Kantor Pepsi-Cola Bottling Co., of Beloit Wisconsin

KANTOR PEPSI-COLA BOTTLING CO. OF BELOIT, WISCONSIN 99 Kantor Pepsi-Cola Bottling Co. of Beloit, Wisconsin and General Drivers, Dairy Employees and Helpers Local Union No. 579, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-CA-5097 March 4, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On November 7, 1979, Administrative Law Judge William H. Dapper issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel filed exceptions and a brief, and Respon- dent filed an opposition brief which supported the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings and findings' of the Administrative Law Judge as modified herein. The Administrative Law Judge found, and we agree, that Respondent neither unlawfully dis- charged Conklin nor engaged in surveillance, ha- rassment, or interrogation of employees with re- spect to their union activities and sympathies. We do not agree with his dismissal of the allegation charging Lund, Respondent's vice president and general manager, with promising benefits to, and soliciting grievances from, an employee. Subsequent to Conklin's discharge and Lund's awareness of union activity among the employees, Lund summoned employee Lenz to his office os- tensibly for the purpose of explaining the circum- stances of Conklin's discharge, but where, accord- ing to Lenz's unrefuted testimony, Lund, in fact, attempted to persuade Lenz to deal directly with Respondent and coupled this with a promise of future benefits by remarking that "if a lot of people would come in and sit down and talk like we're doing, we could get a lot of problems solved around here, but nobody wants to talk-that there had been plans for better things in the shop but due to the situation now he couldn't say anything about The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. 248 NLRB No. 12 what was going to happen-that this [Coca-Cola union contract Lund then exhibited] shows you what a union would do for you. And you get a union and you make less money." Lund did not dispute any of the foregoing testi- mony and, in addition, admittedly told Lenz that he was "surprised that there was an interest in the union," and that "we have some good things planned" but he could not talk about them. Lund further testified, over objection, that his promise of "good things" to come had reference to the immi- nent sale of Respondent to a company which had a pension program and which, after acquiring Re- spondent, might provide Respondent's employees with a similar program. The Administrative Law Judge, without specifi- cally treating the solicitation portion of the allega- tion, credited Lund's reason for promising benefits and, on the basis of that subjective test, found no violation. It is obvious, however, that Lund's unex- pressed thoughts or belief have no bearing on the issue of whether his expressed statements have a tendency to interfere with employees' protected rights. We find, contrary to the Administrative Law Judge, that Lund's expressed statements con- stitute a clear attempt to dissuade employees from supporting the Union. Accordingly, we find that, by soliciting Lenz and, through Lenz, the employ- ees, to deal directly with Respondent in return for promised rewards if they did so, Respondent vio- lated Section 8(a)(1) of the Act.2 CONCLUSIONS OF LAW 1. The Respondent, Kantor Pepsi-Cola Bottling Co. of Beloit, Wisconsin, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By soliciting grievances from and by promis- ing benefits to employee Lenz and, through Lenz, to the other employees, Respondent engaged in unfair labor practices within the meaning of Sec- tion 8(a)(l) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act, we shall order Respon- dent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the purposes of the Act. 2 Dillingham Marine and Manufacturing Co., Fabri-Value Division. 239 NLRB No. 124 (1978); John L. Lutz Welding and Fabricating. Inc., 239 NLRB No 83 (1978). 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Kantor Pepsi-Cola Bottling Co. of Beloit, Wiscon- sin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Soliciting employee grievances and promising benefits to John Lenz, or any other employee for the purpose of dissuading employees from assisting or becoming members of the Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its plant in Beloit, Wisconsin, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respondent's authorized representative, shall be posted by it, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous place, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (b) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations not found herein. 