Pepsi-Cola Co.

National Labor Relations Board - Board Decisions

Jan 10, 2000

330 N.L.R.B. 474 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474
Pepsi-Cola Company and Local 125, International
Brotherhood of Teamsters, AFL–CIO. Case 22–
CA–21941
January 10, 2000
DECISION AND ORDER REMANDING
PROCEEDING
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On April 15, 1999, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting 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 brief and has decided to
remand this case to the administrative law judge for addi-
tional findings and further consideration as set forth be-
low.
The judge found, in agreement with the General Coun-
sel, that the Respondent violated Section 8(a)(1) and (3)
of the Act by suspending and discharging employee Sean
Reilly because of his protected activity. The Respondent
contends that Reilly, a shop steward, was fired for calling
for a work stoppage in violation of the collective-
bargaining agreement.
The facts, more fully set forth in the judge’s decision,
are as follows: On March 7, 1997,1 employee Sean
Reilly, a shop steward at the Respondent’s Piscataway
facility, held a union meeting in a conference room lo-
cated inside the plant. Over 80 employees attended.
During the meeting, loud statements were made concern-
ing attendance at the Respondent’s annual Right Side Up
meeting2 scheduled for March 10. Reilly testified that
some employees urged a boycott of the meeting, while
others stated they wanted to attend. Reilly further testi-
fied that he remained neutral on the issue during this
meeting and that he did not direct any employees not to
attend. Throughout the meeting, Reilly was located at
the far end of the conference room about 50 feet away
from an adjoining copy room.
About 5:45 a.m. that same morning, Vaughan Dickin-
son, the Respondent’s product manager, went to the copy
room and heard several statements coming from the un-
ion meeting indicating that employees were being urged
to boycott the Right Side Up meeting. Dickinson testi-
fied that he heard a voice he recognized as Reilly’s yell-
ing, “I don’t care if they fire me or sue me, there’s no
good reason to go to the meeting on Monday unless you
have an attendance issue,” and, “We need to take action
now, not five years from now. We need unity.”

