Bluegrass Coca-Cola Bottling Co.

National Labor Relations Board - Board Decisions

Oct 25, 1989

297 N.L.R.B. 158 (N.L.R.B. 1989)

158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bluegrass Coca-Cola Bottling Company and Local
Union No. 651, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO
and Ralph Beckman. Cases 9-CA-25095 and
9-CA-25113
October 25, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 14, 1988, Administrative Law Judge
Bernard Ries issued the attached decision The Re-
spondent filed exceptions and a supporting brief,
the General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed an answer-
ing brief
The National Labor Relations Board has delegat-
ed 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,' and
conclusions, and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Bluegrass
Coca-Cola Bottling Company, Somerset, Ken-
tucky, its officers, agents, successors, and assigns,
shall take the action set forth in the Order
1 The Respondent and the General Counsel have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are Incorrect 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
Patricia Rossner Fry, Esq , for the General Counsel
Ronald G Ingham, Esq (Miller & Martin), of Chattanoo-
ga, Tennessee, for the Respondent
Carl E Simpson, of Lexington, Kentucky, for the Charg-
ing Party
DECISION
BERNARD RIES, Administrative Law Judge This
matter was tried in Richmond, Kentucky, on May 17-19,
1988 Briefs were filed on or about July 21, 1988 Princi-
pally placed in issue by the complaint and answer are (1)
whether Respondent unlawfully discharged employees
Ralph Beckman and Gregory Fitzgerald on February 9,
1988, and thereby violated Section 8(a)(3) and (1) of the
Act, and (2) whether, during the week of February 1,
1988, Respondent's agent "coercively interrogated an
employee regarding the union membership, activities and
sympathies of Respondent's employees and orally threat-
ened to discharge employees who were actively involved
in the organizing campaign," thereby violating Section
8(a)(1)
Having studied the transcript of proceedings,' having
reviewed the briefs, and having taken into account my
recollection of the demeanor of the witnesses, I make the
following
FINDINGS AND CONCLUSIONS
I THE ORGANIZATIONAL STRUCTURE
In the spring of 1987, Respondent Bluegrass Coca-
Cola Bottling Company was acquired by the Minneapolis
firm of Johnston Coca-Cola Bottling Group, Inc , said by
Respondent's counsel to be the largest operator of Coca-
Cola Company facilities next to the Coca-Cola Company
itself Of the several Bluegrass facilities in Kentucky thus
acquired, the principal office (and presumably a bottling
plant) is located in Louisville, there also are headquar-
tered Robert Shannon, a vice president of Johnston and
the general manager for Bluegrass, and Robert Hart, the
personnel manager for the Bluegrass operations
There is a branch office in Lexington (where there ap-
parently also is a bottling plant) managed by Larry Stull
Under Stull, there appear to be three Kentucky locations
which are solely engaged in warehousing and locally dis-
tributing the 150 varieties of products sold by Respond-
ent one location serves the Danville/Mt Sterling area,
another is at Campton, and a third is at Somerset, each
supervised by a different manager We are interested
here in the warehouse/distribution facility at Somerset,
which was managed by Charles R (Rick) McCrystal,
who assumed that position on June 1, 1987, the other
titled officials at Somerset were Arnold Duncan, the dis-
tribution manager, and Bill Estep, the sales manager All
told, there were about 20-25 nonsupervisory employees
at Somerset Permanent personnel records for the Somer-
set operation are kept at the Lexington office, under the
control of Carolyn Thompson, the personnel officer
there
II THE CHANGE OF BUSINESS METHODS
The conventional method of selling products from a
facility like Somerset had been to have driver-salesmen
set out with loaded trucks each morning and visit (de-
pending upon probable need) the supermarkets, grocery
stores, gas stations, schools, banks, etc, on their estab-
lished routes In the course of their daily routine, these
driver-salesmen would attempt to sell products to their
customers, clean and straighten up the area of the store
in which their goods were located, fill in supplies needed
from any in storage, erect promotional displays, and per-
form associated duties Prior to the change in the modus
operandi which occurred on December 1, 1987, to be
discussed hereafter, the 13 driver-salesmen 2 at Somerset
1 Transcript errors have been noted and corrected
2 On brief (pp 7, 16), Respondent asserts that there were 17 driver
salesmen The unanimous testimony is, however, that the number was 13,
and R-8, a summary prepared by Respondent covering work performed
Continued
297 NLRB No 20
BLUEGRASS COCA-COLA BOTTLING CO 159
were paid on a commission basis and received no over-
time pay
The testimony of General Manager Shannon is that as
the Johnston Company has acquired ,various Coca-Cola
franchises, it has been converting them to a "pre-sale"
system Under that system, "account managers" take
over the sales function of the driver-salesmen, the "man-
agers" go out each day to visit customers and to "write
the orders, to arrange for displays and promotions, ac-
tively work to increase our sales volumes in those ac-
counts" Once Johnston took over Bluegrass, it began to
convert all operations which were not already "pre-sale"
to that system (in fact, the new system had been installed
by the previous owner of Bluegrass at the Louisville fa-
cility for several years, as well as in two-thirds of the
Lexington area) Campton was changed over to "pre-
sale" by Respondent as of the first part of November
1987, and Somerset was converted effective December 1
The conversion entailed the selection of four "account
managers"—or "pre-salesmen"—from the 13 Somerset
driver-salesmen The new Somerset account managers
send the orders taken by them daily to Lexington via
their portable microcomputers, and the Lexington com-
puters devise, and notify Somerset of, appropriate truck-
loading schemes for distribution of product the following
day, "striving to hit geographic configurations that make
sense for efficiency" After the account managers were
chosen, several meetings were held at the Somerset loca-
tion prior to December 1 to acquaint them and the
former driver-salesmen (now basically drivers) with the
new system
With the advent of the conversion, the drivers were
switched to an hourly pay basis, receiving $8 50 per hour
plus overtime Branch Distribution Manager Arnold
Duncan became the supervisor most directly concerned
with their work
III THE UNION ACTIVITY
The complaint alleges that when Respondent released
drivers Ralph Beckman and Gregory Fitzgerald on Feb-
ruary 9, 1988, it did so because of their attempt to form a
union Fitzgerald testified that "in January," he ex-
pressed to Beckman his belief that the drivers "needed a
union to try to get things under control, like working
conditions and the hours that we were having to work"
Beckman undertook to contact Teamsters Local 651 iii
Lexington, and on Monday, February 1, Teamsters Or-
ganizer Carl Simpson met with the two alleged discri-
mmatees and a few other employees In the following
days, Fitzgerald spoke to perhaps five other employees
about the Union, some by telephone during the evening
and others in the vicinity of the plant One person he
by the drivers after December 1, shows only 9 names (thereby excluding
the 4 newly promoted account managers,' all of whom were former
driver-salesmen) G C Exh 22, a seniority list cited by Respondent as the
source of the figure '17, shows that as of February 9, 1988, there were
11 drivers (under the new system), but 2 of them are designated as
swmgmen" (I e, substitutes) Assuming that the two "swingmen served
in that capacity prior to the conversion of the system, there were, prior
to December 1, 1987, a total of only 13 driver-salesmen and 2 swmgmen,
but even if the swingmen had been driver-salesmen at that time, which I
doubt, the pre-December 1 total would have been 15, not 17
spoke to, in a Winn-Dixie store on his route, was Jeff
Hutchison, one of the new account managers Hutchison
told him that "considering [his] position with the compa-
ny, [he'd] have to be against" the Union 3
Pnor to the February 1 meeting, according to Beck-
man, he spoke to about six or seven employees regarding