3 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the oppor- tunity to present evidence, it has been decided that we violated the National Labor Relations Act, as amended. We have been ordered to take certain steps to correct our violation and have been or- dered to post this notice. We intend to abide by the following: The Act, as amended, gives all employees the following rights: To organize themselves into a labor orga- nization To form, join, or support unions To bargain as a group through representa- tives they choose To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities except to the extent that their employees' bargaining representative and their employer have a collective-bargaining agreement which imposes a lawful requirement that employees become union members. In recognition of these rights, we hereby notify you that: WE WILL NOT solicit grievances from or promise benefits to John Lenz or any other employee and thereby attempt to dissuade em- ployees from assisting or joining the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed under Section 7 of the Act. KANTOR PEPSI-COLA BOTTLING CO. OF BELOIT, WISCONSIN DECISION STATEMENT OF THE CASE WILLIAM H. DAPPER, Administrative Law Judge: This a proceeding under the National Labor Relations Act, as amended (hereinafter referred to as the Act). Based on a charge filed on February 26, 1979, by the General Driv- ers, Dairy Employees and Helpers Local Union No. 579, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica (hereinafter referred to as the Union), a complaint was issued on March 22, 1979, by the National Labor Relations Board (the Board) charging the Respondent, Kantor Pepsi-Cola Bottling Co. of Beloit, Wisconsin, with violations of Section 8(a)(1) and (3) of the Act. The issues in this proceeding as set forth in the com- plaint are as follows: A. Whether the Respondent violated Section 8(a)(3) and (1) of the Act by discharging, on February 6, 1979, its employee, Sidney P. Conklin, because of his union ac- tivities, and by discriminatorily failing and refusing to re- instate Sidney P. Conklin because of his union activities. B. Whether the Respondent violated Section 8(a)(l) of the Act by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act: KANTOR PEPSI-COLA BOTTLING CO. OF BELOIT. WISCONSIN 01 1. By the conduct of Rick Riesen on or about January 30 and 31, 1979, in surveilling and harassing an employee because of that employee's union sympathies and activi- ties. 2. By the conduct of Carl Lund, on or about February 9, 1979, on two separate occasions by interrogating an employee regarding that employee's union sympathies and activities and the union sympathies and activities of other employees. 3. By the conduct of Carl Lund on or about February 9, 1979, in promising benefits to and soliciting grievances from an employee. An answer was filed by the Respondent on March 27, 1979, admitting certain allegations of fact, but containing a general denial of the violations alleged in the com- plaint. Pursuant to due notice, a hearing was held at Janes- ville, Wisconsin, on August 15 and 16, 1979. The Gener- al Counsel of the Board and the Respondent were repre- sented at the hearing. All parties were given a full op- portunity to be heard, to introduce relevant and material evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs. Briefs were filed by the General Counsel and by Respondent on Septem- ber 21, 1979, and have been fully considered. Upon consideration of the entire record,' the briefs, and my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. URISDICTION The Respondent (hereinafter sometimes referred to as the Company) is a Wisconsin corporation engaged in the business of bottling soda drinks from its Beloit, Wiscon- sin, location. During the past calendar year, a representa- tive period, the Respondent purchased and received goods and material valued in excess of $50,000 directly from points located outside the State of Wisconsin. At all times material herein the Respondent is, and has been, an "employer" as defined in Section 2(2) of the Act, engaged in "commerce" and in operations "affect- ing commerce" as defined in Section 2(6) and (7) of the Act, respectively. II. THE LABOR ORGANIZATION General Drivers, Dairy Employees and Helpers Local Union No. 579, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. IIIl. STATUS OF SUPERVISORS At all times material herein the following named per- sons occupied the positions set opposite their names and have been, and are now, agents of the Respondent, acting on its behalf, and are supervisors within the mean- On September 28, 1979, the General Counsel filed a motion to cor- rect the transcript. The motion is granted, and the transcript is hereby corrected in the manner set forth in the General Counsel's motion. ing of Section 2(11) of the Act: Jacob Kantor, president; Carl Lund, vice president and general manager; and Rick Riesen, production manager. