with his arms folded, doing nothing.
According to Huck, this second incident provoked him to tell Henderson to
clock out and leave. According to Huck, when Henderson asked if he was
being fired, Huck thought that Henderson was ‘‘baiting’’ him, and fired him.
However, this testimony was uncorroborated. Almaroad’s correction report of
February 24 did not mention a second encounter between Huck and Henderson
on February 21. Nor did Henderson testify about a second encounter with
Huck.
Assuming that a second encounter occurred, as depicted in Huck’s testi-
mony, it would certainly have been a matter of sufficient gravity to have
reached Almaroad’s attention. Yet Almaroad said nothing about it either in his
correction report or in his testimony. Henderson’s credited testimony showed
that when Almaroad asked Huck why he had fired Henderson, the answer was
that Henderson had interfered with the operation of forklifts. Almaroad’s testi-
mony was that he based the correction notice of February 24 upon Huck’s ob-
servation. Almaroad’s testimony and the correction notice cast serious doubt
upon Huck’s testimony regarding a second confrontation.
Another basis for rejecting Huck’s uncorroborated testimony was his appar-
ent attempts to cast Henderson in an unfavorable light. On direct examination,
when asked to recall his first discussion in 1986 with Henderson, regarding
Henderson’s work, Huck gratuitously testified about a 3-day layoff for loafing.
Later in his testimony, Huck characterized Henderson’s assertion that he had
spoken to employee McFarland about a misplaced loadsheet as an argument.
Finally, when testifying about the asserted second incident, Huck injected an
exasperated tone as he quoted himself. My impression was that Huck was
overdoing the exasperation. In contrast with Huck, Henderson testified in a
frank, unsophisticated manner. I also noted that the content of the correction
notice Henderson received on February 24 was closer to his version of what
happened than it was to Huck’s. Accordingly, I have credited Henderson’s
version of his encounter with Huck and Almaroad on February 21. I have also
rejected Huck’s testimony where it conflicts or is inconsistent with Hender-
son’s.
again.’’ Almaroad did not include any warning as to punish-
ment for repetition of this offense.
Henderson was a union activist. He signed a card for the
Union and obtained signed cards from other employees. He
attended four or five union meetings. Henderson was one of
the members of the Union’s organizing committee. The
Union listed Henderson as one of its supporters in its letter
to George Hunnicutt Sr., dated February 18, which the Com-
pany received on February 21.35
On February 21, a payday, Henderson went into the Nor-
ton plant’s cafeteria to receive his check. Along with the
check, the Company gave him an antiunion pamphlet. After
Henderson had read the booklet, Roy Almaroad approached,
and asked Henderson what he thought about the pamphlet’s
contents. Henderson fended off the question, saying that he
would rather not answer it at that time. Henderson left the
cafeteria to clock in and start work. As he was leaving, he
threw the pamphlet into a trash can.36
Later, that same day, Henderson went to a loading dock
at the Norton plant, looking for a loadsheet in one of the
trucks. He was unsuccessful in his search. He began sepa-
rating 10-ounce bottles. Upon finishing that task, he went to
forklift operator Larry Blanken and asked him if he had seen
the missing loadsheet. Blanken had not seen it.
Henderson went to another dock area and asked forklift
operator Ricky McFarland about the loadsheet. At that point,
Pedro’s brother, Joseph, referred to in the record as Huck,
grabbed Henderson’s left elbow and discharged him. In sub-
stance, Huck said Henderson was loafing. Henderson denied
the accusation, insisting that he was looking for a loadsheet.
Huck did not respond.
Huck also accused McFarland of neglecting work and en-
gaging in casual conversation. McFarland apologized and re-
turned to work. Huck began to escort Henderson from the
plant. Roy Almaroad joined them as they walked to the time-
clock. Henderson sought and received permission to use a
plant restroom. While in the restroom he overheard
Almaroad ask Huck why he had fired Henderson. Huck an-
swered that Henderson was interfering with the operation of
forklifts. Henderson clocked out and left the plant.37
That same day, Huck issued a verbal correction report to
McFarland for poor work performance. In a written expla-
nation on the report, Huck described the misconduct as con-
versing with Henderson, when both should have been loading
trucks.
Almaroad attempted to call Henderson on the following
day and tell him that his discharge had been reduced to a
3-day suspension. Henderson was not at home, but his moth-
er answered the phone. Almaroad told her of the reduced
punishment and asked that Henderson report to his office on
Monday morning .
By letter dated February 22, Roy Almaroad directed Hen-
derson to report to him on the following Monday, at the Nor-
ton plant. The letter explained that the purpose of Hender-
son’s meeting with Almaroad would be ‘‘discussion and final
resolution of your suspension yesterday by Mr. Joseph
Hunnicutt of this company.’’
On February 24, Almaroad issued a correction notice to
Henderson for unsatisfactory work performance and sus-
pended him for 3 working days. The explanation on the no-
tice form was:
Standing around & talking. This is the last warning.
The next will be dismissal.
Almaroad also noted on the report that ‘‘this is the second
layoff for the same reason.’’
b. Analysis and conclusions
The General Counsel contends that the Company dis-
charged Henderson and then changed the discharge to a 3-
day suspension to punish him for supporting the Union, and
thus violated Section 8(a)(3) and (1) of the Act. The Com-
pany argues that Huck discharged Henderson for loafing and
that Almaroad reduced this punishment to a 3-day suspension
because the Union named Henderson as one of its organizers
in its letter of February 21. Thus, according to the Company,
it gave Henderson preferential treatment because of his union
activity. I find, in agreement with the General Counsel, that
the Company inflicted the discharge and the 3-day suspen-
sion on Henderson because it learned that he was supporting
the Union.
On February 21, Henderson refused to answer Almaroad’s
question about what he thought of the Company’s antiunion
pamphlet. By that time, Henderson had aligned himself ac-
tively with the Union. Shortly after Almaroad’s unsuccessful
attempt to explore his attitude toward the Union, Henderson
tossed the Company’s pamphlet into a waste can. The ex-
change between Henderson and Almaroad regarding the
pamphlet occurred in the Company’s cafeteria, in the morn-
ing, as Henderson was picking up his pay, and shortly before
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he clocked in for the day’s work. The waste can stood in the
same cafeteria.
The Company’s demonstrated interest in identifying union
supporters among its employees, as shown by its resort of in-
terrogation and surveillance, as found above, provided the
motive for Almaroad’s questioning of Henderson. Almaroad
was using the antiunion pamphlet to test Henderson’s attitude
toward the Union. Henderson’s balky retort was likely to
arouse Almaroad’s suspicion that he supported the Union.
That suspicion was confirmed that same day, when the
Union’s letter arrived with Henderson’s name listed as a
member of the Union’s organizing committee.
According to Huck’s testimony, at the time he discharged
Henderson, on February 21, Huck did not know that the
Union was organizing and that Henderson, whom he knew
only by the nickname ‘‘Beaver,’’ was listed on the Union’s
letter as an organizer. However, Huck did not deny that
Almaroad’s suspicion of Beaver’s prounion attitude had been
conveyed to him by the time he decided to fire that em-
ployee. Indeed, I find that Almaroad quickly communicated
his suspicion to Pedro, who, in turn, passed the word to
Huck.
The Company was the source of the antiunion pamphlets
in the pay envelopes which Henderson and his fellow em-
ployees received in their pay envelopes on February 21. The
record shows that the Company’s management was con-
cerned about the Union’s campaign and its impact on the
Company’s employees. Therefore, I find that Almaroad acted
under the Company’s instructions when he asked Henderson
for his opinion of the pamphlet.
In any event, the timing of the decision to fire Henderson
suggested that Huck knew or strongly suspected that he sup-
ported the Union. For Huck made his decision on February
21, the same day on which Henderson refused to answer
Almaroad’s interrogation about the Company’s antiunion
pamphlet, and then threw it into a waste can.
The final ingredient in the General Counsel’s prima facie
case is the Company’s demonstrated hostility toward employ-
ees who supported the Union. As shown elsewhere in this
decision, the Company did not shrink from using either dis-
ciplinary warnings or suspensions, or discharges to punish
union activists. The facts recited above, together with the
Company’s willingness to resort to discriminatory discharges,
strongly suggest that its treatment of Henderson, including
the substitution of the 3-day suspension for his discharge,
was motivated by its desire to defeat the Union.
The Company argues that its treatment of Henderson did
not violate the Act. According to the Company, Huck fired
Henderson for misconduct, and Almaroad, upon learning that
Henderson was on the Union’s organizing committee, gave
him preferential treatment by reducing the punishment to a
3-day suspension. I find that the record does not support the
Company’s contention.
Where an employer’s explanation of its reason for dis-
charging an employee is false, the trier of fact may reason-
ably ‘‘infer that there is another motive.’’ More than that, the
trier of fact can ‘‘infer that the motive is one that the em-
ployer desires to conceal—an unlawful motive—at least
where, as in this case, the surrounding facts tend to support
that inference.’’ Shattuck Denn Mining Corp. v. NLRB, 362
F.2d 466, 470 (9th Cir. 1966).
Here, I did not credit Huck’s testimony that he discharged
Henderson for continuing to loaf after Huck had directed him
to return to work and not let it happen again. Instead, I find
that Huck first seized upon the conversation about a loading
sheet as a pretext for discharging Henderson. However, when
he learned that Henderson was a union activist and after
Almaroad had advised that the discharge was excessive pun-
ishment, Huck devised the second incident to provide a more
credible explanation for his abrupt action. Huck was anxious
to disguise the true motivation for his decision to rid the
Company of a prounion employee.
Huck’s conduct on February 21, demonstrated his desire to
get rid of Henderson quickly. Of all the discharges alleged
in these cases, Henderson’s stands out as the one unaccom-
panied by a separation of employment form. Huck summarily
discharged Henderson, and in the company of Almaroad,
quickly escorted him to the plant entrance. This speedy dis-
position of Henderson suggests that Huck was very annoyed
by the discovery that he supported the Union.
Nor do I find merit in the reasons Almaroad gave in the
correction notice he issued to Henderson on February 24.
Almaroad did not witness the incident which inspired this
warning. Huck provided the report which Almaroad em-
bodied in this correction report. According to Huck and the
correction report, Henderson was ‘‘standing around & talk-
ing.’’ However, I find from Henderson’s uncontradicted testi-
mony that he was not standing around and talking without
purpose.
Henderson was trying to perform his assigned task of load-
ing a delivery truck with soda. As a preliminary step in that
task, he was looking for a loadsheet, listing the items and
quantities of each to be loaded on the truck. Henderson first
asked forklift operator Larry Blanken if he had seen a
loadsheet pertaining to a particular truck parked at the dock.
Blanken said no. Henderson met forklift operator McFarland
and asked the same question.
It was Henderson’s question to McFarland which Huck
seized upon as a pretext for discharge. Huck did not attempt
to learn the topic under discussion. When Henderson pro-
tested that he needed a loadsheet, Huck did not answer. He
did not dispute Henderson’s asserted need for a loadsheet.
Instead he summarily discharged him.
Almaroad was content to base his correction notice on the
same incident Huck used for Henderson’s discharge.
Almaroad did not ask Henderson for his version of that inci-
dent. Almaroad’s only concern was to reduce Henderson’s
punishment. Almaroad substituted a 3-day suspension and a
warning for the discharge. The reason he gave for the lesser
punishment was the same pretext Huck had used for the dis-
charge. Huck wanted to rid the plant of a union supporter.
Almaroad sought to inflict a lesser economic reprisal to dis-
courage Henderson from supporting the Union.
In sum, I find that the Company first discharged Hender-
son on February 21, and then, 3 days later, reduced that pun-
ishment to a 3-day supension and a warning, all because he
supported the Union. I further find, therefore, that by the dis-
charge, and the suspension and accompanying warning of
discharge, the Company violated Section 8(a)(3) and (1) of
the Act.
As unlawful reprisals followed upon Almaroad’s question-
ing of Henderson regarding the Company’s antiunion pam-
phlet, I find that questioning to have been coercive. Accord-
1033PEPSI COLA BOTTLING CO.
38 In finding that Almaroad solicited the revocation of Fields’ union card on
March 3, and again, on March 6, I have rejected his denial that he ever en-
gaged in such conduct. Instead, I have credited Fields’ detailed account which
he provided in a straightforward manner.
39 According to Supervisor Mullins and employee Bobby Worley, Mullins
said nothing about sabotage, when he laid Fields off on March 3. However,
on direct examination, Mullins seemed reluctant to provide much in the way
of details about the layoff and its origin. He testified that he laid Fields off
because ‘‘we did not need him.’’ He did not disclose that Roy Almaroad,
Hunnicutt, and Pedro were involved, or what Almaroad said, as he instructed
Mullins to lay Fields off. Mullins’ superficial testimony and my impression
that he was carefully avoiding details cast doubt on his version of his remarks
to Fields on March 3.
Nor did Worley impress me as a reliable witness regarding the content of
Mullins’ remarks to Fields at the time of the latter’s layoff. According to
Worley, Mullins told Fields only that ‘‘he was not needed to show up on
Tuesday.’’ Worley heard these remarks as he worked on the bottle washer.
However, Worley’s reference to Tuesday is at odds with Mullins’ and Fields’
testimony that Fields was instructed not to return to work on Tuesday. This
substantial inaccuracy and the circumstance that Worley overheard Mullins
while working cast serious doubt on his version of the latter’s remarks to
Fields.
Fields seemed to be conscientious about providing his best recollection of
the circumstances surrounding his layoff. In contrast with Mullins, Fields im-
pressed me as the more straightforward witness. Fields satisifed me that he
inadvertently neglected to include in his pretrial affidavit any reference to
Mullins’ remark about sabotage. Also, unlike Worley, Fields was not dis-
tracted as he listened to Mullins lay him off. Accordingly, I have credited
Fields’ uncontradicted testimony as well as his contradicted version of
Mullins’ remarks to him on March 3.
ingly, I further find that by this interrogation, the Company
violated Section 8(a)(1) of the Act.
5. The layoff of Carlos Fields
a. The facts
The Company has employed Carlos Fields as a laborer
since August 19, 1985. His duties included scrubbing floors
and cleaning up on the production line.
On February 18, the Company notified its managers, su-
pervisors, and employees that on February 26 or 27, it would
shut down its three production lines for maintenance, repair,
and installation. The announcement stated that the expected
duration of the shutdown would be 2 weeks. According to
the notice, the Company would employ ‘‘the most senior
qualified men during this layoff to perform this work and
any loading’’ during the shutdown.
Ten days later, Operations Manager Roy Almaroad issued
a written work assignment sheet to Carlos Fields for the
workweek of March 3 through March 8. The assignment
sheet stated that the Company had endeavored to divide the
work evenly during the shutdown. Fields’ assignment was to
report for work Monday through Friday at 7 a.m. When
Almaroad issued the assignment sheet, he advised Fields that
he would be working on the bottle washer. The form stated
that as the work schedule was complicated, the Company in-
sisted that employees appear for work as assigned. The trad-
ing of shifts was prohibited. Absences would be excused
only if it were impossible for the employee to report as as-
signed. George Hunnicutt Sr., Pedro, and Almaroad were the
only persons who could excuse employees from reporting to
an assigned shift. On February 28, the Company learned of
Fields’ union activity.
Fields actively supported the Union’s campaign. He signed
a union card and attended five or six union meetings. By let-
ter dated February 25, the Union notified the Company that
Fields was actively assisting its organizing campaign. The
Company received the Union’s letter on February 28.
On March 3, Fields reported for work at 7 a.m. He worked
with Supervisor Robbie Mullins, and other employees, on
overhauling a bottle washer. Fields’ assignment was to assist
in the removal of carriers from the washer. These compo-
nents are 13 feet long, and weigh 200 to 300 pounds. They
carry bottles through the washer. At about 3 or 3:30 p.m.,
Almaroad took Fields aside and asked him if he wanted his
union card back. Fields said no. Almaroad turned and walked
away. Fields went back to work.38
Shortly before 5 p.m., on March 3, Fields observed Roy
Almaroad, Pedro, and George Hunnicutt standing and look-
ing toward Fields and the other employees working on the
bottle washer. The Hunnicutts called Supervisor Robbie
Mullins over to them. After the four conversed briefly,
Mullins went to Fields and announced that Fields would not
be working on the following day. In quick response, Fields
asked why the Company did not want him to work on March
4. Mullins answered that they were afraid that Fields might
sabotage the bottle washer. Mullins instructed Fields to call
Roy Almaroad on March 4, at 3 p.m.39 Of the employees
scheduled to work for the week of March 3, only Fields was
laid off during that week.
Fields called Almaroad at the plant on the afternoon of
March 4, and again on the following day. On March 5,
Almaroad said he would get back to Fields. On the evening
of the same day, Almaroad called Fields and instructed him
to report back to work at 7 a.m. on March 6.
Fields returned to work as instructed. The Company as-
signed him to cleaning around the plant, including the vicin-
ity of the bottle washer. Fields worked until 5 to 5:30 p.m.,
when Almaroad appeared and took him to a plant lab.
Once in the lab, Almaroad asked Fields if he was sure he
did not want to get his union card back. Fields said yes.
Almaroad asked Fields what the Union was going to do for
him. The employee answered that ‘‘nobody else is doing
anything for us.’’ The conversation ended, and the two left
the lab. Fields worked on the following day.
b. Analysis and conclusions
On Friday, February 28, the Company notified Fields that
it expected him to be working at the Norton plant from 7
a.m. until 5 p.m., daily, beginning on Monday, March 3. The
schedule was complicated and the Company insisted upon
strict adherence to it. Only Roy Almaroad, Pedro, and
Hunnicutt were authorized to excuse employees from report-
ing for work. However, sometime on February 28, the Com-
pany learned that Fields was actively supporting the Union.
On Monday, March 3, Fields reported for work as sched-
uled. At midafternoon, Almaroad attempted unsuccessfully to
pressure Fields into retrieving his signed union card. Within
2 hours of this encounter with Almaroad, and without any
prior warning from the Company, Supervisor Mullins was
laying Fields off. Mullins was acting under Almaroad’s di-
rection, and with the apparent blessings of Hunnicutt and
Pedro. Of the employees scheduled to work that week, only
Fields suffered a layoff. That Fields’ loyalty to the Union
provoked the Company, was strongly evidenced by the tim-
ing of this sudden and unheralded layoff, on the first day of
a 6-day work schedule, which the Company had carefully
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
40 The solicitation on March 6 was not alleged in the amended consolidated
complaint. However, as the facts regarding that incident were fully litigated
at the hearing, my finding that this conduct violated Sec. 8(a)(1) of the Act
is warranted. St. Joseph Hospital East, 236 NLRB 1450 fn. 5 (1978).
41 Conflicts in testimony raised an issue of credibility regarding Allen’s
work assignment on March 8. Pedro testified that on March 8, Allen was as-
signed only to driving a forklift truck. Huck testified that Allen was the early
crew forklift driver on March 8. Pedro was uncertain as to Allen’s shift assign-
ment on that date. Of the three, Allen impressed me as being the most con-
scientious witness, who was providing his recollection in a frank and forthright
manner. Accordingly, I have credited Allen’s testimony where it differed from
Pedro’s or Huck’s.
drawn. Mullins’ response to Fields’ request for an expla-
nation also suggested that Almaroad, Hunnicutt, and Pedro
equated union adherence with treachery toward the Com-
pany, and that they used a 2-day layoff to punish Fields for
supporting the Union.
According to the Company, Fields suffered a 2-day layoff
because he became superfluously late on the afternoon of
March 3. That Mullins did not give that reason in response
to Fields’ question at the time of the layoff, suggested that
the Company’s explanation was an afterthought. Further
analysis of this defense reveals its inadequacy.
According to Pedro and Roy Almaroad, on the afternoon
of March 3, Hunnicutt noted that there were too many em-
ployees at the washer, after seeing Fields and another em-
ployee standing around, and ordered that someone be sent
home. Pedro also testified that he told Almaroad to select the
employee to be laid off. Almaroad testified that at the time
he made his selection, the manual labor required to dismantle
the bottle washer had been substantially finished, and Fields,
as the least skilled employee present, was the logical choice.
However, the Company’s explanation did not include any
assertion that there was nothing else for Fields to do. He was
primarily a cleanup man. Yet, neither Pedro, nor Almaroad,
nor any other company witness presented any testimony
touching on whether there was any cleanup work for Fields
to do on March 4 and 5. Instead, I find from Fields’ testi-
mony that when he returned to work on March 6, the Com-
pany assigned him to cleanup work for the entire day. The
abundance of such work only 3 days after Almaroad laid
Fields off, raises the possibility that such work might have
been available on March 4 and 5. The Company made no
attempt to show that there was no cleanup work available to
Fields on those dates. Thus, the Company did not sustain its
burden of showing that it had no work, including cleanup
work, for Fields during the 2 days of his layoff.
The Company’s failure to show that there was no cleanup
work for Fields on March 4 and 5 and the haste with which
Almaroad selected Fields for layoff on March 3, imply that
Hunnicutt, Pedro, and Almaroad seized upon the impending
completion of the carrier removal as a pretext. Almaroad’s
further attempt on March 6 to pressure Fields into revoking
his union card removed any doubt as to the Company’s mo-
tive for laying Fields off on March 3. Almaroad was inter-
ested in seeing if the layoff had eroded Fields’ adherence to
the Union.
In sum, I find, contrary to Pedro’s and Roy Almaroad’s
testimony, that they and George Sr. selected Fields for layoff
to chastise him for refusing to revoke his union card. Ac-
cordingly, I further find, that by laying Fields off at the end
of the workday, on March 3, the Company violated Section
8(a)(3) and (1) of the Act. I also find that by soliciting Fields
to revoke his union card, the Company violated Section
8(a)(1) of the Act on March 3, and again, on March 6.40
6. Kenneth Allen’s suspensions
a. The facts
The Company employed Kenneth Allen from August 1985
until July, as a bottle inspector, a laborer, and as a forklift
operator. Roy Almaroad was his supervisor. Allen’s starting
hourly wage was $3.35. In 1986, after February 21, the Com-
pany granted a merit increase to Allen, raising his hourly rate
to $4.
Kenneth Allen actively supported the Union early in its
campaign. He attended some union meetings, signed a union
card, and was an in-plant organizer. The Union listed Allen
as a member of its plant committee, in its letter to Hunnicutt,
dated February 18, which the Company received on February
21. During the campaign, Allen expressed prounion senti-
ments to Almaroad during working hours, at the Norton
plant.
On March 8, Kenneth Allen began work as a day-shift
forklift truck operator on the Company’s loading dock. How-
ever, during the morning, Pedro reassigned Allen to stacking
pallets.41 Employee James Fultz was working with Allen,
stacking pallets. At lunchtime, Allen felt sick. In the after-
noon, he left the plant without telling anyone, or seeking per-
mission from Almaroad or any other supervisor, and visited
a doctor. After leaving the doctor, Allen did not return to
work for the remainder of the day.
I find from James Fultz’ uncontradicted credible testi-
mony, that he also left the plant on March 8, during his shift,
without a word to anyone, and without seeking permission
from Almaroad or any other supervisor. Fultz’ reason for
leaving was that he felt sick.
Fultz did not support the Union. His name had not ap-
peared in any of the Union’s letters as of March 10. Further,
as of March 10, there was no evidence showing that the
Company viewed Fultz as a union supporter. I found above
that Almaroad asked Fultz if he had signed a union card. I
find from Fultz’ testimony that this interrogation occurred
after March 9, the day he returned to work.
When Allen reported for work on the following morning,
he was directed to the breakroom, where he found Fultz.
Pedro and Almaroad soon appeared and conducted the two
employees into the adjacent hallway.
Pedro asked the employees for an explanation of their con-
duct on the previous day. Allen and Fultz complied. Fultz of-
fered to supply the Company with a doctor’s excuse. Allen
offered to do the same. Pedro and Almaroad accepted Fultz’
offer, telling him to produce it on the following morning. Al-
len’s offer was rejected. Instead, Pedro issued to Allen a cor-
rection notice which announced his 3-day suspension, with-
out pay.
The correction notice gave improper conduct as the reason
for its issuance. The written explanation of the offense was:
1035PEPSI COLA BOTTLING CO.
42 Pedro testified that Kenneth Allen ‘‘was suspended three days because he
shut down the entire shift, he put us of [sic] business until we could find
somebody to make good.’’ Huck testified that he operated a forklift in place
of the absent Allen on March 8. However, neither Huck nor the correction
notice which he signed, and which Pedro issued to Allen, mentioned that the
day shift had been shut down because Allen had left. I have also credited Al-
len’s testimony that during the morning of March 8, Pedro relieved Allen of
his forklift duties and reassigned him to stacking pallets, which task he per-
formed until his departure, after lunch. Pedro’s attempt to exaggerate the effect
of Allen’s absence eroded his credibility and suggested that he had some doubt
about the sufficiency of the explanation for the 3-day suspension, on Allen’s
correction notice.
‘‘Left work without permission & without informing any su-
pervisor at 2:41 p.m. on 3/8/86.’’
Shortly before lunch, on April 9, Allen went into the
breakroom to purchase a snack which he intended to con-
sume at lunch. This was Allen’s usual practice. This time,
he bought two packages of fig newtons. As Allen entered the
plant’s production area, he had the unopened packages in his
hand. Pedro met Allen and asked him what he had. Upon
hearing that Allen had fig newtons, Pedro ordered him to the
breakroom and told him to wait there. There was no showing
that Allen ever opened the two packages of fig newtons.
Pedro returned shortly with Almaroad and the three went
to Pedro’s office. After a brief interlude, Almaroad issued a
correction notice to Allen for an infraction of a company rule
or regulation. The notice did not state the rule or regulation
which Allen had allegedly violated. The explanation of the
reason for the disciplinary action was: ‘‘Had food products
in the plant not eating. But did try to hide from Pedro.’’ The
correction notice announced the imposition of a 3-day sus-
pension on Allen.
On February 2, 1981, the Company promulgated the fol-
lowing rule under Pedro’s signature:
Please be advised that effective immediately it is abso-
lutely forbidden for employees to consume their lunch
or any other food anywhere in the plant except the
lunchroom. This applies to the loading crew as well as
production employees.