the meeting, and subsequently he passed out perhaps a
dozen authorization cards (including several to Fitzger-
ald), some at the plant and some at stores where he en-
countered fellow drivers 4
Fitzgerald testified that he called swmgman Joe
Duncan (for the second time) on Sunday evening, Febru-
ary 7, to discuss unions, since Duncan had previously
worked in an organized firm Duncan told him, inter aim,
that Manager McCrystal had informed Duncan that he
was aware of the activities of Beckman and Fitzgerald
on behalf of the Union This led Fitzgerald to conclude,
as he apparently had been contemplating, that he should
stop "pushing" unionization
The next evening, after finishing the day's labors, Fitz-
gerald made a point of speaking to McCrystal because he
"feared for [his] job" He told the manager that he
guessed McCrystal had heard that Fitzgerald had been
soliciting for the Union, and told McCrystal that he
wanted to get it out in the open "before anybody come
up and had to lose their job" He also asked McCrystal
"what was the big deal" which caused Respondent to be
so firmly opposed to unionism, and McCrystal replied,
rather obscurely, "What is a big deal?" Otherwise,
McCrystal did not respond to Fitzgerald's suggestion
that he was aware of Fitzgerald's organizing efforts
Instead, McCrystal showed him a flip chart displaying
statistics on the work efforts of the nine (unidentified)
drivers for the preceding day, pointing out how one
driver (not Fitzgerald) had taken "quite a bit of time to
set off not that great a number of cases" Fitzgerald
agreed, and he also took the opportunity to apologize for
what might have looked like a "bad time" by him on
Friday, but McCrystal assertedly did not think his time
looked bad "for the number of cases that you hauled
out" McCrystal did not mention at that meeting that, as
we shall see, a decision had already been made to termi-
nate Fitzgerald and Beckman on the following day
On Tuesday, February 9, a morning meeting of the
drivers was held, as happened every week or two, at
which McCrystal, using the same chart he had shown to
Fitzgerald the night before, said, as far as . Fitzgerald
3 There is an Issue here regarding the supervisory or agency status of
'account managers'
4 Beckman was not a good witness, as the transcript clearly shows An
immediately pertinent, although less than momentous, example of his un-
reliability may be found in his testimony that he passed out cards for
probably three or four weeks," he otherwise testified, however, that he
received the cards on February 1, only 8 days before he was terminated
on February 9
Fitzgerald, on the other hand, made a better impression on me, there
was, however, at least one problem in his testimony which I found trou-
blesome But given all of the circumstances present here, including the
testimony of Respondent's witnesses, I am generally disposed to credit
Fitzgerald's testimony Although my reaction to Beckman was less posi-
tive, I find no reason to disbelieve such of his testimony as is related
above, although I have some question about certain of his testimony de
scribed hereafter
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
could recall, that "there was too much time being took
to set off the cases" Following the meeting, separate ter-
mination interviews were held with Beckman and Fitz-
gerald The following members of management were
present at each meeting McCrystal, Arnold Duncan, Bill
Estep, Louisville Personnel Manager Robert Hart (who
had driven the 129-mile trip from Louisville in order to
arrive at 7 a m) and Lexington Branch Manager Larry
Stull (who had come some 76 miles from Lexington) At
these meetings, the two employees were told that they
were being let go, and could leave immediately
Without further elaboration on these termination meet-
ings at this point, it seems appropriate to discuss the
other evidence presented by General Counsel to establish
that the separations were unlawful, and also to describe
Respondent's testimony concerning the process which
led to them Swmgman Joe Duncan, called as a witness
by General Counsel, testified that before, the termination
occurred, Manager McCrystal asked him who started the
union campaign (he said he did not know) and if Beck-
man and Fitzgerald had "started the union" (Duncan
failed to respond) Duncan also testimonially conceded
that, in telephone conversations with the two men, he
had told them that McCrystal had asked him whether "if
the people that started the union got going, would the
issue die down " 5 But Duncan further denied at the hear-
ing that McCrystal had actively posed such a question
about the effect of employee discharges to him, he testi-
fied, rather, that he had fabricated the inquiry in order to
frighten the alleged discnmmatees, and that his motive
for doing so was his personal antipathy toward unioniza-
tion 6
As noted at the outset of this decision, the complaint
combines two separable 8(a)(1) violations—"coercive
mterrogattionr of an employee and an "oral 0 threat to
discharge employees who were actively involved in the
union campaign"—in a single allegation I assume that
these claims were based upon the anticipated testimony
of Joe Duncan But, as discussed, while Duncan con-
firmed at the hearing the first part of the allegation, he
denounced as falsifications his admitted earlier statements
to the two men which would undergird the latter por-
tion
On brief, counsel for General Counsel argues that, by
virtue of the underued interrogations, 7 McCrystal violat-
5 Duncan said the term "got going' was used in the sense of "if they
Just weren't there anymore"
6 It came as a surprise to learn at the hearing that Duncan had never
given a sworn statement to the Board Normally, such affidavits are
taken as a matter of course from prospective witnesses One might specu-
late that Duncan was reluctant to actually sign such a statement
7 When McCrystal testified on behalf of Respondent, counsel inquired
if he had, as charged, asked Duncan whether a layoff would cure the
union problems, McCrystal denied having ever done so Counsel failed,
however, to also elicit a denial by McCrystal regarding his alleged ques-
tioning of Duncan as to the role of Beckman and Fitzgerald in the union
effort Such occasional omissions are not uncommon in these administra-
tive proceedings, counsel often fall to cover all the bases I have no
doubt that had he been asked whether he had engaged in such question-
ing, McCrystal, good soldier that he showed himself to be, would have
replied in the negative The fact is, however, that counsel simply Inad-
vertently failed to have McCrystal deny this portion of Duncan's testimo-
ny, but, Instead of now conceding his very human error, counsel revises
reality by stating on bnef (p 15), •McCrystal denied these events' (1 e,
the questions about the union activity and, specifically, that of Fitzgerald
ed Section 8(a)(1), and also thereby revealed his interest
in and knowledge of the union activities of Beckman and
Fitzgerald, but counsel completely omits to rely upon
the portion of the Duncan-McCrystal conversation
which Duncan now says did not actually occur She
does not rely on it either as a separate 8(a)(1) violation,
as a contributing coercive element of an 8(a)(1) conver-
sation, or as evidence tending to prove the 8(a)(3) allega-
tion She specifically asks only for an 8(a)(1) finding
based upon the "interrogation" of employees "concern-
ing the union activities of other employees"
My own inclination would be to disbelieve Duncan's
present assertion that he was lying when he told the two
employees that McCrystal had asked about the possibili-
ty of the Union "going away" if its organizers did How-
ever, General Counsel's very careful avoidance of this
issue convinces me that she has deliberately chosen to
eschew reliance upon this portion of Duncan's testimony,
whether or not I discredit Duncan's present explanation
of why he uttered it I assume that, in choosing this
course, General Counsel has felt constrained by Rule
801(d)(1)(A) of the Federal Rules of Evidence I need
not discuss whether such a constraint (not, as indicated
above, articulated by General Counsel) is necessary or
justified, because I consider it manifest from her brief
that General Counsel does not advance this testimony as
probative evidence upon which I should depend in either
finding a violation of Section 8(a)(1) or considering
whether Section 8(a)(3) was violated by the termination
of Beckman and Fitzgerald 8
General Counsel further seeks to establish discrimina-