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Charge That the Respondent Violated Section 8(a)(3) and (1) of the Act by Discriminatorily Discharging Its Employee, Sidney P. Conklin 1. Background Kantor Pepsi-Cola employs approximately 68 employ- ees at its Beloit, Wisconsin, plant under the overall su- pervision of Vice President and General Manager Carl Lund. The production manager, Rick Riesen, supervises approximately 28 lineworkers and truckloaders. Riesen reports directly to Lund. Sidney P. Conklin was interviewed by Rick Riesen on October 25, 1978. Conklin was hired by Riesen and began working for the Respondent on October 30, 1978, as a production line employee. The record shows that the Respondent has a 90-day probationary period for new employees. At the end of that period, the Respondent reviews the performance of the employee in question to decide whether the employ- ee should be retained. Conklin testified that he did not know that the Respondent had a 90-day probation period. Witnesses Coakley and Lenz, however, both of whom are production workers at the Company, were aware of the 90-day probationary period, and their testi- mony on this point, as well as the testimony of Supervi- sors Riesen and Lund, is accepted as credible. During the 90-day period the Respondent gives stan- dardized raises to new employees after 30 days if their performance is satisfactory. The Respondent also gives an annual across-the-board increase to all employees, in- cluding those on probation, once each year at the begin- ning of January. Conklin received both increases. On February 6, 1979, Riesen called Conklin into his office and fired Conklin. Conklin testified that Riesen told him that it was Conklin's 90-day review; and that Conklin's work was poor. Riesen testified that he fired Conklin because Conklin had problems in certain mainte- nance assignments; Conklin had a run-in with one of the production line supervisors; Conklin falsified certain items on his employment application; and Conklin failed to adequately perform a truck unloading assignment. 2. Conklin's union activities The record shows that on or about December 20, 1978, Conklin met with Leonard Schoonover, a repre- sentative of Teamsters Local 579; and received union au- thorization cards from Schoonover at this meeting. Prior to his meeting with Schoonover, Conklin spoke to sever- al employees about the Union. About mid-January 1979, Conklin again spoke to several employees about the Union. On February 5, 1979, Conklin, during his lunch break, used a company telephone to call Schoonover to arrange a meeting between Schoonover and some of Conklin's fellow employees. After Conklin arranged the meeting with Schoonover, which was scheduled for February 8, 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1979, he mentioned it on February 5, 1979, to four of his fellow employees. 3. Analysis and conclusion It is found and concluded that the Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging its employee Sidney P. Conklin. The complaint charges that the Respondent discrimin- atorily discharged Conklin because of his union activi- ties; and the General Counsel argues that the facts and inferences to be drawn in this case will show that the un- derlying.basis for Conklin's discharge was the Respon- dent's hostility to Conklin's union activities. In order to sustain the charge in question, the General Counsel must show that the Respondent knew that Conklin was engaged in union activities, and that Conk- lin was discharged because of his involvement in those activities. 2 I turn now to the question of whether the Respondent knew that Conklin was engaged in union activities. There is no direct evidence showing that the Respondent knew of Conklin's union activities. However, it is well settled that a company's knowledge of the union activi- ties of one of its employees can be demonstrated by cir- cumstantial evidence, and that direct evidence is not re- quired. In this proceeding, however, there is no credible circumstantial evidence which indicates that either Riesen, Lund, or any other management personnel had any knowledge that Conklin was engaging in union ac- tivities. On brief, the General Counsel cites several events in support of its contention that circumstantial evidence re- quires the conclusion that the Respondent was aware of Conklin's union activities. Thus, the General Counsel urges that Carl Lund's remark to Conklin on February 5, 1979, regarding a strike at Warner Brake and Clutch, a neighboring company, constitutes substantial evidence that Lund knew of Conklin's union activities. Lund's tes- timony, however, persuasively explains why he made the remark in question. In this connection, Lund's testimony indicates that, on the