Yuma Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

May 23, 2003

339 N.L.R.B. 67 (N.L.R.B. 2003)

YUMA COCA-COLA BOTTLING CO. 67
BCI Coca-Cola Bottling Company of Los Angeles
d/b/a Yuma Coca-Cola Bottling Company and
United Industrial, Service, Transportation, Pro-
fessional & Government Employees of North
America, SIUNA, AFL–CIO. Case 28–RC–6066
May 23, 2003
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held May 15, 2002, and the hearing officer’s report rec-
ommending disposition of them. The election was con-
ducted pursuant to a Stipulated Election Agreement. The
tally of ballots shows 10 for and 11 against the Peti-
tioner, with no challenged ballots.
The Board has reviewed the record in light of the ex-
ceptions and briefs and has decided to adopt the hearing
officer’s findings1 and recommendations,2 only to the
extent consistent with this Decision and Direction of
Second Election.
The hearing officer found merit in the Petitioner’s Ob-
jection 4, which alleged that the Employer threatened
employees with the loss of 401(k) benefits if the Union
won the election. We agree with the hearing officer’s
recommendation to sustain the Petitioner’s Objection 4,
but only for the following reasons.
A. Factual Background
The underlying facts are not in dispute. During the
Union’s organizing campaign, but approximately 1-1/2
months prior to its filing the election petition, Tom Cook,
an employee at the Coca-Cola Bottling plant in Yuma,
Arizona (Employer), approached Branch Manager Jon
Pitts and inquired about the effects of unionization on the
employees’ current 401(k) benefit plan. Branch Manager
Pitts told Cook that “with the Union, there is no 401(k).”
Cook repeated this statement to other employees in the
21-employee unit “that were looking at joining the Un-
ion,” and the employees became concerned about the
potential loss of their benefits program if they chose un-

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
2 In the absence of exceptions, we adopt, pro forma, the hearing offi-
cer’s recommendations that the Petitioner’s Objections 1 through 3, 5,
and 7 be overruled. The Petitioner withdrew Objection 6 at the hearing.
ionization. The employees voiced these concerns at sev-
eral mandatory meetings held by the Employer.
Employee disquiet over the 401(k) issue continued af-
ter the Union filed its petition for representation on April
17, 2002. In response, the Employer made three addi-
tional statements concerning the petitioned-for employ-
ees’ continued ability to participate in the 401(k) pro-
gram if the Union prevailed in the election. First, the
Employer posted a flier containing the following “ques-
tion and answer”:
Is it illegal for the company to take away your 401k
(MESIP) if it is no longer the same benefit provided in
a union contract?
Any funds you currently have in the Company (401k)
MESIP would remain. However, you would no longer
be eligible to neither contribute to this MESIP program
nor receive matching company contributions.
The Employer took this posting down after one-half day,
and later admitted that it was “confusing.”
One week before the election, the Employer sent a let-
ter to each employee stating that if the Union won the
election, the MESIP would be a subject for negotiations
but that, to date, no union/company contract included it,
and Yuma “would be the first among hundreds of com-
pany contracts across the country to get” such benefits.
Finally, in a mandatory meeting held the morning before
the election, the Employer again informed unit employ-
ees that it would negotiate with the Union about the
401(k) plan if the Union were elected, but noted that, if
the Union were to succeed in getting such a plan, “your
contract would be the very first one in the country be-
tween any union and a CCE Bottling Company” to in-
clude such benefits.
B. Analysis
This case is governed by the principle that while a pre-
election threat alone is insufficient to overturn an elec-
tion, such a threat can be considered insofar as it adds
“meaning and dimension” to postpetition statements.
Dresser Industries, 242 NLRB 74 (1979). At the start of
the union organizing campaign, but before a petition was
filed, the Employer made a direct threat that employees’
401(k) benefits would be lost, if the Union won the elec-
tion. Predictably, that statement was widely dissemi-
nated among employees and triggered concerns, voiced
at management meetings. Once the critical period began,
in turn, the Employer made statements that employees
reasonably could construe—in light of the original threat
—as effectively reaffirming the original threat. Those
statements, as we will explain, reasonably tended to in-
terfere with employees’ freedom of choice in the elec-
tion.
339 NLRB No. 14
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68
The original statement made by Branch Manager Pitts
was that “with the Union, there is no 401(k).” After that
threat was made and disseminated, the Employer’s ac-
tions during the critical period did not clearly disavow
that threat and reassure employees that selection of the
Union would not result in the immediate loss of benefits.
Instead, the Employer made statements that, under the
circumstances, were likely to exacerbate employees’
fears.
For example, in its posting to employees, the Em-
ployer made a broad statement that employees “would no
longer be eligible to neither contribute to this MESIP
[401(k)] program nor receive matching company contri-
butions.” Employees reasonably could have viewed this
statement as a restatement, during the critical period, of
Pitts’ threat that an existing benefit would no longer be
available to employees if they selected the Union as their
representative. The Employer has presented no evidence
that persuades us to the contrary.
Our dissenting colleague analyzes the Employer’s
campaign literature in isolation from the prepetition
threat to eliminate a benefit. By doing so, he would ef-
fectively allow the Employer to capitalize on its prior
threat, by ambiguously renewing it. He acknowledges
that what the Employer actually meant by stating that
employees “would no longer be eligible to neither con-
tribute to this MESIP program” is confusing. But he
dismisses the possibility of a threatening implication by
observing that the statement “clearly does not say that
the eligibility to participate in the 401(k) MESIP plan
would automatically be lost upon unionization.” What
matters, however, is not the absence of a second un-
equivocal threat, but rather the absence of any clear as-
surance, following the first threat, that employees would
not automatically lose the right to continued participation
in the 401(k) program. It was the Employer who resur-
rected the subject of Pitts’ original threat, which had
caused such widespread employee apprehension. Thus,
it was incumbent on the Employer not to exacerbate the
situation. Its confusing statement could reasonably have
had that effect, because the Employer never clearly ex-
plained that it was legally obligated to maintain the status
quo with respect to the 401(k), unless and until a differ-
ent arrangement was negotiated.3
Further, although the Employer did state its intent to
bargain with the Union over the 401(k) benefits (in its