The quoted rule has remained in effect since 1981.
b. Analysis and conclusions
There is ample evidence to support an inference that Ken-
neth Allen’s union activity was a motivating factor in the
Company’s decision to suspend on March 9. The Company’s
action came 16 days after it had learned of Allen’s member-
ship in the Union’s in-plant committee. Pedro’s and
Almaroad’s demonstrated hostility toward other members of
that committee pointed to the probability that they would see
Allen’s unauthorized absence on March 8 as an opportunity
to punish him for supporting the Union. That Pedro and
Almaroad summarily suspended Allen for 3 days and per-
mitted Fultz to escape any disciplinary action gave impetus
to that probability. Both employees had engaged in the same
misconduct. Pedro and Almaroad knew Allen to be a union
activist, but they knew nothing of Fultz’ union sentiment.
They accepted Fultz’ offer to submit a doctor’s note as
atonement for an unauthorized absence. Allen also offered to
submit such a note, but to no avail. Here was disparate treat-
ment of a union supporter. Thus, I find that the General
Counsel presented strong evidence that union activity was a
motivating factor in Allen’s suspension on March 9.
The Company insists that the General Counsel has failed
to prove that Allen suffered disparate treatment at its hands.
In support of its position, the Company presented Pedro’s
testimony regarding the separation of employee Ricky
Hughes, who absented himself from work for 3 days without
permission and without calling in. The Company also pre-
sented Almaroad’s testimony regarding the termination of
employee Leon Keys, who had been cautioned about leaving
work without permission, and had been suspended for 3 days
for a 2-day unauthorized absence, during which he did not
call in. However, neither of these examples of misconduct
were comparable to Kenneth Allen’s. The Company further
impaired its position by neglecting to explain the disparity
between its treatment of Fultz and Allen on March 9.42
Almaroad’s testimony, and the verbal correction report he
issued to Fultz on May 7, support the General Counsel’s
case. Almaroad’s testimony shows that he issued a verbal
correction report, and counseled Fultz, on March 11. The
correction report states that Almaroad issued it to Fultz for
absenteeism and work performance. The explanation on the
report states that Fultz ‘‘was talked to about his work on in-
spection & his absenteeism & no Doc excuse.’’ Almaroad’s
testimony reveals that he cosensidered Fultz’ absence on
March 8 as one of a series of absences, approximating 3
days, in a ‘‘short period of time.’’ Nevertheless the Company
did not suspend Fultz or otherwise punish him. The record
leaves to conjecture the import of the correction report’s ref-
erence to ‘‘no Doc excuse.’’
Almaroad’s testimony and Fultz’ verbal correction report
reinforce the General Counsel’s already ample showing of
disparate treatment. Allen’s 3-day suspension without pay
contrasts sharply with the counseling accorded Fultz 2 days
later. Almaroad’s testimony also showed several instances in
which employees had as many as three unexcused absences
from work, and had not called in. In each instance,
Almaroad’s disciplinary action consisted of talking to the
employee and issuing a verbal correction report to him.
Again, Kenneth Allen’s 3-day suspension stands out as an
exceptional disciplinary action.
The Company has not rebutted the General Counsel’s
showing that Kenneth Allen suffered disparate treatment. Nor
has the Company cast doubt on the General Counsel’s show-
ing that Allen’s union activity provoked the Company’s
issuance of a 3-day suspension to Allen on March 9. I find,
therefore, that by imposing that suspension on Kenneth
Allen, the Company discriminated against him, and, by so
doing, discouraged membership in the Union. Accordingly, I
further find that by suspending Allen on March 9 the Com-
pany violated Section 8(a)(3) and (1) of the Act.
One month after unlawfully suspending him for supporting
the Union, the Company imposed similar punishment on
Kenneth Allen. During the intervening month, Allen had not
renounced the Union. Also, during that period, there were
further instances of the Company’s hostility toward union
supporters. These included installation of a television surveil-
lance system, unlawful restrictions on union activity, and
other violations of Section 8(a)(1) and (3) of the Act. The
timing of the second suspension so soon after the first, and
the Company’s persistent union animus provided strong sup-
port for the allegation that Allen once again had suffered an
economic reprisal because of his support for the Union.
1036 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
43 I have rejected Pedro’s testimony that Allen refused to tell Pedro where
he was going with the fig newtons. Allen’s testimony shows that Pedro only
asked him what he had in his hand.
44 Huck testified that during their confrontation, Ritchie admitted knowing
that smoking on the production line was prohibited. However, Ritchie contra-
dicted Huck. According to Ritchie’s testimony, when Huck suggested that he
was not supposed to be smoking, Ritchie answered in substance that he was
not aware of such a rule. Ritchie testified that until after his discharge, he was
unaware that the Company had promulgated rules against smoking. He as-
serted that he did not read the posted material near the timeclock, which in-
cluded the Company’s rules against smoking and an announcment of the dis-
ciplinary policy toward violations of those rules.
Aside from a no-smoking sign in the syrup room, the Company did not use
any other means to notify its employees of these rules and the applicable dis-
ciplinary policy. There was no showing that Almaroad or any other member
of management told Ritchie about these rules and the punishment which would
follow their violation.
Ritchie’s plausible explanation of why he was not aware that his smoking
violated a company rule, his respectful attitude toward the hearing, and his
earnest effort to provide his best recollection persuaded me that he was a reli-
able witness. Thus, I find it unlikely that he told Huck that he knew that his
smoking was misconduct.
The Company relied upon the violation of, what it termed,
‘‘a longstanding rule against food products in the plant’’ as
the only reason for Kenneth Allen’s 3-day suspension on
April 9. The rule as quoted above, clearly prohibits employ-
ees from consuming ‘‘food anywhere in the plant except the
lunchroom.’’ At the time Pedro enforced this rule against
Allen, the employee was carrying unopened packages of fig
newtons and it was almost his lunchtime. Clearly, Allen was
not violating the rule against consumption. Pedro did not
take the trouble to inquire as to Allen’s intentions or to warn
him against opening the packages. Instead, Pedro sent Allen
to the breakroom, found Almaroad, and then brought them
to his office. Almaroad and Pedro issued a 3-day suspension
and a warning of discharge for any further misconduct. The
correction notice conceded that Allen’s misconduct did not
include eating.
However, in an effort to provide substance to the alleged
infraction, Pedro and Almaroad asserted that Allen ‘‘did try
to hide from Pedro.’’ But in his testimony, Pedro retreated
from that assertion. Instead, he testified that Allen tried to
hide the packages. According to Allen’s testimony, Pedro
saw the packages and asked what they were. Also, according
to Allen, he had just made his usual prelunch purchase of
a snack from a vending machine in the breakroom, and free-
ly revealed its nature in response to Pedro. As Allen im-
pressed me as the more candid witness, I have accepted his
version of his initial encounter with Pedro on April 9.43
Also, I have rejected Pedro’s belated attempt to improve the
excuse he and Almaroad had adopted on April 9 to justify
the 3-day suspension.
The Company issued a 3-day suspension to employee
Howard Pickett Jr. in September for having wrapped candy
in the syrup room. However, I have also noted laxity in the
Company’s enforcement of its prohibition against consump-
tion of food elsewhere in the plant. Thus, for example, I find
from Allen’s uncontradicted testimony that after April 9, he
saw Almaroad drinking soda pop and eating a candy bar in
the plant, behind the case room. I also find from employee
John C. Baker’s uncontradicted testimony, that during March,
and through the year, until the time of the hearing before me,
Almaroad repeatedly walked through the plant eating a cake
or some other food item. However, Almaroad was quick to
sign a 3-day suspension imposed on Kenneth Allen for car-
rying closed packages of fig newtons.
Having analyzed the proffered explanation and the relevant
testimony and evidence, I find that the Company’s defense
of the second 3-day suspension of Allen does not withstand
scrutiny. I also find that Pedro seized upon Allen’s two pack-
ages of fig newtons as a pretext for punishing him for his
obstinate support of the Union. Accordingly, I further find
that by imposing a 3-day suspension on Kenneth Allen on
April 9, the Company again violated Section 8(a)(3) and (1)
of the Act.
7. Jeff Ritchie’s discharge
a. The facts
The Company employed Jeff Ritchie as a production la-
borer from April 19, 1985, until it discharged him on March
21. Roy Almaroad was his supervisor.
Ritchie supported the Union’s organizing effort, beginning
in February. He signed a union card on February 22, and at-
tended a few union meetings. The Union included Jeff Ritch-
ie’s name on the list of its employee supporters in a letter
dated February 25, which the Company received on February
28.
As found above, Roy Almaroad made three attempts to
pressure Ritchie into abandoning the Union. On March 1,
after Ritchie had signed a card for the Union, Almaroad ap-
proached him at the plant and asked him if he had signed
a union card. When Ritchie admitted that he had, Almaroad
pressed him to revoke the card or face trouble and loss of
his job. Almaroad offered to provide Ritchie with a revoca-
tion request if he would visit Almaroad’s office, later in the
day. Ritchie did not avail himself of Almaroad’s offer that
day.
Two or three days later, Almaroad attempted to persuade
Ritchie to revoke his union card. Almaroad handed a revoca-
tion request to Ritchie just before the latter’s lunchbreak.
Ritchie did not use the form.
One or two weeks, later, Almaroad again questioned
Ritchie about revoking his union card. Ritchie responded
negatively. He said that he had not had time to do so.
Almaroad never talked to Ritchie about his union card again.
On the afternoon of March 20, Ritchie was working on the
production line, operating the caser and smoking a cigarette.
Huck Hunnicutt saw Ritchie and ordered him to stop smok-
ing. Huck scolded Ritchie, telling him that smoking was pro-
hibited. Ritchie said he did not know such a rule was in ef-
fect.44 Huck assured Ritchie that there was such a rule, and
walked away. Ritchie completed his shift at 5:30 or 6 p.m.,
without further incident. Huck reported Ritchie’s infraction to
Almaroad. I find from Pedro’s testimony that Almaroad was
reluctant to discharge Ritchie for smoking on the production
line.
There were significant issues of fact regarding the date and
immediate circumstances of Ritchie’s discharge. Almaroad’s
1037PEPSI COLA BOTTLING CO.
testimony was that he confronted Ritchie and discharged him
on March 20 for smoking in a production area. Almaroad
also testified that he did so on Huck’s report of seeing Ritch-
ie smoke a cigarette in the production area. According to
Almaroad, during the conversation preceding the discharge,
Ritchie admitted smoking, conceded that he knew from see-
ing the posted rule that smoking in the production area was
wrong, and that immediate dismissal was the appropriate
punishment for this misconduct.
The initial infirmity in Almaroad’s account of Ritchie’s
discharge arose from the presence of two discharge notices
reflecting Ritchie’s discharge for smoking. Almaroad testified
that he issued a separation of employment for Ritchie during
the day, on March 20. The explanation of the reason for
Ritchie’s discharge was as follows: ‘‘Smoking in production
area. Said he knew he was wrong & liked his job here &
the people.’’ The space designated for the employee’s signa-
ture was blank. Also, according to Almaroad, he issued a
second such form for Ritchie on March 21. The second form
contained Ritchie’s signature acknowledging receipt of
wages. The explanation of the reason for Ritchie’s discharge
was: ‘‘Smoking in production area.’’ Almaroad did not ac-
count for the disparity between the two explanations. Nor did
he explain how he arranged to obtain Ritchie’s signature 1
day after he assertedly discharged him and yet did not get
the employee’s signature on the form bearing the date of the
discharge.
The testimony of Ritchie and Assistant Operations Man-
ager Robbie Mullins cast further doubt on Almaroad’s ac-
count of Ritchie’s discharge. Ritchie testified that Almaroad
discharged him on the morning after Huck had found him
smoking in the production area. Mullins, who witnessed the
discharge, testified, without fixing a date, that it occurred in
the morning. Ritchie impressed me as the more candid wit-
ness. Further, Mullins corroborated Ritchie’s testimony on a
substantial issue of fact. Accordingly, I find that Almaroad
discharged Ritchie on the morning of March 21.
The discrepancies between the two separation notices, and
Almaroad’s untruthful testimony that he discharged Ritchie
on March 20 persuaded me that Almaroad had contrived the
separation notice bearing that date. This factor also cast seri-
ous doubt on the assertion on that separation notice that
Ritchie ‘‘said he knew he was wrong.’’ That assertion flew
in the face of Ritchie’s sworn testimony denying knowledge
of the Company’s no-smoking rules.
Robbie Mullins also testified that Ritchie admitted that he
had been wrong when he smoked. However, Ritchie stead-
fastly denied knowledge of the Company’s rules against
smoking as of the time of his discharge. On cross-examina-
tion, Ritchie conceded that he had made some misstatements
in his direct testimony. Nevertheless, Ritchie was generally
a conscientious witness, who seemed to be giving his recol-
lection fully and frankly. In contrast, Robbie Mullins, who
witnessed Ritchie’s discharge, seem reluctant to provide de-
tails of it on direct examination by the Company’s counsel.
I have determined that Ritchie was the most reliable of the
witnesses who testified about his discharge on March 21. Ac-
cordingly, where his testimony conflicted with Robbie
Mullins’ or Roy Almaroad’s regarding what was done or said
by the participants on the morning of March 21 as Almaroad
discharged him, I have credited Richie’s testimony.
When Ritchie attempted to clock in on the morning of
March 21, his timecard was missing. He soon met Oper-
ations Manager Roy Almaroad and Assistant Operations
Manager Robbie Mullins. Almaroad had Ritchie’s timecard.
The two supervisors took Ritchie aside in an office.
Almaroad said that it had come to his attention that on the
previous day Ritchie had been caught smoking. Almaroad
pointed out that Ritchie should not have been smoking and
announced Ritchie’s discharge. The discharge notice, which
Almaroad issued, stated that Ritchie had violated company
rules. The notice gave the following explanation of the rea-
son for Ritchie’s discharge: ‘‘Smoking in production area.’’
In his testimony before me, Pedro admitted that Almaroad
had been reluctant to discharge Ritchie, and did so at Pedro’s
insistance.
This was the first time the Company had disciplined
Ritchie. He asked ‘‘Well, don’t I even get a chance or a
warning or nothing?’’ Almaroad replied no, adding that he
had been told to let Ritchie go. Robbie Mullins joined in the
discussion, pointing out that this was Ritchie’s ‘‘first time’’
and suggesting that a warning or some other alternative to
discharge would be more appropriate. Almaroad answered:
‘‘No, he’s got to go.’’
Ritchie was not aware of any company rule against smok-
ing. From the beginning of his employment by the Company,
until March 20, Ritchie had observed employees smoking
freely at the plant. He had indulged in the practice, without
interference from supervision.
On an occasion following Ritchie’s discharge, employee
Ernest Delph was working on the production line with em-
ployee Jamie Fultz. Both Delph and Fultz were smoking
cigarettes as they worked. Roy Almaroad approached them
and instructed them to get up and clean up. After a brief
interlude, Almaroad returned to Delph and asked him if he
had been smoking. When Delph said yes, Almaroad sug-
gested that he and Delph start for Pedro’s office. When they
had gone about half way, Almaroad stopped and asked Delph
why he had been smoking. Delph replied that he had not had
a cigarette since lunchtime. At this, Almaroad asked Delph
if he knew that Almaroad had gotten rid of Jeff Ritchie for
smoking. Delph answered yes. Almaroad said he would not
discharge Delph, and told him to get back to work. Nor did
Almaroad discharge Jamie Fultz.
In a letter dated March 20 and received by the Company
on March 24, the Union added Ernest Delph to the list of
employees actively supporting its organizing effort among
the Company’s employees. Jamie Fultz’ name did not appear
on any of the Union’s letters to the Company. The record
does not show whether the Company was aware of Delph’s
union sentiment at the time Almaroad caught him smoking.
b. Analysis and conclusions
The General Counsel contended that the Company violated
Section 8(a)(3) and (1) of the Act by discharging Ritchie be-
cause he refused to retrieve his signed union card. The Com-
pany argued that record did not support the General Coun-
sel’s contention. Instead, the Company urged that the evi-
dence showed that it discharged Ritchie because he violated
a prohibition against smoking in production areas.
On March 1, 1 day after the Company received word of
Ritchie’s active support for the Union, Almaroad asked him
if he had signed a union card. When Ritchie said he had,
1038 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Almaroad pressed him to retrieve the card from the Union.
Almaroad also threatened Ritchie with discharge if he did
not revoke the union card. Ritchie did not revoke his card.
Two or three days later, Almaroad asked Ritchie about his
union card. Ritchie said he had not sent the revocation form
to the Union. Later, that same day, Almaroad went out of
his way to make one available to Ritchie. Yet Ritchie re-
mained steadfast. One or two weeks after presenting Ritchie
with the revocation form, Almaroad asked him about his
union card. Ritchie had not used the form and had not re-
voked his union card.
Less than 1 week after he learned that Ritchie had not
mailed the revocation form to the Union, Almaroad dis-
charged him. Almaroad was reluctant to discharge Ritchie,
and did so under pressure from Pedro.
There can be no doubt that on February 28 Pedro learned
that Ritchie was an active union supporter. Given Pedro’s
demonstrated interest in discouraging employee support for
the Union, it was likely that he prompted Almaroad to en-
courage Ritchie to abandon the Union. A few days before
March 20, Almaroad had learned that Ritchie was steadfast
in his support for the Union. Also, by the morning of March
20, I find that Huck had learned from his brother, Pedro, and
from Almaroad, that Ritchie would not revoke his union
card. Once again, there was the likelihood that an employee’s
insistence on supporting the Union had stirred up their hos-
tility.
Ritchie’s smoking while working on the production line
provided the Company with an opportunity to discharge him.
Ritchie had previously smoked while working, without fear
of punishment from the Company. This time Huck caught
him and reported the infraction to Almaroad. I also find from
Pedro’s testimony that he was aware of Huck’s report on
March 20. Almaroad was reluctant to impose this harsh pen-
alty on Ritchie. Robbie Mullins, who witnessed the dis-
charge, questioned Almaroad on its severity, in light of
Ritchie’s clean record. However, Pedro’s testimony, and
Almaroad’s conversation with Delph showed that Almaroad
discharged Ritchie because Pedro had insisted upon that ac-
tion as full enforcement of the Company’s policy against
smoking on the production line. Here was the final element
in the General Counsel’s prima facie case, suggesting that
Ritchie’s insistence on supporting the Union had cost him his
job.
The Company argued that Ritchie’s smoking was the only
reason for his discharge. Pedro testified that the Company’s
rules, posted on February 25, in the Norton plant’s
breakroom, required dismissal as the penalty for smoking in
the production area. A reading of those rules confirms Pe-
dro’s view.
Granted that the Company had rules against smoking prior
to February 25, the record showed that management did not
strictly enforce them. However, under the pressure of criti-
cism and advice from its franchiser, the Pepsi-Cola Com-
pany, the Company tightened up its enforcement. The record
showed that after February 25, the Company issued verbal
warnings to employees caught smoking in nonproduction
areas. Almaroad’s reluctance to discharge Ritchie for a first
violation of the prohibition against smoking in a production
area, was an echo of the laxity with which he had treated
smoking on the production line prior to February 25.
Almaroad’s reaction to Delph’s and Fultz’ smoking on the
production line, following Ritchie’s discharge, provided
strong support for the Company’s defense. First, in his re-
marks to Delph, Almaroad divulged that he had to discharge
Ritchie for smoking. Then, in an effort to protect Delph and
Fultz from the same fate, Almaroad decided not to report
their smoking violations to Pedro. Almaroad’s action showed
that he feared that Pedro would insist on discharging the two
employees. There was no showing that at the time Almaroad
protected Delph and Fultz, he was aware of their sentiment
toward the Union.
Far from showing disparate treatment based upon union
considerations, Almaroad’s remarks and his action showed
that he disagreed with the Company’s new policy regarding
violation of the no-smoking rules, and that Pedro was sin-
cerely enforcing it. Aside from Delph and Fultz, I find from
employee John C. Baker’s credible testimony, that after the
posting of the new rules concerning smoking, employees
Darrell Smith, Curtis Allen, and Eddie Martin smoked in
front of Roy Almaroad without being punished. However,
there was no showing that Almaroad brought these incidents
to Pedro’s attention. In light of his disagreement with the
new policy regarding smoking, it was unlikely that Almaroad
would have afforded Pedro the opportunity to discharge em-
ployees for a first violation after March 21. The record
shows that after February 25, and until the hearing before
me, Pedro’s only opportunity to enforce the new antismoking
rules came when Huck reported Ritchie’s violation on March
20.
In light of Almaroad’s treatment of smoking violations
after February 25, I have credited Pedro’s testimony that he
insisted on strict enforcement of the no-smoking rules, which
resulted in Ritchie’s discharge by a reluctant Almaroad. I
also find that Pedro would have insisted upon discharge for
smoking in a production area regardless of the violator’s
union sentiment. Therefore, I find that the General Counsel
has failed to show that Ritchie’s adherence to the Union was
a motivating factor in his discharge. I shall recommend dis-
missal of the allegation that his discharge violated Section
8(a)(3) and (1) of the Act.
8. Larry Blanken
a. The facts
The Company hired Larry Blanken in early January and
discharged him on March 3. Prior to March 3, the Company
had employed Blanken, off and on, over a period of 4 years.
During his last employment by the Company, Blanken
worked as a forklift operator, on the loading dock crew
under the supervision of Roy Almaroad and Night Supervisor
Allen Young.
Larry Blanken supported the Union. He attended a union
meeting on February 16, signed a card for the Union, and
distributed two or three cards to employees. In late February,
he attempted to hand out union literature at a company ware-
house in Tazewell, Virginia. On February 21, the Company
received a letter from the Union listing Larry Blanken as a
member of the organizing committee.
On the evening of February 21, Blanken, while moving a
company truck from the loading dock to the front of the
plant, felt a ‘‘little jolt’’ as he backed into the front end of
another parked company truck. Blanken was attempting to
1039PEPSI COLA BOTTLING CO.
45 I based my finding that Pedro did not know Larry Blanken at the time
of the mishap upon Pedro’s testimony. Blanken could not remember whether
Pedro had or had not asked him to identify himself. In contrast, Pedro seemed
certain about this part of his meeting with Blanken on the evening of February
21.
46 Pedro testified that Blanken bent the grille and damaged the fenders of
the truck he backed into. Pedro also testified that he immediately instructed
Blanken to come to his office on Monday morning. Absent from Pedro’s testi-
mony is any reference to Saturday, February 22, or to the remarks attributed
to him on that date by Larry Blanken.
I also noted that Pedro was anxious to include in his testimony assertions
regarding Blanken’s facial expressions, suggesting glee, and other assertions
designed to create the impression that there was severe impact. However, Pe-
dro’s response to the accident did not comport with his description of
Blanken’s reckless attitude and the severity of the impact. There was no show-
ing that he barred Blanken from operating company trucks or that the damage
Blanken inflicted required repair or deprived the Company of the use of the
truck. Indeed, according to Pedro’s earlier testimony, given on the first day
of the hearing, Blanken ‘‘bent the grill some, and there was some damage to
the fiberglass fenders.’’
In contrast with Pedro, Larry Blanken seemed more concerned about pro-
viding his best recollection, without straining to embellish it. Blanken gave his
testimony ingenuously. Accordingly, I have credited Blanken’s recollection re-
garding his employment, his union activity, the damage he caused when he
backed into a truck on February 21, and his encounters with Pedro following
that incident.
47 The essential facts regarding Larry Blanken’s conversations with Isbell
and Pedro are not in dispute. I have credited Blanken’s testimony that Pedro
told him that Isbell told him and Almaroad that Blanken had called and re-
ported to Isbell that he was fired and that his timecard had been removed.
Pedro testified that he couldn’t remember whether it was Isbell or Trigg who
told him of Blanken’s call. As Blanken seemed certain as to Pedro’s men-
tioning only Isbell, I have credited his testimony in this regard.
48 Huck corroborated Blanken’s testimony that at the time the evening shift
departed, they had completed their assigned task. I find from Huck’s testimony
that the evening shift had completed loading operations and that, with
Almaroad’s approval, Huck released Blanken and the other employees without
requiring them to clean up.
49 Night Watchman Samuel Stapleton heard Huck talking on the telephone
on the evening of March 3. According to Stapleton’s testimony, Huck told
someone on the phone ‘‘that they were stacking the pop so it would fall,’’
adding: ‘‘Is that a good enough reason?’’ The record did not reveal who
‘‘they’’ were in Huck’s remarks. Nor was there any showing that Huck was
referring to Larry Blanken. Thus, I do not agree with the suggestion in the
General Counsel’s brief that Stapleton’s testimony about Huck’s remarks on
the telephone would, if credited, shed light on the issue of motive in regard
to Blanken’s discharge.
50 According to Huck Hunnicutt’s testimony, on the evening of March 3,
Larry Blanken engaged in willful misconduct and willfully tore up merchan-
Continued
make room at the loading dock for more trucks to be loaded.
Pedro came out of the plant office and looked at the front
end which Blanken had hit. Pedro did not recognize the driv-
er and asked him his name. Blanken identified himself and
then asked Pedro if there was any damage.45 Pedro said
nothing about damage, but cautioned Blanken to be more
careful. Blanken saw that he had done no damage and re-
turned to work. Pedro returned to the office.
Larry Blanken went to work on Saturday morning, Feb-
ruary 22. When he arrived, Blanken encountered Pedro at the
timeclock. Pedro instructed him to come to his office on
Monday morning. Pedro said Blanken’s visit to his office
would be in regard to the the incident on Friday evening.
On the morning of February 24, Larry Blanken arrived in
Pedro’s office. After reviewing Blanken’s truck mishap,
Pedro issued a written correction notice which included a
written warning to Blanken for backing one truck into an-
other ‘‘with severe impact.’’ According to the correction no-
tice, Blanken backed ‘‘too fast & careless.’’ Blanken signed
the correction notice, showing that he had received a copy
of it.46
On the morning of February 27, before leaving for work,
Larry Blanken telephoned employee Steve Isbell to ask why
Isbell and employee Joel Trigg had left work early on the
previous day. Isbell asked if he had been fired and if his
timecard was in its usual place. Blanken said he didn’t know
and suggested that Isbell check with Pedro.
Fifteen or twenty minutes after he arrived at work, that
same morning, Larry Blanken received instructions from Roy
Almaroad to report to Pedro’s office. Accompanied by
Almaroad, Blanken went to the office, where he found Pedro
and one other unidentified person. Pedro asked Blanken if he
had called employee Isbell at home. Blanken admitted that
he had. Pedro admonished Blanken, telling him that he
shouldn’t make such calls, that it was company business, and
that Isbell had said that Blanken had said Isbell was fired.
