Pepsi-Cola Co.

National Labor Relations Board - Board Decisions

Jan 26, 2001

333 N.L.R.B. 87 (N.L.R.B. 2001)

PEPSI-COLA CO. 87
Pepsi-Cola Company and Local 125, International
Brotherhood of Teamsters, AFL–CIO. Case 22–
CA–21941
January 26, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On February 1, 2000, Administrative Law Judge Ray-
mond P. Green issued the attached supplemental deci-
sion.1 The General Counsel filed exceptions and a sup-
porting brief, and the Respondent 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 decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.

1 On January 10, 2000, the Board issued a Decision and Order in the
above-captioned case. 330 NLRB 474. In its decision, the Board
found it necessary to remand the proceedings to the judge for further
findings and conclusions as to whether the Respondent unlawfully
suspended and discharged employee and Shop Steward Sean Reilly
because of his protected activity. Specifically, the Board found a re-
mand necessary for the judge to make further findings, under the test
set forth in NLRB v. Burnup & Sims, 379 U.S. 21 (1964), as to: (a)
whether the Respondent had an honest belief that Reilly engaged in the
misconduct attributed to him; and (b) if so, whether the General Coun-
sel carried his burden of showing that Reilly did not engage in the
misconduct. The judge’s supplemental decision addresses the issues
that were the subjects of the remand.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule the ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The General Counsel also argues that even accepting the judge’s
credibility findings, Reilly did not engage in serious misconduct be-
cause his call for employees to engage in a partial work stoppage did
not violate the contractual no-strike clause, which prohibited shop
stewards from “tak[ing] strike action . . . except as authorized by offi-
cial action of the Union.” According to the General Counsel, the clause
did not authorize the Respondent to discipline or discharge a shop
steward for merely soliciting employees to engage in a strike. The
General Counsel’s argument was implicitly rejected by our remand for
a Burnup & Sims analysis, which the judge found—and we adopted—
as the appropriate analysis for determining the lawfulness of Reilly’s
discharge. Accordingly, the General Counsel’s argument raises issues
beyond the scope of the remand.
Member Liebman did not participate in the Board’s prior decision
remanding this proceeding to the judge for a Burnup & Sims analysis.
She questions whether that analysis is correct because it rests on the
premise that the contractual language constituted a clear and unmistak-
able waiver of Reilly’s right to have such a discussion with employees
about a possible strike. Nevertheless, she agrees with her colleagues
that this issue is beyond the scope of the remand.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Tara Levy, Esq., for the General Counsel..
Richard R. Boisseau, Esq. and G. Paris Sykes Jr., for the Em-
ployer.
James L. Linsey, Esq., for the Union.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was tried before me on February 17, 1999. On, April 15,
1999, I issued a Decision and Order finding that the Respon-
dent violated Section 8(a)(1) and (3) of the Act by discharging
Sean Reilly because of his activities on behalf of Local 125,
International Brotherhood of Teamsters, AFL–CIO. I also con-
cluded that the Respondent did not engage in unlawful surveil-
lance. However, on January 10, 2000, the Board remanded
this case to me for further findings and conclusions.
In the original decision I concluded that the legal standard
applicable to this case was the one enunciated in NLRB v. Bur-
nup & Sims, Inc., 379 U.S. 21 (1964).
Reilly was a shop steward at the Company’s Piscataway fa-
cility, representing about 150 employees and a new labor
agreement had been executed by the parties which engendered
some dissatisfaction among some of the work force because of
certain give-backs that were made.
On March 5, 1997, Reilly conducted a union meeting of Pis-
cataway employees where some indicated that they did not
wish to attend a Company-mandated meeting called the Upside
Down meeting scheduled for March 10. That meeting was in-
conclusive, and Reilly asked and received permission from the
Company to hold another meeting early on the morning of
March 7, 1997.
The meeting on March 7, 1997, was held in a conference
room located on the Company’s premises and commenced at
about 5:45 a.m. Reilly presided and employees expressed their
views on whether to attend the Right Side Up meeting. Reilly
testified that some employees stated that the group should not
attend the meeting while others stated that they should. Reilly
asserts that he did not express a position and denies that he
urged any employees to boycott the meeting.
Dickinson, who arrived while the meeting was in progress,
went into the copy room that abuts the conference room where
the meeting was in progress. He testified that he overheard
Reilly stating that unless an employee had an attendance prob-
lem; “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 Dickin-
son, he overheard Reilly saying that “we need action now,” and
that “we need unity.” Dickinson also testified that after leaving
and returning, he heard Reilly tell employees to call in sick so
that they would not get in trouble and that he further heard
Reilly warn employees that the Union would be watching who
attended the Right Side Up meeting.
Based in large measure on demeanor considerations, Dickin-
son was, in my opinion, an honest witness. Therefore, I felt
that he had an honest opinion that the statements he heard were
333 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 88
made by Reilly. He had dealings with Reilly in the past and
was familiar with his voice. As Reilly was the shop steward
