Cott Beverages Inc.

National Labor Relations Board - Administrative Judge Opinions

Oct 7, 2019

16-CA-181144 (N.L.R.B. Oct. 7, 2019)

JD–76–19
San Antonio, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
COTT BEVERAGES INC.
and Case 16-CA-181144
JOSEPH KELLY, An Individual
Megan McCormick, Esq., and
Eva Shih, Esq.,
for the General Counsel.
John J. Toner, Esq., and
Joseph Damato, Esq.,
(Seyfarth Shaw LLP)
Washington, D.C., and
Brian Stolzenbach, Esq., and
Karla E. Sanchez, Esq.,
(Seyfarth Shaw LLP)
Chicago, Illinois,
for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PAUL BOGAS, Administrative Law Judge. On September 11, 2017, I issued a
decision finding, inter alia, that Cott Beverages Inc. (the Respondent) violated Section
8(a)(1) of the National Labor Relations Act (Act or NLRA) by maintaining rules that
prohibited employees from having personal cell phones on the manufacturing floor or at
their work stations. Both the Respondent and the General Counsel excepted to
elements of my decision. While those exceptions were pending before the National
Labor Relations Board (Board or NLRB), the Board issued its decision in The Boeing
Company, 365 NLRB No. 154 (2017), reconsideration denied 366 NLRB No. 128
(2018). In that decision, the Board modified the standards for determining when an
employer’s work rules violate Section 8(a)(1). On May 21, 2019, the Board issued an
Order remanding the instant case to me “for the purpose of reopening the record, if
necessary, and preparation of a supplemental decision addressing the complaint
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2
allegations affected by Boeing setting forth credibility resolutions, findings of fact,
conclusions of law, and a recommended Order.” The only issues remaining in this
proceeding are those to which the Boeing decision is relevant – specifically, those
pertaining to whether the Respondent violated Section 8(a)(1) by maintaining overly
broad rules that prohibit employees from possessing personal cell phones on the 5
manufacturing floor or at their work stations.1
After the remand, the General Counsel and the Respondent both submitted
statements taking the position that the record should not be reopened, and the Charging
Party, John Kelly, did not submit a statement. I did not find a basis to reject the views of 10
the General Counsel and the Respondent that additional evidence was not necessary
and I provided the parties with the opportunity to submit briefs. The General Counsel
and the Respondent both filed briefs in which they take the position that the
Respondent’s prohibitions on employee possession of personal cell phones do not
violate the Act under the standards set forth in the Boeing decision. Charging Party 15
Kelly (an individual non-lawyer who is not represented by legal counsel) did not submit
a brief; however, in a June 11, 2019, submission, Kelly essentially argued that the rules
were unlawful under Boeing because cell phone recordings are extremely valuable in
controversies between employees and employers and the Respondent had not shown
that the rules’ impact on such use was outweighed by evidence of a risk of 20
contamination or injury.2
FINDINGS OF FACT
25
I. JURISDICTION
The Respondent, a corporation, operates a beverage manufacturing facility in
San Antonio, Texas, where it annually receives products, goods, and materials valued
in excess of $50,000 directly from points located outside the State of Texas. The 30
Respondent admits that it is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.

1 The other allegations in the Complaint concerned interrogations and, as of June 3, 2019, the
Respondent had completed compliance with the remedy regarding the violations I found in that regard.
2 Kelly’s June 11 submission was an opposition to the General Counsel’s motion of May 31, 2019.
That motion, which the Respondent supported, asked that I remand this proceeding to the Director of
Region 16 for further action. In the Motion, the General Counsel took the position that the Respondent’s
rules are lawful under the Boeing standard and it appeared that the further action the General Counsel
anticipated was dismissal of the allegations relating to those rules. I found merit in Kelly’s opposition to
that course of action and, on June 25, 2019, I denied the General Counsel’s motion. On August 9, 2019,
the Respondent filed a motion with the Board requesting a special appeal and asking the Board to stay all
further proceedings before me in this case and dismiss the allegations. On October 4, 2019, the Board
denied the Respondent’s August 9 motion.
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II. ALLEGED UNFAIR LABOR PRACTICES
A. FACTS
1. Background5
The Respondent is a beverage manufacturing company that operates 15
facilities, including one in San Antonio, Texas. It produces and packages carbonated
soft drinks, juices, and purified water. The Respondent employs 190 individuals at its
San Antonio facility, of whom about 50 work in production and 15 in the warehouse.10
The Respondent’s employees are not represented by a labor organization.