Blanken denied telling Isbell that he had been fired. Pedro
also said he knew that Blanken was on the Union’s orga-
nizing committee, but that Blanken didn’t have any special
privileges. Pedro reminded Blanken that he wasn’t a boss
and had no right to call Isbell and talk to him about his de-
parture from work. Finally, Pedro warned Blanken ‘‘not to
let it happen again and take this as a personal warning.’’
Pedro conceded that he told Blanken ‘‘that we didn’t want
him to insinuate himself into the Company’s relationship
with any other employee and not to do it again.’’47
At Pedro’s direction, Roy Almaroad issued a verbal cor-
rection report to Larry Blanken on February 27. The report
stated that it was issued because Blanken had told other em-
ployees that they had been fired and that the Company had
pulled their timecards for the purpose of talking to them
about their leaving work without permission.
On March 3, Larry Blanken operated a forklift truck on
the evening shift. While loading cases of 16-ounce bottles of
soda into a truck, Blanken lifted the supporting pallet and
dislodged two cases which fell to the floor. One case of
product was completely broken.
Later in the shift, Blanken dropped several cases of canned
soda while loading a pallet into a truck. Huck Hunnicutt,
who was supervising and helping to stack cases of soda on
pallets to be loaded on trucks, witnessed this mishap. Huck
directed the cleanup and the loading of three or four cases
to replace the loss.
After dropping the two cases of 16-ounce bottles, Blanken
placed them on top of a pallet load of 16-ounce returnables.
Huck discovered that the damaged cases were leaking down
through the pallet load. He asked Blanken to explain this
error. Blanken answered: ‘‘I guess I wasn’t thinking.’’
Blanken moved the damaged cases to the floor.
Finally, Blanken’s forklift hit a palletized stack of 2-liter
cases and caused two cases to fall to the floor. This incident
caused some dents in the cases, but no damage to their con-
tents. Blanken stopped and restored the cases to their stack.
At one point, Huck asked Blanken if he had been drinking.
Blanken answered no and reminded Huck that he did not
drink. Blanken suggested that the reason for his mishaps was
‘‘no loving this week.’’ Huck responded in a joking manner.
By 8:30 or 9 p.m., Blanken and the other employees on
the shift had completed their assigned tasks.48 In a telephone
conversation with Roy Almaroad, Huck received authoriza-
tion to release the employees.49 As the employees left, Huck
said they had done a good job.50
1040 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dise and vehicles. In further describing Larry Blanken’s conduct, Huck testi-
fied that he ‘‘rammed the drinks into the truck’’ and ‘‘slung a broken case
of 16-ounce returnables.’’ However, Huck’s testimony also reveals that what-
ever misconduct he perceived on the part of Larry Blanken was not sufficient
to cause Huck to order Blanken off the forklift, or to administer a scolding
reflecting the seriousness of the asserted misconduct. In short, Huck’s testi-
mony suggested that he was trying to bolster the Company’s explanation of
Larry Blanken’s discharge.
In contrast with Huck Hunnicutt, Larry Blanken seemed more interested in
recounting the incidents and conversations of March 3 to his best recollection,
without concern about their effect on the outcome of the General Counsel’s
case. I also noted that employee Robert Falin, who witnessed two of Blanken’s
mishaps, avoided the strong verbiage which Huck adopted. Falin, using milder
language, attributed them to poor judgment. Accordingly, where Huck’s
versions of the events and conversations of March 3 differ from Larry
Blanken’s, I have credited Blanken.
Huck did not write up a correction notice or warn
Blanken. He recommended Blanken’s discharge to Pedro.
On March 5, Pedro filled out a separation of employment
form for Larry Blanken. The form reported that the Company
had discharged Blanken for violation of company rules, in-
subordination, carelessness, and rough handling of equip-
ment. The explanation of the reasons for discharge was as
follows:
Your behavior on the night of 3/3/86. Two supervisors
on duty reported that you operated a forklift truck on
the loading dock in a reckless manner.
There was no showing that the Company issued a copy of
this form to Larry Blanken.
At about 5 a.m. on March 7, Larry Blanken went to work.
He found his timecard missing from its usual place. Blanken
asked Roy Almaroad about the missing timecard. Almaroad
went to find out. He returned and told Blanken that the Com-
pany had discharged him because of what had happened on
the previous Monday evening. Almaroad advised Blanken
that Pedro had sent a registered letter, which Blanken would
receive that same day, if he had not already received it.
That same day, Larry Blanken went to his local post of-
fice, where he received Pedro’s letter, dated March 5. The
letter announced that Blanken’s employment with the Com-
pany had been ‘‘terminated.’’ Pedro’s letter also gave the
following explanation for Blanken’s termination:
The reason for your termination is your behavior on
the night of Monday, March 3, 1986. Two of the super-
visors on duty report that you operated a forklift truck
on the loading dock in so reckless a manner as to spill
three different pallets of merchandise and also collided
with a stack of full 2-Liter goods while transfering
empty Dr. Pepper bottles into the building. You also
damaged merchandise by throwing cases of product
(which you had damaged by spilling them from the
forklift) onto stacks of good merchandise and allowing
them to leak down through the good merchandise. You
are reported to have responded to a Supervisor’s in-
quiry as to the reason for your outrageous behavior
with rebald humor, but no explanation. The supervisor
had to send the entire crew home early before clean up
in order to avoid further damage to merchandise.
You have been previously warned in writing about
reckless operation of the company’s equipment. You
were at that time counseled as to the danger which your
reckless behavious [sic] posed to the company’s prop-
erty and the safety of your fellow employees. You were
warned in writing that if you engaged in reckless be-
havior again you would be terminated. In addition to
the instances of recklessness, you also destroyed the
company’s property . . . [in] what . . . appeared to be
a wanton and reckless manner.
Mr. Blanken, we are truly sorry that this measure has
become necessary. However, we feel that at this point
your persistent course of behavior has left us with no
choice.
Pedro’s letter advised Blanken to collect his final pay-
check at the Company’s office on March 7, between 2 and
5 p.m. Employee Terry Henderson was standing in a hallway
at the Company’s plant on that date. Pedro was standing
nearby. I find from Henderson’s testimony, that as Larry
Blanken passed through a doorway leading from the hall to
the dock, Pedro remarked: ‘‘There goes one of the trouble-
makers.’’
b. Analysis and conclusions
The General Counsel urged a finding that the written cor-
rection notice issued to Larry Blanken on February 24 was
in response to the revelation that Blanken actively supported
the Union and, therefore, violated Section 8(a)(1) and (3) of
the Act. The Company argued that the record did not support
such a finding. I find merit in the General Counsel’s conten-
tion.
Blanken’s active support for the Union’s organizing cam-
paign among the Company’s employees surfaced in a letter
which the Company received from the Union on February
21. In that letter, the Union listed Larry Blanken as a mem-
ber of its plant organizing committee. The record did not dis-
close when, on February 21, Pedro learned of Blanken’s
union activity. However, I have found above that Pedro was
aware of the Union’s letter on February 21, the day it arrived
at the Company’s office. However, I find from Pedro’s testi-
mony that when Larry Blanken backed a truck into the grille
and fender of a truck parked in front of the plant, on Friday
evening, February 21, Pedro did not know Blanken’s iden-
tity.
On Friday evening, before he had the opportunity to iden-
tify Larry Blanken as one of the union activists listed in the
Union’s letter, the truck mishap drew only a mild response
from Pedro. When he saw the accident, Pedro came out and
checked the damage. When Blanken came out of his truck
and asked if there was any damage, Pedro merely told him
to be more careful in the future. There was no mention of
discipline or other supervisory action.
By Saturday morning, Pedro had ample opportunity to
learn that Larry Blanken’s name was on the Union’s letter.
Having identified Blanken as a leading union activist,
antiunion sentiment was likely to provoke Pedro. Thus, on
Saturday, Pedro sought out and directed Larry Blanken to
meet with him on the following Monday morning.
On Monday morning, the accident which Pedro had treated
so casually on Friday, became a matter of great concern. Ac-
cording to the correction notice which Pedro drew up and
presented to Blanken, there was ‘‘severe impact’’ and ‘‘dam-
age to vehicles.’’ However, as found above, there was a little
jolt and no damage. The notice also warned that the ‘‘next
occasion of recklessness will result in discharge.’’
1041PEPSI COLA BOTTLING CO.
The timing of the remarkable change in Pedro’s attitude
toward Larry Blanken’s mishap between Friday evening and
Monday morning, suggested that the Union’s letter was the
catalyst. Blanken’s truck mishap was a convenient pretext.
My findings of Pedro’s resort to discrimination against other
employees, who assisted the Union, was the final ingredient
in the General Counsel’s showing that Blanken’s union activ-
ity was the motivating factor in Pedro’s decision to issue a
correction notice to him on February 24. I find, therefore,
that by issuing to Larry Blanken the correction notice dated
February 24 and the threat of discharge it contained, the
Company violated Section 8(a)(1) and (3) of the Act.
Turning to the next alleged discriminatory adverse action
against Larry Blanken, I find that it violated the Act. The
verbal correction report of February 27 was a disciplinary ac-
tion carrying an implied warning of further disciplinary ac-
tion if Blanken again talked to fellow employees about their
employment status with the Company. However, Pedro’s in-
clusion of a reference to union activity in his remarks to
Blanken prior to the issuance of the verbal correction report,
evidenced an intent to impede Blanken’s organizing effort by
prohibiting him from talking to employees about the Com-
pany’s employment policies. In light of Pedro’s demonstrated
hostility toward the Union, I find that he used the correction
notice in an effort to discourage Blanken from continued
union activity, and thereby violated Section 8(a)(1) and (3)
of the Act.
It is well settled that Section 7 of the Act extends protec-
tion to employees’ discussions regarding wages, hours, and
conditions of employment. ‘‘The Loft’’, 277 NLRB 1444,
1461 (1986). Here, Pedro prohibited Larry Blanken from
talking to fellow employees about their employment with the
Company. Indeed, Pedro admitted that he forbade Blanken
from discussing any aspect of the relationship between the
Company and any other employee. This prohibition extended
beyond the plant and working hours. That such a discussion
might involve only Blanken and one other employee would
not remove it from the protection of Section 7 of the Act.
For, as the Board recognized in Root Carlin, Inc., 92 NLRB
1313, 1314 (1951):
Manifestly, the guarantees of Section 7 of the Act ex-
tend to concerted activity which in its inception in-
volves only a speaker and a listener, for such activity
is an indispensable preliminary step to employee self-
organization.
I find that the prohibition, which Pedro voiced on Feb-
ruary 27, was likely to interfere with, restrain, and coerce
Larry Blanken and other employees in the exercise of their
Section 7 rights to discuss their wages, hours, and working
conditions and the possible advantage union representation
might give them in that regard. Accordingly, I further find
that by Pedro’s prohibition, the Company violated Section
8(a)(1) of the Act. Blue Cross-Blue Shield of Alabama, 225
NLRB 1217, 1220 (1976).
The General Counsel contended that the Company seized
upon Larry Blanken’s forklift accidents on the evening of
March 3, as a pretext for ridding itself of a union advocate.
The Company urges rejection of that contention. Instead, the
Company asserts that Blanken’s misconduct in the operation
of his forklift was the only reason for its decision to dis-
charge him. I agree with the General Counsel.
I have found that Pedro punished Larry Blanken on Feb-
ruary 24, and, again, on February 27 in violation of the Act.
In the first instance, Pedro’s excuse was pretextual. In the
second, Pedro used his disciplinary power to discourage
Blanken from talking to fellow employees about the Union
and their wages, hours and conditions of employment. Thus,
Pedro, on two occasions, in quick order, had shown his ani-
mus toward Larry Blanken’s support for the Union.
There was no showing that Larry Blanken abandoned the
Union after February 27. I find it likely that before March
3, Huck Hunnicutt was aware of the union letter announcing
Larry Blanken’s active support for the Union. Nor was there
any reason to assume that Pedro had changed his attitude to-
ward Blanken’s adherence to the Union.
Also, as found above, as early as February 22, Huck was
active in the Company’s antiunion campaign. On that date,
he violated the Act when he coercively interrogated em-
ployee Stallard about signing a union card. On the same day,
Huck again violated the Act by encouraging Stallard to re-
voke his union card.
The record also shows Pedro’s active and persistent hos-
tility toward the Union, and employees who supported it. As
I have found above, Pedro used the Company’s disciplinary
system of warnings, suspensions, and discharge to combat
the Union’s support among his employees.
On March 5, only 6 days after inflicting the second unlaw-
ful discipline on Larry Blanken, Pedro, on Huck’s rec-
ommendation, decided to discharge the same employee. The
Company had willingly hired and rehired Blanken over a 4-
year period, with no showing of any intervening discipline
at its hands. Yet during the 12 days following the Com-
pany’s realization that he was a union supporter, the Com-
pany punished him three times. From these circumstances,
Pedro’s reference to him on March 7, as a ‘‘troublemaker,’’
and the Company’s manifestations of union animus, I find
that the General Counsel has made a prima facie showing
that union activity was a motivating factor in Pedro’s deci-
sion to discharge Larry Blanken.
The Company asserted that Pedro relied upon Huck’s re-
port, when he decided to discharge Larry Blanken. Accord-
ing to Pedro, Huck advised him that Blanken had engaged
in what Pedro ‘‘considered pretty outrageous conduct, reck-
less and abusive of our equipment and property and he’d al-
ready been warned once.’’ Pedro also testifed that he ‘‘felt
that it was pretty clear that it was willful recklessness.’’
However, I find from the infirmities both in Huck’s testi-
mony and in Pedro’s explanations of his decision, that the
Company used Blanken’s forklift mishaps on the evening of
March 3, as a pretext.
Huck Hunnicutt’s conduct on March 3 suggested that he
did not consider Larry Blanken’s forklift mishaps serious
enough to warrant discipline. For, as found above, when
Huck saw Blanken’s mishaps on the night of March 3, he
did not scold him or remove him from the forklift. Instead,
he asked Blanken if he had been drinking and responded in
a joking manner, when Blanken blamed his faulty forklift op-
eration on ‘‘no loving this week.’’ However, I have no doubt
that on March 4, Huck reported Blanken’s forklift mishaps,
and recommended them as an excuse for Blanken’s dis-
charge.
1042 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 There was no issue of fact regarding Blanken’s and Shular’s work assign-
ment at Bristol, and the exchange between Powers, Blanken, and Shular about
lunch. However, there were conflicts between Blanken’s, Shular’s, and Bristol
employee Clyde Snyder regarding when Blanken and Shular finished their
work and departed from the Bristol warehouse. Snyder provided a detailed
recollection of the chronology of his own, Blanken’s, and Shular’s activity on
March 6. Blanken and Shuler disagreed as to when they finished and when
they left the Bristol warehouse. However, they did not deliver their testimony
with the certainty which Snyder conveyed. Accordingly, in resolving the issues
of fact regarding when Blanken completed their assignment and left the Bristol
warehouse, I have relied on Snyder’s testimony.
52 According to Powers, Bobby Blanken asked him to hand out union lit-
erature to the employees, and, when Powers refused, Blanken distributed it to
employees Gregory Smith and Clyde Snyder. Dale Kennedy testified that Pow-
ers told him that Blanken had offered Powers some union cards, which Powers
rejected, and that Blanken then said he would distribute some cards. Snyder
testified that, Blanken distributed authorization cards and invited employees to
fill them out and mail them to the Union. According to Shular, Blanken solic-
ited Powers’ signature on a union card. In resolving the conflicts between
Blanken’s testimony and that of other witnesses, who testified about his con-
versation with Powers, and about Blanken’s union activity at the Bristol ware-
house, I credited Blanken and Snyder, both of whom testified in a frank man-
ner. I also noted that the correction notice which the Company presented to
Blanken corroborated his testimony. It asserted that Bobby Blanken solicited
the Bristol employees, but did not mention distribution of union literature or
soliciting Powers’ assistance or signature.
53 I based my findings regarding the confrontation between Pedro and
Bobby Blanken, upon Blanken’s and company witness Dale Kennedy’s testi-
mony. Pedro seemed more interested in making a self-serving declaration and
describing Blanken’s bad manners than in searching his memory for details
However, in his haste to get rid of Blanken, Pedro pro-
vided evidence that the forklift mishaps camouflaged the real
reason for his decision. The separation of employment form
which Pedro drafted on March 5 reported that the Company
was discharging Blanken for violating company rules, insub-
ordination, carelessness, and rough handling of equipment.
However, the Company did not present that form to Blanken.
Instead, on the same day, Pedro drafted and mailed a dis-
charge letter to Blanken. Pedro’s letter did not mention in-
subordination or violation of company rules. Instead, it re-
ferred to the warning issued to Blanken on Fehruary 24. The
substitution of the letter for the separation of employment
form and the shift in reasons suggested that Pedro was not
convinced that the missing reasons could be substantiated.
By shifting his reasoning, Pedro also attempted to reinforce
the excuse he had received from Huck to make certain that
he had camouflaged the real motive for Blanken’s discharge.
Pedro’s reliance upon the warning included in his correc-
tion notice of February 24, as a reason for discharging Larry
Blanken, also evidenced his unlawful design. For, I have
found that Pedro violated Section 8(a)(3) and (1) of the Act,
when he issued that correction notice and warning. There,
Pedro relied upon the pretext that Blanken had operated a
company truck in a reckless manner. The real reason, I
found, was Larry Blanken’s participation in the Union’s or-
ganizing campaign. On March 5, Pedro found that warning
a convenient alternative to ‘‘insubordination’’ and ‘‘violation
of company rules,’’ the two reasons indicated on the separa-
tion of employment he withheld from Blanken. I find from
Pedro’s attempts to contrive an exculpatory explanation, that
the Company’s proffered defense was pretextual.
Assuming that Pedro’s letter truthfully stated the business
reasons for his decision to discharge Larry Blanken, the
Company did not meet its burden under Wright Line, 251
NLRB 1083, 1089 (1980), enfd. on other grounds 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Wright
Line required that the Company show, affirmatively, that
Pedro would have terminated Blanken even absent the em-
ployee’s union activity. The Company showed instances in
which it discharged employees for a variety of reasons in-
volving unsafe or abusive operation of over-the-road trucks,
and, in one instance, for drinking on the job and recklessly
operating a forklift. However, the Company did not show
that it had discharged or otherwise disciplined any other em-
ployee for spilling pallets of product, colliding with one or
more stacks of bottled product, and stacking broken and
leaking cases of soda on top of undamaged cases. Indeed, the
Company made no showing that it had disciplined any em-
ployee for negligence in the operation of a forklift.
I find no merit in the Company’s proffered explanation of
Pedro’s decision to discharge Larry Blanken. Instead, I find
that the General Counsel has shown that Pedro discharged
Blanken on March 5, because he supported the Union’s orga-
nizing campaign among the Company’s employees. I further
find that by inflicting this reprisal upon Blanken, the Com-
pany violated Section 8(a)(3) and (1) of the Act.
9. Bobby Blanken
a. The facts
The Company hired Bobby Blanken early in 1984, and
employed him as a mechanic. At the time of the hearing,
Elmo Wiles was his supervisor. Bobby Blanken began assist-
ing the Union’s organizing campaign in February. He solic-
ited the signatures of fellow employees on union authoriza-
tion cards. In its letter dated February 1, which the Company
received on February 21, the Union included Bobby Blanken
as a member of its organizing committee.
On March 6, the Company sent Bobby Blanken and em-
ployee Richard Shular to the Company’s Bristol, Virginia
warehouse, to install a clutch in a route truck. Early in the
afternoon, Warehouse Manager Harold Powers asked
Blanken and Shular if they wanted lunch. Blanken and
Shular replied that they would have lunch later, on their way
to Johnson City, Tennessee. At about 2 p.m., Blanken and
Shular finished their assignment at the Bristol warehouse.51
As he and Shular were about to depart, Blanken asked
Powers if his employees were working, and, if they were not,
whether he, Blanken, could talk to them. Powers answered
that his employees were getting ready to go home and that
he would send them out. As the Bristol employees came out,
Bobby Blanken handed each a union authorization card.
Blanken told the employees ‘‘they could read it, sign it, mail
it back in or throw it in the garbage, the choice was
theirs.’’52 After the few minutes required to hand out the
cards, Blanken and Shular left for Johnson City.
On the morning of March 12, Bobby Blanken came to
work and found a note on his timecard instructing him to re-
port to Pedro’s office before punching in. Blanken complied,
but Pedro was not in his office. After a few minutes, Pedro
returned. He called Blanken into his office, where Seven-
Up/Dr. Pepper Brand Manager Dale Kennedy and George
Hunnicutt Sr. were present. Pedro began by telling Blanken,
‘‘This has nothing to do with the union cards that you passed
out in Bristol.’’ Blanken asked what the purpose of his visit
to Pedro’s office was. Pedro said he had something he want-
ed Bobby Blanken to sign for insubordination, keeping em-
ployee Shular from working and stealing company time.
Blanken refused to sign a correction notice dated March 7.53
1043PEPSI COLA BOTTLING CO.
of what he said about Bobby Blanken’s right to solicit on company time, and
the correction notice he tendered to Blanken.
Blanken’s recollection was limited to Pedro’s offer of the correction notice
for Blanken’s signature. Dale Kennedy corroborated Bobby Blanken’s testi-
mony and also testified that Pedro instructed Blanken not to solicit on com-
pany time.
Bobby Blanken testified on redirect examination that at some point in his
remarks, Pedro asked him if he had solicited employees on the Union’s behalf,
at the Bristol warehouse. Counsel did not specifically examine Pedro on the
assertion that he had interrogated Blanken on March 12. Pedro’s testimony is
silent on that matter. Dale Kennedy’s testimony is also silent as to whether
or not Pedro asked Blanken if he had solicited the Bristol warehouse employ-
ees to sign union cards.
However, I do not credit Blanken’s testimony that Pedro interrogated him.
I find from Blanken’s testimony that at the outset, Pedro’s remarks, on March
12, showed that he knew that Blanken had solicited the Bristol employees for
the Union. Therefore, I find it unlikely that Pedro would have wasted his time
investigating the matter anew. More important, Blanken failed to testify about
the alleged interrogation on direct examination, when he was providing his ac-
count of his meeting on March 12, with Pedro. Instead, his testimony ahout
the asserted interrogation came on redirect examination, after prodding by
counsel. Further, on redirect examination, Blanken did not disclose where in
the conversation Pedro posed the question. In sum, I find that the infirmities
in Blanken’s testimony about his alleged interrogation fatally impaired its reli-
ability.
The correction notice, which Pedro offered for Bobby
Blanken’s signature, gave improper conduct as the reason for
its issuance. The following explanation of the reason for the
corrective action auPeared on the notice:
On 3-6-86 you and Richard Shular were dispatched to
the Bristol warehouse to replace a clutch after which
you were to go to Johnson City to pick-up parts. After
having finished the clutch job and while still on the
Company’s time, you held up Mr. Shular and the Com-
pany paid you and Mr. Shular while you solicited the
employees at the Bristol warehouse to sign union cards.
While you have a right to engage in union activities,
you do not have a right to solicit for any purpose while
on company time, or to interfere with another employ-
ee’s work while you do so. This rule would apply no
matter what the purpose of your solicitation was. You
were not on any break and neither was Mr. Shular. Fur-
ther, there were people waiting on you at Norton to re-
turn with the parts.
The notice also recited the corrective action against
Blanken. He received a written warning and advice that
‘‘further serious misconduct will result in severe discipline.’’
There was no showing that as of March 6 the Company
had promulgated and maintained a no-solicitation rule.
Bobby Blanken was not aware of such a rule. On the con-
trary, I find from Route Supervisor Jerry M. Ryans’ testi-
mony that the Company did not maintain a rule prohibiting
solicitation during working time. I also find from Ryans’ tes-
timony that the Company permitted employees to solicit for
various nonwork-related purposes during worktime.
b. Analysis and conclusions
The General Counsel argued that by issuing the written
warning to Bobby Blanken on March 12, the Company
sought to squelch his union activity, and thereby violated
Section 8(a)(3) and (1) of the Act. The Company urges dis-
missal of the allegations regarding Blanken’s written warning
on the ground that union activity had nothing to do with its
issuance. Instead, the Company insisted that it issued the
warning only because Blanken wasted his and Shular’s work-
ing time. I find merit in the General Counsel’s position.
One day after Bobby Blanken had offered union cards to
its employees at the Bristol warehouse, the Company pre-
pared a correction notice warning him that repetition of that
conduct would ‘‘result in severe discipline.’’ The correction
notice points to Blanken’s union activity as the catalyst for
the Company’s annoyance. Pedro’s advice to Blanken on
March 12, that he refrain from union activity during
worktime, also shows a preoccupation with Blanken’s solici-
tation on the Union’s behalf. The Company’s demonstrated
tendency to punish union activists provided further strong
support for the General Counsel’s contention.
The Company contends that it punished Bobby Blanken
lawfully, on the ground that on March 6 he misused his and
Shular’s worktime, and that one other employee, Johnny
Harris, suffered the same fate for similar misconduct. In
short, the Company argued that it did not inflict disparate
punishment on Blanken. However, the Company’s defense
falls short of the mark.
The record shows that the Company did not maintain any
rule against solicitation. The Company did not show that it
ever punished any employee, other than Bobby Blanken, for
soliciting during working hours. Indeed, the Company per-
mitted its employees to solicit for nonwork-related purposes,
during their worktime. However, the Company punished
Bobby Blanken for soliciting fellow employees to sign union
cards, during his and Shular’s worktime. Here, indeed, was
the disparate treatment which the Act prohibits.
Nor has the Company shown that the misconduct, for
which it issued a written warning to employee Harris on May
20, 1983, bore any resemblance to Bobby Blanken’s union
activity on March 6. Harris’ warning recited the following
six counts of misconduct:
(1) Failure to execute your assigned duty, to stay in
your assigned area.
(2) Failure to observe safety standards.
(3) Failure to properly install parts on jobs assigned
to you.
(4) For being outside your assigned work area and
distracting other people from doing their jobs.
(5) Failure to show up for work at your appointed
starting time.
(6) Failure to respond to numerous verbal reprimands
and warnings concerning the above items.