and was conducting the meeting, I have no doubt that Dickin-
son, either consciously or unconsciously, associated the voice
he heard with that of Reilly. Thus, in my opinion, Dickinson,
had an honest subjective belief that the voice he heard was
Reilly’s and that it was Reilly who was making the statements
which, in essence, could be construed as urging a boycott of the
Right Side Up meeting. In this regard, I also note that there
was no evidence of ill feeling between Dickinson and Reilly or
any other evidence tending to show that Dickinson or the Com-
pany’s management engaged in a plot to frame Reilly for some-
thing he didn’t do.
I also noted that at the time that Dickinson overheard these
remarks he was in another room, separated by a wall and was at
least 50 feet away from where Reilly was standing. This there-
fore raised in my mind, the question of whether or not his hon-
est belief was nevertheless reasonably based on objective facts.
To put it another way, it certainly is possible and often occurs
that people have honest beliefs which are nevertheless inaccu-
rate, either because of bias, insufficient ability to perceive,
failure of recollection or simple mistake. To my mind, the fact
that I concluded that Dickinson had an honest belief that it was
Reilly making the statements is not contradicted by the fact that
Dickinson, because of his location, may very well have been
mistaken.
In any event, the decision to discharge Reilly was not made
by Dickinson. It was made by higher management after the
Company made an investigation of the matter in an attempt to
ascertain if it was Reilly who in fact urged employees to boy-
cott the Right Side Up meeting. When initially confronted by
Brian Semple about the meeting, Reilly said that it was none of
his business. Thereafter, the Company tried to interview a
number of employees who attended the meeting. Some refused
to be interviewed, some refused to answer some questions, and
others stated either that Reilly was not the person who made the
remarks at issue or that they did not know if he made them.
Ultimately, the Company’s management decided to rely on
Dickinson’s version of what he heard and to reject Reilly’s
denials. Thereupon a decision was made to discharge Reilly.
The interview results from the other employees could be
viewed as ambiguous inasmuch as many refused to cooperate.
Indeed the outcome of the process could have left a reasonable
impression that employees were covering up for Reilly.
I therefore reiterate my conclusion that Dickinson and Gilli-
gan, based on Dickinson’s report, had an honest, if not particu-
larly reliable opinion, that it was Reilly who, at the meeting on
March 7, urged employees to boycott the Right Side Up meet-
ing. Notwithstanding its unreliability, I would nevertheless
conclude that the belief was based on facts which could have
been construed to link Reilly to statements which, in their es-
sence, admittedly were made by a person or persons at the
March 7 meeting. Thus, it is my opinion that the belief asserted
is more than a mere assertion of an “honest belief.” See Gen-
eral Telephone Co., 251 NLRB 737, 739 (1980), enfd. 672 F.2d
895 (D.C. Cir. 1981). This, therefore, serves to shift the burden
to the General Counsel to prove that Reilly did not make the
remarks attributed to him by Dickinson and I change my mind
and find that the Company did not violate the Act by discharg-
ing him.
In my earlier decision, I noted that neither the General Coun-
sel, the Charging Party, nor the Respondent called a single
witness other than Reilly or Dickinson to testify about what
took place at the meeting held on March 7. I originally felt that
this was a wash inasmuch as the Respondent could have inter-
viewed employees on this point and presented its own wit-
nesses. On reflection, I have changed my mind.
The fact is that the Company did attempt to interview em-
ployees and although some denied that Reilly made the attrib-
uted statements, it is significant to me that some refused to be
interviewed at all while other employees refused to answer
pertinent questions. Thus, the Company’s original attempt to
interview employees was not particularly successful and there
is no reason to believe that it would have had any more success
in obtaining voluntary cooperation from employees for the
unfair labor practice hearing. (At the same time risking the
filing of new charges alleging interrogation.)
In my opinion, counsel for the General Counsel or other Re-
gional office personnel, had a much better chance of obtaining
cooperation from some of the more than 80 employees who
attended the meeting. After all, NLRB personnel are neutral
vis a vis the Company and the Union. The fact that counsel for
the General Counsel did not call a single witness to corroborate
Reilly’s testimony is particularly damaging to his credibility
because of the availability of those people and their presumed
sympathy to the Union and their shop steward. I simply find it
improbable that the General Counsel couldn’t find at least one
other person who could corroborate Reilly’s testimony.
I have concluded above, that the Respondent has presented
sufficient credible evidence that it had an honest belief that it
was Reilly who urged employees to engage in what would, in
effect, be a work stoppage in violation of the collective-
bargaining agreement’s no-strike clause. Accordingly, as the
burden shifts to the General Counsel to prove that Reilly did
not engage in this type of conduct, and as I do not now find his
denial credible in light of the record as a whole, I shall recom-
mend that the allegations of the complaint that the Respondent
suspended and discharged him in violation of Section 8(a)(1)
and (3) of the Act be dismissed.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
It is recommended that the complaint be dismissed in its en-
tirety.

1 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.