1 All dates hereinafter are 1997 unless otherwise indicated.
2 At this annual meeting, the Respondent reviews with employees
the past year and discusses the upcoming year’s plans and procedures.
The Respondent considers this meeting to be very important and atten-
dance is mandatory. In his decision, the judge erroneously referred to
this meeting as the “Upside Down” meeting.
At this point, Dickinson left the copy room to inform
the Respondent’s unit manager, Bryan Semple, of what
was happening. When Dickinson could not find Semple,
he returned to the copy room and allegedly heard Reilly
telling employees to call in sick so they would not get in
trouble, and warning employees that the Union would be
watching to see who attended the meeting. Dickinson
then left the copy room to intervene, but the topic
changed to a pending union grievance as he reached the
door of the conference room.
The Respondent made arrangements to interview
Reilly later that day. Reilly requested union representa-
tion, but had problems obtaining the cooperation of un-
ion officials to represent him at the meeting. The Re-
spondent then suspended Reilly pending an investigation.
On March 11, the Respondent interviewed seven em-
ployees about the statements attributed to Reilly by Dick-
inson. Many employees refused to answer some or all of
the Respondent’s questions, and the ones who did answer
either denied Reilly made the statements or stated they
did not know if he made them. The Respondent also
interviewed Reilly that day, and he denied having made
any statements calling for a boycott of the Right Side Up
meeting.
Thereafter, the Respondent fired Reilly for violating
article 16 of the collective-bargaining agreement which
prohibited shop stewards from taking strike action with-
out union authorization.3
The judge found, and we agree, that the principles set
forth in NLRB v. Burnup & Sims, 379 U.S. 21 (1964),
apply in the instant case.4 When an employer discharges
an employee for misconduct arising out of a protected
activity, under Burnup & Sims the employer has the bur-
den of showing that it held an honest belief that the em-
ployee engaged in serious misconduct. Id. at 23. Once
the employer establishes that it had such an honest belief,
the burden shifts to the General Counsel to affirmatively
show that the misconduct did not in fact occur. Rubin
Bros. Footwear, Inc., 99 NLRB 610, 611 (1952), enf.
denied on other grounds 203 F.2d 486 (5th Cir. 1953).
3 Art. 16 states, in pertinent part:
Shop Stewards and alternatives have no authority to take
strike action, or any other action interrupting the Company’s
business, except as authorized by official action of the Union.
The Company recognizes these limitations upon the authority
of Shop Stewards and their alternatives, and shall not hold the
Union liable for any unauthorized acts. The Company in so rec-
ognizing such limitations shall have the authority to impose
proper discipline, including discharge, in the event the Shop
Steward or alternative has taken unauthorized strike action, slow-
down, or work stoppage in violation of this agreement.
4 Although the judge referred to Burnup & Sims as a case involving
picket line misconduct, that case actually involved two employees who
were fired for allegedly making threatening remarks while soliciting
another employee to join the union.
330 NLRB No. 69
PEPSI-COLA CO. 475
The judge began his analysis by finding that Reilly
was engaged in protected activity, i.e., holding a union
meeting, at the time of the alleged misconduct. The
judge next found that Dickinson honestly believed that it
was Reilly he overheard calling for a boycott of the Right
Side Up meeting. In the very next sentence, however,
the judge called into question Dickinson’s belief by stat-
ing that, in these circumstances, where Dickinson heard
the statements through a wall separating the conference
room from the copy room,5 he [the judge] was not per-
suaded that “a reasonable person could have been all that
certain that the remarks heard by Dickinson came from
Reilly.” In view of these contradictory statements, we
are uncertain as to whether the judge found that the Re-
spondent sustained its burden under Burnup & Sims.6
We therefore find it necessary to remand this issue to the
judge for an explicit determination of whether the Re-
spondent affirmatively established that it had an honest
belief that Reilly made the statements calling for a boy-
cott of the Right Side Up meeting.
We further find that, even assuming the judge’s deci-
sion could be construed as having found that the Re-
spondent did establish its honest belief defense under
Burnup & Sims, the judge’s analysis does not adequately
discuss the next part of the Burnup & Sims test, i.e.,
whether the General Counsel met his burden of demon-
strating that Reilly did not, in fact, make the statements
attributed to him.7 The only evidence the General Coun-
sel offered on this point was the testimony of Reilly him-
self, who denied making the statements attributed to him
by Dickinson. The judge did not, however, make a spe-
cific credibility finding concerning Reilly’s denials.
Rather than stating whether he credited Reilly on this
point, the judge merely noted the Respondent’s conten-
tion that Reilly’s testimony at trial differed from his tes-
timony in a prior arbitration8 raised insufficient purported
discrepancies “to conclude that the opposite of his
[Reilly’s] testimony must be true.” (Emphasis added.)
Because Reilly was the General Counsel’s sole witness
on this point, the credibility of Reilly’s denial was the
critical factor for determining whether the General Coun-
sel carried his burden. As noted above, the judge did not
make a specific credibility finding concerning this testi-
mony. In the absence of such a credibility finding, we
are unable to make a determination as to whether, even
assuming the judge found that the Respondent estab-
lished an honest-belief defense, the General Counsel car-
ried his burden under Burnup & Sims of showing that
Reilly did not make the statements attributed to him.

Accordingly, we also find it necessary to remand this
issue to the judge for further findings and analysis, in-
cluding a determination of the credibility of Reilly’s de-
nial.9