3 Our dissenting colleague misunderstands our analysis here which
relies on the critical-period posting as being a restatement of the earlier
threat. Our reference to there being an “absence of any clear assur-
ance” by the employee that no benefits would be lost relates solely to
why this critical period posting was confusing and could reasonably be
seen as exacerbating the situation.
letter to employees and at the mandatory meeting on
May 14), these general statements about the bargaining
process were insufficient to cure its earlier threat. See
Noah’s New York Bagels, 324 NLRB 266, 267 (1997).
Against the backdrop of Pitts’ blanket threat and its wide
dissemination among unit employees, employees rea-
sonably could construe the Employer’s references to bar-
gaining as meaning simply that the Employer would be
willing to bargain over restoring the 401(k) benefit after
it was eliminated upon unionization. An employer’s
general explanations of the bargaining process—even
explanations more comprehensive than those here—are
insufficient to dispel the lasting impression that a benefit
lost upon unionization would remain lost unless and until
it was restored through negotiations. See Hertz Corp.,
316 NLRB 672 fn. 2 (1995).4 Indeed, the Employer’s
statements following its initial threat clearly sent the
message that bargaining efforts would be futile, by uni-
formly emphasizing that no such benefit had ever been
previously negotiated between the Employer and the
Union.5
In sum, given the employee apprehension created by
the Employer’s prepetition threat, the employees rea-
sonably could construe the Employer’s critical period
statements as implying that they would lose their right to
participate in existing benefit programs upon the selec-
tion of the Union as their bargaining representative. This
is particularly true given the economic dependency of
employees on their employer and the tendency for the
former to “pick up intended implications” from the latter
“that might be more readily dismissed by a more disin-
terested ear.” NLRB v. Gissel Packing Co., 395 U.S.
4 We recognize that the facts in this case are different from those in
Hertz, but not in crucial respects. There, the Board found objectionable
the employer’s distribution to employees of a summary of its 401(k)
benefits, which included a provision excluding union members from the
company’s 401(k) plan. 316 NLRB at 672 fn. 2. The Hertz Board
concluded that the employer’s distribution suggested that unionization
would trigger the loss of the plan. While there was no written distribu-
tion in this case, the Employer here made an equivalent, explicit oral
threat of immediate loss of benefits upon unionization, which was
effectively reasserted during the critical period. In this context, the
Employer’s cursory references to its bargaining obligations are likewise
insufficient to dispel the effect of its earlier misconduct.
5 We find no merit in our dissenting colleague’s suggestion that the
Employer’s three statements during the critical period are protected
under Sec. 8(c) of the Act. The Board has long maintained that Sec.
8(c) was intended by Congress to apply only to unfair labor practice
cases and is not, by its terms, applicable to representation cases. See,
e.g., Rosewood Mfg. Co., 263 NLRB 420 (1982); Hahn Property Man-
agement Corp., 263 NLRB 586 (1982); Dal-Tex Optical Co., 137
NLRB 1782, 1787 fn. 11 (1962). More to the point, if an employer
uses factual information as a means to convey an objectionable mes-
sage, the Board traditionally has not allowed this “brinksmanship” to
undermine employee free choice. See, e.g., Turner Shoe Co., 249
NLRB 144, 146–147 (1980).

YUMA COCA-COLA BOTTLING CO. 69
575, 617 (1969). The Employer’s failure to directly dis-
avow or correct its prepetition statement (by explicitly
informing employees that election of the Union would
not result in automatic loss of benefits), combined with
its repeated reminders that it was extremely unlikely that
the 401(k) benefit would be continued were the Union
selected, only served to reinforce the Employer’s earlier
direct threat.
Under these circumstances, and particularly noting that
the election was decided by a single-vote margin, we
sustain Petitioner’s Objection 4, set aside the election,
and direct that a second election be held.
[Direction of Second Election omitted from publica-
tion.]

