Pepsi America, Inc.

National Labor Relations Board - Board Decisions

Aug 13, 2003

339 N.L.R.B. 986 (N.L.R.B. 2003)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 986
Pepsi America, Inc. (fka Delta Beverage Group) and
Teamsters Local 1196, International Brother-
hood of Teamsters, AFL–CIO. Cases 26–CA–
19686, 26–CA–19738, and 26–CA–19988
August 13, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On October 1, 2001, Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
The judge found, among other things, that the Respon-
dent violated Section 8(a)(5) and (1) of the Act by unilat-
erally changing its attendance policy. In February 2000,
the Respondent, unilaterally and without notice to the
Union, eliminated from its attendance policy a provision
that enabled employees to earn credits for good atten-
dance that could be used for future paid time off. At the
time that the Respondent made this change, some of its
employees had earned these credits and had not yet ex-
pended them. The Respondent’s change eliminated the
employees’ existing credits as well as the employees’
ability to earn future credits.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and
the positions of the parties.
2 We amend the judge’s remedy to provide that backpay shall be
computed in the manner provided in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), rather than
F. W. Woolworth Co., 90 NLRB 289 (1950). The Ogle Protection
formula applies when, as here, the Board is remedying “a violation of
the Act which does not involve cessation of employment status or in-
terim earnings that would in the course of time reduce backpay.” Ogle
Protection Service, 183 NLRB at 683.
We shall modify par. 2(f) of the judge’s recommended Order in ac-
cordance with Ferguson Electric, Inc., 335 NLRB 142 (2001). Addi-
tionally, we shall change the date in par. 2(g) of the judge’s recom-
mended Order from August 1, 1998, to February 8, 2000, the date of
the first unfair labor practice, in accord with Excel Container, Inc., 325
NLRB 17 (1997).
We will also substitute a new notice in accordance with Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001).
The Respondent contended that it could unilaterally
change the attendance policy because it unilaterally
changed rules concerning employee conduct, including
attendance, in the past without union objection and be-
cause it was authorized to do so under the management
functions article of the collective-bargaining agreement.
In support of this contention, the Respondent cited lan-
guage from that article giving it the right “to establish,
maintain, and enforce rules and regulations and to change
and abolish same” and to “determine job classifications,
standards of performance, and to require satisfactory
compliance therewith.”
Concluding that the Respondent’s unilateral change
violated the Act, the judge found that the collective-
bargaining agreement did not specifically provide the
Respondent the right to unilaterally change its attendance
policy and that the Respondent had failed to establish
that the Union had waived its right to bargain over the
attendance policy change.
We adopt the judge’s finding that the Respondent’s
unilateral change of its attendance policy violated Sec-
tion 8(a)(5) and (1), but only for the following reasons.
The portions of the management functions article on
which the Respondent relies concern rules governing
employee conduct, as the Respondent itself asserts. The
matter at issue here—the Respondent’s attendance credit
program—concerns an employee benefit, not a rule. The
program does not regulate attendance; it establishes a
reward for good attendance—that is, a benefit or an addi-
tional form of compensation. In sum, the management
functions provision relied on by the Respondent does not
even arguably apply to the attendance credit program.
Similarly, the Respondent’s contention that it has histori-
cally changed rules unilaterally, pursuant to the man-
agement functions article, is irrelevant to the issue
whether it could unilaterally change the attendance credit
program benefit. In these circumstances, where no con-
tractual provision even arguably applies to the subject of
the Respondent’s unilateral change, it is unnecessary to
apply either a “contract coverage” analysis, which the
Respondent urges us to do, or a “clear and unmistakable”
waiver analysis, as the judge did. On this basis, we adopt
the judge’s finding that the Respondent’s unilateral
change of its attendance policy violated Section 8(a)(5)
and (1).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Pepsi
America, Inc. (fka Delta Beverage Group), Collierville,
Tennessee, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
339 NLRB No. 125
PEPSI AMERICA, INC. 987
1. Substitute the following for paragraph 2(f).
“(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.”
2. Substitute the following for paragraph 2(g).
“(g) Within 14 days after service by the Region, post at
its facility in Collierville, Tennessee, copies of the at-
tached notice marked ‘Appendix.’2 Copies of the notice,
on forms provided by the Regional Director for Region
26, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 8,
2000.”
3. Add the following paragraph as 2(h):
“(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.”
4. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER WALSH, concurring.
I agree with my colleagues in all respects except for
their rationale for affirming the judge’s conclusion that
the Respondent violated Section 8(a)(5) and (1) by uni-
laterally revising the attendance policy to eliminate a
provision that enabled employees to earn credits for good
attendance that could then be used to get paid time off.
I fully agree with the judge’s rationale for finding this
violation. It is solidly based on well-established Supreme
Court and Board precedent governing resolution of the
question of whether a union has contractually or by prac-
tice waived its statutory right to bargain about terms and
conditions of employment. Metropolitan Edison Co. v.
NLRB, 460 U.S. 693 (1983); Johnson-Bateman Co., 295
NLRB 180 (1989).
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT institute unilateral changes in the atten-
dance policy, grievance procedure, or make contract
modification of the hours of the can line affecting the
terms and conditions of our employees in the following
appropriate unit:

Included: All truck drivers, warehousemen, production
workers, dock workers, fleet, quality control and main-
tenance personnel employed at Respondent’s facility at
Collierville, Tennessee.