tory motivation by relying on certain testimony suggest-
ing that Account Manager Jeff Hutchison had stated that
the two alleged discnminatees were released because of
their union activities This would be useful only if the
evidence demonstrated that the account managers are
sufficiently allied with management so as to render au-
thoritative any such statements by them, the usual litiga-
tional approach to such questions, followed here by Gen-
eral Counsel, is an effort to demonstrate that the person
to whom the statement is attributed occupies the status
of a "supervisor" within the definition supplied by Sec-
tion 2(11) of the Act
and Beckman) That this error was not Inadvertent is highlighted by the
fact that no transcript citation appears next to the statement, although
every other factual assertion on the page is accompanied by a citation,
including the page at which McCrystal expressly denied having said any-
thing suggesting the possibility of discharge of the organizers
6 At the hearing, Respondent fought to prohibit the use of such words
as "terminate" or "discharge" in describing the personnel actions under
consideration here, claiming that the release of the two employees was a
"layoff" In support, Respondent points to the fact that in April—after
the charge was filed—Fitzgerald was reinstated to fill a vacancy created
by the departure of another driver Respondent witnesses repeatedly tes-
tified, however that the action was designed to "eliminate the positions,'
and that is also what Lexington Personnel Administrator Carolyn
Thompson wrote on Fitzgerald's claim for unemployment benefits,
adding, 'The Company is reducing route merchandisers from 10 to 8
[sic] because of the lack of our volume of work" (R Eh 10, p 9) On
Respondent's own "Personnel Action Nonce" for Fitzgerald, McCrystal
marked a box designated Permanent Layoff" It seems clear that as of
the date of separation, Respondent had no conscious intention of recall-
ing either of the two men
BLUEGRASS COCA-COLA BOTTLING CO 161
I see no need to resolve that issue, however The testi-
mony in question was given by Andy Roberts, a driver
for Rainbow Baking Company Roberts said that shortly
after the terminations, he ran Into Account Manager
Hutchison in a store and, having heard of the termina-
tions, asked Hutchison "how come they fired a routeman
as good as Greg9" 9 Roberts' initial recounting of Hutchi-
son's reply was "He said he felt Ralph and Greg had
talked about the union or something similar to that"
Roberts went on to testify that Hutchison "said they felt
they were going to lay off two drivers, but he wasn't
too—didn't think that Ralph and Greg were the two to
begin with" When he was asked once more to repeat at
the entire conversation (which he twice said, as is nor-
mally the case, he could not "remember word for
word") his account differed "[Hutchison] said they were
fired for talking about the union He went on to say
that they were going to lay off two dnvers or swing
men, but they weren't Ralph or Greg"
Roberts added that he again saw Hutchison some time
later and mentioned that he had heard that the two ex-
employees were "bringing a case" which Roberts had
been told was a "good" one Hutchison assertedly re-
plied that he "felt they had a good case too, that he had
heard the company had got in a hurry He told me
that he felt that Coke had got in a hurry when they fired
them and had fired them unprepared, that they had done
it just on the spur of the moment" Finally, in response
to General Counsel's questioning, Roberts added that in
the second conversation, Hutchison "told me that the
management had found out that Jeff and—or that Ralph
and Greg were talking about the union" and iskems like
Jeff did tell me that the company had heard that they
were going to have—about had enough signatures to
pass, for whatever they needed to do"
The immediately foregoing additions to Roberts' basic
description of the second conversation with Hutchison
would seem to have been more appropriately a part of
the first conversation Passing that, however, in my ques-
tioning of Roberts, I pointed out that his testimony had
vaned in his two descriptions of Hutchison's language in
the first conversation, as set out above When I asked
Roberts if he could be definitive as to whether Hutchi-
son either had said that he "thought"" the discharges
were based on union activity or had "flatly said" so, he
offered a new version "I believe he said that he had
been told" Counsel for Respondent, picking up on this,
got Roberts to affirmatively agree that "Hutchison told
[him] that he had not been in any of the meetings" (pre-
sumably meetings having to do with the separations) and
that Hutchison "did not identify to [him] where he had
gotten this information," it "could have been" from some
other employee
Roberts struck me as an honest person, but the unrelia-
bility of his testimony is patent Precision of language
counts heavily in this area Moreover, even if one were
to assume that Hutchison was a statutory supervisor, he
would be just barely one, and there is no reason at all on
this record to believe that he would have been privy to
9 Roberts did not ask about Beckman
1 ° Actually, as the transcnpt shows, Roberts had used the word felt
confidential management information as to why the two
employees had been released Master Housekeepers, 287
NLRB 908 (1987) (Board majority refused to infer moti-
vation for refusal to hire from statement made by new
"first-line supervisor," even though she played a "rather
limited role in the hiring process ") For Hutchison to
say, as Roberts first had him saying, that he "felt" that
the two had been let go because they had talked up the
union would completely negate the inference that some-
one in a position to know had given him any such infor-
mation Accordingly, I would not rely on the uncertain
testimony of Roberts, whether or not Hutchison may
technically qualify as a supervisor "
The record shows that none of the Bluegrass employ-
ees are represented by a union Fitzgerald testified, with-
out contradiction, that prior to a Board election among
the drivers an June 3 (by which time, as noted, he had
been rehired), Respondent expressed its strong concern
about a change in the status quo Manager McCrystal
read a speech in which he stated that the Company "was
going to look at this very seriously" and that the em-
ployees "should be concerned about our families' futures
and our own futures" The Somerset employees also re-
ceived a letter from Lexington Manager Larry Stull,
saying, among other things (and as McCrystal also had
said), that the Union could do nothing to help the em-
ployees
Respondent's explanation of' how it came to "terminate
the positions" of Beckman and Fitzgerald on February 9
brings to mind an old and distressed automobile it is lop-
sided, ramshackle, and leaking, and it makes unpleasant
clanking noises While all of its deficiencies make a won-
derful circumstantial case for General Counsel, however,
I am of the opinion that certain other evidence in the
record should nonetheless be deemed to carry the day
for Respondent
We begin with General Manager Shannon in Louis-
ville He told us that conversion to the presale system
"without fail would cause a reduction in the number of
drivers driving the trucks" His explanation of this—es-
sentially that the transfer of the dnver-salesmens' selling
duties to the new account managers reduces the amount
of work the drivers have to do and makes that work
easier (Tr 429)—seems indisputable However, whatever
system is employed, there is a basic amount of territory
to cover While the new system results in the assignment
of fewer duties to the drivers, it also results in additional
territory—that previously covered by the new "account
managers"—to which the drivers must make deliveries
Respondent introduced a document, entitled "Delivery
Employee Reductions Resulting From Pre-Sell System,"
showing "Before" and "After" figures at five Kentucky
and Indiana locations of the Johnston Bottling Group In
each location, the "Before" figure is higher than the
' I without rehearsing all of the evidence, my impression is that the ac-
count managers are basically leadmen, who, together with "straw bosses,
set-up men, and other minor supervisory employees," are to be dis-
tinguished from 'supervisors with genuine management prerogatives"
Ross Porto-Plant Inc v NLRB, 404 F 2d 1180, 1182 (5th Or 1968) If,
however, they might qualify as supervisors under Sec 2(11) for other