I find, contrary to Pedro’s declaration, on March 12, that
he issued the correction notice, with its written warning for
misconduct, to punish Bobby Blanken for having solicited
employee signatures on union cards. The Company’s willing-
ness to permit solicitation for other nonwork-related purposes
showed that its expressed concerns about misuse of company
time and timely arrival of ‘‘parts’’ were pretextual. Indeed,
there was no showing that the solicitation took more than a
few minutes, or that it interfered with the Company’s busi-
ness. The Company’s only motive for punishing Blanken was
to discourage him from actively supporting the Union. I find
that by issuing the correction notice dated March 7, the
Company violated Section 8(a)(1) and (3) of the Act. Animal
Humane Society, 287 NLRB 50, 57 (1987).
The General Counsel alleged that the Company violated
Section 8(a)(1) of the Act on March 12, by interrogating
1044 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 I based my findings of fact upon the testimony of Robert Falin and Roy
Almaroad. The essential facts regarding the alleged discrimination against
Falin are not in dispute.
55 Almaroad testified that when he sought an explanation for the uncaser’s
shutdown, Falin explained that there had been a backup of cases. However,
I have credited Falin’s uncontradicted testimony that he shut the uncaser off
because it had jammed, resulting in bottles falling off the conveyor onto the
floor. I have also credited his testimony that he picked up the fallen bottles
and placed them upright, on the conveyor belt. Supervisor Mullins testified
that when he came over to find out about the uncaser stoppage, Falin said he
had been picking up bottles. Mullins also testified that Almaroad was present
at that time. Absent from Mullins’ version of Falin’s remarks, was any ref-
erence to a backup of cases. Thus, I found that Mullins’ version of Falin’s
explanation for his shutdown of the uncaser was more logical than Almaroad’s
version. Accordingly, I have credited Mullins’ testimony regarding Falin’s ex-
planation of the April 3 uncaser shutdown.
I based the remainder of my findings of fact regarding Falin’s employment,
his union activity, and the incidents on April 3 and May 19 upon his and
Almaroad’s testimony.
56 In its brief, the Company asserted that Almaroad issued the verbal warn-
ing because he had previously cautioned Falin against stopping the uncaser
that same day. The Company based that assertion upon Robbie Mullins’ testi-
mony. However, Almaroad’s testimony shows that on April 3 he scolded Falin
only once about shutting off the uncaser. Falin’s testimony agrees with
Almaroad’s account. Falin and Almaroad were directly involved in the April
uncaser shutdown. They were more likely to remember what happened and
what was said, than was Mullins, who was a spectator. I also noted that they
testified with more self-confidence than Mullins showed. Therefore, on this
issue of fact, I have credited their testimony where it conflicted with Mullins’.
57 According to witnesses Shirley Stidham and Hester Fields, on May 19,
Falin shut the uncaser down more than once, and Almaroad, at least twice,
ordered to cease shutting it down. Falin testified that he shut the uncaser down
once on that date. Almaroad testified about only one shutdown and only one
confrontation with Falin on May 19. Finally, the correction notice which
Almaroad issued on that date suggests that there was only one shutdown. I
also noted that Stidham and Fields seemed uncertain as they testified about
what happened on May 19. Accordingly, I have rejected their versions of the
circumstances leading up to Falin’s 3-day suspension on May 19.
58 Robbie Mullins testified that on April 3 and on May 19 he came to the
uncaser after Falin had shut it off, and found no reason for such action. How-
ever, I have credited Falin’s assertions that the uncaser was jammed on April
3, and that on May 19 it did not pick up bottles properly. Thus, assuming
that I credited Mullins’ testimony, I would find that Falin had remedied the
cause of the shutdown before Mullins arrived at the uncaser.
Bobby Blanken about his solicitation for the Union. In sup-
port of this allegation, the General Counsel offered only
Blanken’s testimony. However, I did not credit the portion
of Blanken’s testimony regarding this allegation. Accord-
ingly, I find that the General Counsel has failed to show that
this alleged interrogation occurred and shall recommend dis-
missal of this allegation.
However, although not alleged in the consolidated com-
plaint, I find from the fully litigated facts, that the correction
notice dated March 7, and Pedro’s remarks on March 12, in-
cluded an overly broad proscription of solicitation by
Blanken on company time. I also find that the Company pro-
mulgated the restriction on solicitation in response to the
Union’s organizing campaign. I further find, therefore, that
by promulgating an overly broad proscription of solicitation
directed at union activity, the Company violated Section
8(a)(1) of the Act. Southwest Gas Corp., 283 NLRB 543,
546 (1987).
10. Robert Falin
a. The facts54
The Company employed Robert Falin as a laborer from
April 1985 until he left for another job in late 1986. Roy
Almaroad was his supervisor.
Falin supported the Union. In January or February, Falin
signed a card for the Union. He attended three or four union
meetings. On three occasions, Falin joined others to handbill
for the Union, outside the Company’s Norton plant. Once,
his wife participated in the handbilling. Falin joined the
Union’s organizing committee in February. The Union’s let-
ter of February 18, to the Company, showed Falin as a mem-
ber of the organizing committee. On or about February 2,
Supervisor Robbie Mullins asked Falin if he had signed a
union card.
Among his duties, Falin operated the Company’s uncaser.
The uncaser is a component of the Company’s returnable
line, from which come glass bottles filled with one of the
Company’s beverages. The bottling process begins with the
loading of cases of returnable bottles in cartons onto a con-
veyor belt. The conveyor belt moves the cases of bottles to
the uncaser, on the way to a washing machine. The uncaser
separates the bottles from their cartons and cases, placing the
bottles on an upper conveyor, and the empty cartons in the
cases on a lower conveyor. The upper conveyor carries the
bottles to a large table, where they collect before entering the
washer.
On April 3, while operating the Company’s uncaser, Falin
saw that it was jammed and was letting bottles fall over.
Bottles began falling to the floor and breaking. Falin
switched off the uncaser and stopped the line. He then
picked up the bottles, put them on the conveyor, and turned
the uncaser on.
Operations Manager Roy Almaroad saw that the bottle
washer had stopped. Upon learning that Falin had shut the
uncaser off, Almaroad went to him, seeking an explanation.
Falin explained that he had been picking up bottles which
had fallen off the line.55 After rejecting Falin’s explanation,
Almaroad issued a verbal correction report to him for unsat-
isfactory work performance. The verbal correction report
warned Falin not to turn the uncaser off and stated that he
would probably receive a 3-day suspension if he turned it off
again.56
On May 19, Falin saw that the uncaser was malfunc-
tioning. Instead of pulling all of the bottles out of each car-
ton, the uncaser was leaving 10 to 16 bottles in a case. Falin
attempted to empty the cartons and place the remaining bot-
tles on the production line. Finding difficulty in keeping up
with the flow of cases of bottles, Falin shut the uncaser off.
Almaroad saw Falin shut the uncaser off and immediately
went to find out why he had done so. Falin explained that
the machine was not picking the bottles up properly. As a
result of Falin’s action, the bottle washer had stopped.
Almaroad turned the caser on and found that it ‘‘worked
fine.’’57
That same day, Almaroad issued a correction notice to
Falin for improper conduct and unsatisfactory work perform-
ance. The explanation of the reasons for the corrective action
referred to the shutdown of the uncaser and the previous
warning for similar conduct. The explanation also remarked
that Falin should have told a supervisor about his difficulty
with the uncaser. The correction notice included a written
warning for misconduct, a final warning, and a 3-day suspen-
sion beginning on May 20.58
1045PEPSI COLA BOTTLING CO.
b. Analysis and conclusions
The General Counsel contended that the Company issued
the warnings of April 3 and May 19 to Robert Falin because
of his involvement with the Union’s organizing campaign.
The Company argues that the General Counsel has not
shown that Falin’s union activity was a motivating factor in
the issuance of either the verbal correction report on April
3, or the correction notice on May 19. I find merit in the
General Counsel’s contention.
Falin became a union activist early in the Union’s cam-
paign. He signed a union card in January or February, and
attended three or four union meetings. He also handbilled
outside the Norton bottling plant on three occasions. Falin
joined the Union’s organizing committee in February.
On February 20, the Company received the Union’s letter
showing that Falin was a member of the organizing com-
mittee. At about the same time, Robbie Mullins singled Falin
out and asked him if he had signed a union card. I find that
by the end of February, Almaroad was aware of Falin’s
union activity.
From the outset of the Union’s campaign at the Norton
plant, Almaroad showed hostility toward employees who
supported the Union. I have found that, in attempting to
squelch union activity, Almaroad unlawfully interrogated em-
ployees about their union activity, threatened reprisals, in-
cluding loss of employment if employees supported the
Union, and solicited employees to revoke their union cards.
In sum, the evidence showed that Almaroad was aware of
Falin’s union activity, and that Almaroad had repeatedly vio-
lated the Act to discourage employees from supporting the
Union. I also noted that Almaroad imposed the verbal warn-
ing on April 3, less than 2 months after the letter announcing
Falin’s alignment with the Union had arrived at the Com-
pany. Further, the record showed that the Company’s repris-
als against other union supporters continued in the spring and
summer. From these circumstances, I find that the General
Counsel has made a prima facie showing that union activity
was a motivating factor in Almaroad’s decisions to punish
Falin on April 3 and May 19.
In essence, the verbal correction report of April 3 and the
correction notice of May 19, respectively, assert that the
Company disciplined Falin because he turned off the uncaser.
In contrast with Almaroad’s testimony, the verbal correction
report did not weigh the sufficiency of Falin’s stated reason
for shutting the uncaser off. Instead, the verbal correction re-
port warned that if Falin turned the uncaser off again, he
would probably suffer a 3-day suspension. The correction no-
tice stated that Falin stopped the uncaser on May 19 because
‘‘he couldn’t pick up bottles which had fallen over on the
deadplate transfer fast enough.’’ The notice declared that
Falin had ‘‘[n]o authority to do this.’’ The final assertion re-
garding the asserted improper conduct on May 19 was that
Falin had been ‘‘[p]reviously warned for the same mis-
conduct.’’
In its brief, the Company claimed that one of the reasons
justifying issuance of the verbal correction report on April 3
was that Falin kept the uncaser turned off longer than nec-
essary to restore the fallen bottles to the line. However, I
find that the verbal correction report did not reflect that
claim. Nor did Almaroad mention excessive time, when he
scolded Falin on April 3. Thus, this aspect of the Company’s
explanation suffers from the infirmity of being an after-
thought. In any event, the record failed to disclose the length
of time during which the uncaser was shut off on April 3.
I find from Robbie Mullins’ testimony that the Company
expects employees to shut the uncaser off for a variety of
reasons. Falling bottles, jammed cases, or a broken belt on
the line are some of the reasons, according to Mullins’ cred-
ited testimony. I also find from Mullins’ testimony that the
Company does not require that employees obtain supervisory
authority to shut the uncaser down if the enumerated reasons
or comparable mishaps occur.
In light of the Company’s policy, I find that when Falin
shut down the uncaser on April 3, he acted properly. The
machine had jammed and bottles were falling onto the floor.
Falin stopped the uncaser to clear the blockage and restore
the fallen unbroken bottles to the conveyor line. Neverthe-
less, Almaroad disciplined him for stopping the uncaser.
Almaroad also warned Falin that he would suffer a 3-day
suspension if he stopped the uncaser again. This incident
raised the suspicion that Almaroad was looking for an excuse
to punish Falin. In any event Almaroad’s warning set the
stage for the next malfunction.
Almaroad’s next opportunity to punish Falin came on May
19, when the uncaser began leaving bottles in the cases.
Falin attempted to remedy this breakdown manually. The
uncaser was faster than he was. Again, consistent with the
Company’s policy, Falin shut the uncaser down. He caught
up by removing from the cases the bottles which the machine
had left. Almaroad observed Falin’s action and issued a cor-
rection notice to him. As threatened, Almaroad imposed a 3-
day suspension on Falin.
In an effort to improve upon his scheme, Almaroad embel-
lished his written explanation in the correction notice. He
complained that Falin had acted without authority, and sug-
gested that Falin should have consulted a supervisor. There
was no showing that the Company had such a requirement
when the uncaser acted as it did on May 19. Indeed, Robbie
Mullins’ testimony showed the contrary.
The Company’s attempt to show that Falin did not suffer
disparate treatment on April 3 and May 19 was unsuccessful.
I find from Falin’s and Robbie Mullins’ testimony that the
Company’s employees customarily shut off the uncaser,
when they deemed such action necessary, without checking
with a supervisor, and without fear of punishment. There was
no showing that the Company issued any verbal correction
report, or any correction notice, or imposed any other dis-
cipline on anyone for shutting off the uncaser, other than
Falin.
I find from Jamie Fultz’ uncontradicted testimony that,
during his employment at the Norton plant, he shut the
uncaser down as many as three times per day for various rea-
sons, involving the flow of bottles. Almaroad reacted to such
stoppages by hollering at Fultz to get the machine going.
Neither Almaroad nor any other member of management im-
posed any discipline on Fultz for stopping the uncaser.
Instead, the Company presented a correction notice which
Almaroad issued to employee Fultz on May 14, for starving
the uncaser by failing to load sufficient bottles on the non-
returnable line. According to the Company and Almaroad,
starving the uncaser by shutting it off is the equivalent of
failing to load enough bottles on to the line. I disagree.
There was no showing that Fultz starved the uncaser be-
cause of some mishap in that machine, or elsewhere on the
1046 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
59 There were no issues of credibility regarding the dates of Vega’s hiring
and discharge, his union activity, or the Company’s knowledge of his support
for the Union.
60 Where there were conflicts in testimony between Vega and Almaroad, re-
garding the incident on March 27, I have credited Vega. In resolving the issue
of credibility, here, I took note of Almaroad’s testimony regarding his assess-
ment of the punishment which he imposed on Vega for having hot chocolate
in the syrup room on that date.
Almaroad testified that under company policy he could have discharged
Vega, but that he and Pedro decided to be lenient and limit the punishment
to a 5-day suspension. On cross-examination, Almaroad testified that there was
a sign on the door to the syrup room, warning of automatic dismissal as pun-
ishment for eating or drinking in that room. However, the Company did not
provide a copy of the sign. No other witness mentioned such a sign. Nor did
the Company’s brief refer to such a sign. Review of the Company’s rules re-
garding cleanliness revealed no such rule. Finally, I noted that on March 27,
when Pedro wanted to show the prohibition against eating and drinking, he
took Vega to the breakroom and not to the door of the syrup room.
Almaroad’s gratuitous claim of leniency for himself and Pedro evidenced
an intent to assist the Company’s defense. His unsubstantiated testimony re-
garding a disciplinary policy limited to the syrup room points to the same in-
tent. It seemed likely that if the Company had such a policy, it would have
offered a copy of the notice into evidence to support the claim of leniency.
The Company’s failure to do so cast serious doubt on Almaroad’s testimony
regarding his role in Vega’s punishment and in the events leading up to
Vega’s departure from the plant on March 27.
Vega appeared to be providing his best recollection of what happened to
him on March 27, and what Pedro said when he sent Vega home that same
day. Accordingly, I have credited Vega where there was a contradiction or in-
consistency between his testimony and Almaroad’s regarding the cir-
cumstances leading up to Vega’s departure from the Norton plant on March
27.
61 I have based my findings regarding Pedro’s remark on his testimony.
Here, Pedro seemed to be providing his best recollection in a forthright man-
ner. Vega seemed uncertain about the context in which Pedro made his sar-
castic comment about the Union. On cross-examination, counsel refreshed Pe-
dro’s memory somewhat. However, Pedro’s version was more detailed and
logical in its content.
conveyor belt. In contrast, on April 3, and again on May 19,
Falin shut the uncaser off to remedy a minor breakdown in
the system. I find, therefore, that the Company has not
shown that Falin’s punishment was a normal response to
similar conduct by other employees.
I find that the Company has failed to rebut the General
Counsel’s strong showing that union activity was a factor in
Almaroad’s decisions to issue the verbal correction report of
April 3, which contained a warning, and the correction notice
of May 19, with its 3-day suspension. I find, instead, that
Almaroad’s asserted reasons for those adverse actions were
pretextual, and that he issued them because Falin supported
the Union. Accordingly, I further find that by Almaroad’s
discrimination against Falin on April 3 and May 19, the
Company violated Section 8(a)(3) and (1) of the Act.
11. Francisco Vega
a. The facts
The Company employed Francisco Vega at its Norton
plant from August 2, 1982, until August 14. He actively sup-
ported the Union’s organizing drive. Vega signed a union
card. The Union’s letter of February 18, to the Company, an-
nounced that Vega was a member of the organizing com-
mittee. George Hunnicutt Sr.’s letter of February 22, to the
Company’s employees, announced that Vega was helping the
Union.59
Vega handbilled once, in March or April, outside the Nor-
ton plant, as Pedro and Roy Almaroad watched. Vega also
handbilled for the Union, once, at the Company’s Tazewell,
Virginia facility. He distributed union cards to employees for
their signatures and attended union meetings.
On March 27, Pedro saw Vega carrying a cup of hot choc-
olate in a storage room, which is part of the syrup room.
Pedro reproached Vega for violating a company prohibition
against eating or drinking in the syrup room. Pedro con-
ducted Vega to the Company’s breakroom and showed him
a notice to employees, dated February 2, 1981, which the
Company had reposted in February. The notice announced
that:
[E]ffective, immediately it is absolutely forbidden for
employees to consume their lunch or any other food
anywhere in the plant except the lunchroom. This ap-
plies to the loading crew as well as production employ-
ees.
Violators may be dismissed.
Pedro and Vega returned to the syrup room. Pedro went
to find Roy Almaroad, and returned with him to the syrup
room. Almaroad saw that Vega was drinking his hot choco-
late, and asked if he knew that he should not be doing so.
Almaroad sent Vega to clock out in the breakroom and wait
there for a decision on the length of his suspension. Pedro
saw Vega in the breakroom and sent him home to wait for
the decision.
Within 2 days, Almaroad telephoned Vega and told him
that his suspension would be for 5 days. When he returned
to work on April 4, Almaroad issued a correction notice to
Vega for breaking a company rule by eating in the syrup
room. The notice mentioned Vega’s 5-day suspension with-
out pay.60
In April, following Vega’s suspension, Pedro posted in the
breakroom a copy of a letter from the Board to the Union’s
counsel, stating that the Union had not filed its brief on time
in the pending representation proceeding. Soon after Vega
saw the letter, he questioned Pedro about it at work. Pedro
responded with an explanation which ended with: ‘‘Well, it
means they are really taking care of you, Chico.’’61
On May 26, the Company promulgated a requirement that
all production employees wear safety glasses ‘‘at all times
while in the plant while production is in progress.’’ The
Company issued safety glasses to the production employees.
The regulation stated that the penalty for a first violation of
its provisions would be ‘‘sent home for the day.’’ A second
violation would incur a 3-day suspension, and a third viola-
tion would bring on discharge.
On June 24, Vega was working at the back of the bottle
washer with his safety glasses on top of his head. Huck
Hunnicutt approached Vega and told him that he should not
be wearing his glasses on his forehead. Vega said he knew
that, but it was hot and his glasses had fogged up. Vega
moved his glasses down over his eyes and continued work-
ing.
A short time later, the washer stopped. Vega felt hot and
pushed his glasses to the top of his forehead. Huck returned
and told Vega to put the glasses over his eyes. Vega ex-
plained that the washer had stopped and that he moved the
glasses to his forehead because he felt hot. Huck insisted that
Vega wear his safety glasses over his eyes. Vega replied tes-
tily that they were his eyes, and if anything happened to
them, he, Vega, would pay for them. Huck argued that if
1047PEPSI COLA BOTTLING CO.
62 I based my findings regarding the safety glasses incident of June 24, on
Vega’s, Pedro’s, Huck’s, Bobby Worley’s, and Roy Almaroad’s testimony.
However, there is a conflict in testimony as to whether Pedro was present
when Almaroad sent Vega home. According to Worley and Almaroad, it was
Almaroad, alone, who confronted Vega on June 24, and sent him home. How-
ever, I find from Huck’s and Pedro’s testimony, that Huck reported the inci-
dent to Pedro. It seemed logical to me that, consistent with his active role in
the Company’s day-to-day operation, Pedro would have followed up on
Huck’s complaint. Accordingly, I find that Pedro was present, when Almaroad
sent Vega home on June 24.
63 I based my findings of fact regarding the earplug incident of July 2 on
Vega’s and Pedro’s testimony.
64 According to Roy Almaroad, on August 14 Bobby Worley came to him
on the back loading dock and complained that Vega was reading and neglect-
ing his work. Almaroad also testified that he went to check on Vega, and
came upon Pedro. However, neither Pedro, nor Worley, nor Vega, corrobo-
rated Almaroad’s testimony.
Worley, who was a company employee when he testified in these pro-
ceedings, impressed me as being a conscientious and objective witness. In con-
trast, Almaroad seemed more interested in assisting the Company’s defense
than in giving his full recollection. Accordingly, where Worley’s testimony
conflicted with Almaroad’s regarding conversations and actions on August 4,
I have credited Worley.
I have also rejected Pedro’s testimony regarding the incident at the baler
on August 14, where it conflicts with Vega’s and Worley’s. I have also ac-
cepted Worley’s testimony where it differed from Vega’s. Of the three,
Worley seemed to have the clearest recollection, which he presented in a can-
did manner. Vega’s recollection was not as complete as Worley’s. However,
Vega seemed to be searching his memory and presenting as much as he could
remember without coloring it. Pedro, by his tone and attitude, showed his hos-
tility toward Vega.
Vega’s eyes suffered injury, ‘‘we all have to pay.’’ Huck
walked away.
Huck complained to Pedro and Roy Almaroad about
Vega’s refusal to wear safety glasses, and about his obsti-
nacy. Pedro found Almaroad, and the two went to Vega, who
was working at the washer. Vega was properly wearing his
safety glasses. However, he admitted to Pedro that he had
not been wearing safety glasses over his eyes, when Huck
approached him. It was around 9:30 or 10 a.m. when
Almaroad, in Pedro’s presence, sent Vega home for the rest
of the day.
When Vega returned to work, on June 25, Almaroad gave
a correction notice to him for violating the Company’s regu-
lations requiring employees to wear eye protection. The cor-
rection notice explained that Vega had received two warn-
ings to keep his glasses on, and that on the second occasion,
he ‘‘was smart with Huck.’’62
At 4:45 p.m. on July 2, Vega shut his line down, at
Almaroad’s direction. Vega began pushing some boxes to ac-
commodate the remaining bottles on the production line.
Pedro saw that Vega was wearing his earplugs pushed side-
ways, into the cavities in front of his ear canals, rather than
perpendicularly into the ear canals.
On May 22, the Company announced a policy requiring
production employees to wear earplugs while production was
in progress. The progressive discipline for failing to comply,
followed the same steps which the Company provided for its
safety glass policy. During the same month, the Company
held a meeting with all of its employees, at which it distrib-
uted one pair of earplugs to each employee. The plastic con-
tainer accompanying each pair of earplugs had instructions
for their use printed on its outside. The second step in these
instructions was to insert the plug ‘‘well into the ear canal.’’
On July 2, Pedro told Vega that he was wearing his
earplugs incorrectly. Vega agreed, but added that the noise
wasn’t bothering him, as he had shut his line off. Pedro, de-
cided that Vega had violated the Company’s earplug regula-
tions. Under the Company’s stated policy, this first offense
was punishable by dismissal for the day. Pedro remarked that
as it was the end of the workday he would not send Vega
home.
On July 3, Almaroad issued a correction notice to Vega
for violating the Company’s earplug regulations. The correc-
tion notice explained that Pedro had seen Vega ‘‘wearing ear
protection improperly. Had plugs wedged into outer ear only
sideways.’’ The notice also said: ‘‘First warning is issued.’’
It warned that the next ear or eye offense would ‘‘result in
3-day suspension.’’63
On Thursday, August 14, Vega worked on a baling ma-
chine, compressing cardboard. Employee Bobby Worley was
moving pallets of cardboard from the back loading dock to
Vega, using a forklift. Vega put the cardboard into the baler,
and pushed a button which started the compressing action.
When the baler had compressed the cardboard, Vega re-
moved it from the machine and banded it. The baler took 1
or 2 minutes to compress a load of cardboard. Vega took 10
or 12 minutes to band it.
Almaroad instructed Vega to separate paper from the card-
board and set it aside. In the course of doing so, Vega picked
up a Sports Illustrated, glanced at it, and placed it on top of
a conveyor line motor. Vega continued filling the baler,
pressing the button, and waiting for the machine to compress
the cardboard. While waiting, he glanced at the magazine.
When the compressor finished its task, Vega looked up from
the magazine and banded the cardboard.
Worley noticed that the flow of cardboard from the back
loading dock was backing up at the baler. Two employees
were taking the cardboard from a trailer and loading it on
pallets. Worley was bringing it too quickly for Vega, who
was working at his usual rate. Vega was not reading when
Worley came to the trailer with the cardboard.
Worley looked for Almaroad alleviate the backup at the
baler. His search brought him to the office, where he met
Pedro. Worley informed Pedro of the situation at Vega’s
baler. Pedro and Worley went to the baler. They saw the
baler compacting cardboard, while Vega was looking over
his left shoulder at a magazine, which was laying open on
top of a motor. Worley saw that Vega had the next load of
cardboard ready for the baler. Pedro asked Vega what the
problem was and walked away.64
That same day, while Vega was working at the baler, he
looked up and saw Pedro standing down the aisle with a
camera. Pedro took some pictures. At least one picture was
of Vega looking at a magazine.
After Pedro finished taking pictures, he told Vega that he
should not be reading a magazine during worktime. Pedro
also said that someone had told him that Vega was not
baling the cardboard fast enough to keep up with the fork-
lift’s deliveries. Pedro refused to name his informant. He
smiled and began to walk away. Vega began to walk with
him. Pedro directed him to get back to work, and remarked
that he might not be working for the Company any longer.
Vega returned to work for the remainder of his shift.
Later, on the same day, Almaroad came to the baler and
asked Vega what had happened. After hearing his expla-
nation, Almaroad left Vega, and returned with two employ-
ees to help him complete the work.