Excluded: All office clerical employees, guards and
supervisors as defined in the Act.

WE WILL NOT bypass Teamsters Local 1196, Interna-
tional Brotherhood of Teamsters, AFL–CIO and deal
directly with the unit employees concerning their terms
and conditions of employment.
WE WILL NOT fail or refuse to notify the Union of any
proposed changes in the terms and conditions of em-
ployment of the unit employees.
WE WILL NOT fail or refuse to furnish the Union with
relevant information as the collective-bargaining repre-
sentative of the employees.
WE WILL NOT threaten our employees for their en-
gagement in concerted activities.
WE WILL NOT issue written warnings or other disci-
pline to our employees because of their engagement in
union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL upon request by the Union immediately re-
scind any of the unilateral changes instituted by us in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 988
attendance policy, the grievance procedure, or other con-
tract modifications of the hours of the can line employ-
ees.
WE WILL notify the Union and offer to bargain con-
cerning any proposed changes in the hours and terms and
conditions of employment of the unit employees.
WE WILL immediately furnish the Union with the in-
formation requested by it in February 2000, concerning
the attendance policy and will furnish any other relevant
information within a reasonable period.
WE WILL rescind the written warning issued to Howard
Westbrook and will inform him in writing that it shall not
be used against him in any manner in the future.
WE WILL make whole the unit employees for any loss
of wages or benefits incurred by them as a result of the
unilateral changes, with interest.

PEPSI AMERICA, INC. (FKA DELTA BEVERAGE
GROUP)

Melvin Ford, Esq., for the General Counsel.
David P. Jaqua, Esq., for the Respondent.
Wesley Fiveash, Business Manager, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
consolidated case was heard before me on May 21 and 22,
2001, in Memphis, Tennessee. The complaint as amended at
the hearing was issued by the Regional Director for Region 26
of the National Labor Relations Board (the Board) on charges
filed by Teamsters Local 1196, International Brotherhood of
Teamsters, AFL–CIO (the Charging Party or the Union) and
alleges that Pepsi America, Inc. (fka Delta Beverage Group)
(the Respondent or the Company) violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act (the Act). Respon-
dent has by its answer as amended at the hearing denied the
commission of any violations of the Act and has raised certain
affirmative defenses on the ground that the underlying charges
were not filed with the Board within the 6-month limitations
period of their occurrence as provided in Section 10(b) of the
Act.
On the entire record, including the testimony of the wit-
nesses and the exhibits received in evidence and after review of
the briefs filed by the General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, Respondent admits, and I find that at
all times material, during the 12-month period preceding the
filing of the complaint, Respondent has been a corporation,
with an office and place of business in Collierville, Tennessee,
where it has been engaged in the manufacture, distribution, and
sale of soft drinks, that during the 12-month period ending
January 31, 2001, Respondent in conducting its business opera-
tions sold and shipped from its facility goods valued in excess
of $50,000 directly to points outside the State of Tennessee and
purchased and received at its facility goods in excess of
$50,000 directly from points outside the State of Tennessee and
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that at
all times material, the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
A. The Appropriate Unit
The complaint alleges, Respondent admits, and I find that at
all times material herein the following employees of Respon-
dent (the unit) constituted a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the
Act:

Included: All truck drivers, warehousemen, production work-
ers, dock workers, fleet, quality control and maintenance per-
sonnel employed at Respondent’s facility at Collierville, Ten-
nessee.