statutory purposes, that does not necessarily indicate that they are inti-
mate with all company business, knowledge, and motivations
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"After" figure But, as counsel for General Counsel
points out, and the record confirms, this compilation re-
ports nothing more than the initial consequence of
switching to the presale system just as, at Somerset, the
December 1, 1987 changeover reduced the number of
drivers from 13 to 9 (and increased the number of ac-
count managers from 0 to 4) Respondent offered no
similar summaries showing a second-wave reduction of
drivers at other locations resulting from the efficiencies
of the new system
The closest we came to that subject was when I ques-
tioned Larry Stull about the operations with which he
was associated He said there were no layoffs at Camp-
ton "as a result of the change of system" because they
"shifted some territory from Lexington up there, Estill
County, to provide more volume to that operation "12
As to the Mt Sterling/Danville area of the Lexington
operation, where 14 drivers were working before the
conversion (see R Exh 3), Stull said "two or three"
drivers quit dunng "a couple of months" after the
changeover, thus obviating the need for layoffs Other
than this, there is no evidence that layoffs follow as a
natural consequence of conversion It is, however, some
evidence of that fact, not contradicted by the General
Counsel General Counsel made no effort to establish
that, at other converted facilities, Respondent did not
further reduce its work force after the conversion had
been in effect for a while It further seems logical to me
that Johnston Bottling would not be uniformly changing
from the conventional system for the sheer fun of trying
something new, expenence must indicate that the
changeover brings economies
Shannon testified that transitional problems always ac-
company conversion to the presale system "everyone in
the total operation experiencing a new system of distri-
bution they're not familiar with [T]here is always a
problem caused by it It's an expected situation that, you
know, these people are going to have to learn a lot of
things through expenence and by, very frankly, making
mistakes" In answer to a question by Respondent's
counsel as to a typical period of time for reaching a
point at which economies are realized that allow a con-
traction in the work force, Shannon replied that it was
his "experience" that a "30 to 90 day period of time for
adjustment is reasonable to give all people involved in
the new system a chance to get a feel for their responsi-
bilities" In this instance, the period which resulted in the
termination of Beckman and Fitzgerald ended after about
69 days
The ultimate reason given for the terminations was
that Somerset was not meeting its operating budget Ex-
hibit R-4 consists of five pages the first page is an oper-
ating budget for fiscal year November 1987 through Oc-
tober 1988, and the other pages are printouts of actual
monthly operating expense reports for the periods ending
December 31, 1987, and January, February, March, and
April 1988 (Shannon testified that he receives the month-
12 An Increase in territory could militate against a layoff While Gener-
al Counsel states on brief (p 3) that the conversion in Campton "did not
result in any layoffs," she falls to mention this material (and uncontro-
veiled) factor
ly operating expense figures about 4 to 7 days after the
end of the month) According to the yearly budget page
in R-4, the "delivery" per case expense for November
was projected at 64 cents, for December (the first month
of the new system, but also a fairly good sales month
due to the holidays) 59 cents, for January, 74 cents, for
February, 71 cents, for March, 64 cents, and then in the
middle or upper 50s for the remaining months of the
fiscal year The monthly reports disclose a gap between
these projected delivery figures and the actual ones The
exhibit (without explanation) contains no report for No-
vember, the December report shows a delivery-per-case
figure of $1 05 (as against the projected 59 cents), the
January actual figure is $1 03, as against the projected
74, the February report also show delivery expense of
$1 03 (compared to a projected 71), and the March and
April reports show steep actual delivery cost-per-case
declines, to 76 and 68 13
Curiously, the projected yearly budget document in
evidence displays a printout date of "02/12/88," 3 days
after the terminations Shannon explained that because of
"significant growth" of the Johnston Company recently,
the computer systems were "playing catch-up," and the
projected yearly budget beginning in November was
"very, very late coming out this year" Subsequently,
however, Shannon was unsure whether the February 12
date "reflects the date of the actual budget coming in"
Moreover, Shannon was uncertain whether the figures
on the document reflected preliminary figures or not, at
first, he testified that the figures seemingly projected for
November, December, and January, to the best of his
recollection, "reflect actual" experience, then he correct-
ed himself and said that these numbers essentially repre-
sented the preliminary estimates
McCrystal testified that he did not receive a copy of
the annual operating budget until the February 12 print-
out (R-4) He said, however, that both Shannon and Stull
had given him the projected budget figures, not in writ-
ing, but "over the phone" and "in conversations" He
also said that Shannon had on occasion showed him a
copy of the budget data pertaining to McCrystal's facili-
ty, but then put it "back in his file" and did not give
McCrystal a copy of it
The mind resists If one took seriously the claim that
Shannon had in his possession a projected budget for
Somerset for the year, which not only showed five sepa-
rate operating expense categories for each month, but
also, according to McCrystal, a "whole book" of subpart
breakdowns for each category, and yet only allowed the
information to be orally "fed to" (McCrystal's words)
the Somerset manager, one might justifiably fear for the
future of American business (or at least the Bluegrass Di-
vision of the Johnston Bottling Group) The operating
reports for December and January, which came into
Shannon's hands within several days of their issuance,
display actual "current cost per case" in the five separate
expense categories of "advertising," selling, "delivery,"
"warehousing," and "administrative", in order to derive
" The record makes clear that cost-per-case figures decrease as
volume of sales Increases
BLUEGRASS COCA -COLA BOTTLING CO 163
these figures, data entry and a computer program are
presumably required The printouts also contain headings
for "budget per case," both monthly and year-to-date,
but neither of these columns show any data until the
report for February, printed out on March 9 If project-
ed figures had been available, their entry, involving no
calculations, would have been simple enough
Given these facts, one could reasonably believe that in
fact no projected budget was in existence until February
12, and that the figures contained on the first page of R-
4, at least as they pertain to anticipated delivery ex-
penses, may be a contrived effort to understate the an-
ticipated costs in order to make the actual costs incurred
appear more dramatic General Counsel makes no such
argument, however, and I cannot conclude that the evi-
dence clearly establishes any such fraud
Shannon testified, as did McCrystal, that the former
spoke to the latter prior to February to discuss the possi-
bility of a layoff In a subsequent conversation, which he
thought probably occurred Friday, February 5, Shannon
testified, he talked to McCrystal "in regards to the over-
spend in the area of delivery expenses, significantly over
budget, not improving, in fact, a concern that there had
been no improvement whatsoever" Assuming arguendo
that there had been a budget, this testimony is erroneous,
the "budget" in evidence anticipates the delivery cost
per case to rise from $ 59 in December to $ 74 in Janu-
ary, almost a 25-percent increase, the actual figures show
that the per-case-delivery cost declined from $1 05 for
December to $1 03 for January McCrystal did not
appear to recall this conversation, and given that the
printout date of the January figures is the early morning
of Saturday, February 6, it likely did not occur
In the afternoon of Monday, February 8, according to