There are four production lines at the San Antonio facility, each of which
produces beverages or containers and/or fills containers with beverages. The lines
operate continuously during the shifts when they are in operation, with four to six15
employees on each line during a given shift. Transcript at Page(s) (Tr.) 139.
Employees assigned to the production lines do not have scheduled breaks, but they do
have unscheduled breaks, including 30 minutes for lunch. Each production line has a
“line lead” employee who oversees the operation of the line. When an employee
working on the line takes a break it is generally the line lead who relieves that employee 20
and steps in to perform the relieved employee’s duties. The facility also has a
warehouse area where five employees work on any given shift. Forklifts are used in
both the production and the warehouse areas at the facility to move materials and
product.
25
Darren Heinsohn is the process leader for one of the four production lines at the
San Antonio facility. In that capacity, he oversees the line lead employee as well as the
regular employees on that production line. Heinsohn reports to Shane Owens who is the
facility’s production manager.
30
2. Prohibition on Possession of Personal Cell Phones
In the decision that I issued prior to the Board’s decision in Boeing, I found that
the Respondent’s rules prohibiting employees from possessing their personal cell
phones while in the facility’s production and warehousing areas or at their work stations35
and requiring them to store such devices in employee lockers unlawfully interfered with
employees’ right to engage in protected concerted activity. There are two rules at issue
– one a corporate-wide rule and one promulgated for the San Antonio facility. The
“cleanliness” section of the corporate rule, which has been in effect since approximately
March 25, 2014, states: 40
4. All jewelry, including earrings, body piercing such as tongue,
cheek, eyebrows, and nose, necklaces etc. and other objects that
might fall into the product, equipment, or containers must be
removed. (Stoneless wedding bands and Medical Emergency I.D. 45
necklaces are allowed in the processing, batching and production
JD–76–19
4
areas.) (Medical Alert Bracelets are not permitted.) Medical
emergency I.D. needs, must be reported to HR.
5. Items are not to be kept in shirt pockets or in any location above
the waist that would allow them to fall into the product, food contact 5
surface, or food packaging materials. No personal cell phones are
permitted on the manufacturing floor except for those which are
company issued or approved. Cellular communication devices may
be maintained on the person for management and leadership roles.
Radios and company provided communication devices are to be 10
used as the primary form of communication in the manufacturing
area. Clothing and personal belongings, such as cigarettes,
purses, newspapers, magazines, medications, and personal cell
phones are not to be kept at the work station. These items are to
be stored in lockers or in your personal vehicle. No personal 15
portable electronic equipment i.e. MP3 players, IPODS, pocket
pagers, portable games etc. are allowed in manufacturing,
processing, or warehousing areas.
General Counsel Exhibit Number (GC Exh.) 3. 20
At the San Antonio facility the Respondent imposed the following prohibition,
which has been in effect since approximately April 2015, and which is in addition to the
Corporate Policy set forth above:
25
PERSONAL BELONGINGS:
Personal items (items not directly related to production processes
or job requirements) are not allowed in work areas. These include,
but are not limited to: clothing, cell phones, MP3 players, gaming 30
devices, cigarettes, purses, magazines, medications, newspapers,
etc. These may be kept in an associate’s locker and may be used
during break periods in designated areas.
JEWELRY:35
All jewelry, including earrings, body piercing such as tongue, cheek,
eyebrows, and nose, necklaces etc. and other objects that might
fall into the product, equipment or containers must be removed
(plain wedding bands and Medical Emergency I.D. necklaces are 40
allowed in the processing, batching and production areas).
* * *
NO ITEMS ABOVE THE WAIST:45
JD–76–19
5
No items may be carried in shirt pockets (i.e. pens, pencil[s],
combs, etc.) All loose items must be carried in pants pockets or
otherwise secured below the waist; such items should be
minimized. Plants providing uniforms are encouraged to purchase
shirts with no pockets, to help enforce this policy.5
GC Exh. 4.