Excluded: All office clerical employees, guards and supervi-
sors as defined in the Act.
B. Background
Respondent, Pepsi America, Inc., formerly known as Delta
Beverage Group is operating under a labor agreement which
Delta Beverage had with the Union. The current contract will
expire by its terms on September 30, 2001. Wesley Fiveash is
secretary/treasurer and the business agent of the Union and
services the labor agreement as an outside nonemployee repre-
sentative. Howard Westbrook is an employee of Respondent
and is chief steward of the Union. Joe Yates is the plant man-
ager. Jim Russell is Respondent’s human resources manager.
Each of the individuals alleged as having violated the Act in the
complaint are admitted supervisors. There are four general
categories of issues in this case. They are changes in the atten-
dance policy, alleged changes in the rules for the presentation
and processing of grievances, unilateral changes and direct
dealing by Respondent with the employees concerning their
working hours and lunch periods, and an alleged unlawful sus-
pension of employee Ernest Blades and an alleged unlawful
written warning and threat issued to Chief Steward Westbrook.
Plant Manager Yates took over as plant manager about 6
years ago as of the date of the hearing. After doing so, he un-
dertook to institute a number of changes and in his view to
tighten up the grievance procedure and instituted unilateral
changes in the hours and terms and conditions of employment
of the unit employees. According to the testimony of Business
Agent Fiveash, many of the rules and regulation changes were
seen as reasonable and were not challenged by the Union. The
Respondent’s position in this case appears to be that once the
Respondent has made a change in the terms and conditions of
employment of its employees and the Union has not challenged
the change, the Union can no longer seek to bargain about any
subsequent changes the Respondent seeks to make. Thus, the
PEPSI AMERICA, INC. 989
Respondent, in reliance on the general management-rights
clause in the collective-bargaining agreement (CBA) and al-
leged “past practice” contends it is free to institute changes in
the terms and conditions of its unit employees at will. Conse-
quently it has routinely implemented changes without prior
notice to the Union and has presented changes as “fait accom-
pli” to the employees. When the Union learned about some of
these changes and sought to bargain concerning them, the Re-
spondent refused, contending it was free to institute the changes
without notice to the Union. In its defense in this case, Re-
spondent contends that the charges are untimely as there were
prior instances of similar changes that went unchallenged by
the Union and that the charges are thus barred by Section 10(b)
of the Act which provides for a 6-month period of limitations
from the date of the occurrence for the filing of charges with
the Board. Respondent contends that the Union has waived
their rights to bargaining over future changes that are made
because it did not challenge similar changes in the past. Re-
spondent also contends it is abiding by the contract and has not
changed the wages or benefits received by its employees.
C. The Attendance Policy
It is undisputed that in February 2000, Respondent’s plant
manager, Yates, unilaterally and without prior notice to the
Union eliminated from its attendance policy a provision that
provided for employees incurring positive occurrences or cred-
its for good attendance that could be used in the future for paid
time off. When the Union learned of this change and asked to
bargain about it and requested information, they were rebuffed
by Respondent. They were neither furnished information nor
did Respondent agree to bargain about the changes. In its letter
of February 17, 2000, the Union by letter asked for information
concerning any problems associated with attendance under the
attendance policy prior to the implementation of the elimination
of the positive occurrences or credits in the attendance policy.
Fiveash testified that in a labor management meeting held on
March 21, 2000, Respondent’s officials stated they would not
and did not have to bargain concerning the change in the atten-
dance policy. They reaffirmed this in a letter dated April 7,
2000, sent by Human Resources Manager Russell to Fiveash.
In this letter Russell asserted that Respondent had the right to
make changes in the attendance policy under article 3 of the
collective-bargaining agreement entitled “Management Func-
tions.” This is a broad management-rights clause which does
not specifically specify any right to change the attendance pol-
icy.
The Union filed a grievance dated March 24, 2000, over the
attendance policy change. The Union requested any records
that show there was an absenteeism problem with the prior
policy. This request was also denied by Russell in his April 7
letter to the Union. The Union has never received the informa-
tion. At the hearing, Plant Manager Yates testified that there
were no attendance policy or absenteeism problems that had led
to the change in the attendance policy. Yates asserted that the
primary change in the attendance policy was the removal of the
Section which allowed the earnings of credits for good atten-
dance. Yates testified that it was a burdensome process to keep
up with the credits and to determine when the credits could be
used. Yates admitted that at the time of the change in the pol-
icy there were employees who had earned and had these credits.
Thus, the change removed not only the right to future credits
but eliminated existing credits.
Respondent’s position with respect to the change in the at-
tendance policy is that it “was contractually privileged under
express management rights provisions of the existing CBA, as
interpreted and applied by the parties through their course of
conduct over many years, to make the unilateral change in its
attendance policy.” “The Union had long acceded to Respon-
dent’s interpretation of the specific management rights provi-
sions permitting Respondent ‘to determine . . . standards of
performance’ as set forth in Article 3 of the CBA. This history
of application of the relevant contractual language over the
course of successive contracts established Respondent’s con-
tractual right to do what it did in this case. Further, to the ex-
tent that the Union disagrees that Respondent had the contrac-
tual right to make the practical change which it did, the Union’s
remedy lies in contract and does not rise to the level of prohib-
ited unilateral action violative of the Act.”
Analysis
In C & S Industries, 158 NLRB 454 (1966), the Board held
at 457—where “an employer seeks to modify during the life of
an existing contract, terms and conditions of employment em-
bodied and made effective for its term” . . . “neither party is
required under the statue to bargain anew about the matters the
contract has settled for its duration, and the employer is no
longer free to modify the contract over the objection of the
Union.” At 459—“Respondent’s unilateral superimposition of
an incentive wage plan upon the contractually established wage
plan structure operated as a ‘modification’ of contract terms
within the meaning of Section 8(d).” The Board held it is “not
precluded from resolving an unfair labor practice issue calling
for appropriate relief under the Act, simply because as an inci-
dent thereto it may be necessary to construe the scope of a con-
tract which an arbitrator may also be empowered to construe.”
In this case, the Employer was held to have violated Section
8(a)(1) and (5) of the Act by instituting without the consent of
the Union, a wage incentive system during the term of the ex-
isting collective-bargaining agreement.
In Cypress Lawn Cemetery Assn., 300 NLRB 609 (1990), the
administrative law judge with Board approval held that the
employer had violated Section 8(a)(5) and (1) of the Act by the
implementation of a new operations plan which provided for
bonuses without first providing a meaningful opportunity for
the collective-bargaining representative to bargain about these
changes which were mandatory subjects of bargaining. In this
case the Board rejected the employer’s reliance on a broad
management-rights clause as support for its actions in institut-
ing the unilateral change in the employees’ terms and condi-
tions of employment, citing Johnson-Bateman Co., 295 NLRB
180, 184–185 (1989), which held that the waiver of a statutory
right will not be inferred from general contract provisions.
Rather such waivers must be clear and unmistakable. Metro-
politan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
In Johnson-Bateman, supra, the Board also held that the un-
ion’s acquiescence in the respondent’s unilateral implementa-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990
tion of numerous work rules did not constitute a waiver of its
right to bargain about the implementation of a drug/alcohol
testing program. In Owens-Corning Fiberglas, 282 NLRB 609
(1987), cited in Johnson-Bateman, the Board majority held that
“a union’s acquiescence in previous unilateral changes does not
operate as a waiver of its right to bargain over such changes for
all times.” The Board in Johnson-Bateman also noted that the
Ninth Circuit Court of Appeals held in NLRB v. Miller Brewing
Co., 408 F.2d 12 (9th Cir. 1969), enfg. 166 NLRB 831 (1968),
that:

[I]t is not true that a right once waived under the Act is lost
forever . . . . Each time the bargainable incident occurs—each
time new rules are issued—[the] Union has the election of re-
questing negotiations or not. An opportunity once rejected
does not result in a permanent “close out” . . . . [Citations
omitted.]