CHAIRMAN BATTISTA, dissenting.
Contrary to my colleagues, I find no merit in the Un-
ion’s Objection 4. I would therefore overrule that objec-
tion and certify the results of the election.
I agree with my colleagues’ statement of the facts. In
my view, the Employer’s prepetition statement (“with the
Union, there is no 401(k)”) could be construed as a threat
to take away benefits immediately upon unionization, or
as a prediction that the union would not be able to obtain
a 401(k) plan in bargaining. In any event, the statement,
being outside the critical period, cannot form the basis
for objectionable conduct. See Ideal Electric & Mfg.
Co., 134 NLRB 1275 (1961).1
My colleagues say that the posting in the critical pe-
riod was a “restatement of the earlier threat.” Clearly, it
was not. Although the posting dealt with the same sub-
ject matter, it was not a repetition of what was said be-
fore.
My colleagues then suggest that a threat made outside
the critical period is objectionable if the threat is not af-
firmatively disavowed within the critical period. For
example, they say that the posting “did not clearly dis-
avow” the earlier statement, and that there was an “ab-
sence of any clear assurance” that no benefits would be
lost. This argument has no merit. For, as my colleagues
concede, a threat uttered prior to the critical period is not
objectionable, even if the employer says nothing about it
during the critical period. And yet, my colleagues say
that statements made within the critical period, not in and
of themselves objectionable, become objectionable by
reason of what they fail to say. There is no case support
for this position.

1 See also Amalgamated Clothing & Textile Workers Union v.
NLRB, 736 F.2d 1559, 1567 (D.C. Cir. 1984) (finding prepetition con-
duct will not warrant a new election “absent extremely unusual circum-
stances,” and finding prepetition verbal threats do not warrant a second
election).
My colleagues then assert that the Employer’s state-
ments within the critical period exacerbated the situation.
In truth, as set forth below, these employer statements,
taken as a whole, make it clear that: (1) 401(k) benefits
are negotiable; and (2) the Employer was predicting that
the Union would not be able to achieve them in bargain-
ing.
Concededly, the postpetition flyer, viewed in isolation,
did not make these matters clear. It is a response to a
hypothetical situation in which there is a union contract
that does not contain the 401(k) MESIP benefit. The
first sentence of the response is that any funds in the
401(k) MESIP account would remain. The second sen-
tence of the response is confusing as to what it says.
However, there is no confusion as to what it does not
say. It clearly does not say that eligibility to participate
in the 401(k) MESIP plan would automatically be lost
upon unionization. That reading of the response would
be true only if the words “neither” and “nor” were ig-
nored. Rather, the response seems to indicate that, at
present, employees have the option to decline participa-
tion in the MESIP program (and its concomitant com-
pany contribution). The statement then suggests that this
option would be lost.
In any event, whatever the meaning of the response,
that response was removed after 1/2 day. Significantly,
the subsequent communications clarified the situation.
They made it clear that (1) the MESIP plan would be the
subject of negotiations with the Union, and (2) the Union
had thus far not been able to get MESIP at any company
facility.
These remarks were true and relevant. That is, the true
facts are that 401(k) plans are subject to negotiations;
such negotiations can result in the continuation of the
company plan, modifications of that plan, or no plan at
all; and the Union has thus far been unsuccessful in
achieving the continuation of the Employer’s plan.
Clearly, a message that is true and relevant is not ob-
jectionable. It is protected free speech. I recognize that
Section 8(c), on its face, refers to unfair labor practices
and not objections. However, the same policy considera-
tions (favoring free speech) that lie behind Section 8(c)
also lie behind the instant case. That is, a true and rele-
vant statement, not containing threats or promises,
should not be condemned as objectionable.2
2 The Board has held that while Sec. 8(c) is not by its terms applica-
ble to representation cases, “the strictures of the [F]irst [A]mendment,
to be sure, must be considered in all cases.” Allegheny Ludlum Corp.,
333 NLRB 734, 737 fn. 20 (2001), enfd. 301 F.3d 167 (3d Cir. 2002)
(quoting Dal-Tex Optical, supra, 137 NLRB 1782, 1787 fn. 11 (1962)).
See also NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70
My colleagues suggest that the Employer’s reference
to the Union’s historical inability to obtain the benefits in
a contract renders such statements objectionable. How-
ever, the Board has previously found that an employer’s
statements containing historical references to a union’s
prior failure to secure such benefits are not objectionable.
See, e.g., TCI Cablevision of Washington, Inc., 329
NLRB 700, 701 (1999).
Further, and contrary to the assertion of my colleagues,
the Employer did not simply make “general statements
about the bargaining process.” The Employer made par-
ticular statements about the Employer’s 401(k) plan and
expressed doubts about the Union’s ability to retain it in
bargaining with the Employer.
Finally, I find that Hertz Corp., 316 NLRB 672 (1995),
relied upon by the majority, has no application to this
case. In Hertz, the Board found objectionable conduct
based solely upon written exclusionary language con-
tained in the employer’s summary of its benefits. 316
NLRB at 672 fn. 2. Here, there has been no such explicit
and exclusionary language.
Accordingly, I would find that the Employer’s conduct
does not warrant setting aside the election.