Pepsi-Cola Bottling Co. of Los Angeles

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pepsi-Cola Bottling Co. of Los Angeles and Chauf- feurs, Salesdrivers & Helpers Local 572, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 31-CA-3580 June 24, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 9, 1973, Administrative Law Judge Henry S. Salim issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order only to the extent consistent herewith. At all times material herein, Respondent has maintained on its plant bulletin boards the following rule which provides for discharge or disciplinary action if it is violated: Solicitation of any employees, distributing literature illustrated, written, or printed matter of any description on company premises during working hours, without the consent of the Company. The Administrative Law Judge found the rule to be "patently valid." We disagree. In his analysis, the Administrative Law Judge has equated the foregoing rule, which prohibits solicita- tion and distribution of literature during "working hours," with more restrictive rules in other cases which prohibit solicitation and distribution of litera- ture only during "working time." In our view, there is a clear distinction to be drawn between the terms "working hours" and "working time." For the reasons fully set forth in Essex Internation- al, Inc., 211 NLRB No. 112, we hold that the rule in this case is invalid because the use of the term "working hours" unduly restricts employees' rights under Section 7 of the Act to engage in union solicitation during their nonworking time; i.e., when they are not engaged in the actual performance of their job duties. The rule is also invalid because it prohibits distribution of literature "on company premises" and, therefore, further restricts employees' rights to distribute union literature during their nonworking time in nonworking areas of the plant premises. We find, therefore, that the maintenance of the no-solicitation and no-distribution rule in this case violates Section 8(a)(1) of the Act.' AMENDED CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization as defined in Section 2(5) of the Act. 3. By its preelection conduct of improving vaca- tion benefits, Respondent violated Section 8(a)(1) of the Act. 4. By its maintenance of an invalid no-solicitation and no-distribution rule, Respondent violated Sec- tion 8(a)(1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not engage in unfair labor practices in violation of Section 8(a)(1) of the Act by interrogating employee Robert Nutt and by promis- ing its employees improved terms and conditions of employment. AMENDED REMEDY We shall order Respondent to cease and desist from maintaining any rule which prohibits employ- ees from engaging in union solicitation during their nonworking time, or from distributing union litera- ture during their nonworking time in nonworking areas of the plant premises. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dent, Pepsi-Cola Bottling Co . of Los Angeles, California, its officers, agents, successors, and as- signs, shall take the action set forth in the said recommended Order, as so modified: 1. Change paragraph 1(b) to 1(c) and insert the following as 1(b): "(b) Maintaining any rule which prohibits employ- ees from engaging in union solicitation during their nonworking time or which prohibits employees from distributing union literature during their nonworking time in nonworking areas of the plant premises." I Stoddard-Quirk Manufacturing Co, 138 NLRB 615. 211 NLRB No. 132 PEPSI-COLA BOTTLING CO. 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, Pepsi- Cola Bottling Co. of Los Angeles, violated the National Labor Relations Act, and ordered us to post this notice. We will carry out the order of the Board or the judgment of any court enforcing the same, and we will comply with the following: The Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all these things. WE WILL NOT do anything to interfere with you in the exercise of the aforementioned rights, and all our employees are free to become or remain a member of Chauffeurs, Salesdrivers & Helpers Local 572, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, or not become or remain a member of that or any other union. WE WILL NOT maintain any rule which prohib- its our employees from engaging in union solicitation during their nonworking time or which prohibits our employees from distributing union literature during their nonworking time in nonworking areas of our plant premises. WE WILL NOT promise or grant our employees benefits and other improved working conditions in order to influence how they vote in any elections conducted by the National Labor Relations Board. WE WILL NOT in any like or related manner interfere with, restrain, or coerce any employee in the exercise of his right to join or assist a labor union or to engage in other concerted activity for mutual aid or protection. PEPSI-COLA BOTTLING CO. OF Los ANGELES (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 871 This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7351. DECISION HENRY S. SAKI, Administrative Law Judge: Upon charges filed by the aforementioned Union, a complaint issued by the General Counsel on March 29, 1973, and an answer filed by Respondent,) a hearing was held on April 24 and 25. Upon the entire record in this case, including