5 The judge also noted that the evidence indicated that, during the
meeting, Reilly was standing at the opposite end of the copy room,
about 50 feet away.
6 See General Telephone Co., 251 NLRB 737, 739 (1980), enfd. 672
F.2d 895 (D.C. Cir. 1981) (“establishing an ‘honest belief’ requires
more than the employer’s mere assertion that an ‘honest belief’ of such
misconduct was the motivating force behind the meting out of disci-
pline . . . it requires some specificity in the record, linking particular
employees to particular allegations of misconduct.”).
We further note that the judge did not discuss how, if at all, the Re-
spondent’s investigation into the matter should be factored into a de-
termination of whether the Respondent established an honest belief that
Reilly called for a boycott of the meeting.
7 The General Counsel has the burden of proving this fact by a pre-
ponderance of the evidence. Wittek Industries, 313 NLRB 579 fn. 2
(1993).
8 We adopt the judge’s finding that deferral is not appropriate in this
case.
In sum, we find that the judge’s decision does not in-
clude the appropriate analysis and findings required un-
der the Burnup & Sims test. The judge has not clearly
stated: a) whether the Respondent established that it held
an honest belief that Reilly engaged in the misconduct
attributed to him; and b) if the Respondent did establish
that it held such a belief, whether the General Counsel
carried his burden of showing that Reilly did not engage
in the misconduct. Because such analysis and findings
are necessary to determine whether the Respondent has
violated the Act, we shall remand this case to the judge
for further analysis and findings as indicated herein, and
for the issuance of a supplemental decision.10
ORDER
It is ordered that this proceeding is remanded to Ad-
ministrative Law Judge Raymond P. Green for the pur-
poses described above.
IT IS FURTHER ORDERED that the judge shall prepare
and serve on the parties a supplemental decision setting
forth credibility resolutions, findings of fact, conclusions
of law, and a recommended Order, as appropriate on
remand. Copies of the supplemental decision shall be
served on all parties, after which the provisions of Sec-
9 As noted by the judge, the General Counsel failed to call any wit-
nesses to corroborate Reilly’s testimony. The absence of corroborating
witnesses is, of course, a relevant factor for the judge to consider in his
determination of whether Reilly is to be fully credited. International
Automated Machines, 285 NLRB 1122 (1987), enfd. 861 F.2d 720 (6th
Cir. 1988).
10 Member Hurtgen agrees that this case should be remanded to the
judge for credibility determinations and analysis under the Burnup &
Sims test, set forth herein. Although he agrees with his colleagues that
the judge failed to properly apply the test and burdens in Burnup &
Sims, Member Hurtgen notes that the judge appears to have concluded
that the Respondent established that it had a reasonable belief that the
Union Steward Reilly engaged in misconduct. Member Hurtgen further
notes that it is also arguable that the judge concluded that the evidence
was in equipose as to whether Reilly actually engaged in the miscon-
duct. Had the judge clearly reached that conclusion, Member Hurtgen
would find that the General Counsel failed its burden under Burnup &
Sims of establishing that Reilly had not, in fact, engaged in the miscon-
duct. However, because the judge’s findings are ambiguous on this
point, and because clear credibility determinations were not made,
Member Hurtgen agrees that the case should be remanded to the judge
for further proceedings consistent with this Decision and Order.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 476
tion 102.46 of the Board’s Rules and Regulations shall
be applicable.

Tara Levy, Esq., for the General Counsel.
Richard R. Boisseau, Esq. and G. Paris Sykes Jr., Esq., for the
Respondent.
James L. Linsey, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in Newark, New Jersey, on February 17, 1999. The
charge and amended charges were filed on March 19, August 8,
and November 6, 1997, and the complaint was issued on De-
cember 4, 1998. In substance, the complaint alleges:
1. That on or about March 7, 1997, the Respondent, by
Vaughan Dickinson, engaged in surveillance of a union meet-
ing.
2. On March 7, 1997, the Respondent suspended Shop Stew-
ard Sean Reilly because of his union and protected concerted
activity.
3. That on March 17, the Respondent discharged Sean Reilly
because of his union and protected concerted activity.
The Respondent denies that it engaged in unlawful surveil-
lance and contends that it suspended and thereafter discharged
Reilly because it discovered that he was instigating employees
to engage in a work stoppage in contravention of the collective-
bargaining agreement’s no-strike clause. The Respondent also
asserts that this matter should be deferred to arbitration.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Company is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Sean Reilly was hired in 1990 and transferred to the Pis-
cataway facility in 1992. He was employed as a bulk customer
representative and was, as of March 1996, a shop steward pro-
viding first line representation for about 150 sales employees.
The Company and the Union have an established history of
collective bargaining and the most recent contract covering the
Piscataway and other New Jersey locations was executed in
June 1996. This contract contains grievance-and-arbitration
provisions and covers in excess of 700 employees. The con-
tract also contains a no-strike clause.
The Respondent asserts that as a consequence of the fact that
the contract provided for some give-backs (particularly average
wage reductions for customer representatives), the tenor of
labor relations has deteriorated in recent years and has become
more adversarial in nature. (Pointing for example, to a large
increase in the number of arbitration cases.)
Each year the Company sets aside a day for a “Right Side
Up” meeting. This is a meeting where management reviews
with the employees the past year and discusses the upcoming
year’s plans and procedures. The 1997 annual meeting was
held at the Hilton Hotel in East Brunswick and employee atten-
dance was mandatory. There is no question but that manage-
ment considers this meeting to be very important.