Shannon, he called McCrystal again to inform him of
"the need for a reduction in force" Present in Shannon's
office during this phone conversation was Bluegrass Per-
sonnel Director Hart Shannon testified that he expressed
to McCrystal his concern about the lack of progress in
reducing the operating expenses, "specifically, delivery
expense," and that "I made the decision for him that
there would be a reduction in force in hopes that we
could force some efficiency into the distribution in that
manner I told him that he was going to have to lay
off a couple of drivers" While Shannon had also asser-
tedly spoken to McCrystal on a prior occasion about the
"potential for layoff," "he had not directed him to lay
off any drivers because he was hoping that McCrystal, a
new manager, who "was very reluctant to reduce the
staff at all" and had conveyed to Shannon that he "had a
real problem with it," would "come to that decision"
himself
McCrystal confirmed his reluctance at the hearing If,
however, as 'Shannon asserted, a principal purpose of the
conversion to presale is to effect economies and thereby
reduce the number of drivers, and this is generally ac-
complished no later than 3 months after the new system
commences, why would McCrystal have been "very re-
luctant to reduce the staff at all?" He had presumably
known, for several months before February 8, that the
inexorable result of the exercise was to diminish the
driver complement, and yet, according to Shannon,
McCrystal had a "real problem" with the assertedly ine-
luctable This could suggest that the inevitability of
layoff might not have been as clearcut as Shannon made
it out to be While McCrystal testified about having
hoped, in vain, that business would pick.up, so as to jus-
tify keeping all nine drivers, that thought, in the absence
of a very large influx of soft drink imbibers into the
Somerset area, runs contrary to one of the long-term
policy objectives alleged by Shannon to underlie the pre-
sale system
Shannon went on to say that he laid out for McCrystal
on February 8 the criteria for "selecting two people for
layoff," and that Hart was present to assist in that en-
deavor Shannon told McCrystal that since the "problem
was efficiency," the eliminated employees should be
"those least efficient" He also heard Hart, when the
latter then spoke to McCrystal, "secondarily suggest
that [the decision] should also include an employee pro-
file" Hart, however, did not recall that he made such a
statement in the Shannon-McCrystal conversation, testi-
fying instead that he may have spoken to McCrystal
again later that day
The personnel files on the Somerset employees were
located in Lexington, but by afternoon on Monday, Feb-
ruary 8, Hart, in Louisville, some 80 miles away, had al-
ready received from Carolyn Thompson in Lexington
"the computer run-out of attendance records" for the
Somerset drivers and had also "gotten information" from
each driver's file concerning "discipline, any' safety infor-
mation, as far as vehicle accidents or personal injuries on
the job" Hart testified that when he talked to McCrystal
on February 8, "Rick was going to look at what Mr
Shannon asked him about efficiencies and cases handled
per hour, whatever he asked him there And I was going
to look at employee personnel profiles from that angle"
In what would have been a second phone conversation,
held after Hart had fulfilled his undertaking of "going to
look at employee personnel profiles," Hart assertedly
told McCrystal that "from the employee profile only,"
the only two drivers who stood out in the area of "most
discipline write-ups" and "vehicle accidents and safety"
were Beckman and Fitzgerald
McCrystal was not asked about, and did not mention,
any such conversation with Hart about a review by the
latter of the "employee profiles" of the nine dnvers Fur-
thermore, his testimony makes it seem quite illogical that
he would have had such a conversation with Hart, either
about "employee profiles" or about any professed inten-
tion "fo look at what Mr Shannon asked him about effi-
ciencies and cases handled per hour" (a specific men-
tioned by neither Shannon nor McCrystal in their testi-
mony For McCrystal very positively told us that during
the Monday call from Shannon, after Shannon told him
to "make the decision," he immediately identified to
Shannon the two employees—Beckman and Fitzgerald—
whom he intended to release He so testified despite his
later testimony that he "chose them along with personnel
records, personnel files, and some help," which is totally
inconsistent with the statement that he announced the
choice during the phone conversation with Shannon But
Shannon muddied the waters even more by testifying
-
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he did not "recall specifically a name being men-
tioned" by McCrystal during that conversation
This is an appropriate point at which to discuss the
subject of the extent to which Respondent's testimony
tends to confirm the evidence regarding the employer's
knowledge of the identity of the participants in the union
activity When Shannon was asked at the hearing about
his knowledge of union activity, he replied that he had
heard from McCrystal and Stull, in separate conversa-
tions, that "there were rumors that it was going on"
Stull went further, testifying that he thought he "heard
Ralph's name mentioned" in connection with the orga-
nizing effort Hart had also heard "rumors" of union ac-
tivity "through Rick McCrystal," but he only asked
McCrystal "to just let me know if, you know, if he heard
anything more, but that was the extent of it" McCrystal
said at the hearing that he, and "everybody," had heard
the rumor, and, indeed, he had heard "four to six" names
mentioned 14
The casualness displayed here is a bit much If, as he
testified, Stull had heard in Lexington about Beckman's
connection, then he likely heard it from McCrystal, and
if the latter had told Hart of "rumors," he must also
have told Hart about Beckman (and, since I believed Joe
Duncan insofar as he conceded that McCrystal speculat-
ed about the connection of the two men to the Union, I
feel sure that McCrystal also mentioned Fitzgerald)
Moreover, other testimony confirms that, in letting
Beckman and Fitzgerald go, Respondent knew that it
was selecting two of the employees most active for the
Union 15 As shown above, all relevant respondent man-
agers at least admitted hearing "rumors" about the union
effort, and Stull conceded more specificity, which he
would very likely not keep secret from the other offi-
cials While Shannon admitted only to having heard
union rumors, denied that he knew on February 8 that
Beckman and Fitzgerald were involved in the union
effort, and did not recall (contrary to McCrystal) that
the latter had immediately identified in their telephone
conversation these two as the ones to be laid off, three
evidentiary items strongly imply that Shannon was
aware of the activity of the two employees as of Febru-
ary 8 (aside from McCrystal's apparent knowledge as im-
plied to Duncan and most probably conveyed to Shan-
non)
The first is Hart's testimony that his discussion of the
layoffs with Shannon on February 8 was the "first time
[he] heard anything about union activity," aside from the
"rumors a week or two weeks before that" communicat-
ed to him by McCrystal The indication here is that the
layoff discussion between Shannon and Hart referred, as
well, to the union activity The second is McCrystal's
testimony that, on February 8, Shannon asked him
14 This information did not prevent McCrystal from stating in a pre-
trial affidavit, Prior to my conversation with Greg at 8 00 p m on Feb-
ruary the 8th, I had no knowledge of any union activity going on at the
Somerset facility" At the hearing, McCrystal floundered around in a dis-
tinction between rumors" and 'direct knowledge of any certain individ-
uals " For this and several other reasons apparent on the record, I con-
sidered McCrystal to be an untrustworthy witness
15 really was only one other—driver Helton, who engaged in
some solicitation of signatures
whether "there's no doubt in [his] mind that [he] can
prove" who his "weaker performers" are (to which
McCrystal replied, "No doubt ") It is difficult to imagine
that Shannon would think in terms of "proving" justifi-
cation for his selections unless he was aware that the two
people to be released were the most prominent union ac-
tivists Finally, the record contains a two-page document
dated February 8 in which McCrystal explains in consid-