afternoon of February 5, 1979, Lund was posting a newspaper article on the employee bulletin board regarding the strike at Warner Brake and Clutch. Lund testified that it was his long-time practice to put items of this type on the employee bulletin board. Lund also testified that, as he was posting the article, he noticed that Conklin was standing about 10 or 15 feet from the bulletin board, and was looking at what Lund was doing. Lund testified that Conklin's facial expression indicated that Conklin wanted to know what Lund was putting on the bulletin board. According to Lund, he then walked over to Conklin and said, in essence, that Warner Brake and Clutch had finally settled their con- tract dispute. Conklin then said, "Oh really?" Lund then said to Conklin, "[Y]eah, those damn unions." Lund then walked away. Although one could reasonably infer from this incident that Lund did not like unions, an inference that Lund made the remarks because he knew Conklin was engaged 2 Guidance d Control Systems Divison, Litton Systems, Inc., 217 NLRB 208 (1975). in union activities would not be warranted based on this incident. The General Counsel on brief also argues that the presence of Lund and Jacob Kantor in the plant early on the morning of February 6, 1979 (the day Conklin was fired), constitutes circumstantial evidence that the Re- spondent knew of Conklin's union activities. The pres- ence of these two officials so early in the morning was, however, credibly explained by Lund's testimony, and cannot reasonably be associated with Conklin's dismissal. With respect to Kantor, Lund testified that Kantor, the president of the Company, had returned to Beloit on February 5, 1979, from his winter home, and was in town for meetings in connection with the sale of the Company to a subsidiary of I. C. Industries.3 Lund also testified that he was in the plant early on February 6, 1979, because it was a Tuesday, and on Tuesdays Lund always came to the plant early because he held a staff meeting with his department heads, a practice which he had followed for more than 10 years. The suggestion by the General Counsel that Lund and Kantor were present in the plant early on the morning of February 6, 1979, to, in some fashion, supervise or moni- tor the discharge of a production line worker is simply not credible in the abstract, and, in any event, the sug- gestion is specifically refuted by the evidence. Contrary to the contention of the General Counsel, there is no sound basis for inferring that Lund was aware of Conklin's union activities because of any discussions Lund may have had with Helen Coakley, another Kantor production employee. Coakley testified that she met with Lund in his office about a week prior to Conk- lin's discharge. If this meeting took place, there would have been an opportunity for Lund to have learned at that time of Conklin's union activities. However, Lund denies Coakley's assertion that he met with Coakley in his offfice a week prior to the discharge of Conklin; and Lund's testimony in this respect is more credible than Coakley's. Thus, Coakley's testimony in its entirety indi- cates confusion on her part concerning dates and times. For example, she testified that the annual raises were given in the middle of January, and all of the other wit- nesses, as well as the documentary evidence (G.C. Exh. 6) indicate that raises were given on January 2 and 3. It is therefore reasonable to conclude that Coakley was in error when she testified that she met with Lund about a week prior to Conklin's discharge. Even assuming, arguendo, that Coakley did have a meeting with Lund a week prior to Conklin's discharge, there is no reason to conclude that Lund learned at that meeting of Conklin's union activities. Thus, Coakley tes- tified that, prior to Conklin's discharge, she had had only a brief conversation with Conklin about the Union, and the conversation consisted simply of Conklin asking Coakley her opinion concerning unions. Moreover, Coakley testified that she did not tell Lund about her conversation with Conklin. Finally, Coakley testified that the subject of unions was not raised by Lund or by 3 Lund testified that Kantor Pepsi-Cola was acquired by . C. Prod- ucts, a wholly owned subsidiary of . C. Industries, and that the deal was signed on March 30, 1979. KANTOR PEPSI-COLA BOTTLING CO. OF BELOIT. WISCONSIN 103 Coakley, and there was no discussion at that meeting about unions. Finally, the General Counsel argues that knowledge of an employee's union activities may be inferred by the small size of the Respondent's facilities. The Respondent on brief correctly argues that the General Counsel's reli- ance on the small-plant doctrine is misplaced. In Bill's Coal Co., Inc. v. N.L.R.B., 493 F.2d 243, 247 (10th Cir. 1974), the court indicated that: The small