1 The parties agreed to incorporate the record made in the arbitration
proceedings.
On March 5, 1997, Reilly conducted a union meeting of the
Piscataway sales employees. He testified that at this meeting,
some of the employees expressed their displeasure at being
required to attend the “Right Side Up” meeting scheduled for
March 10. (Some of the more senior employees said that they
should boycott the meeting, whereas some of the more junior
employees were in favor of getting a day off with pay and
food.) As the time was getting short, Reilly adjourned the
meeting and when employees asked to discuss this further,
another meeting was scheduled for Friday morning, March 7, at
5:30 a.m.
In the meantime, Manager Vaughan Dickinson2 testified that
around March 5, 1997, he began to hear rumors to the effect
that some employees wanted to boycott the “Upside Down”
meeting.
Having obtained permission to hold a union meeting, Reilly
met with over 80 employees in a conference room located on
the company’s premises. The meeting did not commence until
about 5:45 a.m. as he waited for employees to show up. It was
held in a walled off area which was quite large. According to
Reilly, there commenced a loud and vociferous debate about
the upcoming “Right Side Up” meeting, with several employ-
ees urging that the entire group refuse to attend. On the other
hand, he testified that other employees wanted to attend the
meeting. For his own part, Reilly testified that he remained
neutral on the question and did not urge, direct, or solicit any
employees to refuse to go to the meeting. He testified that his
position in the room was at the far end, away from the adjoin-
ing copy room.
Dickinson arrived at work on March 7, at about 4:45 a.m.
and made his rounds of the facility. According to Dickinson,
when, at 5:45 a.m., he arrived at the copy room, he overheard a
commotion in the adjoining room where the union meeting was
in progress. Dickinson testified that as the talk was loud
enough to go through the wall, he stopped to listen when he
heard statements indicating that employees were being urged to
boycott the “Right Side Up” meeting. He testified that he heard
Reilly yelling in an “intimidating and threatening” manner and
that he specifically heard Reilly stating that unless an employee
had an attendance problem; “I don’t care if they fire me or sue
me, there’s no good reason to go to the meeting on Monday.”
According to Dickinson, he overheard Reilly saying that “we
need action now,” and that “we need unity.” He states that
when he heard additional statements indicating the possibility
of a boycott he left the copy room in order to inform Unit Man-
ager Bryan Semple about what was going on.
According to Dickinson, he couldn’t find Semple and so, af-
ter a few minutes, he went back to the copy room to find out
what else was being said about a boycott. He states that he
heard Reilly say that the employees should call in sick so that
they wouldn’t get into trouble. Dickinson also claims that he
heard Reilly say that the Union would keep track of any em-
ployees who attended the “Right Side Up” meeting and that
2 At that time, Dickinson was the product availability manager at
Piscataway. At the time of the hearing, he had been promoted to an-
other job at a different location.

PEPSI-COLA CO. 477
those who did could be called up before the Union’s “E-
Board.” (Executive Board?) At this point, according to Dick-
inson, the topic changed to a discussion about a pending griev-
ance and he then left the copy room.
As testified to by Reilly, there is no question but that some of
the employees at the March 7 meeting strongly urged, in loud
voices, that all refuse to attend the “Right Side Up” meeting.
Therefore, as Dickinson happened to be in the copy room and
without intending to do so, happened to overhear remarks lead-
ing him to believe that some of the employees were thinking of
engaging in a work stoppage prohibited under the terms of the
contract’s no-strike clause, it would not be unreasonable for
him to remain for a short time and listen for evidence about a
potential breach of the contract. Under such circumstances, I
do not believe that this single incident of “surveillance,” should
be considered to be a violation of the National Labor Relations
Act. Roadway Express, 271 NLRB 1238 (1984), Ordman’s
Park & Shop, 292 NLRB 953, 956 (1989).
At the conclusion of the meeting, Brian Semple, after receiv-
ing a verbal report from Dickinson, asked Reilly what had hap-
pened and Reilly said that it was none of his business. Accord-
ing to Reilly, when Semple insisted on knowing what had hap-
pened, he replied that all the employees were going to attend
the “Right Side Up” meeting if that was what Semple wanted to
know. Later in the morning, Reilly received a call from Union
Representatives Bernie Milazzo and John Schepis who said that
they had gotten a call from the Employer’s human resources
supervisor who told them that he heard that Reilly had in-
structed employees not to go to the “Right Side Up” meeting.
Reilly states that he responded that some of the people were
going crazy at the meeting, but that he had told them that the
“Right Side Up” meeting was mandatory and that they had to
attend. After that call, Milazzo and Schepis agreed to encour-
age the employees to attend the “Right Side Up” meeting.
At about 2:30 p.m., Reilly was called into the office by Hu-
man Resources Managers Nan Shea and Ann Schuster and was
questioned about what happened at the union meeting that
morning. At this point, Reilly asked to be represented by a
union officer and he was told that he was being suspended
pending investigation. He then was escorted out of the build-
ing.
The Employer’s stated reason for suspending Reilly on
March 7 was for “strike action” in violation of article 16 of the
collective-bargaining agreement. Article 16 states, in pertinent
part;