1048 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
65 Employee Stidham testified that employees routinely remove bottles of
soda pop from the production line and drink while working. Fields testified
that she has seen employees drinking soda pop on the production line, and
that she has done so, while production is going on. However, both testified
that to their knowledge, no supervisor saw them drinking on the production
line. However, neither Stidham nor Fields eliminated the possibility that a su-
pervisor might have observed an employee drinking soda pop without their
knowledge. Moreover, I find it unlikely that during the 9 months between Feb-
ruary, when the Company reposted its prohibition against eating and drinking
in the production area, and December, when Stidham and Fields testified, that
they and their colleagues on the production line repeatedly drank bottles of
soda, and that no supervisor ever saw them. Both Stidham and Fields testified
that they looked to make sure a supervisor wasn’t there when they took a bot-
tle of soda pop off the line. However, they did not provide further information
on how they escaped detection, as they furtively consumed a 16-ounce bottle
of Pepsi-Cola and worked, at the same time. In contrast, Delph testified in de-
tail, and seemed more conscientious about providing his recollection. Stidham
and Fields seemed to be answering with caution. Accordingly, I have credited
Delph where his testimony conflicted with, or was inconsistent with, Stidham’s
or Fields’ testimony regarding enforcement of the drinking prohibition on the
production line.
Vega came to work on the following Monday, August 18.
Almaroad was waiting for him in the breakroom. He told
Vega not to clock in, and to sit down. After about a half
hour, Pedro came to the breakroom. He announced that he
was discharging Vega for reading. Pedro handed a separation
of employment notice, dated August 14, to Vega.
The separation of employment notice stated that the Com-
pany had discharged Vega for dishonesty, poor work, viola-
tion of rules, and insubordination, and that the discharge was
‘‘progressive discipline action.’’ The notice explained the
reasons for the discharge by reviewing the Company’s dis-
ciplinary actions against him, beginning on December 16,
1985. On that occasion, Roy Almaroad had issued a verbal
warning to Vega for reading a newspaper during worktime.
Continuing, the notice listed the warning of April 4, for
‘‘eating in the syrup room,’’ the disciplinary action of June
25, for not having his safety glasses on, the disciplinary ac-
tion of July 3, for wearing ear protection improperly, and the
magazine incident of August 14. Finally, the explanation of
Vega’s discharge declared: ‘‘You are discharged for repeat-
ing the offense of reading while on the job, and for persistent
violation of rules.’’
b. Analysis and conclusions
The General Counsel contended that Vega’s three written
warnings, his two suspensions, and his discharge were un-
lawful reprisals. The Company denies that union activity had
anything to do with these disciplinary steps.
Francisco Vega’s name was on the list of the Union’s sup-
porters in George Hunnicutt’s antiunion letter to the Com-
pany’s employees, dated February 22. Thereafter, Vega open-
ly supported the Union. Vega signed a union card, distributed
union cards to other employees, and attended union meet-
ings. In March or April, he handbilled in plain view of Pedro
and Roy Almaroad, at the Norton facility.
In April, Pedro showed that he was very much aware of
Vega’s adherence to the Union. When Vega asked him to ex-
plain the meaning of a letter from the Board to the Union’s
attorney regarding the latter’s request to file a brief out-of-
time, Pedro’s sarcastic response was that it showed that the
Union was ‘‘really taking care of’’ Vega.
There can be little doubt that Pedro’s sarcasm was accom-
panied by unexpressed hostility toward the Union and Vega,
who openly supported it. The likelihood was that Pedro
would do more than joke with Vega. For, as found above,
Pedro’s animosity toward the Union and those who sup-
ported it, moved him to discharge, or otherwise discipline
employees in reprisal for their adherence to the Union.
Almaroad’s unfair labor practices, as found above, showed
that he shared Pedro’s hostility toward employees who sup-
ported the Union.
The timing of the three written warnings, the two suspen-
sions, and the discharge, which Pedro and his lieutenant,
Almaroad, imposed on Vega, also supported the General
Counsel’s contention. During Vega’s 4-year employment at
the Company, the record shows that all the disciplinary ac-
tion against him consisted of one written warning, three cor-
rection notices, two suspensions, and one separation notice.
He received the written warning in December 1985. The
Company issued the three correction notices, the two suspen-
sions, and the separation notice after Vega surfaced as an ac-
tive union supporter. With the addition of this element, the
General Counsel’s prima facie case was complete. There was
ample proof that his union activity was a motivating factor
in the punishment which the Company imposed on Vega
after he embraced the Union.
The Company contends that there was no showing that
union activity was a factor in Almaroad’s decision to impose
a 5-day suspension on Vega. In support of its position, the
Company showed that Vega violated its prohibition against
eating and drinking in production areas, during production
time. The Company also argued that Almaroad treated Vega
leniently.
I find from the testimony of Ernest Delph, Shirley
Stidham, and Hester Fields that after the Company posted the
prohibition against eating and drinking in the production
area, in February, employees on the production line fre-
quently removed bottles of soda pop from the production line
and drank without incurring discipline. I find from Delph’s
uncontradicted testimony that on April 17, while he was
working in the production area, Roy Almaroad invited him
to drink a bottle of soda pop in the production area. As late
as November 10, Delph observed employee Shirley Stidham
drinking a 16-ounce bottle of Pepsi-Cola, on the production
line, in Almaroad’s presence. Between April and November
11, the day he testified, Delph observed employees Bobby
Worley, Hester Fields, and Brian Almaroad drinking bottles
of Pepsi-Cola, on the production line in Roy Almaroad’s
presence, without interruption. As far as Delph knew, the
Company did not discipline them, and there was no showing
that the Company did so.65
The laxity which Almaroad and the other production su-
pervisors exhibited toward Stidham, Fields, and others be-
tween February and December did not extend to Vega on
March 27. Instead of the tolerance extended to those who
drank bottles of soda pop on the production line, Almaroad
and Pedro punished Vega for drinking hot chocolate in the
syrup room. The Company’s prohibition of eating and drink-
ing, reposted in February, applied ‘‘anywhere in the plant ex-
cept the lunchroom.’’ It did not make any special reference
to the syrup room. Thus, under that policy statement, Vega’s
violation was not more serious than those occurring on the
production line. Yet, Vega’s misconduct received the atten-
tion of the Company’s top plant supervision, Pedro and
Almaroad. More important, Pedro and Almaroad singled
Vega out for a correction notice and a 5-day suspension.
1049PEPSI COLA BOTTLING CO.
66 Except for the incident on December 8, I based my findings regarding
Darrell Smith’s failure to wear safety glasses on John Baker’s testimony.
Baker testifed about this topic on November 11, in a full and frank manner.
The Company called Smith as its witness on December 10 and March 25,
1987. On the earlier date, neither the Company’s counsel nor counsel for the
General Counsel examined Smith on his compliance with the Company’s safe-
ty glass requirements, prior to November 10. On March 25, neither the Com-
pany’s counsel nor counsel for the General Counsel gave Smith an opportunity
to testify fully about his compliance with the safety glass regulation. The
Company’s counsel posed a leading question which was vague. Counsel’s
careful approach, and Smith’s quick ‘‘No’’ did not rebut Baker’s forthright
testimony. Nor did Roy Almaroad’s negative response to a leading question.
These factors and Baker’s demeanor persuaded me to credit his testimony.
While Baker erred on some dates, he seemed anxious to provide accurate in-
formation to the best of his recollection. Accordingly, I did not credit
Almaroad’s testimony that he uniformly enforced the Company’s safety glass
regulation.
67 Roy Almaroad denied observing Ralph Waddell and Darrell Smith vio-
lating the Company’s eyeglass policy. His denials came in response to leading
questions. Almaroad did not provide a detailed account of his observations.
As Baker came across as the more forthright witness, I have rejected
Almaroad’s denials and credited Baker.
Nor did the explanation for Vega’s plight lay in the Com-
pany’s notice to employees, dated February 25, which di-
rected compliance with the Pepsi-Cola Company’s good
manufacturing practices. These regulations called for the
elimination of ‘‘eating, smoking, and drinking in any proc-
essing area.’’ Again, these regulations do not call for special
treatment of the syrup room. Drinking Pepsi-Cola on the pro-
duction line was as much a violation of these regulations as
was drinking hot chocolate in the syrup room. Finally, the
Company’s notice to employees, dated February 25 does not
provide for any special punishment for violations of the
Pepsi-Cola Company’s regulations, as they might effect the
syrup room. Thus, there was no ground for the Company’s
punishment of Vega in any of its regulations or in Pepsi-
Cola’s regulations. However, that fact does not end the mat-
ter.
The record shows that the Company had an unwritten pol-
icy regarding food in the syrup room. Vega knew he was
violating that policy on March 27. He attempted to evade de-
tection that day, as he went from the breakroom to the stor-
age area in the syrup room, with hot water for his hot choco-
late. In September, Roy Almaroad issued a correction notice
to employee Howard Pickett, and imposed a 3-day suspen-
sion on him for having unwrapped candy in the syrup room.
Thus, the Company could have lawfully disciplined Vega for
having hot chocolate in the syrup room.
Turning to the extent of the punishment Pedro and
Almaroad imposed on Vega, I find that the 5-day suspension
was excessive. Almaroad testified that hot chocolate, if
spilled, would mold ‘‘very quickly.’’ However, assuming that
Almaroad’s view was valid, soap and water would quickly
alleviate the danger. In any event, Vega did not spill his hot
chocolate on the syrup room floor. He held on to it, and
drank some. According to the notice to employees dated Feb-
ruary 25, the punishment for a first violation of the Pepsi-
Cola regulations would be dismissal for the rest of the work-
day. A second violation would incur a 3-day suspension, and
a third violation would result in discharge. However, the
Company’s policy toward a first violation in the syrup room
called for a 3-day suspension, as shown by the correction no-
tice which Almaroad issued to Howard Pickett for having un-
wrapped candy in the syrup room. The Company has not
shown that Vega’s violation was substantially more serious
than Pickett’s. The appropriate discipline for Vega would
have been a correction notice and a 3-day suspension without
pay.
I find that Vega suffered disparate treatment when the
Company suspended him for 5 days without pay, on April
4. Almaroad and Pedro seized upon Vega’s hot chocolate as
a pretext to mask their unlawful motive. Vega’s union activ-
ity provoked them to add 2 days to his suspension. I also
find, therefore, that Almaroad’s and Pedro’s unlawful motive
tainted the last 2 days of this suspension, and that the Com-
pany thereby violated Section 8(a)(3) and (1) of the Act.
Following his 5-day suspension, Vega returned to work.
There was no showing that he abandoned the Union fol-
lowing his return. However, Pedro showed that he continued
to regard Vega as a union adherent. In April, Pedro sarcasti-
cally told Vega that the Union was ‘‘really taking care of’’
him.
The Company argued that it disciplined Vega on June 24
and 25 because he did not have his safety glasses on as re-
quired by plant regulations. However, the record showed that
the Company did not uniformly enforce that regulation.
The earliest correction notice for failing to wear safety
glasses, which I received in evidence, was Vega’s, dated
June 25. Almaroad issued correction notices to production
employees Paul Church and Jimmy Pitts, on August 11, for
not wearing safety glasses. Almaroad also sent each of them
home for the rest of their shift. On December 4, Almaroad
issued a correction notice to production employee Herman
Belemonte, and sent him home for the rest of the day, for
not wearing safety glasses. Thereafter, on December 8 and
February 17, 1987, respectively, Almaroad issued a correc-
tion notice, which was not alleged to have been violative of
the Act, and sent an employee home for the rest of the day
for failing to wear safety glasses.
However, I find that Darrell Smith, a production employee
since 1982, did not regularly wear safety glasses as required
by the Company since May 26. Prior to November 10, Smith
did not wear safety glasses at all. Even after that date, he
did not strictly adhere to the Company’s policy. As found
below, on December 8, Pedro and Almaroad conversed with
Smith, at the back of the plant, when he was not wearing
his glasses. When they ended their conversation, Smith was
not wearing his safety glasses over his eyes. Again, on Janu-
ary 7, 1987, Smith, while working on the production line,
failed to wear safety glasses in Almaroad’s presence.66 Yet,
there was no evidence that the Company ever sent him home
for part of a workday, or issued any disciplinary notice to
him.
On November 10, Roy Almaroad instructed production
employee Ralph Waddell to start wearing his safety glasses
while working. Prior to November 10, Waddell had worn his
safety glasses only when Pedro was in the production area.
During the next 3 or 4 days, Roy Almaroad occasionally told
Waddell to put his safety glasses on. I have credited
Waddell’s testimony regarding his compliance with the Com-
pany’s safety glass regulations only to the extent that Baker
did not contradict it. Thus, I find from Waddell’s testimony
that on a morning in November, Almaroad found him at
work without safety glasses and disciplined him with a write-
up. However, he permitted Waddell to work for the remain-
der of the day.67
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I find from Baker’s testimony that in February 1987
Almaroad employed a delivery employee for 1 day in pro-
duction. The employee worked without safety glasses. Super-
visor Robbie Mullins and Almaroad were present in the plant
and had opportunity to see the employee. The employee
worked the entire shift without glasses and without any inter-
ference from Mullins or Almaroad.
Waddell’s conduct suggested that in his view, Pedro was
strict and Almaroad was willing to look the other way. If
that were the case, I would not find a violation here. The
record showed that Almaroad was not consistent in his en-
forcement of the Company’s safety glass regulation. How-
ever, Waddell’s conduct also indicated that Pedro was on the
plant floor on occasion. Thus, it seems unlikely that Darrell
Smith, who never wore his safety glasses until November 10,
would not have had at least one confrontation with Pedro be-
tween May 26 and November 10. In any event, Pedro main-
tained enough control over the plant’s management to be
aware of, and tolerate, Almaroad’s inconsistency.
Had the Company applied its safety glass regulation as
strictly as it claimed it did, Almaroad would have sent
Waddell home, and disciplined Smith with a correction no-
tice and loss of working hours. Almaroad did not do so.
However, Almaroad and Pedro applied it strictly to Vega on
June 24 and 25. Thus, I find that Almaroad’s imposition on
Vega of a correction notice, on June 25, and a suspension
for the rest of the workday, on June 24, was disparate treat-
ment. Bliss & Laughlin Steel Co., 266 NLRB 1165, 1173
(1983).
In light of the General Counsel’s strong showing, as set
forth above, I find that Vega’s union activity was the moti-
vating factor in Pedro’s and Almaroad’s decision to punish
him on June 4 and 25. Accordingly, I find that by inflicting
that punishment upon Vega, the Company violated Section
8(a)(3) and (1) of the Act.
I now turn to the Company’s explanation of the correction
notice, which Almaroad issued to Vega on July 3. The Com-
pany insisted that Almaroad issued this correction notice
only because Vega wore his earplugs improperly.
The Company’s notice to its production employees, dated
May 22, directed them to wear their earplugs, while produc-
tion was in progress. The Company furnished each produc-
tion employee with a set of earplugs. The instructions ac-
companying the cylindrical earplugs, directed that they be in-
serted well into the ear canals.
The Company showed that Pedro strictly enforced the
earplug regulations. His treatment of Vega and employee
Carlos Field exemplify Pedro’s consistency in this regard. On
July 2, Pedro saw Vega’s earplugs inserted sideways, into the
opening of the ear canals. Pedro prepared a correction notice
for Vega on July 2, but did not send him home. It was too
late in the day. Almaroad presented the correction notice to
Vega on July 3. Pedro did not penalize Vega by taking any
working hours away from him for this infraction.
In December, Pedro issued a correction notice to Carlos
Fields for operating a forklift recklessly and failing to wear
his earplugs properly, but did not send him home. Although
the incident occurred early in the day, Pedro used discretion.
As Fields was the only available forklift driver, he did not
send Fields home, as the earplug regulations prescribed.
However, at a later date, Pedro took the equivalent hours of
work away from Fields. The General Counsel did not allege
that this disciplinary action violated the Act.
Almaroad did not strictly enforce the earplug rule. He
issued a correction notice to employee Bobby Worley, on
August 5, and sent him home for the rest of the day, as pre-
scribed in the Company’s earplug regulations. However, on
January 6 and 7, 1987, Almaroad permitted employee Darrell
Smith to work in production without wearing earplugs prop-
erly. Almaroad did not discipline Smith on either occasion.
In February, Almaroad permitted a nonproduction employee
to work without earplugs for 1 day in production.
Here, there was no showing that Darrell Smith violated the
earplug regulation with sufficient frequency to have caught
Pedro’s notice. Instead, the record showed that Pedro en-
forced the regulations against both Vega and Fields. Of the
two, only Fields, whose punishment was not the subject of
an unfair labor practice allegation, suffered a loss of wages.
I find that Vega did not receive disparate treatment from
Pedro.
Pedro’s treatment of Fields in December showed that he
would have reacted to Vega’s infraction with a correction
notice, even if Vega had not been a union supporter. I find
that the Company did not violate Section 8(a)(3) and (1) of
the Act, by issuing a correction notice of Vega on July 3.
I shall, therefore, recommend dismissal of the complaint alle-
gation that it did.
I find no merit in the Company’s claim that it discharged
Vega because he read on the job and for ‘‘other lawful rea-
sons.’’ Pedro testified that reading on the job was sufficient
ground for discharging Vega. However, according to Pedro’s
testimony, he found that Vega’s correction notices, for drink-
ing hot chocolate, failing to wear protective glasses, and fail-
ing to wear earplugs properly ‘‘aggravated the situation’’ and
he decided to discharge Vega. When he made this decision,
Pedro knew that Roy Almaroad had found Vega reading on
the production line on December 16, 1985, and had issued
a warning that Vega would be discharged for a repetition. I
also find, from Almaroad’s testimony that he recommended
that Pedro discharge Vega for again reading on the produc-
tion line. This recommendation, and the two correction no-
tices, respectively, for drinking hot chocolate and for not
wearing safety glasses provided further support for the Gen-
eral Counsel’s case.
Almaroad’s recommendation was contrary to his stated
policy of not counting a warning against an employee after
6 months. According to Almaroad, ‘‘a man deserves a break
if, after 6 months, he’s straightened his act up and starts it
again.’’ The only exception Almaroad made in this policy
was for violations of Federal regulations requiring safety
glasses and earplugs. Here, Vega’s second reading offense
occurred 8 months after the first such incident. Thus, when
Almaroad recommended discharge on or about August 14, he
was departing substantially from his policy. In light of his
demonstrated hostility toward employee union activity, I find
that Almaroad departed from his stated policy, to help rid the
Company of a union supporter.
The other ‘‘lawful reasons’’ included the disciplinary ac-
tions which the Company imposed upon Vega in April, for
drinking hot chocolate in the syrup room, and in June, for
not wearing safety glasses. Thus, Pedro based his decision on
Almaroad’s discriminatory recommendation and two dis-
criminatory correction notices. Far from rebutting the Gen-
1051PEPSI COLA BOTTLING CO.
68 I based my findings regarding Sanders’ employment and union activity
on his uncontradicted testimony.
Sanders’ testified that the earplug incident occurred on June 19. However,
under cross-examination, he conceded that in his pretrial affidavit he gave July
2 as the date. In any event, Pedro’s testimony before me and the correction
notice agreed that the incident occurred on July 2. Accordingly, I have rejected
Sanders’ testimony, and have credited Pedro’s in this regard. I have also cred-
ited Pedro’s testimony regarding the position of Sanders’ earplugs on July 2.
Sanders signed the correction notice on July 3 without challenging its contents,
which corroborated Pedro’s testimony about the position of Sanders’ earplugs.
Sanders did not deny that he had inserted his earplugs sideways on July 2.
He seemed reluctant to testify with specificity about their positions at the time
he encountered Pedro.
69 There is disagreement among the General Counsel’s witnesses regarding
what happened on December 8. According to Sanders, Almaroad saw him,
Delph, and Waddell without their glasses, but said nothing. Sanders testified
that he was standing by himself, next to the can room door, when Pedro asked
him about his safety glasses. Sanders also testified that after he told Pedro that
his glasses were in his coat pocket, Pedro assured him that ‘‘we’d let it ride
this time.’’
Delph testified that Almaroad ‘‘hollered and told us to put our glasses on
and we put them on.’’ Delph also testified that he saw Darrell Smith standing
at the back of the plant, without glasses, talking to Almaroad and Pedro, and
that he asked Mullins how the Company would treat Smith. Sanders, who was
present when Delph spoke to Mullins, did not corroborate Delph’s testimony
regarding these two assertions. Sanders testified that Brian Almaroad met them
and directed them to Robbie Mullins. According to Delph, it was Bobby
Worley who told them to see Mullins. However, of the two, Delph seemed
more conscientious about searching his memory and providing his full recol-
lection. Accordingly, where their testimony differed regarding the safety glass
incident on December 8, I have credited Delph.
Pedro’s and Delph’s testimony regarding the safety glass incident of Decem-
ber 8, differed with respect to Darrell Smith. Pedro provided detailed testi-
mony about his confrontation with Sanders, Delph, and David Waddell, and
his response to their failure to wear safety glasses. However, he did not deny
seeing Darrell Smith and talking to him in the presence of those three employ-
ees on December 8. Instead, Pedro answered no to a broad leading question
about whether he ever observed Darrell Smith ‘‘in violation of either the eye
or ear protection policy.’’
Roy Almaroad did not deny that on December 8, he and Pedro conversed
with Darrell Smith. Nor did Almaroad provide detailed testimony regarding
Smith’s compliance with the safety glass policy. Instead, he answered no,
when company counsel, on direct examination, asked him if he had observed
Smith violating that policy.
Darrell Smith did not deny that on December 8, he conversed with Pedro
and Roy Almaroad. Instead, he answered no to a leading question by the Com-
pany’s counsel, who asked whether during the 6 months preceding March 25,
1987, the day of his testimony, he, Smith, did not wear his safety glasses in
a place where he should have worn them.
Neither Pedro, Almaroad, nor Smith testifed contrary to Delph’s account of
a conversation on December 8, including them and Almaroad. The Company’s
counsel carefully led Pedro, Almaroad, and Smith over the latter’s observance
of the safety glass regulations. These factors, and my impression that Delph
was giving his full recollection in a frank manner, persuaded me to credit his
testimony regarding Darrell Smith’s safety glasses, and Smith’s conversation
with Pedro and Roy Almaroad on December 8.
eral Counsel’s prima facie case, these facts support a finding
of unlawful reprisal. I find that Pedro seized upon Vega’s
glances at a magazine as the final ground for punishing him
for his role in the Union’s organizing campaign. I further
find, therefore, that by Pedro’s discharging Francisco Vega
on August 18, the Company violated Section 8(a)(3) and (1)
of the Act.
12. Sam Sanders
a. The facts
The Company employed Sam Sanders as a laborer from
the spring of 1985, until his discharge, on January 6, 1987.
In February, early in the Union’s campaign, Sanders signed
a card supporting it. The Union listed Sanders as a member
of its in-plant organizing committee, in its letter to the Com-
pany, dated February 18. In February and March, Sanders
handed out cards and literature for the Union, outside the
Company’s Norton plant. Sanders also testified in these pro-
ceedings, as a witness for the General Counsel, on November
7 and again on March 24, 1987.
On July 2, Sanders was stacking bottles at the Norton
plant when Pedro came upon him. After criticizing Sanders’
stacking, Pedro walked away to where Roy Almaroad was
standing. Pedro called Sanders to where he was standing, and
told him to look at the stacks. As he was looking, Pedro
pulled Sanders’ face to one side, and told Almaroad to look
at Sanders’ earplugs. Pedro remarked that he should send
Sanders home. Sanders was wearing his earplugs sideways,
contrary to instructions on the little bag in which they came
to the employees. Sanders returned to his work.
Pedro prepared a correction notice for Sanders. However,
Sanders worked for the remainder of the shift and went
home. He returned to work on July 3. Sanders went on vaca-
tion on July 6. He did not return to work until July 13. On
that date, Almaroad gave the correction notice to Sanders.
The correction notice showed that Sanders had broken a
rule or regulation. In explanation of the reasons for the cor-
rective notice, Pedro wrote that he had seen Sanders wearing
his earplugs sideways in his ear. In the portion of the correc-
tive notice which calls for a statement of the corrective ac-
tion, Pedro asserted that this was a first warning. He also
stated that the Company had not sent Sanders home because
the workday was over. The notice warned that if Sanders
thereafter violated either the safety glass regulation or the
earplug regulation, he would incur a 3-day suspension.68
On December 8, at Roy Almaroad’s direction, Sanders and
employees Dave Waddell and Ernest E. Delph were remov-
ing wooden forms from the newly poured concrete floor, and
cleaning up, in the can room, at the rear of the plant. The
three were working without safety glasses.
As the employees were finishing the work, Pedro came to
Sanders and asked him where his safety glasses were. Sand-
ers answered that they were in his coat pocket. After re-
sponding sarcastically to Sanders, Pedro went to Delph and
Waddell. He found them working without glasses and asked
for their explanations. Waddell said he had forgotten his.
Delph said he did not know that he was required to wear
glasses, where he was working.
Pedro walked away from the three employees. Employee
Darrell Smith appeared in a doorway, at the back of the
plant, without safety glasses on. Pedro and Almaroad stopped
to talk to Smith. After a brief exchange, the three went their
separate ways.
Pedro went to his office and obtained three correction no-
tices. He gave them to Almaroad with instructions to write
up Sanders, Waddell, and Delph.69
The three employees soon stopped work and proceeded to-
ward the timeclock to punch out. However, enroute, they met
employee Bobby Worley, who directed them to see Super-
visor Robbie Mullins in the boiler room. Sanders, Waddell,
and Delph immediately went to the boiler room.
Mullins handed a correction notice to each of them. Sand-
ers signed his notice, but wrote ‘‘under protest’’ above his
signature. Delph did likewise. Waddell signed his notice
without protest. Delph asked Mullins if the Company in-
tended to do something about Smith. Mullins answered not
that he knew of.
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
70 Sanders denied that Almaroad ever talked to him about his absences or
gave any verbal correction or warning to him. However, he did not deny that
Almaroad approached him and spoke to him on December 17. Further, the
Company showed that on December 17, Almaroad prepared a verbal correction
notice regarding Sanders’ absences from work. I also noted that Almaroad tes-
tified about his remarks to Sanders in a forthright manner. For these reasons,
I credited Almaroad’s testimony that he counseled Sanders for 2 or 3 minutes,
and warned that he was putting a verbal correction notice in Sanders’ file.
71 According to Almaroad and Mullins, Sanders attributed his absences of
December 9 and 16, to sickness and blamed his third absence on the break-
down of his truck. I find it unlikely that Sanders would have asserted sickness
as the reason for his absence on December 9. Sanders’ was well aware that
December 9 was included in the suspension which the Company imposed on
him on December 8. Also, on cross-examination by counsel for the General
Counsel, Almaroad seemed to qualify his responses regarding what he was re-
ferring to in his remarks to Sanders on December 17, and whether Mullins
was present. Of the three, Sanders appeared more conscientitious ahout search-
ing his memory and providing his best recollection of his encounter with
Almaroad and Mullins on December 24. I have, therefore, credited his version
of his and Almaroad’s remarks on December 24.