The only witness who the Respondent called to testify about the justifications for
the challenged rules was Patrick Rank – the Respondent’s corporate senior director of 10
quality from October 2013 to May 2017. Rank headed a team that developed the
policies that contain the prohibitions set forth above. He stated that there were two
basic reasons for the Respondent’s promulgation of the prohibitions on personal cell
phones. The first was to protect against contamination. Specifically, he testified that
“hav[ing] a cell phone or something above the belt would allow a foreign material to be 15
dropped in a container” used in the production of food. Tr. 146. He suggested that
such foreign material could include the cell phone itself. Tr. 147-148. Rank did not
testify, however, that having a cell phone secured below the belt would “allow a foreign
material to be dropped” into the food. Rank testified that all the Respondent’s plants
are regulated by the U.S. Food and Drug Administration (FDA) pursuant to the Food, 20
Drug, and Cosmetic Act (FDCA). See 21 U.S.C. Section 301, et seq. and 21 C.P.R
Section 110.5, et seq., which set forth certain measures to prevent contamination.
Rank testified that the second reason for the prohibition was that the Respondent
was concerned about the safety of its employees. Tr. 146. He stated that employees’ 25
use of cell phones near the production lines could distract employees and slow their
reaction to problems or cause them to injure themselves. The use of the cell phones in
the warehouse, he stated, might distract employees and cause someone, or something,
to be hit by a forklift.3 Neither Rank’s testimony, nor the record as a whole, identifies
any actual incidents when an employee’s possession of a cell phone or similar device 30
resulted either in contamination of product or in injury to person or property.
Rank was asked by counsel for the Respondent whether it would be possible to
address concerns about cell phones in a less restrictive manner – for example, by
allowing employees to possess cell phones but restricting how they carried and used 35
them. Rank’s testimony till that point had been largely fluid, but in response to this
softball question from sympathetic counsel his speech became hesitant and
stammering. His uncertainty was apparent to me from his demeanor, but it is evident
even from a simple review of the transcript of his answer:
40

3 The Respondent’s counsel asked Rank about chemicals used at the Respondent’s facilities, and
Rank responded that cleaning chemicals used at the Respondent’s facilities could be dangerous if used
improperly. Rank did not, however, claim that the presence of cell phones increased the risk that
cleaning chemicals would be used improperly or that the risk involving cleaning chemicals had anything to
do with the prohibitions at issue here.
JD–76–19
6
No. No. I don’t – I think if you – if you try to implement a policy such as
the one you just recommended or not recommended, but just suggested, it
is one that – I don’t see how a – I don’t see how it could be managed. It is
not a policy that – you don’t – you would then be in a position to have to
manage the – every single minute of what an associate was doing with 5
that particular device, so I don’t think the policy in itself would be
manageable.
Tr. 150-151. Not only was Rank’s response on this subject strained and uncertain, but
it was also self-serving and conclusory. I find that this response was not credible based 10
on Rank’s demeanor, the testimony itself, and the record as a whole.
Rank stated that while the contamination and safety concerns discussed above
justified prohibiting employees from even possessing cell phones in the production and
warehouse areas, the Respondent permitted line lead employees to possess and use15
cell phones in those same areas. He stated that the Respondent did not apply the
prohibition to lead employees and managers because those individuals “have a
responsibility to communicate . . . to the outside world or to the management” about
occurrences at the manufacturing facility. Rank also expressed the view that because
supervisors are “not tied to a piece of equipment” Tr. 149, the Respondent did not, by 20
allowing those individuals to possess and use cell phones, create the same risk that it
would by allowing regular employees to exercise that freedom. It appears, however, that
Rank, who was a corporate-level official, did not have an accurate understanding of the
role that line lead employees played in the production area at the San Antonio facility.
In particular, the evidence showed that, at the San Antonio facility, line lead employees 25
were generally the ones who took over regular employees’ production line duties during
breaks. Tr. 63,177. Rank appears to have been unaware of this insofar as he denied
that lead employees ever fill-in for other employees during breaks, and asserted that
production lines are, instead, “staffed with” “relief operators” who fill-in during breaks.
Tr. 153-154.430
As set-forth above, the corporate policy relaxes the prohibition slightly by stating
that it applies to cell phones “except for those which are company issued or approved.”
Neither Rank, nor any other witness, stated whether, or on what basis, the Respondent

4 In its Brief on remand, the Respondent exaggerates the difference in risk presented by allowing all
employees on the manufacturing floor to carry cell phones as opposed to just allowing the line leads and
management employees to do so. It asserts that “At any given time only about three management
individuals are on the manufacturing floor carrying cellular phones, compared to 190 total employees.”