In Kiro, Inc., 317 NLRB 1325 (1995), cited by Respondent,
the Board found that the employer, an affiliate of the Columbia
Broadcasting System, had no obligation to bargain with the
union over the decision to produce a regular news program on
the channel of an independent television station. However, it
also held at 1327 that the employer had an obligation to bargain
over the “effects” of this decision which “resulted in increased
workloads, split shifts and greater productivity demands for
certain unit employees.” The Board found at 1327 these
changes in working conditions were “material, substantial and
significant” and were mandatory subjects of bargaining. It also
rejected respondent’s defenses that the management-rights
clause which reserved to the employer the right to schedule,
assign work and establish production standards constituted a
waiver of the union’s right to bargain over the effects of its
decision to produce the 10 p.m. news. It stated that it is well
settled that a waiver of statutory rights must be clear and un-
mistakable citing Metropolitan Edison, supra; Johnson-
Bateman, supra; and Control Services, 303 NLRB 481, 483–
484 (1991). It found in the Kiro case that there was an absence
of evidence to support an inference of a waiver from extrinsic
evidence of contract negotiations and/or past practice. I find
that the Kiro case cited by Respondent affords support for the
finding of a violation of Section 8(a)(1) and (5) in the instant
case as well as do the other cited cases set out above.
More recently in Brimar Corp., 334 NLRB 1035 (2001), a
Board majority held that the employer “violated Section 8(a)(5)
of the Act by its promulgation and implementation of new
‘forms’ without giving the Union timely notice and an opportu-
nity to bargain concerning the forms, and by dealing directly
with its employees by requiring them to sign the new forms.”
The Board majority found that “the unilateral introduction of
the forms was a material, substantial, and significant change in
terms and conditions of employment.”
I conclude on the basis of the evidence and in reliance on the
above-cited cases that Respondent violated Section 8(a)(5) and
(1) of the Act by its institution of the unilateral changes in its
attendance policy and by its refusal to furnish the Union with
information concerning attendance or absenteeism problems
with the old policy. I find the collective-bargaining agreement
does not specifically provide the Employer the right to unilater-
ally change the attendance policy. I find that Respondent has
failed to establish by the collective-bargaining agreement or
any extrinsic evidence and/or past practice that the Union
waived the right to bargain over the changes in the attendance
policy. I find that the Respondent has failed to establish its
10(b) limitation on the filing of charges defense as the Union’s
failure to challenge past changes did not waive the Union’s
right to challenge changes in the future. I further find that Plant
Manager Yates’ testimony that there were no attendance or
absenteeism problems under the attendance policy did not ful-
fill the Union’s request for information. I agree with the Gen-
eral Counsel’s position that Respondent had an obligation to
furnish the Union with the requested information and that as-
suming arguendo that the request was ambiguous, Respondent
had an obligation to request clarification in order to comply
with the request to the extent it encompassed necessary and
relevant information. Keauhou Beach Hotel, 298 NLRB 702
(1990).
D. The Grievance Procedure
1. The General Counsel’s case
Article 6 of the collective-bargaining agreement entitled:
“Union Representation” provides in pertinent part: “The Em-
ployer recognizes that the right of the Union to designate bar-
gaining unit employees as job stewards to handle such Union
business as may from time to time be delegated to them by the
Union. Such Union business will not be conducted on Em-
ployer time.” Fiveash testified that the Union’s interpretation
of this language is that it refers to temporary leaves of absence
when stewards become involved in local civic affairs such as
poll watchers on election days and that the language does not
address the function of a job steward within the plant.
Fiveash acknowledged that article 6 does not contain specific
language requiring pay for stewards who handle grievances
while they are on the clock. However, this article also provides
as follows:

It is contemplated that the steward and the assistant stewards
will assist the Employer, the employees and the Union, and
they will meet with the representative or representatives of the
Employer, including negotiations (except) for a new contract),
grievances or other business pertaining to the welfare of the
Employer and the employees. However, the Employer is un-
der no obligation to pay stewards for time spent in meetings
when they are not scheduled to work. [Emphasis added.]