observa- tion of the demeanor of witnesses and upon consideration of briefs filed June 6, 1973, there are made the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent is a California corporation with its principal office and place of business in Torrance, California, where it is engaged in the manufacture and sale of soft drink beverages. Respondent admits and it is found that it is engaged in commerce within Section 2(6) and (7) of the Act. Chauffeurs, Salesdrivers & Helpers Local 572, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES 2 A. Introduction In July, the Union began an organizational campaign among Respondent's advance salesmen. Of the 19 advance salesmen, approximately 15 or 16 signed union authoriza- tion cards. By letter dated August 31, the Union notified the Respondent Company that it represented a majority of its advance salesmen employed at its Torrance plant and requested recognition and a meeting with the Company for the purpose of negotiating a collective-bargaining agree- ment. A Board-conducted election was held on October 27, which the Union lost. B. Interrogation The testimony reveals that Thomas Grubb, a supervisor within the meaning of Section 2(11) of the Act, had a discussion with Robert Nutt, an employee, which the General Counsel' alleges was unlawful interrogation in I Respondent amended its answer to allege that there has never been enforcement of its no-solicitation rule with respect to union solicitation and distribution of union literature on company premises. 2 All dates are 1972 unless otherwise indicated. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violation of Section 8(a)(l) of the Act. Nutt testified that 2 weeks before the election, when he and Grubb were away from the plant, they talked for over an hour, while riding in an automobile. Nutt testified that Grubb "asked me what my sentiments were on it [the Union] and I told him that without a union we had nothing . Because any day these people could let any one of us go for any reason at all." When Nutt was asked what Grubb then said, he answered: "I don't remember exactly what he said." Then when Nutt was asked again if Grubb said anything about the Union, Nutt replied: "Tom [Grubb] naturally didn't agree with me, but he thought with what we had we were doing all right. If there were things wrong, they would talk them over and try to get them straightened out." The question then is whether Grubb coercively interro- gated Nutt within the meaning of Section 8(axl) based upon the above testimony of Nutt which is uncontradicted. Interrogation of employees by a supervisor about union matters is not per se a violation of the Act . It appears that Nutt and Grubb were on a first-name basis with one another and that the conversation, quoted above, does not have the coercive characteristics proscribed by Section 8(a)(1) of the Act .3 Nor does it seem that Grubb was seeking information on which to base taking action against Nutt. This was a casual, informal conversation in an amicable atmosphere, while both of them were riding in an automobile . What Grubb said to Nutt obviously was not threatening. An inquiry by Grubb as to Nutt's "senti- ments" about the Union has not been shown by the General Counsel to have any relationship to the coercion or restraint of Nutt in his organizational rights as delineated in Section 7 of the Act. This isolated and innocuous inquiry by Grubb of Nutt, the only advance salesman questioned out of a unit of approximately 19 advance salesmen, standing alone, does not constitute interference, restraint, or coercion within the meaning of Section 8(a)(1). Accordingly, it is found, based upon the above facts, that Section 8(a)(1) of the Act was not violated .4 C. Promises of Improved Working Conditions The complaint alleges that Glenn Graeber, who is a supervisor within the meaning of Section 2(11) of the Act, promised the advance salesmen at an employees' meeting improved terms and conditions of employment. The only evidence with respect to this alleged violation of Section 8(a)(1) is the following testimony of Nutt: Q. What did he [Graeber] say at that meeting? A. He told us that he didn't know what the men were so upset with the way the working conditions were, the way they were, and that if everybody felt-if it was that way, there would be changes made for the better, but he couldn't make any promises. He also stated he couldn't make any promises, because he was ruled by law as to what he could say and couldn't say, something to that effect. 9 United Fireworks Company v. N.LR B., 252 F.2d 428, 430 (C.A. 6, 1958); Welch Scientific Co. v. N.LR.B., 340 F.2d 199, 204 (C.A. 2, 1965). 