Shop Stewards and alternates have no authority to take
strike action, or any other action interrupting the Com-
pany’s business, except as authorized by official action of
the Union.
The Company recognizes these limitations upon the
authority of Shop Stewards and their alternates, and shall
not hold the Union liable for any unauthorized acts. The
Company in so recognizing such limitations shall have the
authority to impose proper discipline, including discharge,
In the event the Shop Steward or alternate has taken unau-
thorized strike action, slowdown, or work stoppage in vio-
lation of this Agreement.

As it turned out, the “Upside Down” meeting was held as
planned, on March 10 and attendance was at a normal level.
Prior to the meeting, the Union’s officers made efforts to con-
tact its members and urge them to attend the meeting.
The Respondent conducted an investigation in an attempt to
determine the facts of the matter. By arrangement with the
Union, a group of seven employees were interviewed with un-
ion representatives present. The Employer’s representatives
had a list of 14 questions designed to determine whether Reilly
or anyone else at the March 7 meeting urged a boycott of the
“Upside Down” meeting. These interviews were held on
March 11, 1997, and the employees who agreed to answer the
questions (some apparently refused to answer all or some of the
questions), either denied that Reilly made the alleged state-
ments or stated that they did not know if he made them. Some
suggested that others were responsible for the statements.
Reilly was also interviewed on March 11 and he stated that
he did not make any of the statements on the employer’s ques-
tion list.
Determining that neither Reilly nor the Union proved that
Reilly did not make the statements attributed to him by Dickin-
son, a decision was made to discharge him for violating article
16 of the contract.
III. ANALYSIS
A. Deferral to Arbitration
On March 11, 1997, Reilly filed a grievance and on March
19, 1997, the Union filed the instant unfair labor practice
charge. On February 27, 1998, the Board’s Regional Director
issued a letter to the parties indicating that he would, pursuant
to Collyer Insulated Wire, 192 NLRB 837 (1971), defer further
processing of the charge to arbitration.
At the arbitration hearing, evidence on the merits of Reilly’s
suspension and discharge was presented by both sides and, as
noted above, the transcript and exhibits of that hearing were
incorporated into the present record. Nevertheless, the Re-
spondent argued and the arbitrator agreed that because the
grievance was not signed by the grievant, it was fatally defec-
tive under the terms of the collective-bargaining agreement.
The arbitrator therefore rejected the grievance on this proce-
dural ground, notwithstanding the fact that she was aware that
there was an outstanding unfair labor practice case, which was
being deferred to arbitration.
By letter dated October 23, 1998, the Regional Office noti-
fied the Employer that because the arbitrator had refused to
decide the matter on the merits, it would proceed with the un-
fair labor practice case, unless the Employer requested, within
15 days, that the arbitrator reconsider her decision and decide
the case on the merits. This, the Employer did on November
16, 1998, but when the Union did not agree to have the arbitra-
tor reconsider her decision, the arbitrator refused to do so.
When that happened, the Regional Director issued the instant
complaint so that the matter would finally be heard on its mer-
its.
In Collyer, supra, the Board established a policy that if an
arguably meritorious unfair labor practice charge was filed in a
context where there existed a collective-bargaining agreement
containing an arbitration clause, then the Board would compel
the charging party, in the absence of evidence showing a con-
flict of interest or other evidence warranting a conclusion that
the arbitration process would be unfair, to take the matter to
arbitration even if it did not want to do so. After a decision was
rendered by the arbitrator, the Regional Director could then