Fiveash testified at the hearing that this language clearly im-
plies that stewards are to be paid for time spent in grievance
meetings except for when they are not scheduled to work. He
testified further that the company practice has been to pay
stewards for attendance at regular grievance meetings. Article
6 also provides that stewards may discuss complaints and
grievances of employees on the premises of the Employer.
There is no language restricting the location of these discus-
sions.
Section 4 of article 6 provides: “Stewards will be granted
time off from work to investigate grievances after requesting
and receiving permission from their supervisor (which shall not
be unreasonably denied) however, such grievance investigation
PEPSI AMERICA, INC. 991
shall not interfere with production.” Fiveash testified that con-
sistent with this provision, stewards have been paid for time
spent handling grievances while they were on the clock and this
had been the practice with both Delta Beverage and Pepsi
Americas.
Howard Westbrook, who has been the Union’s chief steward
at this plant since 1978, testified he has handled and processed
grievances while he was on the clock and has consistently been
paid by the Employer for this time. Westbrook would obtain
permission from his immediate supervisor to leave his work
area to handle grievances including first- and second-step
grievance meetings. The presence of a steward is not required
for the presentation of a first-step grievance which may be filed
directly by the employee. However, upon request by the em-
ployee, a steward may be present at the first-step meeting as
well as at subsequent step meetings where the steward’s pres-
ence is required under the collective-bargaining agreement.
After obtaining permission from his supervisor to leave his
work area to handle grievances, Westbrook would, upon re-
quest by an employee, make arrangements with the immediate
supervisor of the employee to schedule a first-step meeting.
Westbrook did not discuss grievances at work with the employ-
ees. Normally, the employee would call Westbrook at home or
talk to him after the end of the shift.
Third-step grievance meetings were scheduled by Fiveash
and Russell, Westbrook attended these third-step meetings as
chief steward while on and off the clock. Westbrook was paid
by the Employer for his attendance at these meetings while he
was on the clock. However, if the third-step meeting extended
beyond the end of the shift, Westbrook would clock out and
then return to the meeting which prevented him from incor-
rectly receiving credit for time spent in the grievance meeting
beyond the normal quitting time.
In April 2000, Westbrook’s immediate supervisor, Greg
Shea, told him to go to the conference room for a third-step
meeting and ordered him to clock out prior to doing so. West-
brook clocked out about 2:20 p.m. His shift ended at 3 p.m.
After the meeting, Westbrook complained to Fiveash and Rus-
sell about this and Russell said he would take care of it. How-
ever, Westbrook was never paid for the lost time.
Subsequently, Westbrook was given a written warning on
May 15, by his supervisor, Greg Shea, for being out of his work
area without permission on May 12. Westbrook is a mechanic
and works throughout the production area. Westbrook in-
formed Shea that he had begun his break and had gone to the
warehouse area to present two grievances to Steve Smit, who is
the warehouse manager which is a separate area from the pro-
duction area. However, the warehouse employees are part of
the unit represented by the Union. Shea told Westbrook he
should take his breaks in the designated break area which is
adjacent to the production area. Shea also told Westbrook not
to discuss union business on his breaks prior to this incident.
The two grievances which Westbroook had attempted to pre-
sent to Smit were on behalf of truckdriver Billy Ray Morris.
Westbrook was attempting to turn in two second-step griev-
ances as Morris advised him he had been unsuccessful in at-
tempting to file the grievances at the first-step meeting. Morris
testified at the hearing that he had requested the presence of a
union steward but was told by management that none were
available. Westbrook did not want the grievances to be un-
timely. Westbrook testified that at about 2:10 p.m. he began
his break and went to Smit’s office and told Smit he had two
grievances for Morris to turn in at the second step. Smit re-
fused to take them on the ground that Morris had not had a
first-step meeting. Westbrook testified he returned to the pro-
duction area and observed that the pet line palletizer was down.
Although he was still on break he went to work on the pallet-
izer in his job as a mechanic. At about 3:10 p.m., he went
again to see Smit. He testified he did not seek permission to
leave his work area because he had not yet finished his break
which had been interrupted by his work on the palletizer. He
went to the reception area and paged Smit who arrived shortly
thereafter and told him his break was finished. Morris was
present at that time. Westbrook then returned to work without
having been able to file the grievances. When Westbrook re-
turned to production he saw Maintenance Manager Glen
Dallmann and asked for permission to be relieved to have a first
step meeting with Smit and Morris. Dallmann denied this re-
quest.
On May 16, Westbrook requested a first-step meeting to file
a grievance concerning his written warning. Shea scheduled
the meeting for May 18, at 11:30 a.m., which was Westbrook’s
normal lunch. The meeting was not held because Westbrook
worked all day on May 18 to repair the Shrink-wrap machine.
Westbrook asked another employee to attempt to reschedule
this first-step meeting. However, Shea said it was untimely.
Shea testified that on May 12, he was informed by Dallmann
that Smit had called and said that Westbrook had been in his
office in an attempt to file a grievance. Dallmann asked Shea
to investigate. Shea testified that later that day he saw West-
brook in the lobby area and asked him what he was doing in the
warehouse area earlier that afternoon. Westbrook told him he
was attempting to file a grievance for Morris. Shea testified he
asked Westbrook if he had asked permission to go to the ware-
house. Westbrook said he did not need to because he was on
break. Shea told him he was out of his department and that
being on break was not relevant as breaks are taken in the
breakroom. Shea then asked him why he was in the lobby if he
had taken his break. Westbrook told him he had split his break.
Shea testified he reported this to Dallmann and decided to give
Westbrook a written warning for being out of the production
area. Shea testified he did not remember having told Westbrook
he could only talk to employees about union business or griev-
ances in the designated break area.
Fiveash testified he had attended several grievance meetings
during worktime at Respondent’s facility which were during
worktime and that Westbrook was present. He also testified
that Westbrook had been paid for his attendance at grievance
meetings during worktime.
2. Respondent’s case
Respondent in its defense to this allegation contends that the
only evidence in the record concerns the events of May 11–12,
2000, involving Chief Steward Westbrook’s attempts to file a
second-step (written) grievance to Warehouse Manager Smit
outside of Westbrook’s work area. It contends, “there was no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
evidence adduced by General Counsel as to any actual imple-
mentation or announcement (oral or written) of any change in
the way in which the Company administered the grievance
procedure with respect to first or second step grievances or any