4 American Federation of Musicians, Local 76, AFL-CIO (The Jimmy Graeber denied that he promised the advance salesmen any benefits. The General Counsel argues that in the light of Respondent's other conduct, it is consistent with Respon- dent's efforts to thwart the Union's organizational drive, and that the testimony of Nutt quoted above "strongly supports the probability that Graeber did in fact tell the salesmen [at the meeting ] that there would be improved post-election changes in terms and conditions of employ- ment." The evidence does not support this contention as evidenced by Nutt's own testimony that Graeber specifi- cally told them "he couldn't make any promises." The burden is on the General Counsel to make out a prima facie case that Graeber promised the advance salesmen improved working conditions. Graeber denied this and employee Nutt testified that Graeber , in speaking to the advance salesmen at a meeting about their complaints, twice qualified what he had to say by emphasizing that he had no authority to promise them anything. Consequently, it is found that the General Counsel has not sustained his burden of proof. According- ly, paragraph 7(b) of the complaint is dismissed. D. Vacation Benefits The complaint alleges that Respondent announced to its advance salesmen and put into effect improved vacation benefits for certain advance salesmen . The record reveals that prior to 1972 advance salesmen, who were employed by Respondent for 1 year, were entitled to 1 week of vacation; 2 years' service entitled them to 2 weeks of vacation; and those employed for 5 years received 3 weeks of vacation. In computing the time when an employee would be entitled to either 2 or 3 weeks of vacation, the date originally used by the Company in fixing the anniversary date was the date when the employee was hired. Subsequently, the Company changed the hiring date for employees to a common date of January 1. Nutt testified that he learned for the first time that the manner of computing the amount of vacation time was changed from the hiring date to the common date of January 1, when the employees' vacation times were posted on the bulletin board sometime around April 1972.5 At that time, he was listed on the bulletin board announce- ment as being entitled to only 2 weeks' vacation instead of 3 weeks, which he believed he had coming to him. He complained to Al Johnson, his supervisor, that the notice posted on the bulletin board stated his vacation time was only 2 weeks, whereas he was employed by the Company 5 years as of April 1972. It was not until 2 weeks before the October 27 election, testified Nutt, that he was notified by Johnson that he was entitled to an additional week of vacation. Warren Davis, an advance salesman, testified that the change in computing the date when an employee's right to another week's vacation was reached was adopted by Respondent, whereby the hiring date was reestablished and the common date discarded without notifying the sales- men, that he did not learn about it until late September or Wakely Show), 202 NLRB 620. 5 This estimate is based on Nutt's original employment date of April 1967, which would mean his 5-year anniversary date was April 1972. PEPSI-COLA BOTTLING CO. 873 early October 1972, when Johnson announced it at a meeting of the employees. Wayne Lemons director ' of industrial relations for Respondent, testified that 13 advance salesmen were affected when the basis for computing the date when the employees' right to an additional week's vacation was reached was changed by the Company. Ronald Schoors, an advance salesman since March 1967, who testified on behalf of Respondent , stated that he learned in the "last part of July" that he was entitled to 3 weeks of vacation . On cross-examination, he appeared confused as to when he learned for the first time that he was entitled to 3 weeks of vacation. He testified he learned this when he spoke to Johnson "in the latter part of August ... around Labor Day," and then in speaking to a fellow employee he heard of it around August 31 , and finally, he stated, he did not remember the date when he first learned he was entitled to a third week of vacation, except that it was at a "sales meeting" of the employees, which he places as being I week after August 316 Cogently significant is Schoors' recital of a conversation he had with Lemon, Respondent's industrial relations director, in January or February, when Duane Murray (who is unidentified) had suggested he see Lemon in regard to how many weeks of vacation he was entitled. Lemon told him, according to Schoors, that: ". . . we had reverted to a common anniversary date for salaried employees which I was not aware of. I was using my hire date as an anniversary date." As mentioned above, 13 employees were adversely affected by the Company's change in computing the date when their respective dates for I more week of vacation matured. It is clear that after the change instituted by Respondent, whereby the employee's hiring date was abolished and a common anniversary date of January 1 adopted, that he was required to wait a greater length of time before he could qualify for additional vacation time. For example, Nutt and Davis, whose hiring dates were in April, were adversely affected as their anniversary dates to qualify for 3 weeks of vacation, under the newly instituted common date of January 1, was postponed from their hiring dates in April until the following January. It is found that the union organizational campaign was initiated in July and that 15 or 16 advance salesmen signed union authorization cards. In late September or early October the employees were notified for the first time by Respondent that the present basis of a common date for computing the date when they were entitled to an increase in their number of weeks of vacation was rescinded and the former method of their respective hiring dates reinstituted. It is believed there was more than a temporal coincidence between the time the employees were so notified and the date of the Board election. The advance salesmen received notice of this