I also noted Almaroad’s and Mullins’ testimony showing their respective
roles in that suspension, and their recollections that December was part of that
suspension. Thus, even if Sanders had erred in blaming illness for his absence
on December 9, Almaroad and Mullins knew that sickness had nothing to do
with that absence.
72 Sanders testified on March 24, 1987, that he always wore his earplugs
rolled up, and stuck part of the way down in his ears. However, on November
7, when he first testified about his use of earplugs, he was reluctant to provide
such detailed information. When asked to describe where he was wearing his
earplugs, when Pedro first disciplined him for not complying with the Com-
pany’s regulations, Sanders testified that they were in his ears. I did not rely
on that testimony. Instead, I credited Pedro’s testimony that on July 2, he saw
Sanders wearing his earplugs side ways. Thus, Sanders’ testimony on March
24 did not square with my earlier finding. Again, I did not rely on Sanders’
testimony on the placement of his earplugs. Instead, I relied upon the frank
and detailed testimony of Roy Almaroad, Strawberry Hunnicutt, and Danny
Ridings. Pedro’s strict enforcement of the earplug regulations, shown in the
record, and the inconsistency in Sanders’ testimony pursuaded me not to credit
his later, self-serving testimony.
Sanders and Delph also received 3-day suspensions, and
were to report back to work on December 11. However, after
learning that Delph had not previously violated the Com-
pany’s ear or eye safety regulations, Roy Almaroad reduced
the punishment to suspension for the balance of December
8. Sanders’ correction notice stated that he ‘‘was warned of
this violation before.’’ This reference was to his earplug vio-
lation on July 2. As this was his first offense, the Company
sent Waddell home for the remainder of the day.
On July 7, the Company announced that a first violation
of either the eye protection regulation or the ear protection
regulation would count as the first offense in its progressive
discipline system. The second violation of either regulation
would incur a 3-day suspension. Finally, a third offense
would result in the offender’s discharge.
Sanders was absent from work on December 9 and on the
next two Tuesdays. On December 9, Sanders was serving the
second day of his 3-day suspension. He was absent on De-
cember 16 because his truck was in disrepair. Sanders tele-
phoned the Norton plant and told an unidentified woman
who answered the phone, of his plight.
When Sanders came to work on the morning of December
17, Almaroad approached him. Almaroad said that Sanders’
absences were excessive, and that he must correct the situa-
tion. Almaroad warned that he was putting a verbal correc-
tion in Sanders’ file. Almaroad also said that if Sanders did
not correct his absences, disciplinary action would follow.70
At about 6 a.m., on December 3, Sanders called the Nor-
ton plant. He reported to the same unidentified woman that
he would be absent that day because he was sick.
When Sanders was waiting to clock in at work on Decem-
ber 24, Roy Almaroad said he wanted to talk to him. Sanders
proceeded to the palletizer, where Almaroad and Supervisor
Robbie Mullins were waiting. Almaroad remarked that Sand-
ers had missed 1 day each week for the last 3 weeks. He
also announced that he was about to send Sanders home for
the balance of the day, and directed him to bring a doctor’s
excuse when he returned to work. Almaroad issued a correc-
tion notice to Sanders for absenteeism.71
The correction notice explained that in the last 3 weeks,
Sanders had been absent ‘‘a day a week.’’ The notice also
stated, in substance, that Almaroad had talked to Sanders
about his absences. The correction notice announced that
Sanders would suffer a 1-day suspension and that a repetition
of his absences ‘‘could result in discharge.’’
Sanders returned to work after his 1-day suspension with
a doctor’s excuse to cover his absence on December 23. He
presented it to Almaroad. There was no showing that
Almaroad responded.
On January 26, 1987, Almaroad assigned Sanders to oper-
ate the caser for the nonreturnable bottles. Pedro came to
where Sanders was working and then walked away. Pedro re-
turned with office employees Strawberry Hunnicutt and
Danny Ridings, and stood with them a short distance from
Sanders. Pedro summoned Sanders, to where he and his two
companions were standing. Pedro ordered Sanders to turn his
head sideways, so that all could see his ears. Sanders was
wearing his earplugs sideways.72
Pedro told Sanders to punch the timeclock and the two
went to the breakroom. Pedro left Sanders and returned with
a separation of employment form. The form announced
Sanders’ discharge for three violations of the Company’s eye
and ear protection regulations. The form recited the details
of the most recent earplug violation and reviewed, sum-
marily, Sanders’ two previous violations. The Company has
not offered to reemploy Sanders.
Pedro told Sanders to punch the timeclock and the two
went to the breakroom. Pedro left Sanders and returned with
a separation of employment form. The form announced
Sanders’ discharge for three violations of the Company’s eye
and ear protection regulations. The form recited the details
of the most recent earplug violation and reviewed, sum-
marily, Sanders’ two previous violations. The Company has
not offered to reemploy Sanders.
b. Analysis and conclusions
The General Counsel alleged that the Company gave a
warning to Sanders on July 17, because of his union activity,
and thereby violated Section 8(a)(3) and (1) of the Act. The
General Counsel went on to allege that the Company vio-
lated Section 8(a)(4), (3), and (1) of the Act, when it warned
Sanders and suspended him for 3 days on December 8,
warned him and suspended him for 1 day, on December 4,
and then discharged him on January 26, 1987, because of his
union activity, and because he testified in these proceedings.
The Company sought dismissal of these allegations on the
ground that the General Counsel had failed to show discrimi-
nation based upon union activity or participation as a witness
in these proceedings. According to the Company, the record
showed that it disciplined and then discharged Sanders be-
cause of his misconduct.
1053PEPSI COLA BOTTLING CO.
73 Sec. 8(a)(4) of the Act provides that:
It shall be an unfair labor practice for an employer to discharge or other-
wise discriminate against an employee because he has filed charges or
given testimony under this Act.
In February, Sanders signed a card for the Union, attended
its meetings, and joined its plant organizing committee. On
February 21, the Company learned of Sanders’ sentiment,
when the Union’s letter arrived, showing that he belonged to
the organizing committee. Sanders reminded the Company of
his prounion sentiment, when he stood near its plant, in Feb-
ruary and March, passing out union literature.
On July 2, Sanders afforded the Company an opportunity
to punish him. He wore his earplugs sideways, outside the
ear canal, while stacking nonreturnable bottles, at the Norton
plant. Pedro saw the position of Sanders’ plugs, and brought
Roy Almaroad to see them. The instructions on the earplug
containers which the Company had issued to Sanders and the
other plant employees were to insert them into the ear canal.
Sanders had violated the Company’s ear protection regula-
tions. However, there was evidence that other employees had
not worn earplugs, as required by those regulations, and had
escaped punishment.
On the following day, Pedro prepared a correction notice
for issuance to Sanders. However, Sanders left the plant on
July 3, before Pedro had completed the notice. Sanders did
not return to the plant until July 17. On that date, Almaroad
gave him the notice. The correction notice included a warn-
ing that a further violation of either the ear or the eye protec-
tion regulations would result in a 3-day suspension.
I find that the General Counsel has produced sufficient
evidence to support an inference that Sanders’ union activity
was a motivating factor in Pedro’s decision on July 2 to im-
pose a disciplinary warning on Sanders. The letter announc-
ing Sanders’ support for the Union provided Pedro and
Almaroad with knowledge of his active support for the
Union. I also find that Sanders’ open handbilling, near the
Norton plant, in February and March was known to Pedro
and Almaroad. Both Pedro and Almaroad showed a per-
sistent hostility toward employees who supported the Union’s
organizing effort among the Company’s employees. As I
have found above, this hostility provoked them to resort to
pretext in punishing employees for assisting the Union. I
have also found that they were likely to use disparate punish-
ment as a reprisal against union activists. Sanders was a like-
ly target of such discriminatory treatment at Pedro’s hands.
However, the Company has shown that Pedro would have
disciplined Sanders for violating the earplug regulations even
if he had not engaged in union activity. Thus, as I found
above, at page 89, there was no showing that Pedro per-
mitted any production employee to work without earplugs
properly inserted. On the contrary, his treatment of produc-
tion employee Carlos Fields showed that unlike Almaroad,
who was inconsistent, Pedro insisted on compliance with the
earplug regulations, without regard to whether the offending
employee was supporting the Union or not.
Pedro did not deprive Sanders of any hours of work for
violating the ear plug regulations. He issued a correction no-
tice and warned Sanders. Thus, Pedro followed the procedure
set out in the regulations for a first offense. In sum, I find
that the correction notice and the warning it contained, dated
July 3, which the Company issued to Sanders on July 17, did
not constitute unlawful discrimination against him. Therefore,
I find that the Company did not thereby violate Section
8(a)(3) and (1) of the Act, as alleged. I shall recommend dis-
missal of that allegation.
The remaining alleged instances of discrimination against
Sanders occurred after he testified on behalf of the General
Counsel, on November 7. The first alleged instance of dis-
crimination occurred on December 8, when the Company in-
flicted a 3-day suspension on Sanders. The General Counsel
contended that the Company seized upon Sanders’ failure to
wear safety glasses as a pretext. According to the General
Counsel, the Company violated Section 8(a)(4),73 (3), and (1)
of the Act, by issuing a warning to Sanders and suspending
him for 3 days, because he supported the Union, and testified
at the hearing on November 7. The Company urged dismissal
of these allegations on the ground that the General Counsel
failed to show that either union activity, or testimony at the
hearing before me, played any part in the decision to dis-
cipline Sanders on December 8. The Company also argued
that the evidence showed that it disciplined Sanders on that
occasion, only because he did not wear safety glasses.
Sanders’ failure to wear his safety glasses on December 8,
provided further opportunity for Pedro to punish him. The
passage of 9 months since Sanders’ handbilling may have
tempered Pedro’s hostility somewhat. However, his testi-
mony on March 24 and 25, 1987, revealed another factor
which may have revived Pedro’s animosity sufficiently to
precipitate the warning and suspension which he inflicted on
Sanders, on December 8.
In his testimony before me on March 24 and 25, 1987,
Pedro conceded that he believed that employees, who had
previously testified against the Company in these pro-
ceedings, in his presence, frequently lied. He also admitted
that his perception that they had lied had angered him. In
particular, Pedro singled out Sanders as one of those who
had lied.
By December 8, 9 months had passed since Sanders’ last
overt union activity. During that period, the Company had
not committed any unfair labor practice against Sanders. Fur-
ther, on November 7, 1 month prior to Pedro’s decision on
December 8 to punish him, Sanders testified on behalf of the
General Counsel. By so doing, he incurred Pedro’s dis-
pleasure. From these circumstances, I find it unlikely that
Sanders’ union activity was a factor in Pedro’s decision to
punish him on December 8. I shall, therefore, dismiss the al-
legation that the warning and suspension which the Company
imposed upon Sanders on that date, violated Section 8(a)(3)
of the Act.
However, Pedro’s admission that Sanders’ testimony on
November 7 angered him supports the contention that the
warning and suspension violated Section 8(a)(4) and (1) of
the Act. The timing of the adverse action so soon after Sand-
ers had testified in this hearing, and Pedro’s previous resort
to disciplinary action to punish employees for engaging in
protected activity, provided further evidence that Sanders’
testimony on the General Counsel’s behalf in these pro-
ceedings was a motivating factor in that decision.
The Company attempted to show that Sanders’ violation of
the eye protection regulations was the sole reason for Pedro’s
decision to punish Sanders on December 8. However, I have
found that Pedro did not strictly enforce those regulations.
An instance of his forbearance occurred on that same day,
shortly after he had scolded Sanders, Delph, and Dave
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
74 The General Counsel, by motion in her posthearing brief, for the first
time, raised the verbal correction notice as a violation. The verbal correction
notice of December 16 was an element in the correction notice and 1-day sus-
pension which followed on December 24. Further, the parties fully litigated
the facts regarding the verbal correction notice. I also find that the verbal cor-
rection notice of December 16 sufficiently relates to the other allegations of
discrimination against Sanders. For these reasons, I have granted the General
Counsel’s motion. Waco, Inc., 273 NLRB 746, 749 fn. 13 (1984).
75 I based my findings regarding Delph’s employment background and union
activity on his uncontradicted testimony.
Waddell. Pedro and Almaroad came upon Darrell Smith,
who was not wearing the required safety glasses, and took
no corrective action. By this conduct, Pedro showed that he
exercised discretion in the enforcement of the eye safety reg-
ulations. Pedro also demonstrated by this forbearance that he
might not have punished Sanders in the absence of the
latter’s protected conduct.
The Company has not rebutted the General Counsel’s
showing that Sanders’ testimony in these proceedings was a
motivating factor in Pedro’s decision to issue the correction
notice and warning of December 8, which also announced
Sanders’ 3-day suspension. Accordingly, I find that by these
adverse actions, the Company violated Section 8(a)(4) and
(1) of the Act.
The Company’s explanation of Almaroad’s issuance of a
correction notice to Sanders, on December 24, for excessive
absence, with a 1-day suspension, and a warning that further
absence ‘‘could result in discharge,’’ did not withstand anal-
ysis. According to the Company, and Almaroad, he dis-
ciplined Sanders in this instance for being absent from work
on December 9, 16, and 23. By including December 9 as an
unexcused absence, Almaroad seemed anxious to dredge up
some excuse to punish Sanders. He must have known that
December 9 was included in the suspension he had imposed
on Sanders as punishment. This was not a lapse in memory.
For on December 17, with Pedro’s approval, Almaroad had
issued a verbal correction notice to Sanders for being absent
on December 9 and 16.
Pedro also gave his blessing to Almaroad’s intention, an-
nounced on December 17, to suspend Sanders if he ‘‘missed
another day without an adequate excuse.’’ Thus, according to
Pedro and Almaroad, a disciplinary suspension was not an
adequate excuse for Sanders’ absence on December 9. This
deliberate mischaracterization of a company-imposed absence
strongly suggested that Pedro and Almaroad had discovered
a pretext for punishing Sanders on December 17, and again
on December 24.
There was further evidence of the pretextual nature of the
proffered excuse for disciplining Sanders on December 24.
According to Pedro’s testimony, an adequate excuse for an
employee’s absence would be sickness, provided the em-
ployee supported his or her claim with a doctor’s note. When
Sanders returned to work on December 24, Almaroad told
him to bring a doctor’s note to cover his absence on Decem-
ber 23. Almaroad did not wait to see if Sanders could obtain
such a note to support his claimed illness. He disciplined
Sanders with a warning and a 1-day suspension. When Sand-
ers returned to work with the doctor’s note, Almaroad and
the Company ignored it.
Almaroad’s practice was to talk to an employee about his
or her absenteeism, before writing his or her verbal correc-
tion notice. However, in the case of Sanders, Almaroad
wrote the verbal correction on December 16, and issued it
on the next day. Almaroad was apparently in a hurry to
begin the progressive discipline process, and had no intention
of losing this opportunity.
I find from the foregoing, that Almaroad, with Pedro’s
concurrence, used Sanders’ absences on December 9, 16, and
23 to camouflage the real reason for punishing Sanders. Prior
to December 17, the Company had not said anything to
Sanders about his attendence. However, on December 17, the
Company hastened to discipline him for two absences, one
of which it had imposed on him as punishment. This attempt
to compound the impact of the punishment it had imposed
on Sanders on December 8 reflected the Company’s aggra-
vated hostility toward him. I find that Sanders’ testimony on
November 7, in these proceedings, was the only factor which
provoked the Company to issue the verbal correction notice
dated December 16, and the correction notice dated Decem-
ber 24, to Sanders. I find that both disciplinary actions vio-
lated Section 8(a)(4) and (1) of the Act.74
I also find that Pedro unlawfully discriminated against
Sanders by discharging him. The notice which the Company
issued to Sanders on January 26, 1987, listed three violations
of the Company’s eye and ear safety regulations as grounds
for discharging him. Included was the correction notice of
December 8, which I found violated Section 8(a)(4) and (1)
of the Act. Thus, the Company could not lawfully count that
correction notice as representing a violation of its eye and
ear regulations. By relying on that unlawful correction no-
tice, I find that the Company discriminated against Sanders.
His failure to comply with the earplug regulation on January
26, was only his second offense under the ear and eye regu-
lations. The appropriate punishment for that offense was a 3-
day suspension. By inflicting a discharge, Pedro violated
Section 8(a)(4) and (1) of the Act. However, I shall rec-
ommend dismissal of the allegation that Sanders’ discharge
violated Section 8(a)(3) of the Act.
13. Ernest E. Delph
a. The facts
The Company employed Ernest E. Delph from July 1984
until it discharged him on May 21, 1987. Delph was a pro-
duction employee. Roy Almaroad supervised him.
Delph actively supported the Union. He signed a card for
the Union, handbilled four or five times, at the Norton plant,
after work, and asked other employees to sign cards for the
Union. Delph attended five or six union meetings and joined
the Union’s plant committee. On March 24, the Company re-
ceived a letter from the Union identifying Delph as a com-
mitteeman.75
Supervisor Robbie Mullins showed early interest in
Delph’s union activity. As found above, soon after the
Union’s meeting of February 16, Supervisor Mullins asked
Delph how the meeting had gone. Delph answered that he
did not know, and had not been there. Mullins rejected
Delph’s answer, and insisted that Delph had attended. Delph
returned to operating the palletizer, without further comment.
Delph wore Teamsters buttons on his hat, while working
on the production line, at the Company’s Norton plant, on
April 16 and 17. On the latter date, Delph noticed Pedro and
Huck standing and talking some distance from his
workstation. Delph thought they might be pointing at him.
Delph removed the union buttons.
1055PEPSI COLA BOTTLING CO.
76 I based my findings regarding the preparation of the correction notice of
May 12, upon Pedro’s and Almaroad’s testimony which dovetailed in a logical
pattern and which they gave in a frank manner, without apparent embellish-
ment. Comparing Delph’s positive assertions on direct testimony with his re-
pudiation of some of those assertions on cross-examination, and observing his
somewhat selective memory, as reflected during cross-examination, I have re-
jected his account of the events leadinJ np to his receipt of the correction no-
tice on May 12.
77 I based my findings regarding Almaroad’s remarks to Baker about Delph,
upon Baker’s testimony. As he gave this testimony in a blunt, disinterested
manner, Baker persuaded me that his account was reliable. Almaroad’s some-
what sketchy account of those remarks confirmed a substantial part of Baker’s
version.
78 I based my findings of fact concerning Delph’s correction notice of De-
cember 2, upon his testimony, which was largely uncontradicted. Where there
were conflicts or inconsistencies between Delph’s testimony and Pedro’s re-
garding their confrontation on that date, I have accepted Delph’s version. In
assessing credibility here, I noted that Pedro seemed anxious to portray Delph
as insubordinate, and did so in a tone which suggested extraordinary hostility
toward him. Delph gave his testimony in a calm, dispassionate manner.
On March 13, Pedro gave a verbal correction notice to
Delph and sent him home for the balance of the day for hav-
ing an offensive body odor. Before sending him home, 1
hour early, Pedro took Delph to the breakroom and showed
him the notice to employees, which included regulations re-
garding ‘‘personnel hygiene and practices.’’ Pedro warned
Delph that a second offense would bring on a 3-day suspen-
sion, and a third offense would cause his discharge. Pedro
told Delph to leave and not return until he had cleaned up.
I find from John Baker’s uncontradicted testimony that in
the summer of 1985, Delph had a body odor problem at
work. However, the record shows no company reaction to
Delph’s problem prior to March 13.
Soon after March 13, Roy Almaroad spoke to Delph twice
about his body odor. On the first occasion, Almaroad put his
arm around Delph and asked if he had his deodorant on.
Delph answered yes. Almaroad said he did not mean to hurt
Delph’s feelings, and that ended the discussion.
On the second occasion, Almaroad asked Delph if he had
his deodorant on. Delph answered yes. Almaroad said that in
his youth, he had sweated profusely, and had put cologne on
his shirt. Alrnaroad asked if Delph would do the same.
On the morning of May 12, Delph was repairing pallets.
Pedro, while passing through the plant, came close to Delph
and decided that he ‘‘smelled bad again.’’ Pedro asked
Almaroad to check on Delph, and if he agreed that Delph
smelled, then carry out the appropriate punishment.
Almaroad checked and found that Delph had a bad body
odor. Almaroad immediately prepared and served a correc-
tion notice on Delph. The correction notice stated that the
reason for its issuance was ‘‘Higine [sic] odor about body.
This is a food plant.’’ The corrective action shown on the
notice was a warning and a 3-day suspension.
Not satisfied with the language in Almaroad’s correction
notice, Pedro composed a memorandum entitled: ‘‘Note to
File of Ernie Delph.’’ Pedro’s memo, which he attached to
the Company’s file copy of the correction notice issued to
Delph on May 12, reported Delph’s very offensive body
odor, how far Pedro was standing from Delph at the time of
the incident, and Pedro’s opinion as to the cause of Delph’s
odor. Pedro’s memorandum also reported his instructions to
Almaroad on May 12 regarding disciplinary action.76
Before Delph left the plant, on May 12, he had face-to-
face conversations with employees John Baker, Kenneth
Allen, Curtis Allen, and Derek Harmon. Delph asked Ken-
neth Allen if he thought Delph ‘‘stunk.’’ Kenneth Allen an-
swered no, and signed Delph’s correction notice. Delph
asked Baker the same question. Baker walked around Delph,
sniffed, and answered no. Baker also signed Delph’s correc-
tion notice.
Almaroad showed genuine concern ahout Delph’s body
odor problem. A few days after Delph’s suspension,
Almaroad asked employee John Baker to talk to Delph ahout
his body odor problem. Almaroad said he did not want to
write Delph up, but he had to obey Pedro. He also said that
if he had his way, he would not have issued the correction
notice. Almaroad said he considered Delph to be a pretty
good employee and liked him.77 In his testimony on cross-
examination before me, on December 16, Almaroad con-
ceded that since May 12, he had checked ‘‘a couple of
times’’ and found that Delph had corrected his body odor
problem.
Delph testified for the General Counsel in these pro-
ceedings, on November 11, in Pedro’s presence. In his testi-
mony on March 24, 1987, Pedro conceded that he believed
that Delph had told falsehoods on the witness stand. This
perception angered Pedro, while he was listening to Delph’s
testimony.
On the morning of December 2, Roy Almaroad assigned
Delph to repair pallets, put them in the pallet dispenser, and
watch the pallets emerge to avoid blockages. Delph finished
repairing pallets. Delph’s practice upon completing an as-
signment for Almaroad was to look for him and ask for an-
other assignment. On this occasion, Delph tried to do just
that. Delph went walking through the plant to find Almaroad.
After a futile search, Delph returned to his work area,
stacked a few pallets, stood near the palletizer for a while,
and then began walking.
Pedro approached Delph and asked him how long he had
been standing there. Delph said that he had been repairing
pallets, putting them in the dispenser, and watching them as
they emerged from it. Pedro replied that putting pallets in the
dispenser was not his work, it was work for the forklift driv-
ers. Delph asked if Pedro wanted him to get Ralph Waddell
to perform that task. Pedro told Delph not to cross-examine
him, and asked if he had told anyone that he was through.
Delph answered no, adding that he could not find Almaroad.
Pedro accused Delph of wasting time and suggested that he
and Delph look for Almaroad.
Delph and Pedro found Almaroad. Pedro complained that
Delph was wasting time. Almaroad offered to find something
for Delph to do. Pedro said he intended to write Delph up.
Almaroad volunteered to relieve Pedro of that chore. Pedro
departed. Almaroad ordered Delph to clean up around the
palletizer, and left, saying he would return.
When Almaroad returned, he gave a correction notice to
Delph. The notice stated that the reason for the written cor-
rection was: ‘‘Unsatisfactory Work Performance.’’ The no-
tice explained that the reason for the corrective action was
‘‘not performing his work duties.’’ Finally, the correction no-
tice described the ‘‘Type of corrective action given’’ as fol-
lows: ‘‘Warned this could lead to more severe disiplian [sic]
or dismissal.’’78
On December 8, Supervisor Robbie Mullins issued a cor-
rection notice to Delph for not having safety glasses on. The
correction notice announced that Delph was suspended for
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
79 Where Delph’s and Pedro’s testimony conflicted regarding their encounter
on May 1, 1987, I have credited the latter’s more detailed testimony, which
Bob Lee, Buddy Messer, Strawberry Hunnicutt, and Danny Ridings corrobo-
rated.
There was a sharp conflict in testimony regarding Delph’s body odor on
May 1, 1987. Pedro and the other company witnesses, including Jerry Hurd,
testified that Delph had a disagreeable body odor on that date. The General
Counsel’s witnesses, John Baker and David Waddell, testified to the contrary.
Baker and Waddell each testified that he detected no body odor when he was
close to Delph on that date. However, I am persuaded that Baker and Waddell
were not as sensitive to Delph’s body odor, as were Pedro and the other com-
pany witnesses, who were paying more attention to the aroma. Also, Waddell
and Baker were friendly to Delph and thus not likely to be frank about their
perception of his body odor. Accordingly, I have credited Pedro, and the other
company witnesses, regarding Delph’s body odor on May 21, 1987.
the remainder of the day and warned that a further violation
of the Company’s eye or ear protection regulations would re-
sult in a 3-day suspension. I have set forth my findings of
fact regarding this disciplinary action, above.
On March 24, 1987, after Pedro had testified, Delph again
testified for the General Counsel. Approximately 2 months
later, at about 6:20 a.m., on May 21, 1987, Delph returned
to work, after an absence due to an injury. Delph went to
the breakroom, where he encountered John Culves, who was
acting as a supervisor. Delph presented a written doctor’s ex-
cuse, which Culves examined and returned. Culves instructed
Delph to wait and talk to Pedro. Delph remained in the
breakroom waiting for Pedro.
Pedro arrived at the Company’s Norton plant at about 8:30
or 9 a.m. At first, Pedro asked Delph if he intended to report
accidents immediately in the future, instead of waiting. Pedro
was impatient with Delph’s initial equivocal response, and
pressed him for a yes.
As they spoke, Pedro perceived that Delph had a strong,
unpleasant body odor. After asking Delph to move to Sales
Manager Bob Lee’s office, Pedro asked Lee, Supervisor
Buddy Messer, Strawberry Hunnicutt, and office employee
Danny Ridings to approach Delph, and check his odor. All
agreed with Pedro.