new restrictions placed on union stewards.” Fiveash admitted
he is normally not involved in the grievance procedure until
step three when the outside union representative meets with the
human resources manager. Fiveash is not in the plant when
employees and their stewards meet with supervisors regarding
grievances. In the July 20, 2000 response to the grievance of
Howard Westbrook, the language of article 8 step two of the
grievance procedure was quoted and Respondent stated that
“[t]he contract language is clear in stating that the Grievent
must present the grievance to his manager. It is up to the
Grievant if they want to have the steward in attendance.” The
response also states that “[w]hen situations exist where the
Company decides that grievances can be scheduled during
working hours and the Grievent can be relieved from work he
will be paid for the time spent in the hearing.” (GC Exh. 14.)
Respondent concedes that this statement by the Company is
consistent with the Union’s position on the proper procedure.
However, Respondent contends that it is undisputed as testified
to by Shea that the actual procedure for the past 4 years has
been to release the union steward if work permits and tell him
to clock out.
Respondent contends there was no evidence to support the
complaint allegation of the alleged unilateral change of requir-
ing stewards to be off the clock to attend step-one grievance
meetings about April 26, 2000. There was no evidence ad-
dressed of any unilateral change of any step-one or two proce-
dures having occurred in April or any other time in the year
2000. Further, Respondent notes that there is no specific lan-
guage in the collective-bargaining agreement allowing the Un-
ion acting alone to present grievances and in the preceding
contract negotiations the Union proposed and the Company
rejected a change in the language of article 8, section 2 of the
collective-bargaining agreement that would have permitted the
Union to file grievances concerning contract differences or
involving multiple employees. Fiveash acknowledged that the
Company does not hold the step-one meetings with the stew-
ards alone. This is not new. On June 11, 1998, the Company
responded in writing to a grievance filed by Union Steward
Charles Scott, who had received a written warning for being out
of his work area while attempting to have a grievance hearing
with the warehouse supervisor. The grievance was denied by
Russell who noted that Scott did not have permission to meet
with the supervisor. In his response Russell stated, “The griev-
ance at step one is an oral meeting between the person who
feels that they have a grievance and the immediate supervisor
and can be without a union steward. It is not a meeting be-
tween the Union steward and the supervisor minus the Griev-
ant.” This is identical to the way the Company dealt with
Westbrook on May 11–12, 2000. There has been no change in
procedures. Westbrook admitted on cross-examination that
other employees had been warned for being out of their work
areas without authorization in violation of rule A-9. Westbrook
had himself filed a grievance in 1991 (R. Exh. 13) complaining
that Supervisor Cleatis Allen had told him he was not to con-
duct union business on company time.
Shea denied having had a conversation with Westbrook
around the time of the May 12 incident time concerning
whether Westbrook was to be on the clock or paid. Shea testi-
fied that as far back as 4 years ago he had told Westbrook to
clock out when being released from work for the handling of
grievances. Shea testified he had never permitted Westbrook to
take breaks in areas other than the break area or the parking lot.
Warehouse Manager Smit testified that when Billy Ray Mor-
ris returned from his first suspension on May 11, 2000, he re-
quested a first-step meeting but there was no steward available.
On the next day, May 12, Westbrook attempted to hand Smith
two written grievances on behalf of Morris in the warehouse.
Smit declined the offer and told Westbrook that Morris had to
be present. He also e-mailed Maintenance Manager Glen
Dallmann that Westbrook had been in the warehouse area at
2:10 p.m. He testified that he was paged to the lobby at 3:15
p.m. and found Westbrook there with the grievances in his hand
and Westbrook said he had requested Morris to come also.
Morris was not present and Smit told Westbrook he could not
wait for him. He also questioned Westbrook as to whether he
was supposed to be working.
Russell confirmed that those events were not a departure
from past practice. Union Steward Charles Scott had con-
tended he could be out of his work area to file grievances. His
grievance was denied and the Union did not request arbitration.
Employee Reginald Harris was terminated for being out of his
work area. Employer Robert Reese received similar discipline
to Westbrook.
Plant Manager Yates testified that he began to tighten proce-
dures for handling grievances about a month after he arrived 6
years ago. He testified there was no change in 2000 in the
manner in which the Company administered procedures for the
handling of grievances by union stewards. There was no new
rule regarding union stewards conducting business on company
time or in production areas. No breaks were to be taken in
work areas.
Analysis
I find as contended by the General Counsel in brief “that in
the year 2000, Respondent engaged in an intentional effort to
weaken and limit the application of the grievance procedure
and to undermine the Union.” This conduct consisted of unilat-
eral changes, a modification of a contract term, and the disci-
pline of Chief Steward Westbrook. I fully credit the testimony
of Westbrook and Fiveash that Respondent had routinely paid
Westbrook for time spent in grievance meetings while on the
clock. I find as contended by General Counsel that in April,
Respondent abruptly changed this practice when Supervisor
Shea told Westbrook to clock out before attending a third-step
grievance meeting during worktime. It is also clear from the
testimony of Westbrook and Morris that Respondent’s supervi-
sors, Smit, Dallmann, and Shea were engaged in an effort to
frustrate the timely filing of grievances by Morris and subse-
quently by Westbrook over his grievance. I find the discipline
of Westbrook for being out of the production area while at-
tempting to file a grievance on behalf of Morris was pretextual
PEPSI AMERICA, INC. 993
and discriminatory and violated Section 8(a)(1) and (3) of the
Act. I find Respondent had knowledge of Westbrook's status as
chief steward, had animus against the Union and that the disci-
pline of Westbrook was motivated in part by Respondent’s
desire to frustrate union activities at the plant. I find Respon-
dent has failed to rebut the prima facie case by the preponder-
ance of the evidence. Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981). I find the changes in the
grievance procedure were violative of Section 8(a)(5) and (1) of
the Act.
I further credit Westbrook’s testimony concerning Shea’s in-
struction to him that he could only take his breaks in the break
area and could only talk to employees about union business in
the break area and that he could not conduct union business on
company time. Respondent violated Section 8(a)(1) of the Act
thereby. There is no contract prohibition of this activity in
areas other than the break area and these prohibitions are con-
trary to the contract requirement that stewards are to be granted
time off for grievance related matters if they do not interfere
with production.
E. The Elimination of the Meal Period
Article 25, section 2 of the collective-bargaining agreement
entitled “Rest Periods and Meal Periods” provides:

A meal break shall be given to each employee, which shall
not be less than one-half hour nor more than one (1) hour dur-
ing any shift. The meal break shall be given between the third
and sixth hours of the shift.

In May 2000, Respondent went to a three-shift operation
staggering the starting times of the employees. As an example,
a group of employees reporting at 7 a.m. on Monday morning
would report 1-1/2 hours later the next day. By Friday, they
would be reporting several hours later. In August, some can-
line employees approached Plant Manger Yates about eliminat-
ing their lunch breaks which would eliminate the staggered
starting times and would allow the employees to work an 8-
hour shift with the same start and finish times each day. Yates
told the employees he had no problem with this but all of the
employees involved would have to agree.
Yates testified that the schedule change went into effect in
August. The Union filed a grievance in September. A meeting
was held on the grievance near the end of October. The griev-
ance was not advanced to the third step by the Union. Respon-
dent returned to the old schedule including the half-hour unpaid
lunch, in January 2001, following the filing of an unfair labor
practice charge by the Union. Respondent wrote a response to
the grievance criticizing the Union for acting contrary to the
employees’ wishes.
Analysis
The Respondent’s unilateral elimination of the unpaid
lunchbreak from the work schedule of the can-line employees
modified a specific term of the collective-bargaining agree-
ment. Yates admitted he was aware that the elimination of the
lunch period was contrary to the terms of the collective-
bargaining agreement. It is clear that the lunch periods were a
condition and term of employment and were embodied in the
collective-bargaining agreement. Respondent dealt directly
with the can-line employees and bypassed the Union by the
unilateral elimination of the lunch periods in violation of Sec-
tion 8(a)(5) and (1) of the Act. It also undermined the Union
by the criticism of the Union contained in its response to the
grievance which was distributed to the employees in violation
of Section 8(a)(5) and (1) of the Act. See C & S Industries, 158
NLRB 454 (1966).
F. The Suspension of Ernest Blades
Ernest Blades is a long-term employee (18 years) and a un-
ion member normally assigned to the bottle line in the produc-
tion area. On occasion he is called upon to work on the bag-in-
box line which is a more strenuous job. In early June 2000,
Blades substituted for a week as a union steward for Westbrook
and Steward Herbert Washington who were on vacation. The
Union faxed the Respondent a notification that Blades would be
an acting steward. According to Blades he was approached by
Plant Manager Yates who mentioned the notification and told
Blades he would have fun with Blades that week. Yates denied
having made this comment. I credit Blades. During the week
he was acting, steward Blades filed one grievance, apparently
without incident.
On August 10, 2000, Blades was assigned to work on the
bag-in-box line as a filler operator where he operated a machine
that had two filler heads. Blades would fill a bag with product,
put the bag in a box and step on a pedal to move the box down
the line. As one bag is filled and placed in a box, the other
filler head is filling another bag. The filler heads fill the boxes
sequentially rather than two boxes at the same time.
Blades testified that on August 10, he was working with four
other employees on the bag-in-box line as a filler operator.
There were four other employees assigned to this line. One
employee was making cardboard boxes. One employee was
gluing the boxes. One employee was stacking the boxes and
there was a forklift driver. The employee making the boxes
sends them to Blades who filled the boxes and sent them on the
conveyor belt to the gluer. The boxes are then sent to the
stacker who removes the boxes from the line and stacks them
on a pallet. The forklift driver takes the pallet, wraps it, and
stores it in the warehouse. Blades testified that August 10 was
the first day the stacker had worked in the plant and the stacker
was unable to keep up causing a backup on the line. Blades
testified that the stacker asked him to slow the line down and to
stop the line which he did. Blades also testified that forklift
driver Herbert Washington was having problems because he
had insufficient space in the warehouse to put the product and
the line was backing up as a result. This testimony was cor-
roborated by Washington who testified he had to move other
products in the warehouse to make room for the product from
the line. Washington testified he told Shift Supervisor Calvin
Rhyan about the problem but that Rhyan merely shrugged his
shoulders.
Blades testified that he was running only one of the two
heads at the beginning of the shift because the stacker was be-
ing trained. About 1-1/2 hours to 2 hours after the start of the
shift, Supervisor Calvin Rhyan asked Blades why he was only
running one head. Blades told him the stacker could not keep
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 994
up. Rhyan told him to run two heads. Blades complied with
this order.
Blades was given a 5-day suspension for running only one
filler head on August 10. This suspension was purportedly
given to Blades for unintentionally impeding production.
However, current employee Herbert Washington testified that
there was a temporary employee who needed to be shown how
to stack the product and that there was a backup on the line
requiring that the line be run slower with only one head. Su-
pervisor Calvin Rhyan testified that when he observed Blades
only running one head in the bag-in-box line, he asked him why