plant doctrine as first announced was that in a small plant it is a reasonable inference that evi- dence of union activity brought to the attention of a subordinate management official will in turn be brought to the attention of higher management offi- cials. Such inference bears on the question as to whether, in a given case, the employer knows of an employee's union activities and then proceeds to discharge the employee because of such activity. In the instant proceeding, however, the evidence of union activity at the plantsite was minimal, and, there- fore, the inference that the Respondent had knowledge of Conklin's union activities would not be warranted. Thus, the evidence shows that no union meetings were held before Conklin's discharge; that no union cards were distributed inside the plant; that the employees did not gather in groups to discuss the Union; that only a few employees were involved or approached; that all discussions took place on the employee's own time and away from the working areas; and that no supervisors were ever in the vicinity when the conversation took place. In these circumstances the small-plant doctrine is not applicable. The General Counsel on brief argues, in essence, that Conklin was not fired for any substantial managerial rea- sons, and that therefore an inference may be drawn that management knew of Conklin's union activities and fired Conklin because of those activities. The record shows that, during the period January I, 1978, to March 1, 1979, there were 10 employees other than Conklin who were discharged. In each case there was a serious managerial reason for discharging the em- ployee in question. For example, during that period, three employees were fired for stealing company proper- ty; three employees were fired for poor attendance re- cords; two employees were discharged because there was no work available for them; one employee was fired for discharging a fire extinguisher; and another employee was fired for damaging company property as a result of general horseplay. Conklin was not fired for any of those reasons. If it could be shown that Conklin was fired for frivo- lous or manifestly trivial reasons, an inference could properly be drawn that there must have been some other and more substantial reason for discharging Conklin. Al- though Conklin was not fired for stealing, damaging company property, or poor attendance, the reasons as- signed by management for discharging Conklin were not frivolous or trivial. Thus, as previously indicated, Riesen testified that he fired Conklin because Conklin did not seem to work out in the maintenance assignments he had been given; because Conklin had a run-in with one of Riesen's production line supervisors; 4 because Conklin had indicated on his employment application form that he had been laid off by a previous employer, whereas in fact he had been fired; and because on one occasion when Riesen told Conklin to unload a truck in the garage Riesen later observed that Conklin was drinking coffee and not doing the work the way he should have.5 Finally, the General Counsel argues that the Respon- dent violated Section 8(a)(1) of the Act by discharging Conklin for talking to other employees during working hours. This charge is without merit. There is no evi- dence to indicate that Conklin was discharged simply for talking to other employees during working hours. Riesen testified that he did not fire Conklin for talking to other employees. It is true that one of the reasons assigned for discharging Conklin was that he was away from his work station talking to other employees during working hours. The evidence is clear, however, that the problem was that Conklin was neglecting his work, not that he was talking with his fellow employees. B. The Charge That the Respondent Violated Section 8(a)(1) of the Act by the Conduct of Rick Riesen, On or About January 30 or 31, 1979, in Surveilling and Harassing an Employeefor Union Sympathies and Activities The employee referred to in this charge is Conklin. The record shows that on or about January 30, 1979, Riesen directed Conklin to unload pallets containing empty cartons from a truck. About 10 or 15 minutes later, Riesen went to the dock area to check on a second truck and saw Conklin standing next to the forklift drink- ing a cup of coffee. Riesen then yelled at Conklin that he wanted the truck unloaded and unloaded fast. On another occasion on or about January 30, 1979, Riesen sent Conklin to shovel snow away from some pal- lets so that they could be loaded onto a truck. About 15 minutes later, Riesen found Conklin inside the plant talk- ing to the custodian. Riesen did not accept Conklin's as- sertion that he could not find a shovel. The General Consel argues that Riesen's action on both occasions constitutes surveillance. This