As soon as Pedro had achieved confirmation of his opinion
that Delph had a strong and obnoxious body odor, he dis-
charged him. Pedro completed the separation of employment
form himself. He indicated on the form that Delph had vio-
lated the Company’s rules. Pedro went on to explain that he
had violated ‘‘hygiene standards’’ for the third time, and that
the Company’s rules provided discharge as the punishment
for a third violation.79 As Delph had left the plant before
Pedro prepared the form, the Company mailed it to him.
b. Analysis and conclusions
The Company’s interest in Delph’s union sentiment sur-
faced soon after the Union’s meeting on February 16, when
Robbie Mullins unlawfully interrogated him about whether
he had attended it. Mullins rejected Delph’s negative re-
sponse, and insisted that he had in fact been at the meeting.
In late March, a union letter, announcing Delph’s member-
ship in its shop committee, erased any doubt Pedro and Roy
Almaroad may have had about Delph’s attitude toward the
Union.
Delph openly supported the Union’s campaign at the plant.
In April, he wore a Teamsters button at work, within Pedro’s
view. He also repeatedly handbilled outside the plant.
Here, as in other instances, I find it likely that Pedro was
hostile toward Delph’s open support for the Union. His will-
ingness to resort to discipline as a weapon against union ac-
tivists, and the timing of the correction notice of May 12,
which Pedro authorized, provided strong support for the Gen-
eral Counsel’s contention that Delph’s union activity was a
motivating factor in Pedro’s decisions to take this adverse
action.
The Company argued that Delph’s body odor was its sole
reason for the correction notice of May 12. Thus, according
to the Company, union activity played no part in Pedro’s and
Almaroad’s decision to discipline Delph on May 12. Accord-
ing to the Company, Pedro and Almaroad punished Delph
pursuant to Pepsi-Cola’s demand in February that the Com-
pany tighten up on its plant cleanliness and employee hy-
giene. The Company also called attention to its own per-
sonnel hygiene and practices regulations which it posted in
the breakroom on February 25. There was no showing that
the Company refrained from enforcing this policy against
any other employee suffering from a body odor problem.
In further support of its position, the Company called at-
tention to the verbal correction notice which Pedro issued to
Delph on March 13. Noting that the General Counsel did not
allege that this disciplinary action violated the Act, the Com-
pany pointed to Almaroad’s subsequent efforts to help Delph
overcome his body odor problem. These efforts showed that,
regardless of his union activity, the Company was trying to
retain Delph as an employee.
Despite those efforts, on May 12, Almaroad agreed with
Pedro that Delph had an offensive body odor. In accordance
with the Company’s stated policy regarding a second viola-
tion of its personnel hygiene and practices rules, Almaroad
laid Delph off for 3 days. In sum, I find that the Company
has shown it would have taken this action even if Delph had
abstained from supporting the Union. I shall, therefore, rec-
ommend dismissal of the allegation that this 3-day suspen-
sion violated Section 8(a)(3) and (1) of the Act.
On November 11, and 4 months later, on March 24, 1987,
Delph engaged in conduct which Section 8(a)(4) and (1) of
the Act protected. He testified on the General Counsel’s be-
half. In his testimony on March 24 and 25, 1987, Pedro ad-
mitted that Delph had angered him by testifying untruthfully.
On December 2 and 8, less than 1 month after he had tes-
tified in these proceedings on the General Counsel’s behalf,
the Company disciplined Delph. I have noted the timing of
this punishment, Pedro’s admission that Delph’s testimony
had angered him, and Pedro’s previous use of correction no-
tices, suspensions, and discharges in retaliation against em-
ployees, who had engaged in protected activity. I find that
the General Counsel has made a prima facie showing that
Delph’s testimony was a motivating factor in the decision to
discipline him on these two occasions.
The Company claimed that on December 1 and 2 Pedro
had caught Delph loafing on the job. On the first occasion,
Pedro had verbally reprimanded Delph. However, according
to Pedro, when he found Delph loafing again on the very
next day, he directed Almaroad to issue a warning to Delph
for ‘‘not performing his job.’’ Almaroad did just that. He im-
mediately issued a correction notice for ‘‘Unsatisfactory
Work Performance.’’ In explanation of this charge against
Delph, Almaroad wrote that he was ‘‘not performing his
work duties.’’
The facts show that the Company’s explanation of its mo-
tivation on December 2 was pretextual. For, when Pedro
1057PEPSI COLA BOTTLING CO.
came upon him, on that day, Delph had completed his as-
signment and had, as usual, looked for Almaroad to get a
new assignment. Delph made a good-faith effort to find
Almaroad, but failed. Delph returned to his workstation to
wait for Almaroad. When Almaroad finally appeared at the
palletizer, where Delph had been working, he did not com-
plain that Delph had not performed his assignment. Instead,
he offered to find another task for Delph. Pedro did not ask
Almaroad anything about Delph’s previous assignment. In-
stead, he announced his decision to write Delph up. Pedro
was determined to punish Delph, and believed he had found
a reason to do so. However, I find that Delph was not loaf-
ing. More important, I find that, contrary to the Company’s
correction notice, Delph had in fact performed his work du-
ties.
The Company has failed to rebut the General Counsel’s
showing that Delph’s testimony in these proceedings was a
factor in Pedro’s decision to issue the written warning to him
on December 2. I find, therefore, that by issuing that warn-
ing, the Company violated Section 8(a)(4) and (1) of the Act.
I also find that the General Counsel did not make a prima
facie showing that Delph’s support for the Union was a moti-
vating factor in the issuance of the warning of December 2.
In arriving at this finding, I have considered the passage of
8 months after Delph’s last show of active support for the
proceedings on November 11. Pedro’s anger at what he per-
ceived to be false testimony, provoked him to punish Delph
on December 2. Accordingly, I find that the warning of De-
cember 2 did not violate Section 8(a)(3) of the Act. I shall
recommend dismissal of the allegation that it did.
As in the case of Sam Sanders, the Company contended
that Delph’s violation of its eye safety regulations motivated
Pedro’s decision to suspend him for the balance of the day,
on December 8. However, for the reasons stated above, I
find that the Company has not shown that, absent his testi-
mony on the General Counsel’s behalf, at the hearing before
me on November 11, Pedro would have disciplined Delph
for not wearing his safety glasses on December 8. I further
find, therefore, that by issuing a correction notice, containing
a warning and a 3-day suspension, to Delph on December 8,
the Company violated Section 8(a)(4) and (1) of the Act.
Here, again, the General Counsel did not make a prima
facie showing that on December 8, Delph’s support for the
Union was a motivating factor in Pedro’s decision to suspend
him. In arriving at this finding, I have considered both the
passage of time since Delph’s last show of support for the
Union, and my finding that the General Counsel had not sus-
tained her burden of showing that support for the Union was
a motivating factor in Pedro’s decision to suspend Delph on
May 12. I shall recommend dismissal of the allegation that
the Company violated Section 8(a)(3) of the Act by sus-
pending Delph on December 8.
The Company’s position was that it discharged Delph on
the morning of May 21, 1987, only because he had an un-
pleasant body odor on that day, which constituted his third
violation of its hygiene regulations. However, I have con-
cluded that when Pedro perceived that Delph had a body
odor that morning, he was glad to use it as a pretext for get-
ting rid of him.
Over 1 year had elapsed since the Company had last dis-
ciplined Delph for having unpleasant body odor. In the
meantime, in December, Almaroad had testified that Delph
had his body odor under control. Thereafter, until this last in-
cident, Delph had not given the Company cause to punish
him for neglecting his problem. The Company’s progressive
discipline policy did not include any period of limitations.
There was no provision in the Company’s statements of pol-
icy for beginning the process anew if there was a 6-month
or 1-year hiatus between violations of its personnel hygiene
regulations. However, a reasonable approach to Delph’s as-
serted lapse on the morning of May 21, 1987, would have
been something less than discharge.
Pedro, as the Company’s general manager, had the author-
ity to use discretion. Indeed, he exercised such discretion on
December 15, when he permitted Carlos Fields to continue
working as a forklift driver, instead of sending him home for
the balance of the day for failing to wear earplugs properly.
On that occasion, Pedro decided that the Company’s produc-
tion needs required that he postpone Fields’ partial day sus-
pension. In Delph’s case, Pedro was not anxious to retain
him at all.
On the contrary, Pedro was in a hurry to get rid of Delph.
Pedro, himself immediately prepared a separation of employ-
ment form for Delph. In filling out the form, Pedro asserted
erroneously that Delph had suffered a 3-day suspension for
‘‘poor hygiene body odor’’ on ‘‘5/12/87.’’ I cannot infer that
Pedro intentionally misdated that incident. However, I can
infer that this error resulted from haste born of hostility. This
same hostility surfaced on December 2 and 8, when, on each
occasion, Pedro used a pretext to chastise Delph in violation
of Section 8(a)(4) and (1) of the Act.
In sum, I find that Pedro seized upon his perception, and
that of his witnesses, that Delph had a strong, disagreeable
body odor, as a pretext for discharging him on May 21,
1987. The real reason was Delph’s testimony at these pro-
ceedings, on November 11, and on March 24, 1987. Accord-
ingly, I find that the Company thereby violated Section
8(a)(4) and (1) of the Act.
I have found that Pedro’s enforcement of the Company’s
hygiene regulations against Delph in 1986 did not violate
Section 8(a)(3) and (1) of the Act. In those instances, the
Company satisfied me that Pedro would have acted as he did
even if Delph had not been a union activist. Here again, I
have concluded that union animus played no part in Pedro’s
decision to discharge Delph. Therefore, I shall recommend
dismissal of the allegation that Delph’s discharge violated
Section 8(a)(3) of the Act.
14. Delph’s and Sanders’ layoff
a. The facts
Delph and Sanders went to work on the can line on Janu-
ary 6, 1987. Delph was operating the can palletizer and
Sanders was operating the caser. Supervisor Robbie told
them that after they finished running the can line, and left
for lunch, they should not return to work until Monday, Jan-
uary 12. The Company had not warned them of this layoff
and did not give an explanation to them. Of the seven em-
ployees working on the can line, the Company selected only
Delph and Sanders for layoff.
Sanders asked Mullins for an explanation of this layoff.
Mullins said he did not know why, but that Roy Almaroad
told him to do it. Sanders punched out at about 11 a.m. He
came back to work on the following Monday, January 12.
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
80 For the most part, I based my findings of fact regarding Delph’s and
Sanders’ layoff on January 6, 1987, on their testimony. I found from
Almaroad’s testimony that seven employees, including Delph and Sanders,
were working on the can line on the morning of January 6.
81 According to Almaroad’s credited testimony, ‘‘we had the plant all tore
to pieces. We had products setting everywhere and we had to get it back in
its proper area so we were trying to get it done as quickly as we possibly
could.’’
82 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966).
(‘‘If [the ALJ] finds that the stated motive for a discharge is false, he certainly
can infer that there is another motive.’’)
Delph also asked Mullins for a reason for his 3-day layoff.
Mullins said he did not know. Delph clocked out at lunch-
time. He returned to work on the following Monday.80
b. Analysis and conclusions
Looking at the selection of Sanders and Delph as the only
employees for layoff on January 6, approximately 2 months
after they had testified for the General Counsel, I find much
to suggest that the Company punished them because of their
testimony. Sanders testified for the General Counsel on No-
vember 7. Delph did likewise 4 days later. Pedro admitted
that their testimony provoked his ire. I have also found
above that Pedro’s hostility toward their testimony caused
him to inflict discriminatory punishment upon Sanders and
Delph in other contexts. On January 6, the Company selected
these same two, out of seven, for layoff, without warning,
and without giving them an explanation, as they requested.
These facts strongly suggested that the Company resorted to
layoffs to punish Sanders and Delph for testifying in these
proceedings.
The Company showed that on occasions in 1986, before
and after Sanders and Delph became known to it as union
activists, and soon after they had testified in these pro-
ceedings, they reported for work between 6 and 7 a.m., and
for the day shortly after 11 a.m.. The Company also showed
that occasionally it gave them 2-day workweeks. None of
those incidents was alleged as an unfair labor practice.
However, I find that the Company’s claim that there was
no work available for Delph and Sanders for the remainder
of the workweek, after lunch, on January 6, 1987, was with-
out merit. According to Roy Almaroad, when the can line
completed its production run, on that day, at about 11:15
a.m., the Company could only find work for five of its seven
employees on that line. David Waddell did repair and main-
tenance on a high cone machine. Wilson Loudermilk sani-
tized and did repair and maintenance on the can filler. Shir-
ley Stidham worked in the syrup room as a trainee. Cindy
Wiles and Hester Fields were rewrapping cans. There was no
showing that Waddell, Loudermilk, Wiles, or Fields had spe-
cial skills or that Delph or Sanders could not perform the
tasks, which those four employees performed, after the can
line stopped on January 6, 1987.
I also find from Almaroad’s testimony that prior to Janu-
ary 6, 1987, he found work for Delph, when the can line was
not running. This was work in connection with a perimeter
strip around the Norton plant building. It consisted of making
preparation for the painting, putting down forms for pouring
concrete ‘‘or whatever’’(Tr. 5467). Almaroad did not elabo-
rate on the quoted language. However, the record showed
that on December 8, Delph and Sanders were removing
forms for concrete and cleaning up in connection with that
same project. Almaroad admitted that the Company com-
pleted the project in ‘‘late January, early February, right
around in there’’(ibid.). Yet, on January 6, for some reason,
which neither Almaroad, Robbie Mullins, Pedro, nor the
Company provided to Delph, Sanders, or to the record before
me, Almaroad did not assign such work to them. Indeed,
Almaroad, on direct examination, testifying in a frank and
forthright manner, admitted that after January 6, he assigned
such work to employees Hester Fields, Cindy Wiles, and
Brian Almaroad. His testimony showed also the pressing
need to complete such work81 ‘‘as quickly as we possibly
could’’(Tr. 5487–5488).
Immediately after Almaroad’s admission showing the
availability of work, and his assignment of such work to the
three employees after January 6, the Company’s counsel
asked the following question:
More specifically, on January the 6th, the day that
you sent home Ernie [Delph] and Sam [Sanders], was
there work available for them to do in construction,
painting and all of that?
At this point, Almaroad seemed to tighten up a bit. He
began to answer, hesitated briefly, and then quickened his
pace. He responded to counsel’s question as follows:
We had—we had the painting at that time, I believe,
pretty well wrapped up. As a matter of fact, I don’t
think the painters were even working at that time. I
think they were already gone.
Counsel for the Company followed up with this question:
‘‘All right. Was there anything else along those lines that
they could have done?’’ Almaroad continued to contradict
his earlier testimony, with this answer: ‘‘No, sir. We had the
plant in good shape at that time.’’
Finally, Almaroad attempted to erase the urgency which he
testified to in his earlier testimony. He answered: ‘‘No, sir.’’
when the Company’s counsel asked: ‘‘Would you have any
reason not to try to finish that project if you had something
that needed to be done?’’
Considering Almaroad’s change in demeanor, and the con-
sistency of his admission with his earlier testimony regarding
his effort to find work for Delph, when the can line was not
operating, I have rejected his effort to contradict that admis-
sion, which I have credited. I find, therefore, that the Com-
pany’s proffered explanation for laying off Delph and Sand-
ers on January 6, 1987, was pretextual. For, contrary to its
claim, there was work available for them on and after that
date.
The General Counsel’s strong prima facie case stands
unrebutted. Indeed, the Company’s pretextual explanation
buttressed the General Counsel’s strong showing that Delph’s
and Sanders’ testimony in these proceedings was the moti-
vating factor in the Company’s decision to lay them off on
January 6, 1987.82 I find, therefore, that by laying employees
Delph and Sanders off from the middle of that day until they
returned to work on January 12, 1987, the Company violated
Section 8(a)(4) and (1) of the Act.
I also find that the General Counsel has not made a prima
facie showing that their support for the Union was a motivat-
ing factor in the Company’s decision to lay Delph and Sand-
1059PEPSI COLA BOTTLING CO.
83 I based my findings regarding Horne’s employment upon his
uncontradicted testimony.
84 Except for the incidents involving employees Gregory Stanley and Frank
Colyer Sr., I have credited Horne’s testimony regarding his union activity.
However, in contrast with Horne, who was evasive on cross- examination re-
garding their meeting in a shopping center, Stanley testified candidly. Accord-
ingly, I have credited Stanley’s recollection of the incident. Horne did not re-
member meeting with Colyer at a store in Wise, Virginia. Colyer presented
a detailed recollection of such a meeting, in an impartial manner, which I have
credited.
85 I have credited Horne’s testimony regarding his meeting of February 5,
with Pedro.
86 Morris admitted talking to Horne during the union campaign. However,
according to Morris, Horne initiated the conversation, and Morris answered
that he could not say anything about the Union. Morris did not deny telling
Horne that George Hunnicutt would sell the business if the union campaign
Continued
ers off on January 6. Approximately 10 months had elapsed
since either Delph or Sanders had engaged in union activity.
There was no showing that the Company had discriminated
against either of them because of union activity during those
10 months. Instead, the record showed that their testimony
on behalf of the General Counsel in these proceedings had
motivated Pedro’s earlier decisions to punish Delph and
Sanders. Accordingly, I shall recommend dismissal of the al-
legations that the Company violated Section 8(a)(3) of the
Act by laying Delph and Sanders off on January 6, 1987.
15. John Horne
a. The facts
From October 22, 1984, until July 25, the Company em-
ployed John Horne as a route salesman, servicing restaurants,
swimming pools, and other facilities. He drove a company-
owned Chevrolet van, delivering postmix, premix, carbon di-
oxide gas, and cups. Postmix is syrup, which Horne deliv-
ered in 5-gallon containers. Premix is soda already mixed, in
5- and 10-gallon containers. His route covered portions of
southwestern Virginia, including Norton and nearby commu-
nities, and eastern Kentucky.83
Horne supported the Union. He signed a card for the
Union on or about February 12. Early on a morning in Feb-
ruary, Horne parked his route truck in back of company em-
ployee Gregory Stanley’s delivery truck, in a shopping cen-
ter, at Esserville, Virginia. Both were on the clock, working
for the Company. Stanley was making a delivery of soda pop
to a Food Lion supermarket. Horne’s customers at the
Esserville shopping center were Rax, a fast food restaurant,
located 100 to 150 yards away from the Food Lion, and
Rite-Aid, a drug store, next door to the supermarket.
Without leaving his truck, Horne called Stanley aside, and
tried to convince him to sign a card for the Union. When
Stanley finished expressing his disinterest in the Union,
Horne drove off. The conversation took about 5 minutes. At
the end of his workday, Stanley reported his encounter with
Horne to Pedro.
In the same month, Horne approached company route driv-
er Frank Colyer Sr., about the Union, while both were on the
clock. Horne came upon Colyer, who was making a delivery
to a Piggly-Wiggly supermarket, in Wise, Virginia, and
asked him to sign a card for the Union. Colyer declined, and
the two went on about their business. Horne’s closest cus-
tomer was Pizza Hut, located across the street, and about 150
yards from the supermarket. A few days later, Colyer told
Huck about this encounter.
On February 23, Horne attended a union meeting and
joined its plant organizing committee. On February 28, the
Company received a union letter, listing Horne as a new
member of its organizing committee. The Company posted
the list, near the timeclock, at the Norton plant. On or about
March 1, Horne, along with employees Ronnie Blanken,
Bobbie Blanken, Larry Blanken, and Francisco Vega,
handbilled for the Union, at the Company’s Tazewell, Vir-
ginia warehouse. Horne handbilled with other employees,
outside the Norton plant, two or three times, in March and
April. On each occasion, Supervisor D. R. Robinson and Jo-
seph (Huck) Hunnicutt observed the handbilling outside the
Norton plant. In March, Horne and other employees, attired
in work uniforms, distributed union buttons and bumper
stickers outside the Norton plant, as Pedro watched. Horne
put Teamsters bumper stickers on both of his vehicles, and
wore a Teamsters button at work and on his days off. On
March 20, Horne testified at a Board representation hearing
concerning the Union.84
On February 25, as Horne was checking in his truck, D.
R. Robinson told him that Pedro wanted to see him. When
Horne presented himself in Pedro’s office, he found Pedro
and George Hunnicutt Sr. Pedro told Horne that he was on
the clock too many hours, and that he had seen Horne wast-
ing time on business other than the Company’s. Further,
Pedro said that Horne was not to conduct business other than
the Company’s while on the clock. Horne attempted to ex-
plain that Pedro’s perception was erroneous. Pedro did not
reply to Horne’s explanation. Instead, he handed a correction
notice to Horne.85
The correction notice gave improper conduct and unsatis-
factory work performance as the reasons for its issuance. In
explanation of those reasons, the correction notice stated that
Horne had been ‘‘observed more than once at locations other
than those on [his] designated route, transacting business
other than the Company’s while [he was] on the time clock
and the Company was paying you.’’ The notice went on to
explain that his working time had remained the same, while
his sales had ‘‘dropped drastically.’’ The notice warned
Horne ‘‘not to work unless on the time clock.’’ The notice
concluded with the assertion that George Hunnicutt Sr. had
verbally warned Horne about transacting business other than
the Company’s, during working time, while on the timeclock.
At page 12 of its brief to me, the Company construed Pe-
dro’s testimony to show that prior to February 25, when he
was analyzing Horne’s productivity, and when he decided to
issue the correction notice, he knew of Horne’s attempts to
obtain Colyer’s and Stanley’s signatures on union cards.
After reading Pedro’s testimony that prior to February 25, he
knew that Horne ‘‘had been observed doing business other
than the Company’s, while he was on the Company’s time,’’
and noting Stanley’s and Colyer’s credited testimony, I
agree, and so find.
Between March 1 and 20, Horne stopped at the Com-
pany’s Harlan, Kentucky warehouse to wash his truck. Ware-
house Supervisor Chris Morris approached Horne and asked
how the Union was going. Horne replied that as far as he
knew, it was ‘‘going great.’’ Morris responded with a warn-
ing that ‘‘if it goes union, George is going to sell.’’86
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
succeeded. Counsel did not ask Morris if he had made such a remark to
Horne.
Morris’ testimony showed that he was less than neutral toward the Union’s
organizing campaign. He admitted that after he heard Horne talk about the
Union to one or two of the Company’s Harlan employees, he told Horne he
should not be engaging in such conduct instead of attending to the Company’s
business. Morris reported Horne’s conduct to George Hunnicutt Sr. Finally,
Morris admitted that when the Harlan employees asked him if George
Hunnicutt intended to close the Harlan facility if the Union won, he answered
no, but added that Hunnicutt Sr. would close their warehouse, if it did not
show a profit.
I found, above, Morris reluctant to provide detailed testimony about which
of his employees he spoke to about the Union. Here, I noted that he monitored
Horne’s union activity at the Harlan warehouse, discouraged it, and reported
it to George Hunnicutt Sr. Thus, did Morris reveal his hostility toward Horne’s
support for the Union. These factors, together with Horne’s unaffected attitude,
as he testified about this encounter, caused me to credit his testimony, where
it differed with Morris’.
87 Stipes did not deny making the remarks which Horne attributed to him.
As Horne testified about this incident in a frank manner, I have credited his
testimony in this regard.
88 I based my findings regarding the incident of April 29 on Horne’s
uncontradicted testimony.
Later, on the same day, in Cumberland, Kentucky, Sales
Supervisor Jimmy Stipes met up with Horne on the latter’s
route and asked how the Union was going. Horne answered
that he thought that it was ‘‘coming along great.’’ Horne said
he understood that Stipes had to take a certain position on
the Union because he was a supervisor. He also urged Stipes
to consider the employees’ position because they had been
cheated on their paychecks.87
As Horne was leaving the Company’s Norton plant after
work on April 29, he encountered Huck Hunnicutt. After
Horne said something about needing premix on his route,
Huck talked about the Union, suggesting in substance that
the Union had abandoned its supporters among the Com-
pany’s employees. Horne parried Huck’s suggestion, saying
‘‘they might have went home but they’ve not left.’’
Horne returned to the need for premix on his route.
Hunnicutt said that one of the Company’s customers had
complained that Horne had delivered a half empty tank of
Diet Pepsi. Horne denied delivering a half empty tank. Huck
replied that he intended to check on the complaint, and if it
were true, he would ‘‘kick [Horne’s] fucking ass and then
fire [Horne] cause then, I’ll have good grounds.’’ Huck said
that Horne ‘‘could go ahead and organize [the] union . . .
But not to fuck with [Huck’s] business.88
On July 25, Pedro discharged Horne for poor work and
willful misconduct. The separation of employment form,
which the Company prepared, explained the reasons for
Horne’s discharge, as follows:
On 7/22/86, you were told by Mr. Green of the Job
Corps that they were going to replace Pepsi with Coke.
You did not report this. The Company found out by ac-
cident and is trying to save the account. YOU WERE
PREVIOUSLY WARNED ABOUT THIS SAME
CONDUCT. YOU HAVE ALSO BEEN WARNED
TWICE ABOUT FAILURE TO PROPERLY SERVICE
ACCOUNTS. YOU ARE DISCHARGED FOR FAIL-
ING TO REPORT COMPETITIVE SITUATIONS
LIKELY TO RESULT IN LOSS OF BUSINESS IF
COMPETITION NOT MET.
b. Analysis and conclusions
The General Counsel urged that on February 25 the Com-
pany issued a correction notice containing a warning to
Horne, because of his union activity. The Company con-
tended that union activity had nothing to do with the
issuance of that correction notice. I agree with the General
Counsel’s position.
The correction notice, which Pedro issued on February 25,
addressed itself to Horne’s ‘‘transacting business other than
the Company’s while [he] was on the time clock.’’ The no-
tice also pointed out that Horne had engaged in such busi-
ness ‘‘at locations other than those on [his] designated
route.’’ As he handed the correction notice to Horne, Pedro
instructed him to refrain from conducting ‘‘business other
than the Company’s while on the clock.’’ The record made
clear that the ‘‘business’’ Pedro referred to in the correction
notice was Horne’s solicitations of employees Stanley and
Colyer, on the Union’s behalf.
Pedro’s attempt to squelch Horne’s solicitation on the
Union’s behalf was a departure from the Company’s policy
toward employee solicitation. There was no showing that the
Company maintained any no-solicitation rule either at its fa-
cilities or on its truck routes. Instead, I find from Supervisor
Jerry Ryan’s testimony that the Company has permitted em-
ployees to solicit freely, while on the clock and working.