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 478
review the award under the standards of Spielberg Mfg. Co.,
112 NLRB 1080 (1955).3
There is nothing in the statute that compels the Board to de-
fer its own proceedings to arbitration; this policy clearly being
a matter of discretion. Collyer Insulated Wire, supra at 840,
Hallmor, Inc., 327 NLRB No. 61 (1998). Moreover, the entire
deferral policy is premised on the assumption that if deferred,
the arbitrator will hear and decide the merits of the dispute.
Thus, the Board has stated that it will not defer a matter to arbi-
tration unless the Respondent agrees to waive the procedural
question regarding whether the grievance was timely filed.
United Technologies Corp., 268 NLRB 557, 560 fn. 22 (1984).
In the present case, the Respondent prevailed upon the arbi-
trator to decide the arbitration case on a procedural ground and
not on the merits of the dispute. Therefore, as the arbitration
never made a decision on the merits, her decision cannot be the
basis of deferral. While it is true that that the Respondent did
ultimately ask the arbitrator to reconsider the matter and to
decide the case on the merits (after the Region indicated that it
was going to issue a complaint), the arbitrator refused to do so.
In my opinion, once the arbitrator refused to consider the case
on the merits it was at best, no longer efficient and at worst,
fruitless to have the matter resubmitted to her for further find-
ings. In my opinion, one bite at the arbitration apple is enough
and the Company, having taken the tack of having the dispute
dismissed at the arbitration level on procedural grounds, should
no longer have the option of forcing the Union into further
delays by having a potentially viable statutory claim (the unfair
labor practice charge), wait upon its resubmission to the arbitra-
tor.
B. The Merits
As a factual question, this case boils down to whether it was
Reilly who made the statements at the March 7 union meeting,
which amounted to a call for a partial work stoppage. On one
hand, we have Dickinson, who asserts that while at the copy
machine, he could hear, through a wall, that it was Reilly who
made such statements. On the other hand, we have Reilly who
asserts that although there were people in the room who did
urge members to boycott the “Upside Down”meeting, it was
not he who did so.
Despite the fact that there were over 80 other potential wit-
nesses, neither the General Counsel, the Union, nor the Com-
pany presented, either in the arbitration case, or in the matter
before me, any other persons to testify as to who said what at
the March 7 meeting.
The Company’s position on the merits is that if Reilly, on
March 7, 1997, urged the employees to boycott the “Upside
Down” meeting, this was tantamount to strike action under the
terms of article 16 of the contract, and that pursuant to the ex-
plicit terms of that clause, Reilly was subject to discharge.
Likewise, the Company argues that if Reilly’s actions and
statements at the meeting are construed as a call for an unau-
thorized strike in breach of the contract’s no-strike clause, such
action is not protected under the National Labor Relations Act
and he may legitimately be discharged for such conduct.

3 In Spielberg Mfg. Co, the Board held that where an arbitrator has
ruled on a dispute that is coextensive with allegations of the charge, the
Board will dismiss the unfair labor practice allegation assuming that the
arbitrator's findings are fair and regular and that the arbitrator consid-
ered the unfair labor practice aspects of the case and did not misapply
Board law.