erable detail why he selected Beckman and Fitzgerald as
the "least productive" delivery employees McCrystal
testified that Shannon had "requested" him to prepare
such an analysis Respondent's brief (p 10) explains this
memorandum by acknowledging the evidence of Re-
spondent's awareness "in general terms that there was
union activity at Somerset," and asserting (as Shannon
did, in fact, testify) that there was some concern about
the impact on this activity of this "business decision",
hence, the brief argues, "care was taken that those select-
ed would be understood as being the poorest performers
on an objectiVe basis" But the memorandum was ad-
dressed to Shannon, Hart, and Stull, there is no showing
that it was posted to assuage the "impact" upon the
other employees I am inclined to view it as conscious
preparation for possible litigation 16
The economic explanation proffered by Respondent
for getting rid of anyone, much less the two alleged dis-
cnmmatees, is not entirely coherent Shannon said, as
noted, that he told McCrystal to get rid of two employ-
ees because of the "lack of progress in reducing the op-
erating expenses, specifically, delivery expense," hoping
thereby to "force some efficiency into the distribution in
that manner" In filling out Fitzgerald's personnel notice
on February 8, McCrystal wrote both of the following
entries
Due to efficacy [sic] of pre-sell we could not
maintain the number of positions we had in the de-
livery dept Delivery cost had to be reduced
We were continuously creating work for people
in the delivery dept due to the lack of loads This
was causing our delivery cost to be unacceptably
high
And in a statement given to the Kentucky_ Division of
Unemployment Insurance, Carolyn Thompson wrote
that the Company was reducing the number of drivers
because of "the lack of our volume of work"
But while "efficiency of pre-sell" might translate into
"lack of volume of work" for drivers, the more likely ex-
planation is that, as in past years, the soft drink business
is slow in January And lack of work is not what
McCrystal pinpointed as the problem at the heanng He
said that he was "on a very tough schedule from upper
management to get our hourly people under control be-
cause our delivery costs were going through the roar', a
root cause of this was "excessive unnecessary overtime,"
the reduction of which he and Duncan had "continuous-
16 In discussing this document in its brief (p 10, fit 4), Respondent
seems rather defensive "Concededly [,] in the area of total 'employee
profile, McCrystal was looking for and examining minutiae Here, he
was selecting for layoff, not discharge"
BLUEGRASS COCA-COLA BOTTLING CO 165
ly" emphasized to the drivers This explanation hardly
seems consonant with a realization of the potential effi-
ciencies of the presell system
There are several other areas in which Respondent's
evidence displays weakness or grounds for suspicion and
which could be discussed for many more pages the pres-
ence of Hart, from Louisville, and Stull, from Lexington,
at this early meeting on February 9, Hart's admitted
error in attributing excessive absences to Beckman at the
termination interview, the emphasis put by Respondent
on so-called "employee profile" factors at the hearing,
despite McCrystal's testimony that job performance was
"by far number one over the employee profiles" in
weighing these factors, the strange testimony by
McCrystal that he immediately named Beckman and
Fitzgerald to Shannon on ,February 8, but then pored
over the employee production statistics and employee
"profiles" (which he apparently did not have in his
office) and "just weighed everybody out to see which
one was going to be selected", the fact that McCrystal
spoke of how, starting back in mid-January, he would
have Distribution Manager Duncan (who failed to testi-
fy) use the "route itineraries" to "see how we were
doing," whereas General Counsel's Exhibit 17, a memo
from McCrystal to Duncan dated January 29, states that
"[s]tarting Monday, February 4th, we will start using the
route itineraries"," Beckman's uncontroverted testimony
that, after his discharge, Distribution Manager Arnold
Duncan told him that "he didn't know anything at all
about this", and other troublesome areas
Despite these difficulties and deficiencies in Respond-
ent's evidence, which otherwise might serve as a substan-
tial basis for finding adversely to Respondent, other testi-
mony in the record detracts from the strength of General
Counsel's case The theory of the case appears to be that,
in the words of General Counsel's brief (p 14), "Obvi-
ously, Respondent decided to get rid of the union activ-
ists before giving the Somerset facility the full 90 days
that Shannon considered necessary to work into the new
system " 18 She does not argue that the adoption of the
presell system would not appropriately be anticipated to
result in a reduction in the driver complement within a
fairly short period, but seems basically to contend that
that period came sooner than a maximum period which,
presumably, the employees are entitled to That, howev-
er, is not the theoretical drift of Shannon's testimony
The time at which it might be said that the union ac-
tivity, to the Employer's knowledge, "began," is some-
what problematical Beckman, whose sense of timing, as
earlier noted, did not seem acute, gave some confusing
testimony to the effect that in January, he had contacted
Rick Bussell, the union steward at a baking company,
but then decided that he "wasn't gding to say a whole
" It would seem, however, that Respondent must have been using
some sort of monitoring system prior thereto McCrystal also spoke of
mileage and overtime lists which had been maintained
12 This somewhat mischaractenzes Shannon's testimony He said that
"in some cases as early as 30 days we would start to see the system pull-
ing together to the point we could comfortably start' adjusting [i e, re-
ducing the work force]," and that "a 30 to 90 day penod of time for ad-
justment is reasonable to give all people Involved in the new system a
chance to get to feel for their responsibilities" February 8 marked the
69th day after the inception of the system at Somerset
lot to anyone," thereafter, apparently spontaneously,
"several people" approached him and said that a union
was needed He then contacted Bussell again," a meet-
ing was set uk with a union representative for February
1, and pnor to the meeting he spoke to several fellow
drivers about it He also testified, however, that he knew
in January that Respondent had "more people than it
needed at the time, but [he] thought it was just a tempo-
rary thing" But his affidavit concedes that in January,
both McCrystal and Duncan "told [him] at different
times that they were overmanned at Somerset and that a
couple of drivers would be cut " 2° The record, indeed,
makes clear that on a number of occasion during Decem-
ber-January period, drivers vk+re sent home for lack of
work or given "busy work"
That McCrystal also had at least one conversation
with Beckman in January about a general overtime prob-
lem is disclosed by Beckman's testimony that perhaps •a
week prior to February 1, he "had gone in and talked
to" McCrystal about "some of the overtime that we had
got," 2 ' proposing that a weekend worker be hired to al-
leviate what Beckman obviously knew to be regarded as
a problem And while I do not believe McCrystal's testi-
mony that he "continuously" talked to the drivers about
excessive overtime, the foregoing testimony clearly im-
plies that the subject had been adverted to, as does Fitz-
gerald's testimony that at a meeting "about the third
week of January," somewhere around that time," Arnold
Duncan had said that overtime "wasn't no big problem
right now," but the drivers should speed up their work
Joe Duncan, on the other hand, who gave certain testi-
mony favorable to Beckman and Fitzgerald which Gen-
eral Counsel asks me to credit, said that McCrystal and
Duncan discussed excessive overtime perhaps "two,
three times" at drivers' meetings—"it was an issue with
them"
Fitzgerald also testified about this overtime conversa-
tion Placing it as "possibly" during the first or second
week of January, Fitzgerald heard McCrystal say that
"he was going to have to get the overtime down some
way, that he was catching a lot of heat from his superi-
ors about the amounts of overtime He said that it
looked like that he was going to have to—that the Com-
pany wanted him to cut one position 22 .