Such solicitations pertained to the sale of items such as used
automobiles and cookies. Thus, unless the Company showed
that Horne’s solicitation interfered with its business oper-
ations, Pedro could not lawfully discipline him for engaging
in solicitation of fellow employees on the Union’s behalf.
Harry M. Stevens Services, 277 NLRB 276, 282 (1985).
Pedro sought to avoid a finding that the correction notice
violated Section 8(a)(3) and (1) of the Act, by asserting on
the notice, and in his testimony, that at the time Horne was
engaged in the Union’s business, he was not on his des-
ignated route, and thus interfering with the Company’s oper-
ations. However, this tactic fell short of the mark.
According to Pedro, since July 6, 1983, the Company has
had a policy prohibiting its truckdrivers from operating its
vehicles off their designated routes. Pedro also testified that
the Company posted this rule on a wall near the drivers’
check-in room at the Norton plant. The rule itself, and Pe-
dro’s testimony, show that its purpose was to stop gross de-
partures from designated routes. The rule mentioned that
some drivers had left their routes to ‘‘stop by their homes,
in other cases for reasons unknown.’’ Pedro mentioned an in-
cident in which a driver visited his girlfriend ‘‘on his way
to his route.’’ (Tr. 4839.)
Horne was not off of his designated route when he solic-
ited Stanley’s and Colyer’s support for the Union. When
Horne stopped to talk to Stanley, they were in a shopping
center, which was on Horne’s route. Again, when Horne so-
licited Colyer’s support for the Union, they were about 150
yards from a Pizza Hut, which Horne served as part of his
route, and which was located on the same street on which
they met. In neither instance did Horne violate the Compa-
ny’s rule. Moreover, the Company did not show that Horne’s
union activity interfered with its deliveries on the days on
which he solicited Stanley and Colyer. Thus, I find that
Pedro used the prohibition against off-route driving as part
of his scheme to punish Horne for soliciting support for the
Union from company employees. I also find that by issuing
1061PEPSI COLA BOTTLING CO.
89 According to Horne, he did not work on July 23, but came back to work
on July 24. His timecard showed that he worked on July 23 and was absent
from work on July 24. However, in making my findings regarding when
Horne worked during the week of July 21, I have relied upon the Company’s
timecards which it maintained in the ordinary course of business, rather than
Horne’s less reliable recollection.
I based the remainder of my findings of fact regarding the Company’s ex-
planation of Pedro’s decision to discharge Horne, upon a composite of
Greene’s, Lee’s, Horne’s, and Pedro’s testimony. I found it unnecessary to re-
solve issues of credibility regarding Pedro’s remarks during his final con-
frontation with Horne.
the correction notice of February 25, in the effectuation of
this scheme, the Company violated Section 8(a)(3) and (1)
of the Act. Harry M. Stevens, supra at 282–283.
The General Counsel contended that the Company violated
Section 8(a)(1) of the Act when Supervisors Morris and Sti-
pes interrogated Horne about the Union, when Morris warned
Horne that George Hunnicutt Sr. would sell the business if
the Union’s organizing campaign succeeded, and when Huck
warned Horne on April 29. The Company urged dismissal of
these allegations on the ground that the conduct attributed to
Morris, Stipes, and Huck did not impair its employees’ right
under Section 7 of the Act to ‘‘join or assist’’ the Union.
I find that when Supervisors Morris and Stipes asked how
the Union was going, they were attempting to find out if
Horne was continuing to support the Union. In light of the
Company’s resort to discriminatory discharges and other re-
prisals against employees who supported the Union, I find
that Morris’ and Stipes’ question was likely to interfere with,
restrain, and coerce Horne in the exercise of his right under
Section 7 of the Act to engage in union activity. Accord-
ingly, I find that the Company violated Section 8(a)(1) of the
Act when Morris and Stipes interrogated Horne.
Morris added to the coerciveness of his question by his re-
mark that ‘‘if it goes union, George is going to sell.’’ Such
an assertion by a supervisor is likely to raise the spectre of
the loss of jobs and other adverse effects which may follow
in the wake of the transfer of a going business to a new
owner. Thus, I find that Morris’ remark was likely to inter-
fere with employee rights under the Act to support and ad-
here to a union. I also find, therefore, that by Morris’ re-
mark, the Company violated Section 8(a)(1) of the Act. Wil-
liams Motor Transfer, 284 NLRB 1496 (1987).
Turning to Huck Hunnicutt’s remarks to Horne, when they
met on April 29, I find merit in the General Counsel’s alle-
gation that they violated the Act. Huck’s remarks included
two messages reflecting strong hostility toward Horne. The
first was a threat that Huck would physically attack Horne,
using a misdelivery as an excuse for the assault. The second
was a warning that Huck was looking for an excuse to dis-
charge him. Horne was free to engage in union activity, but
woe unto him if he erred in his work. Huck’s references to
the Union and Horne’s union activity, strongly suggested the
real motive for the threats. I find that that Huck’s remarks
were coercive and were likely to interfere with and restrain
Horne in the exercise of his right under Section 7 of the Act
to engage in union activity. I also find that by Huck’s unlaw-
ful conduct, the Company violated Section 8(a)(1) of the Act.
The General Counsel has shown that Horne’s union activ-
ity annoyed the Company sufficiently to provoke it to dis-
criminate against him by issuing a warning to him on Feb-
ruary 25. In addition, I have found that 2 months later, Huck
showed that the Company’s management remained hostile to
Horne because of his union activity. Indeed, Huck warned
that he was looking for an excuse to discharge Horne. Thus,
there was a prima facie showing that Horne’s support for the
Union was a factor in Pedro’s decision to discharge Horne
3 months after Huck had voiced his warning.
Pedro testified that he discharged Horne for failing to no-
tify the Company that one of its customers, the Job Corps
facility at Coeburn, Virginia, intended to switch from Pepsi-
Cola to Coca-Cola. I find that the Company has shown that
Pedro would have made the same decision even if Horne had
not been a union supporter.
I find from Pedro’s testimony that on April 7 he issued
a correction notice to Horne for failing to warn the Company
that one of its customers, the Bread and Chicken House, a
restaurant in Big Stone Gap, Virginia, was on the verge of
switching from Pepsi-Cola to Coca-Cola. Pedro included in
the correction notice, a warning that: ‘‘REPEAT OF THIS
INFRACTION WILL RESULT IN DISCHARGE.’’ The
General Counsel has not alleged that this warning was viola-
tive of the Act.
Horne did not heed Pedro’s warning. On July 22, Charles
Greene, a Job Corps official, told Horne that because Coca-
Cola had offered to sell at a lower price, the Coeburn facility
intended to stop doing business with the Company. I find
from the Company’s records, that on the same day, Horne
clocked out at 5:15 p.m.; that he worked on the following
day, from 7 a.m. until 6:30 p.m., and had a day off on
Thursday, July 24. It was not until July 25, that Horne re-
ported that the Job Corps had received a better offer from
Coca-Cola. However, by the time Horne made his report to
his supervisor, Bob Lee, Lee had already spoken to the Job
Corps’ Greene and had learned of the possible loss of this
large customer. Greene had also told Lee of his remarks to
Horne. By the time Horne reported to Lee, on July 25, Lee
had advised Pedro of Horne’s negligence.89
Upon receiving Lee’s report, Pedro had a valid ground for
terminating Horne. Pedro had warned Horne on April 7 that
if he again failed to report the possible loss of a customer
‘‘this infraction will result in discharge.’’ The General Coun-
sel did not allege that this warning was unlawful. Nor did
she contend that any of the three subsequent correction no-
tices, which Pedro issued to Horne in June and July, violated
the Act. Each of the last three correction notices reported a
failure to service an account properly. Pedro did not look to
these correction notices as reasons for his decision on July
25. Instead, Pedro recalled his warning of April 7, reasonably
saw the Peace Corps incident as a repetition of the infraction
which had provoked him on that occasion, and carried it out.
There was no showing that Pedro had ever relented in a
similar situation. Indeed, there was no showing that a similar
situation had ever confronted Pedro. However, in light of Pe-
dro’s warning on April 7, I have no doubt that Pedro would
have discharged Horne for the second infraction even if that
employee had not been a union supporter.
I have no doubt that Pedro was unhappy about Horne’s
union activity, and might well have been seeking an excuse
to get rid of him. However, as the Board recognized in Klate
Holt Co., 161 NLRB 1606, 1612 (1966):
If an employee provides an employer with a suffi-
cient cause for his dismissal by engaging in conduct for
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
90 The facts regarding the mechanics’ employment and union activity are un-
disputed.
91 I based my findings regarding Wiles’ knowledge of the rumor, the con-
versation between his daughter and her husband, and Wiles’ report to George
Hunnicutt Sr. on Wiles’ uncontradicted testimony.
92 I based my findings regarding Wiles’ conversation with George Hunnicutt
Sr. on Wiles’ uncontradicted testimony.
93 I based my findings regarding Ronald Blanken’s meeting with George
Hunnicutt on Blanken’s uncontradicted testimony.
94 I based my findings regarding the Company’s reduction of the mechanics’
working hours upon Elmo Wiles’ admission that on George Hunnicutt Sr.’s
instructions, he tried to limit the Norton mechanics to about 40 hours per
week, Shular’s and Ronald Blanken’s testimony that Wiles announced the re-
duction on March 3, and Pedro’s compilations of the Company’s records. I
have also credited Shular’s and Ronald Blanken’s testimony comparing their
weekly working hours before and after March 3, only to the extent that Pe-
dro’s compilations corroborated it.
which he would have been terminated in any event, and
the employer discharges him for that reason, the cir-
cumstance that the employer welcomed the opportunity
to discharge does not make it discriminatory and there-
fore unlawful.
Thus, even if Pedro were glad to be rid of a union sup-
porter on July 25, I cannot find that union activity was a mo-
tivating factor in his decision to discharge Horne. Accord-
ingly, I find that the General Counsel has not shown by a
preponderance of the evidence that the Company
discriminatorily discharged Horne. I shall, therefore, rec-
ommend dismissal of the allegations that Horne’s discharge
violated Section 8(a)(3) and (1) of the Act.
16. Reduction of the mechanics’ working hours
a. The facts
In 1985 and 1986, the Company employed Bobby
Blanken, Ronald Blanken, Kenneth Blanken, and Richard
Shular as full-time truck mechanics at its Norton plant. In
1986, employee Gary Sturgill, who worked at the Norton
plant mainly as a forklift mechanic, performed truck mainte-
nance only in emergencies. During the 2 years, Fleet Man-
ager Elmo Wiles supervised the Company’s truck mechanics.
Two of the mechanics, Bobby and Ronald Blanken, were
active union supporters. In mid-February they attended a
union meeting, and solicited employee signatures on its
cards. In its letter to the Company, dated February 18, which
the Company received on February 21, the Union announced
that Bobby and Ronald had joined the plant organizing com-
mittee. In his antiunion letter to the Company’s employees,
dated February 22, George Hunnicutt Sr. listed Bobby and
Ronald among the employees helping to ‘‘push and peddle
union propaganda.’’
On February 23, Bobby and Ronald attended a union
meeting, where they discussed their entitlement to overtime
with a union attorney. Bobby stated that they had not re-
ceived any overtime during their employment by the Com-
pany. The Company paid them straight time for hours they
worked in excess of 40 hours per week. The attorney said
he would look into the matter, and discuss it with them at
the next union meeting.90
In February, Fleet Manager Elmo Wiles heard a rumor that
the mechanics were seeking back overtime wages in a law
suit against the Company. Wiles also overheard a conversa-
tion between his daughter and her husband, mechanic Rich-
ard Shular, regarding Ronald Blanken’s conversation with an
attorney at a union meeting about recovering overtime for the
mechanics. Wiles’ daughter reminded Shular that her father
had told him that the mechanics were not entitled to over-
time.
In the same month, soon after hearing the rumor and the
conversation, Wiles told George Hunnicutt Sr. about them.
Wiles told Hunnicutt about Ronald Blanken’s conversation
with the attorney at a union meeting.91
When George Hunnicutt Sr. heard Wiles’ story, his re-
sponse was: ‘‘[t]hey’ll just have to sue me.’’ Hunnicutt also
asked Wiles which employees were bringing the action
against the Company. Wiles told him it was the mechanics.
In Hunnicutt’s opinion, the employees bringing the action
were not entitled to overtime, and would be wasting their
money. Hunnicutt said he wanted to talk to them and avoid
losing his own money.92
In early March, at the next union meeting, the union attor-
ney talked to Bobby and Ronald about their hours of work.
The attorney said he would talk to them about their overtime
again. The two Blankens never saw him again.
During the first or second week in March, George
Hunnicutt Sr. invited Ronnie Blanken to his office. Hunnicutt
began telling Blanken that he occasionally liked to talk to his
employees. Continuing, Hunnicutt reviewed the names and
job assignments of the mechanics. Hunnicutt said he under-
stood that Blanken and his fellow mechanics had hired an at-
torney to check into their back overtime. It was Hunnicutt’s
view that the employees were wasting their money. After
Hunnicutt mentioned something about interstate commerce,
the conversation ended.93
On March 3, Fleet Manager Wiles told the Norton me-
chanics that their weekly hours were immediately reduced to
40. Prior to Wiles’ announcement, the mechanics had worked
as many as 50 or 60 hours per week, to keep the Company’s
trucks operating. Wiles did not provide any explanation for
the reduction in hours. Nor did he divulge the identity of the
company officer who had ordered the cutback in hours.
Thereafter, until the week ending July 19, the Norton me-
chanics, including Shular, suffered substantial cutbacks in
working hours.
During most of period between March 3 and July 19, the
three Blanken brothers rarely worked more than 40 hours per
week. Pedro’s compilations and Shular’s testimony showed
that in January and February, Shular had three 2-week pay
period in which his total working hours per period ranged
from 95.5 to 121.5 hours. After Wiles’ announcement,
Shular’s 2-week work records did not exceed 93 hours until
the 2-week period ending on July 19.94
b. Analysis and conclusions
The complaint alleged that on March 3, the Company vio-
lated Section 8(a)(3) and (1) of the Act, by reducing the
working hours of its mechanics in retaliation for their support
for the Union and their union activity. The complaint named
the three Blanken brothers, Bobby, Ronald, and Kenneth,
Richard Shular, and Gary Sturgill as the mechanics who suf-
fered the reduction in hours. However, I found from Elmo
Wiles’ testimony that Sturgill was not a truck mechanic at
the time of the alleged discrimination. Therefore, I have not
1063PEPSI COLA BOTTLING CO.
included him in my consideration of the merits of the Gen-
eral Counsel’s contention regarding the alleged unlawful re-
duction in working hours. The Company denied the allega-
tion, and argued that such reduction of hours as may have
occurred among its truck mechanics after March 3, was not
due to any unlawful design aimed at punishing union sup-
porters. Contrary to the Company, I find for the reasons stat-
ed below that George Hunnicutt Sr. reduced the four truck
mechanics’ hours because Bobby and Ronald Blanken were
assisting the Union, and further, because Ronald had at-
tended union meetings and had sought the Union’s help
against the Company.
The General Counsel has made a prima facie showing that
George Hunnicutt Sr.’s hostility to the Union was a moti-
vating factor in the Company’s decision to reduce the work-
ing hours of its truck mechanics on and after March 3. By
February 21, Hunnicutt Sr. knew from a union letter that
Ronald and Bobby Blanken had signed cards for the Union
and were actively supporting its organizing campaign at the
Norton plant. Soon after, in late February, Hunnicutt Sr.
learned from Fleet Manager Elmo Wiles, that Ronald
Blanken had attended a union meeting, and had obtained the
Union’s promise to help the mechanics collect back overtime
pay from the Company.
I find it likely that George Hunnicutt Sr. was irked when
informed of Bobby and Ronald Blanken’s union activity. I
also find it likely that Hunnicutt Sr.’s temper increased when
he learned of Ronald Blanken’s discussion with a union at-
torney. Hunnicutt Sr.’s dealings with employee Vivian
Rasnake on February 24, showed the likelihood that Bobby
and Ronald Blanken had rooked him. For on that occasion
he showed his union animus and violated the Act, when he
equated disloyalty with support for the Union, and threatened
her with an economic reprisal if she continued to adhere to
the Union. A more vivid manifestation of Hunnicutt Sr.’s
hostility toward union adherents occurred in July, when he
unlawfully threatened employee Bobby Boyd with his cane
because Boyd supported the Union.
Its own records, the credited testimony of Ronald Blanken
and Richard Shular, And Elmo Wiles’ admissions show that
from March 3 until mid-July the Company imposed a sub-
stantially reduced work schedule on its Norton truck mechan-
ics. The timing of this adverse action so soon after George
Hunnicutt Sr. had learned of Ronald Blanken’s meeting with
the Union’s lawyer provided the final element in the General
Counsel’s strong showing that it was a reprisal for union ac-
tivity and adherence to the Union.
The Company argued that whatever reduction in hours oc-
curred after March was due to the completion of its retro-
fitting and other mechanical work on a group of trucks it had
obtained late in 1985 to upgrade its fleet. However, I find
from Elmo Wiles’ testimony that the work on those trucks
did not reach completion until August or September.
Beginning in late March, the Company, for the first time,
began diverting work from the Norton mechanics to Tim
Brock, a local machine shop operator. This work included
the rebuilding of a company truck engine, and a welder. Dur-
ing April, Brock assisted Shular in making a road service
call to the Company’s Harlan, Kentucky warehouse to re-
mount an air compressor and install a radiator hose on a
company truck. Normally, another Norton mechanic would
have gone with Shular. The Company’s records showed that
in the spring and summer it contracted out some of its truck
repair work, instead of assigning it to the Norton mechanics.
Though the volume of diversion was modest, it showed that
the Company was depriving its Norton mechanics of oppor-
tunities to enhance their wages. The Company did not bother
to explain these departures from its normal business practice.
In a further effort to obscure the real reason for depriving
its Norton mechanics of work, Elmo Wiles testified that the
cutback was ‘‘an economic move.’’ Continuing, he testified
that he ‘‘had promised to have the operating costs down.’’
His further testimony was that he did not see any need to
perform unnecessary truck maintenance. However, on cross-
examination, Wiles disclaimed authorship of the cutback. He
admitted that George Hunnicutt Sr. directed him to reduce
the Norton mechanics’ work to ‘‘about forty hours a week
if we could.’’ Wiles ‘‘relayed this message to the men.’’
Wiles admitted that he received this direction after he had
told Hunnicutt Sr. about Ronald Blanken’s rumored effort to
recover back overtime pay from the Company. Hunnicutt Sr.
did not testify about the motive for the cutback.
The Company’s proffered explanatiOn for the sudden and
unheralded cutback in the working hours of its Norton truck
mechanics lacked substance. Thus, the Company did not
rebut the General Counsel’s showing that George Hunnicutt
Sr.’s antiunion sentiment motivated his decision to reduce the
working hours of Richard Shular, Bobby Blanken, Ronald
Blanken, and Kenneth Blanken, after he had learned of Ron-
ald’s meeting with the union attorney and the possibility that
the mechanics would ally themselves with the Union. I find,
therefore, that by inflicting this economic reprisal on these
employees, George Hunnicutt Sr. and the Company violated
Section 8(a)(3) and (1) of the Act.
CONCLUSIONS OF LAW
1. By interrogating employees regarding their union mem-
bership, activities or sympathies, threatening employees with
unspecified reprisals because of their union membership, ac-
tivities or sympathies, creating an impression that their union
activities were under its surveillance, suggesting that employ-
ees who support a union are disloyal, soliciting employees to
revoke their union authorization cards, installing television
cameras and monitor recorders to keep its employees’ union
activity under surveillance, threatening employees with dis-
charge for distributing union badges to other employees, pro-
mulgating a new rule concerning its employees’ right to wear
uniforms, threatening employees with discharge for
handbilling, or otherwise assisting the Union, threatening em-
ployees with physical violence and discharge because of their
union membership, activities or sympathies, interrogating
employees regarding whether they signed authoriation cards
for the Union, threatening employees with discharge if they
signed authorization cards for the Union, ordering employees
to remove union insignia from their clothing, threatening em-
ployees with plant closure if they selected the Union as their
collective-bargaining representative, promulgating an overly
broad proscription of employee solicitation on company time,
and by prohibiting an employee from discussing with fellow
employees any aspect of their employment by the Company,
including wages, hours, conditions of employment, and pos-
sible advantages afforded to employees by collective bargain-
ing, the Company engaged in unfair labor practices affecting
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
95 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. The Company violated Section 8(a)(3) and (1) of the
Act by:
(a) Issuing warnings on April 3 and May 19, respectively,
to Bobby Boyd, suspending Bobby Boyd on May 15, and
discharging him on July 3.
(b) Constructively discharging Johnny Waddell on July 24.
(c) Discharging Terry Henderson on February 21, and then
converting the discharge to a 3-day suspension and a warning
on February 24.
(d) Laying off Carlos Fields on March 3 for 2 days, March
4 and 5.
(e) Suspending Kenneth Allen for 3 days on March 9 and
again on April 9 for 3 days.
(f) Issuing a written warning to Larry Blanken on February
24 and discharging him on March 5.
(g) Issuing a written warning to Bobby Blanken on March
7.
(h) Issuing warnings to Robert Falin on April 3 and on
May 19, respectively, and suspending Falin for 3 days begin-
ning on May 20.
(i) Imposing an excessive suspension on Francisco Vega
on March 27, suspending him on June 24, for a fraction of
a day, issuing written warnings to him on April 4, and on
June 25, and by discharging him on August 18.
(j) Reducing the working hours of employees Richard
Shular, Bobby Blanken, Ronald Blanken, and Kenneth
Blanken on March 3.
3. The Company violated Section 8(a)(4) and (1) of the
Act by:
(a) Issuing a written warning and a 3-day suspension to
Sam Sanders on December 8.
(b) Issuing a verbal warning on December 16 and a writ-
ten warning on December 24 to Sam Sanders, and by sus-
pending him for 1 day on December 24.
(c) Discharging Sam Sanders on January 26, 1987.
(d) Issuing a written warnings to Ernest E. Delph on De-
cember 2 and 8, respectively, suspending him for 1 day on
December 8, and discharging him on May 21, 1987.
(e) Laying off Sam Sanders and Ernest E. Delph on Janu-
ary 6, 1987, for 3 days.
4. The Company did not violate Section 8(a)(3) and (1) of
the Act by:
(a) Changing the working hours of Bobby Boyd and John-
ny Waddell.
(b) Discharging Jeff Ritchie.
(c) Issuing a written warning to Francisco Vega on July
3.
(d) Issuing warnings to Sam Sanders on July 17 and De-
cember 8 and 24, respectively; suspending him for 3 days on
December 8, and for 1 day on December 24; and, dis-
charging him on January 26, 1987.
(e) Issuing a warning and a 3-day suspension to Ernest E.
Delph on May 12; a warning to him on December 2; a warn-
ing and 1-day suspension to him on December 8: and by dis-
charging him on May 21, 1987.
(f) Laying Sanders and Delph off on January 6, 1987.
(g) Discharging John Horne on July 25.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge to date of proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). In the same manner, I shall also rec-
ommend that the Respondent make whole those employees,
named above, who it discriminatorily suspended, or laid off,
or whose working hours it reduced discriminatorily.
I shall also recommend that Respondent be required to re-
move from its files any references to the warnings, verbal or
written, suspensions, or discharges, which I have found vio-
lative of the Act, as set forth above, and notify the employ-
ees, who were thus disciplined, in writing, that it has done
so and that it will not use these warnings, suspensions, or
discharges against them in any way.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended95
ORDER
The Respondent, Pepsi Cola Bottling Company, Inc. of
Norton, Norton, Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Issuing verbal or written warnings, reducing work
hours, suspending, laying off, discharging or otherwise dis-
criminating against any employee for actively assisting or
supporting Teamsters Local Union No. 549, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Teamsters Local 549) or any other
union.
(b) Issuing written warnings, suspending, laying off, dis-
charging or otherwise discriminating against employees be-
cause they appear and give testimony at a National Labor
Relations Board hearing.
(c) Threatening employees with a production shutdown,
plant closure, discharge, acts of physical violence, or other
specified or unspecified reprisals because they signed author-
ization cards for, are members of, handbill for, or otherwise
assist or support Teamsters Local 549, or any other union.
(d) Coercively interrogating employees regarding their
union activities, membership or sympathies, including wheth-
er they signed cards for Teamsters Local 549, or any other
union.
(e) Engaging in surveillance of its employees’ union ac-
tivities, using television cameras, monitor devices, or any
other means.
(f) Creating the impression that its employees’ union ac-
tivities and other concerted activities are under its surveil-
lance.
1065PEPSI COLA BOTTLING CO.
96 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
(g) Promulgating rules concerning its employees right to
wear uniforms, to curtail their union activity.
(h) Disciplining employees for discussing their employ-
ment status, or their wages, hours, and conditions of employ-
ment, or the possible advantages of collective bargaining and
union representation.
(i) Requiring employees to remove from their clothing in-
signia pertaining to Teamsters Local 549, or to any other
union.
(j) Telling employees that they were disloyal if they sup-
ported Teamsters Local 549, or any other union.
(k) Soliciting employees to revoke their signed union au-
thorization cards supporting Teamsters Local 549, or any
other union.
(l) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Bobby Boyd, Johnny Waddell, Francisco Vega,
Sam Sanders, Ernest E. Delph, Jeff Ritchie, and John Horne
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them, in the manner set forth
in the remedy section of the decision.
(b) Make whole Bobby Boyd, Terry Henderson, Carlos
Fields, Kenneth Allen, Robert Falin, Francisco Vega, Richard
Shular, Bobby Blanken, Ronald Blanken, Kenneth Blanken,
Sam Sanders, Ernest E. Delph, and Larry Blanken for any
loss of pay they may suffered as result of the discriminatory
reductions in their work hours, suspensions, or layoffs, in the
manner set forth in the remedy section of the decision plus
interest.
(c) Remove from its files any references to the unlawful
discharges, suspensions and warnings, verbal or written and
notify the employees in writing that this has been done and
that the discharges, suspensions, and warnings will not be
used against them in any way.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its plant and warehouse at Norton, Virginia, and
at its distribution centers at Maxwell, Virginia; Tazewell
County, Kene Mountain, Virginia; Loyall, Kentucky; and at
Bristol, Tennessee, copies of the attached notice marked
‘‘Appendix.’’96 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.