Brief of the Respondent at Page 12. The evidence shows, however, that only 50 employees work in the
Respondent’s production operation, Tr. 74, and that “at any given time” at most 16 to 24 of those – four to
six on each of four lines – are on-duty on the production lines, Tr. 139. Even that figure may overstate
the number of regular employees on the production floor at a given time because not all four lines operate
on every shift. Tr. 61. Similarly, the Respondent’s suggestion that it only permits three persons to have
cell phones on the production floor at any given time is dubious since it takes account of only three line
leads, not of the other supervisors and managers – e.g., Heinsohn (a process leader), Ewing Bond (a
process leader), and Owens (production manager) – who its policy allows to possess personal cell
phones while in the production area. Nor does it account for the fourth line lead who would be present if
all four lines were operating.
JD–76–19
7
believed that an employee’s possession of a company approved or issued cell phone
would not pose the same risks of contamination and injury that were posed by an
employee’s possession of a personal cell phone.
Heinsohn testified that at all times when employees are physically present on the 5
production line they are expected to be working and are considered to be on “working
time.” Tr. 63. They cannot leave the line for breaks unless they are relieved. Heinsohn
also stated that the employees take their breaks in facility break rooms that are not part
of the manufacturing floor. Ibid.
10
3. Ammonia Leak Accident on May 12
Joseph Kelly, the charging party, is a production line employee and a member of
the facility’s safety committee. On May 12, 2016, there was an accident at the facility
involving an ammonia leak. Kelly smelled the ammonia entering his work area and 15
responded by, inter alia, using the 911 system to alert public safety officials to the
emergency. Due to the danger posed by the leak, employees were evacuated, and the
facility was shut down for a period of hours.
III. ANALYSIS20
A. PROHIBITION ON EMPLOYEES POSSESSING CELL PHONES AT WORK
In Boeing, the Board stated that when an employer’s facially neutral rule is alleged to
interfere with employees’ exercise of NLRA rights in violation of Section 8(a)(1), the
lawfulness of the rule is evaluated using a balancing test, except when the rule is of a type 25
that the Board has already designated as uniformly lawful (category 1) or uniformly unlawful
(category 3). Individualized scrutiny under the balancing test is the appropriate analysis in
this case because the Respondent’s challenged rules are facially neutral and not among
those types that the Board has previously designated as uniformly lawful or unlawful.
30
Before proceeding to the balancing test, I address the Respondent’s argument that in
Boeing the Board designated the Respondent’s prohibitions as the type of “category 1” rules
that are uniformly lawful. That is simply not the case. Neither in Boeing nor in any other case
cited to me by the parties or of which I am aware has the Board designated blanket
prohibitions on employee possession of personal cell phones in work areas as either 35
uniformly lawful or uniformly unlawful. In Boeing the rule that was at-issue, and which the
Board placed in category 1, prohibited employees at “one of the country’s most prominent
defense contractors” from photographing or videotaping in the workplace. The
Respondent seeks to expand the holding in Boeing too broadly when it argues that it
disposes of the very different rules at-issue in the instant case. The rule approved in 40
Boeing did not prevent employees from possessing cell phones, or other camera
enabled devices in work areas. To the contrary, the Board specifically observed that
the Boeing rule expressly provided that “[p]ossession of [camera-enabled devices such
as cell phones] is permitted on all company property.” Slip Op. at 17. (Emphasis
Added). What Boeing’s rule prohibited was only the “use of these devices to capture 45
JD–76–19
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images or video.” The Respondent’s rules in the instant case are more draconian,
prohibiting employees from even possessing cell phones in work areas and thereby
absolutely precluding employees from using cell phones not only to take photographs or
video recordings, but also precluding employees from making audio recordings or
phone calls as part of NLRA-protected activities. That type of interference with 5
employees’ exercise of their NLRA rights was not presented, or considered, in Boeing.
In recent years, employees’ NLRA activity has not infrequently included using cell
phones to make audio recordings. In cases brought to vindicate NLRA rights, disputes
of fact often arise regarding what was said at a meeting or during a conversation. When 10
there is an actual audio recording of the disputed statements, those recordings supply
important evidence to one attempting to ascertain the truth. The Board has recognized
that in many reported cases an audio recording has been key evidence on the question
of whether an individual made, or did not make, the allegedly unlawful statements.
Whole Foods, 363 NLRB No. 87 slip op. at 3 fn.8 (2016) (collecting cases),5 enfd. 691 15
Fed. Appx. 49 (2d. Cir. 2017); T-Mobile USA, Inc., 363 NLRB No. 171, slip at 3-4
(2016), enfd. in relevant part 865 F.3d 265 (5th Cir. 2017); see also Sullivan, Long &
Hagerty, 303 NLRB 1007, 1013 (1991) (employee engaged in protected activity by
carrying a tape recorder to aid in a Department of Labor investigation), enfd. mem. 976
F.2d 743 (11th Cir. 1992). The Board has also recognized that recording is a way that 20
employees exercise their NLRA right to “document[ ] unsafe workplace equipment or
hazardous working conditions, . . . . . . [and] inconsistent application of employer rules.”