contention is manifestly without merit. The Respondent correctly points out that there is no evidence whatsoever that Conklin was systematically watched and harassed, and that clearly Conklin was reprimanded for failing to carry 4 The supervisor in question was Dale Henthorn. Henthorn testified that, on February 5, 1979, he observed Conklin away from his position on the production line and asked him why he was not feeding the bottles. Henthorn testified that Conklin hollered out that he knew what he was doing. Conklin did not deny the substance of Henthorn's testimony. Conklin did, however, deny that he knew that Henthorn was a supervi- sor. However, in this respect Conklin's testimony is not credible because Conklin had been employed at the plant for a sufficient period to know who the supervisors were; and Coakley testified that there was no ques- tion in her mind that Henthorn was a supervisor and had responsibility with respect to the production line. 5 Conklin does not deny that this incident occurred, although he insists that his coffee drinking did not materially delay unloading the truck. It was entirely reasonable, however, for Riesen to have concluded when he observed Conklin drinking coffee by the side of the truck that Conklin was not performing the job in the proper manner. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out his assigned jobs promptly. Thus, there is no ques- tion that Riesen was simply exercising his normal super- visory responsibilities in insuring that a task which he had assigned was being performed. C. The Charge That the Respondent Violated Section 8(a)(1) of the Act by the Conduct of Carl Lund, On or About February 9, 1979, on Two Separate Occasions by Interrogating an Employee Regarding That Employee's Union Activities and Sympathies and the Union Sympathies and Activities of Other Employees The employee named in the charge now under consid- eration is Helen Coakley. Coakley testified that, on February 9, 1979, Lund had her paged to his office, mentioned the firing of Conklin, and told her of the pitfalls of the Union. According to Coakley, Lund told her that employees would not get any benefits from the Union, and that the employees would end up paying out money. Lund concedes that he had a meeting in his office with Coakley shortly after Conklin's firing, and that he had Coakley paged to his office on the intercom. Lund, how- ever, contends that the meeting was held on February 7, 1979. According to Lund, he was making his rounds in the plant, and when he said good morning to Coakley at her work station, he noticed that her tone of voice was unusual. Lund then testified that as a result, on that after- noon (February 7, 1979), he called Coakley into his office and asked her why she seemed upset. At the meet- ing in question, Coakley complained about the circum- stances of her recent pay raise, and said that the employ- ees were so upset about the supervisors being "on their back" that some of them were talking union. Lund testi- fied that this was the first time he had heard any indica- tion of union activity. Both Coakley and Lund testified that Lund indicated to Coakley that in his view unions were not valuable. However, Coakley did not indicate that Lund questioned her about her union activities or sympathies. Based on the testimony described above, it is conclud- ed that the charge that Lund interrogated Coakley re- garding her union sympathies and activities and the union sympathies and activities of other employees has not been substantiated. To the contrary, Lund's testimo- ny to the effect that he had noticed in the plant that Coakley was upset and that he wished to determine the reason for her discontent, is credible.6 The second occasion charged in the complaint is de- scribed below. Thus, according to the General Counsel, on February 9, 1979, at or about 7:30 a.m., Lund ap- proached Helen Coakley at her work station and asked her about the union meeting. According to Coakley, she responded, "[Y]ou had your spies out." Coakley also tes- tified that Lund asked her who had signed union cards, and she refused to answer except that she confirmed that she had signed a card. 8 Coakley concedes that, on numerous occasions in the past, Lund asked her into his office to find out what was bothering the employees generally, and Coakley in particular. Lund conceded that he spoke to Coakley at her work station at or about 7:30 a.m. on the morning of February 9, 1979. However, Lund categorily denies that he asked her if she had signed a union card or paid any money. Lund also denies that he heard Coakley say that "[Y]ou have your spies out." Lund testified that he walked up to Coakley and asked her how she was doing. Coakley then turned around and said it was not much of a union meet- ing; only a few