change about 3 or 4 weeks before the election. Moreover, it is found that the Respondent was aware of the salesmen's interest in and activity on behalf of the Union when it announced it was reverting to its original method of computing the time when an employee was entitled to an additional week of vacation. The absence of direct knowledge of employees' union activity is not a material failure of proof, and does not preclude a finding that the employer knew of such activity where the circumstances are such, as here, that Respondent's knowl- edge may be properly inferred.? It is clear that the Company, by reverting to its former method of computation was granting a substantial benefit to those 13 employees whose dates of entitlement to 3 weeks' vacation were accelerated, particularly so in the context of the approaching election which was approxi- mately a month away. Moreover, it is not believed that the Respondent Company was motivated by a legitimate business purpose, but rather to influence the manner in which the advance salesmen would vote in the impending Board election. Such motivation, it is not too unreasonable to assume, conceivably would discourage their voting for the Union, and the evidence warrants an inference that the conferring of this benefit was causally connected or motivated for the purpose of influencing the employees in their choice of bargaining representatives in the coming election. The timing of the announcement to the salesmen of the change in the Company's method of computing as to when they qualified for an additional week of vacation, which in this case accelerated the time , convinces me that it constitutes a substantial basis for an unfair labor practice finding of an 8(a)(1) violation of the Act, in that it had a tendency to interfere with the employees ' free choice when they voted in the representation election. E. No-Solicitation Rule Respondent had promulgated by posting some time between May and September 1970, on its plant bulletin boards, the following no-solicitation rule which provides for discharge or disciplinary action if it were violated by the: Solicitation of any employees, distributing literature illustrated, written, or printed matter of any description on company premises during working hours , without the consent of the Company. No employee was ever cited for violating this rule. The General Counsel contends that the "mere mainte- nance of such an overly-broad rule constitutes an interfer- ence with the employees' Section 7 rights in violation of Section 8(a)(1) of the Act. Moreover," argues the General Counsel, "even though no employee was disciplined, the mere maintenance of the rule itself serves to inhibit the employees' engaging in otherwise protected organizational activity and that the finding of a violation is not precluded by the absence of specific evidence that the rule was invoked against any employee." Decisional law establishes that the validity under the Act of a no-solicitation rule is to be determined by striking a balance "between the undisputed right of self-organization 6 Nutt and Davis testified that this meeting was held in the last part of September or early October, which is found to be correct. 7 Allied Distributing Co., 130 NLRB 1348, 1350 ; Radio Officers' Union of the Commercial Telegraphers Union v N LR B., 347 U.S. 17 (1954); Becker. Durham, Inc., 130 NLRB 1356, 1357. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assured to employees ... and the equally undisputed right of employers to maintain discipline in their establish- ment."8 Neither right is unlimited . As further explained by the Supreme Court: 9 This is not a problem of always open or always closed doors for union organization on company property. Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommodation between the two must be obtained with as little destruction of the one as is consistent with the maintenance of the other. In accordance with this approach, the cases have made clear that in the normal situation an employer may, in furtherance of the interests of production and discipline, make and enforce a rule forbidding his employees to engage in union solicitation on plant property during working time.'° On the other hand, it is equally well established that an employer may not, at least in the absence of special justifying circumstances, enforce a rule which prohibits solicitation by its employees during nonworking time and in nonworking areas of company premises.ll The no-solicitation rule in this proceeding is patently valid. However, the General Counsel contends that the rule was "overly-broad" and its mere "maintenance" a viola- tion of Section 8(a)(l). Whether he claims that rule is illegal per se is not clear. The no-solicitation rule, supra, was posted at an unspecified time between May and September 1970 and no organizational activity was in progress at the time of its adoption. In this regard, what the Supreme Court has said in N.LR.B. v. United Steelworkers of America, AFL-CIO [Nutone, Inc.], 357 U.S. 357, 361 (1958), is pertinent here: "Employer rules prohibiting organizational solicitation are not in and of themselves violative of the Act, for they may duly serve production, order and discipline." In the instant case, the uncontradict- ed evidence of Wayne Lemon establishes that the purpose for which the rule was posted was to prevent various types of