12 His pretrial affidavit states that he "first contacted" Bussell on or
about January 19, but that • at least a week before that," there was 'a
good bit of talk" about the Union, this appears to contradict his testimo-
ny
20 At the hearing, Beckman said he believed that McCrystal might
have referred to only one driver being terminated, but he seemed willing
to defer to his affidavit
Ii R Exh 8 shows that for the 10-week period from December I,
1987, through February 8, 1988, Beckman had amassed 123-1/2 overtime
hours, as compared to 82-1/2 for Fitzgerald, 82-1/2 for Helton, 82-1/4
for Craig, and a range of 45 to 11 for the other five drivers The figure
shown for Craig on R-8 is only 20-3/4 overtime hours, at heanng, coun
sel for General Counsel detected that this was an error, and I left the
record open for postheanng correction of Craig's statistic A letter from
cininsel for Respondent dated July 20, 1988, shows that Craig incurred
82-1/4 hours of overtime from the payroll period ending December 5,
1987, through the period ending February 6, 1988 I have marked, and
now receive, the letter as it Exh 1
22 As noted, Beckman's affidavit states that he was told by McCrystal
and Duncan in January that "they were overmanned at Somerset and
that a couple of drivers would be cut"
166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It would thus appear from the foregoing testimony
that at what could be a time considerably preceding
Beckman's "first contact" with the baking company
union steward, and well before Fitzgerald had become
involved in the union effort, McCrystal was telling the
employees that his superiors were putting pressure on
him because of the overtime problem, 23 and also that
employees were going to be released
That the employees understood that the driver com-
plement would be diminished as a result of the conver-
sion is nowhere better revealed than in the earlier de-
scribed testimony of General Counsel's witness Andy
Roberts Roberts may have been uncertain with regard
to the question of whether Account Manager Hutchison
was advancing his own opinion or stating a fact about
the reason for the layoffs, but he was quite clear in twice
testifying to Hutchison's stated belief that Respondent
was "going to lay off two drivers," but, he wasn't too—
didn't think that Ralph and Greg were the two to begin
with" This indicates a general impression that the need
for a layoff was anticipated
Another factor seems to militate against the claim that
the terminations were an abrupt response to the organi-
zational activity 24 That factor is the absence of any indi-
cation that after February 9, Respondent was required to
hire replacements for Beckman and/or Fitzgerald, to use
swmgmen or account managers to perform their work,
or otherwise to exact from the remaining drivers an ex-
traordinary amount of effort or overtime While it might
at first seem improbable that seven employees could
handle the work of nine, the evidence shows, as earlier
noted, that prior to February 9, an uncertain number of
drivers had, for lack of sales, been working short weeks
or engaged in odd jobs So far as the record shows, up
to the time of the hearing in mid-May, there were still
only seven driVers (Fitzgerald having been recalled in
April to replace a driver who had quit), and the operat-
ing report for April showed that the delivery expense
per case had dropped to 68 cents (as against the alleged
23 This is another area of suspicion McCrystal's January 29 memoran-
dum to Arnold Duncan seems to treat the overtime problem as a relative-
ly recent one The memo (aC Exh 17) recites that the deliverymen had
run up a total of 332-1/2 overtime hours in the past 3 weeks (49-1/2 for
the week ending January 16, 84-1/2 for the period ending January 23,
and 198-1/2 for the period ending January 30 (how McCrystal would be
able to Incorporate this last figure into a memorandum dated January 29
(a Friday) and purportedly typed by a secretary can be explained only, I
suppose, either (1) by the fact that the memo was not really typed on
January 29 or (2) by the fact that McCrystal and the secretary stayed at
the plant that Friday night until all drivers had returned, and then wrote
the letter) If we assume that in the first week in February, this 3-week
average of about 110 overtime hours per week was maintained, that
would mean that only 110 hours of overtime were used in the first 6
weeks (or about 18 hours per week), since the total overtime on R Exh
8, as amended, is 542 hours Despite this apparently low amount of driver
overtime during the first part of January, Respondent may not have con
sidered it to be trivial (as the testimony shows, driver overtime also en-
tails overtime for the warehousemen who have to wait for the drivers to
return to unload the remaining goods on the trucks)
In any event, the testimony of Beckman and Fitzgerald is there in the
record, while I might possibly hold that the two witnesses simply erred
in their recall of the tunes, and that McCrystal and Duncan made those
remarks only after the union activity became apparent, that would simply
be a gratuitous favor to the General Counsel
24 Abrupt they were, but, as discussed immediately above, not without
forewarning that a layoff loomed
budgeted figure of 59 cents, the report further shows
that in the other four categories of operating expense,
the actual April figures also exceeded, by from 2 to 8
cents per case, the budgeted figure) The state of the
record on this point thus implies that removal of two
drivers on February 9 was a seemingly prudent business
decision 25
General Counsel's brief contains no alternative argu-
ment that, conceding arguendo the reasonableness of ter-
minating two employees on February 9, the selection of
Beckman and Fitzgerald was suspiciously capricious or
unjustifiable 26 As for Beckman, that would be an awful-
ly difficult contention to make R-8 (as amended by J-1),
which portrays the raw statistics about the performance
of the 9 drivers from December 1, 1987, to February 8,
1988, shows that Beckman had by far the lowest cases
per hour delivered (17, with the other drivers ranging
from 22 to 32) and the largest amount of overtime (123-
1/2 hours, with the others ranging from 11 to 82-1/2)
Although Beckman had been praised in the past, he had
also been criticized after the new system was installed
(but long before any union activity commenced) While
Beckman testified, as General Counsel's brief quotes (p
14), that McCrystal told him on February 9 that Beck-
man had "done a good job," Beckman at the same time
conceded that McCrystal said the termination decision
had been based on "overtime, sick days, and job per-
formance" It is also worth noting that when Roberts
spoke to Hutchison, Roberts only expressed puzzlement
about the termination of Fitzgerald, whom he considered
to be a good worker (Roberts' testimony indicates equal
familiarity with Beckman's job performance) 27
Fitzgerald's statistics are less stark While the 10,240
cases he delivered during the period covered by R-8 led
all the rest (the next highest being 9832 and the latest
6101), his "cases per hour" figure was only 24, a fourth-
best record which he shared with 3 other drivers (top-
ping him in this category were drivers with 32, 28, and
26 cases per hour) Fitzgerald also was the leader—no
honor this—in cases returned unsold, showing 2730, or a
percentage of 21 percent, 28 and was tied for second
highest overtime hours, at 82-1/2 Under the presale
system, the account managers, who do the selling, would