people showed up; and "1 do not think that it is going to get any place." According to Lund, he just said, "Oh," and left immediately. Although it might be inferred from this incident alone that Lund was interrogating Coakley concerning union activities, the totality of the evidence militates against such an inference. For one thing, Coakley conceded that it was not unusual for Lund to be out in the plant area in the morning making rounds at which time he would stop and speak to various people. Thus, the mere fact that Lund initiated a conversation with Coakley is of no moment. In addition, Coakley testified that she had on previous occasions in 1976 or 1977 voluntarily gone into Lund's office and told him that union talk was starting again. Therefore, it would be consistent with Coakley's past behavior for her to volunteer to Lund a statement concerning the Union. Finally, it will be recalled that, in the February 7, 1979, meeting in Lund's office, Coakley mentioned to Lund that there was union talk in the plant. It is logical to conclude that Coakley's voluntary reference to the Union in her February 9, 1979, discus- sion with Lund was simply a continuation of the remarks about unions which she had made to Lund only 2 days previously. Viewed against this background, I find Lund's denial that he questioned Coakley about signing a union card and paying money is credible. In view of the foregoing, it is found and concluded that the charge that the Respondent violated Section 8(a)(1) of the Act by the conduct of Carl Lund on or about February 9, 1979, on two separate occasions in in- terrogating Helen Coakley regarding her union sympa- thies and activities and the union sympathies and activi- ties of other employees has not been substantiated. D. The Charge That the Respondent Violated Section 8(a)(1) of the Act by the Conduct of Carl Lund On or About February 9, 1979, in Promising Benefits to and Soliciting Grievances From an Employee. In support of this charge, the General Counsel argues that, on February 9, 1979, Lund summoned John Lenz, a production line employee in the plant, into his office, and told Lenz in essence that, if people would come in and sit down and talk like he and Lenz were doing, a lot of the problems could be solved, and that there were plans for better things in the shop in the future. According to the General Counsel, Lund's conversation with Lenz constitutes an incident of Respondent promising benefits to and soliciting grievances from an employee. Lund concedes that he invited Lenz into his office for a discussion. However, Lund recalled the conversation as occurring on February 13, 1979, and Lenz concedes that he could not remember the specific day although he thinks it was sometime after February 8, 1979. Lund tes- tified that he called Lenz to his office because he knew KANTOR PEPSI-COLA BOTTLING CO. OF BELOIT, WISCONSIN 105 that Conklin and Lenz were friends; that he sensed that Lenz was unhappy about Conklin's discharge; and that he wanted to explain the circumstances of the discharge to Lenz. Lund confirms Lenz' testimony to the effect that Lund indicated that some good things could be coming, but he could not talk about them at the present time. However, Lund credibly testified that he was refer- ring to the imminent sale of the Company to the General Bottlers Division of I. C. Industries, a company known by Lund to provide additional benefits to its employees, including a more favorable pension program. Thus, it is reasonable to conclude that Lund's statement to the effect that things were going to happen in the plant in the future was not a statement in response to union ac- tivities, but was simply a reference to the imminent sale of the Company and the benefits which Lund believed would flow to the employees from that sale. Moreover, Lund's explanation that he called Lenz into his office be- cause he knew Lenz and Conklin were friends, and that he sensed that Lenz was unhappy because Conklin was discharged, is an entirely credible and reasonable expla- nation. In view of the foregoing, it cannot be concluded that Lund was promising benefits to and soliciting grievances from Lenz. Therefore, I find and conclude that the charge in question has not been substantiated. 7 [Recommended Order for dismissal omitted from pub- lication.] The brief on behalf of the General Counsel recommended, in its con- cluding paragraph, a number of appropriate remedies, including the pay- ment to Conklin of all moneys lost, plus 9 -percent-per-annum interest Attached to the brief was a supplemental brief in support of a remedial interest rate of 9 percent. In light of the recommended dismissal of the complaint in its entirety, the proposed remedies are denied, and the sup- plemental brief is, for the purposes of this case, deemed moot.