solicitation which occurred at Respondent's premises, such as the sale by other employees of Girl Scout cookies, tour packages, brochures, and sweepstake tickets. It would appear, therefore, that the rule was posted in response to interference with production. As was stated by the Trial Examiner in McEwen Manufacturing Company:12 The Board in McEwen affirmed the Trial Examiner's Decision and found that the no-solicitation rule was posted only after the Respondent noticed the quality and quantity of the employees' work had declined. The Board stated: "In these circumstances, the fact that the rule was posted soon after the Union's organizing efforts, began does not warrant an inference that its purpose and intent was to discourage union activities among the employees." In Gooch Packin& Inc., 187 NLRB 351, the respondent company maintained the following no-solicitation rule: Solicitation: There shall be no solicitation or buying or selling of any kind during working time unless prior permission has been obtained from the Personnel Manager. This includes, but is not limited to, any form of solicitations, such as contributions to charities, contributions to employee funds, selling of tickets or membership in service clubs, membership in labor organizations, collection of bills, collection of debts, etc. Although the no-solicitation rule quoted, supra, is broader than the one in this case, the Board held the rule to be valid. No evidence was introduced by the General Counsel to show that the no-solicitation rule here inhibited protected activity. Moreover, no employees had ever been reprimanded by Respondent for engaging in union organizational activities. In Daylin, Inc., 198 NLRB No. 40, a Board majority stated that: "Only a substantial business justification, such as a genuine interference with the progress of the work, justifies any restriction on this right of solicitation. A no- solicitation rule is presumptively, and only presumptively, valid if it is limited to prohibiting solicitation during the time an employer is expected to be working and not during breaktime, lunchtime, or the like. Such a rule is valid because it is presumed to be directed toward, and to have the effect of preventing interference with production." See Glassmaster Plastics Company, 203 NLRB No. 147. In the circumstances, it is found that Respondent posted the no-solicitation rule in furtherance of Respondent's legitimate interests _ of serving production and discipline and not to impede and thwart the Union's organizational campaign. Applying these principles to the instant case, it is found there was no violation of Section 8(a)(1). Accordingly, it will be recommended that paragraph 6(b) of the complaint be dismissed. The validity of a rule promulgated and posted under such circumstances is not impaired because a second- ary effect might result in the impeding of union organization, for such result to some degree must always follow from any valid rule. The no-solicitation rule being valid on its face could be lawfully posted where union activities as here were interfering with production. . . . Under such circumstances, secondary effects resulting in the prevention of unrestrained union activities are, in nature, damnum absque injuria. e Republic Aviation Corp. v. N.LR.B., 324 U.S. 793, 797-798 (1945); Stoddard-Quirk Mfg. Co., 138 NLRB 615. Y N. L R.B. v. Babcock & Wilcox Co., 351 U.S. 105,112 (1956). 10 Peyton Packing Co., 49 NLRB 828, 843-844, cited with approval in CONCLUSIONS OF LAW The Company by reinstituting its former policy and announcing it before a scheduled election whereby the time for its advance salesmen to qualify for longer vacations was shortened, which resulted in improved vacation benefits, thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and Section 2(6) and (7) of the Act. The Company did not violate Section 8(a)(1) when it is Republic Aviation v. N.LRB., 324 U.S. 793, 804. 11 Republic Aviation v. N.LR.B., supra. See also N.L.R.B. v. Babcock & Wilcox, 351 U.S. 105, 113. 12 172 NLRB 990 at 1000. PEPSI-COLA BOTTLING CO. 875 alleged it coercively interrogated an employee and prom- ised its employees improved terms and conditions of employment. THE REMEDY It shall be recommended that the Company cease and desist from granting employees better conditions of employment in order to influence their choice of bargain- ing representative in a Board election. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, it is hereby recommended there issue the following: ORDER 13 The Respondent, Pepsi-Cola Bottling Co. of Los Ange- les, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Granting its employees benefits whereby their 13 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations; be adopted by the Board and become its findings, conclusions, and Order , and all objections thereto shall be deemed waived for all purposes. conditions of employment are improved in order to influence how they vote in a Board election. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act: 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its plant at Torrance, California, copies of the attached notice marked "Appendix." 14 Copies of said notice on forms provided by the Regional Director for Region 31, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 14 In the event that the Board 's 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."