This is a case where Reilly was engaged in union/protected
activity at the time that he allegedly made the offensive re-
marks. Therefore, I think the General Counsel is correct in
applying the principles of NLRB v. Burnup & Sims, 379 U.S. 21
(1964). In that case, the employer disciplined an employee for
misconduct it reasonably believed was engaged in at a picket
line. In such circumstance, the Court held that the employer
may defend its disciplinary action by showing that it had an
honest belief that the employee engaged in serious misconduct.
The Court also held, however, that the General Counsel may
overcome that defense if he shows that the employee did not, in
fact, engage in the alleged misconduct. See also Beaird Indus-
tries, 311 NLRB 768, 769 fn. 7 (1993).
I have no doubt that Dickinson overheard remarks on the
morning of March 7, which could reasonably be construed as
calling for a boycott of the “Upside Down” meeting. I also
think that he honestly believed that such remarks were made by
Reilly. But I am not persuaded that a reasonable person could
have been all that certain that the remarks heard by Dickinson
came from Reilly. Dickinson heard them through a wall sepa-
rating the conference room from the copy room and the evi-
dence indicates that Reilly was standing at the opposite end of
the room, about 50 feet away. I also note that Dickinson did
not overhear the entire meeting and that he did not see any of
the speakers.
Reilly denied that he made the remarks attributed to him by
Dickinson and testified that others at the meeting urged that the
employees boycott the “Upside Down”meeting. His testimony
was that this was a boisterous and loud meeting and that before
its end, he told the employees that they had to go to the “Upside
Down” meeting. Although the Respondent contends that
Reilly’s testimony at this hearing was substantially different
from that in the arbitration hearing or during the company’s
interview of him on March 11, I do not believe that these pur-
ported discrepancies amount to all that much and are not suffi-
cient to conclude that the opposite of his testimony must be
true.
The Respondent makes a big point of the fact that neither the
General Counsel nor the Charging Party presented any wit-
nesses to corroborate Reilly’s testimony as to what took place
at the March 7 meeting. Given the fact that there were over 80
union members present at that meeting, I can only wonder why
they did not choose to present at least one corroborating wit-
ness. Nevertheless, these people, all of whom were employed
by the company, were also available as potential witnesses to
the Respondent, which was free, within the parameters of
Johnnies’ Poultry Co., 146 NLRB 770 (1964), enfd. denied 334
F.2d 617 (8th Cir. 1965), to have its representatives interview
these employees in preparation for this trial and to compel their
attendance by use of subpoenas.4 Therefore, in the context of
this case, the nontestimony of corroborating witnesses seems to
me to present a standoff.
The lack of any corroborating witnesses presents me with the
prospect of having to make a difficult decision about what
should have been a relatively simple matter to decide.
On balance, I conclude that Dickinson had an honest belief
that Reilly, during the course of a protected union meeting,
4 For a discussion of Johnnies Poultry and later cases, see the Devel-
oping Labor Law, Third Edition, Chapter 6 at 126 and 127.

PEPSI-COLA CO. 479
made statements which could be construed as calling for a work
stoppage. On the other hand, although honestly held, his belief
that it was Reilly who made these statements seems to be to de
facto uncertain, given the particular circumstance in which
Dickinson heard them. As such, it is my opinion, that the Gen-
eral Counsel has presented credible evidence, sufficient to
overcome the Respondent’s honest belief defense. Accord-
ingly, I conclude that by suspending and thereafter discharging
Reilly, the Respondent violated Section 8(a)(1) and (3) of the
Act.
CONCLUSIONS OF LAW
1. By suspending and discharging Sean Reilly because of his
activities on behalf of Local 125, International Brotherhood of
Teamsters, AFL–CIO, the Respondent has violated Section
8(a)(1) and (3) of the Act.
2. The Respondent has not violated the Act in any other
manner alleged in the complaint.
3. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily suspended and dis-
charged Sean Reilly, it must offer him reinstatement and make
him whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of his suspension to date of
his reinstatement or a valid reinstatement offer, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended5
ORDER
The Respondent, Pepsi-Cola Company, Piscataway, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending or discharging any employee because of their
membership in or activities on behalf of Local 125, Interna-
tional Brotherhood of Teamsters, AFL–CIO.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Sean
Reilly, full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed and make him whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension and discharge
of Sean Reilly and within 3 days thereafter notify him in writ-
ing that this has been done and that the suspension and/or dis-
charge will not be used against him in any way.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(d) Within 14 days after service by the Region, post at its fa-
cility in Piscataway, New Jersey, copies of the attached notice
marked “Appendix.”6 Copies of the notice, on forms provided
by the Regional Director for Region 22, 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. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since March 11, 1997.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

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 ordered 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 protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge or otherwise discriminate against any
of you because you engage in union or concerted activity for
mutual aid and protection.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 480
WE WILL, within 14 days from the date of the Board’s Order,
offer Sean Reilly immediate and full reinstatement to his for-
mer job or, if that job no longer exist, to a substantially equiva-
lent position, without prejudice to his seniority or any other
rights or privileges previously enjoyed and WE WILL, make him
whole for any loss of earnings and other benefits resulting from
his discharge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful suspension
and discharge of Sean Reilly and WE WILL, within 3 days there-
after, notify him in writing that this has been done and that such
disciplinary actions will not be used against him in any way.

PEPSI-COLA COMPANY