seem responsible for the overloading of cases for deliv-
ery (which cases then must be unloaded when returned
to the warehouse) As Fitzgerald testified, however, at
least 90 percent of his returns were attributable to the
Winn-Dixie store, where he had sold for 3-1/2 years
25 Former employee Donnie Helton testified that, at some unspecified
time after the two left, the remaining drivers "got to where" they were
pricing fewer rows of cans and 2-liter bottles He said, however, that the
practice of pricing less than all of the displayed product had been "done
before," and General Counsel did not elicit an estimate of how much
time this change saved (nor does she refer to the matter in her brief) I
do not see how I can draw any substantial conclusions from such scant
evidence
28 Fitzgerald could name only two other drivers whom he thought
were "poorer performers" than himself
27 It may further be noted that, in 1987, neither Fitzgerald nor Beck-
man was selected to be an account manager
28 This averages 273 per week over the 10-week period covered, or (in
a 5-day week) 54 6 cases Friday Helton guess[ed] that the normal
return would be around 10 to 15 cases maybe"
' BLUEGRASS COCA-COLA BOTTLING CO 167
prior to the conversion, and he worked "jointly" with
the new account managers in determining how much
product to deliver to Winn-Dixie 29
The foregoing discussion leads us into the boundaries
of a rather complex discretionary area in which only
very clear second-guesses of right or wrong would be
proper The evidence here is not clear enough 39
Based on the foregoing analysis, and not without con-
siderable misgivings, I feel constrained to conclude that
General Counsel has not made out a case of discrimina-
tion here, whether the theory be that the concept of the
layoffs or the selection of the employees to be released
was inspired by the union activity which the record
shows Although Respondent's explanations and actions
are riddled with problems of all sorts, many are capable
of characterization as the kind of self-conscious defensive
reactions often stimulated when discharges are made in a
known context of organizing, when an employer in such
a situation fudges about the extent of its knowledge of
the union activity, as happened here, and may even have
fabricated evidence, it makes itself look even worse But
here, as discussed, there is evidence from General Coun-
sel's own case which seems to me to weaken that case
Just enough as to require a conclusion that General
Counsel has not shown the union activity of Beckman
and Fitzgerald to be a "motivating factor" in their termi-
nation on February 9 NLRB v Transportation Manage-
ment Corp, 462 U S 393, 401 (1983) The case is close,
another finder of fact might, not unreasonably, disagree
with me, but, on the record before me, I find that Gener-
al Counsel has failed to prove the 8(a)(3) allegation by a
"preponderance of the testimony taken," as required by
Section 10(c) of the Act
I do find, however, that Respondent violated Section
8(a)(1) of the Act when McCrystal inquired of Joe
Duncan as to who was behind the union drive and, more
specifically, whether Beckman and Fitzgerald were re-
sponsible for starting the union effort These unjustified,
naked probes into the Section 7 activities of other em-
ployees by the highest ranking plant official, questions to
which Duncan responded by lying or silence, must
surely have to be viewed as possessing a reasonable tend-
ency to restrain Duncan in his own exercise of rights
29 Fitzgerald testified that after asking his advice, the account manag-
ers "would go on from my suggestion and add cases to what I had said
even," ills difficult to believe, however, that the managers would contin-
ue to do this to any great extent after being proven wrong a time or two
A major difficulty I encountered with Fitzgerald s testimony appeared in
his account of his termination interview After being led Into a lengthy
account of how he explam[ed] at the meeting the difficulties he had
found under the new system by being forced to drive a tractor-trader, for
which he 'hadn't had training (Tr 211), he said on cross the next day
that he did not "think that I said that, I had no training" In addition, his
affidavit does not reflect that he described the alleged discourse about the
problems with the trailer during the interview
30 It may be noted that of the nine drivers, only three—Beckman, Fitz-
gerald, and Craig—had recorded disciplinary entries in their files Fitz-
gerald's had to do with verbal warnings he received for failures of serv-
ice at the Roger store on December 8 and 18, based on complaints by
Roger managers Beckman had, on November 3, 1987, received a person-
nel file entry documenting four recent admonitions given to him Craig,
who had been employed by Respondent since May 1979, received a rep-
rimand for failure to properly service certain stores on December 10,
1987
under that section, should he have been interested in
doing so
CONCLUSIONS OF LAW "
1 Respondent is an employer engaged in commerce
with the meaning of Section 2(2) of the Act
2 Local Union No 651, affiliated with the Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act
3 By, in January 1988, coercively interrogating em-
ployee Joe Duncan, Respondent violated Section 8(a)(1)
of the Act
4 The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act
5 Except as set out above, Respondent has not been
proved to have violated the Act in any other respect al-
leged in the complaint
THE REMEDY
I shall recommend the entry of a traditional cease-and-
desist order and further recommend that Respondent be
required to post appropriate notices
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Bluegrass Coca-Cola Bottling Com-
pany, Louisville, Kentucky, its officers, agents, succes-
sors, and assigns, shall
1 Cease and desist from
(a) Coercively interrogating employees with regard to
the activities of employees on behalf of, any labor organi-
zation
(b) In any like manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form, join, or assist any labor organi-
zation, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for
the purposes of collective bargaining or other mutual aid,
or to refrain from any and all such activities
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its place of business in Somerset, Kentucky,
copies of the attached notice marked "Appendix "32
Copies of the notice, on forms provided by the Regional
Director for Region 9, after being signed by Respond-
ent's authorized representative, shall be posted by it for
60 consecutive days in conspicuous places, including all
places where notices to employees are customarily
3 i 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
32 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading 'Posted by Order of the Nation-
al 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
168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posted Reasonable steps shall be taken by the Respond-
ent to ensure that said notices are not altered, defaced, or
covered by any other material
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
IT IS ALSO ORDERED that those portions of the com-
plaint found to be without merit are hereby dismissed
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has Or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT coercively interrogate employees with
regard to the activintes of employees on behalf of any
labor organization
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the nghts guaranteed them by Section 7 of the Act
BLUEGRASS COCA-COLA BOTTLING COMPANY