he was running only one head and that Blades said he always
ran only one head when he runs this line. Rhyan testified he
was unaware of any backup on the line that day. Blades’
handwritten grievance states he told Rhyan, “[T]old him I only
use one head all time.” Blades testified he was referring to
instances when he was training another employee. I do not
credit Blades’ explanation.
Analysis
I find that the General Counsel has failed to establish a prima
facie case of a violation of the Act by the suspension of Blades.
I find the comment made to Blades by Yates that he would
have fun with Blades the week Blades served as temporary
steward was innocuous and did not constitute a threat. Further,
this incident occurred 2 months after Blades had served as
steward without incident. I find there is no evidence that the
suspension was motivated by animus toward the Union or to-
ward Blades because of his role as a temporary steward for 1
week. Assuming arguendo that a prima facie case was estab-
lished, I find it had been rebutted by the preponderance of the
evidence. Wright Line, supra.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (5) of the Act by
unlawfully revising the attendance policy.
4. Respondent violated Section 8(a)(1) and (5) of the Act by
modifying a term of the contract concerning meal breaks and
hours of employment.
5. Respondent violated Section 8(a)(1) and (5) of the Act by
unilaterally changing the grievance procedure.
6. Respondent violated Section 8(a)(1) and (5) of the Act by
refusing to bargain within the Union.
7. Respondent violated Section 8(a)(1) and (5) of the Act by
bypassing the union and dealing directly with the employees on
the can line, thus undermining the Union.
8. Respondent violated Section 8(a)(1) of the Act by limiting
Westbrook’s conduct of union activities and discussion of un-
ion matters to the breakroom.
9. Respondent violated Section 8(a)(1) and (3) of the Act by
issuing a written warning and threat to Chief Steward Howard
Westbrook for being out of his work area.
10. Respondent did not violate the Act by its suspension of
employee Ernest Blades.
11. Respondent violated Section 8(a)(1) and (5) of the Act by
refusing to furnish the Union with relevant information con-
cerning its unilateral change in the attendance policy.
12. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in several
violations of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative actions
designed to effectuate the purposes and policies of the Act.
It is recommended that upon demand of the Union, the Re-
spondent immediately rescind the unlawful unilateral changes
initiated by Respondent and upon request by the Union within
10 days engage in bargaining with the Union concerning any
changes in the hours, wages, and terms and conditions of em-
ployment of the unit employees. Respondent shall immediately
furnish the Union with the information which it requested in
February 2000, concerning the attendance policy. Respondent
shall immediately remove the written warning from the records
of Howard Westbrook and inform him in writing of this and
that the written warning will not be used against him in any
manner in the future. Respondent shall be ordered to make
whole its employees for any loss of wages and benefits they
may have sustained as a result of Respondent’s unlawful con-
duct. These amounts shall be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987), at the “short-term Federal rate” for under-
payment of taxes as set out in the 1986 amendment to 26
U.S.C. § 6621.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Pepsi America, Inc. (fka Delta Beverage
Group), Collierville, Tennessee, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unilaterally revising its attendance policy, modifying
contract terms and changing the grievance procedure.
(b) Refusing to bargain with the Union, by passing the Union
and engaging in direct dealing with the unit employees, and
undermining the Union.
(c) Refusing to furnish the Union with relevant information.
(d) Disciplining its employees and issuing written warnings
and threats to its employees because of their engagement in
union activities.
(e) Respondent shall not in any like or related manner inter-
fere with, restrain, or coerce its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
PEPSI AMERICA, INC. 995
(a) Upon request by the Union, immediately rescind the uni-
lateral changes in the attendance policy, the contract terms and
the grievance procedure found unlawful in this decision.
(b) Immediately furnish the Union with the information re-
quested by it concerning the attendance policy in February
2000.
(c) Notify the Union and offer to bargain with respect to any
proposed changes in the wages, hours, and terms and conditions
of employment of the unit employees and upon request bargain
changes with the Union and if agreement is reached, embody
the agreement in a signed agreement.
(d) Within 14 days, rescind the written warning issued to
Howard Westbrook, remove it from its files and within 3 days
notify him in writing that this has been done and that the warn-
ing will not be used against him in any manner.
(e) Make the unit employees whole for any loss of earnings
or benefits sustained by them as a result of the aforesaid unfair
labor practices.
(f) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this Or-
der.
(g) Within 14 days after service by the Region, post copies
of the attached notice marked “Appendix.”2 Copies of the no-
tice, on forms provided by the Regional Director for Region 26,
after being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August 1,
1998.
IT IS FURTHER ORDERED that the compliant is dismissed inso-
far as any violations are not specifically found.

2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”