Whole Foods, supra. Moreover, although the Respondent effectively prohibits
employees from making audio recordings of meetings and other conversations, it places
no such limitations on doing so itself. Thus, the Respondent’s rule creates an 25
asymmetrical evidentiary circumstance where only one side – the employer and its
supervisor/managerial personnel – has the ability to create, and retain (or destroy),
audio evidence of an alleged unfair labor practice.
While the prior cases referenced above amply demonstrate that employees use 30
cell phones to exercise their NLRA rights, the fact is that one need look no further than
the instant case to see that this is so. The determination in this case that management
had coercively interrogated Kelly in violation of Section 8(a)(1) was based largely on the

5 The Board’s list included: “Times-Herald Record, 334 NLRB 350, 354 (2001) (surreptitious audio
recording of meeting at which employer unlawfully threatened employees admissible in Board
proceeding), enfd. 27 Fed.Appx. 64 (2d Cir. 2001); Painting Co., 330 NLRB 1000, 1003 (2000) (covert
recording supported allegation that employer unlawfully threatened to close the company), enfd. 298 F.3d
492 (6th Cir. 2002); Arrow Flint Electric Co., 321 NLRB 1208, 1219 (1996) (surreptitious recording was
admitted in support of unlawful closure threat and discharge allegations); Wellstream Corp., 313 NLRB
698, 711 (1994) (surreptitious recording admissible in support of allegations that employer unlawfully
solicited grievances and threatened employee); McAllister Bros., 278 NLRB 601 fn. 2, 605 fn. 3 (1986)
(recording of meeting admitted to show that employer unlawfully engaged in direct dealing), enfd. 819
F.2d 439 (4th Cir. 1987); Algreco Sportswear Co., 271 NLRB 499, 505 (1984) (surreptitious recording
admitted to support allegations of unlawful threats); East Belden Corp., 239 NLRB 776, 782 (1978)
(surreptitious recording of a meeting admitted to show that employer unlawfully told employees that it did
not intend to sign a contract with the union), enfd. 634 F.2d 635 (9th Cir. 1980).”
JD–76–19
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evidence provided by a covert recording of the contested conversation.6 Without it, I
might well have accepted the Respondent’s more anodyne characterization of the
interrogation. In addition, the evidence in this case showed that when there was an
ammonia accident at the facility that affected worker safety, charging party Kelly was
able to contact public safety officials for help during the emergency.7 Interference with 5
these types of NLRA activity were not at-issue in Boeing and were not addressed by the
Board in that case.
Since the Respondent’s cell phone rules are not of a type that the Board has
designated as either uniformly lawful or unlawful, I turn to the individualized balancing 10
test articulated in Boeing. Under that balancing test, I first must determine whether the
facially neutral rules are ones that the employees would “reasonably interpret[ ]” as
“potentially interfer[ing] with the exercise of NLRA rights.” If they are, I then am required to
evaluate whether the “nature and extent of the potential impact on NLRA rights” outweighs
any “legitimate justifications associated with” the rule. Boeing, slip op. at 3-4 and 16. 15
Regarding the first question, I find that employees would reasonably interpret the rule
against possession of cell phones as interfering with the exercise of their NLRA rights.
Employees exercise NLRA rights when they document unlawful interference with protected
union or concerted activity in order to challenge such interference. Bon Harbor Nursing and 20
Rehabilitation, 348 NLRB 1062, 1079 (2006) (employee has right to document
employer’s unlawful removal of union literature from break area). Similarly, employees
exercise NLRA rights when they document “unsafe workplace equipment or hazardous
working conditions, . . . discussions about terms and conditions of employment, . . .
[and] inconsistent application of employer rules.” Whole Foods, slip op. at 3. As 25
suggested by the charging party’s call to public safety officials about the accidental release of
ammonia into the air at the facility, employees may use a cell phone not only to document
hazardous conditions, but to protect employees from hazards such as chemical accidents,
factory fires, and so forth. Even if one assumes that an employee’s use of a cell phone to
document unfair labor practices or warn of abnormally dangerous conditions is not itself the 30
exercise of NLRA rights, the cases show that in many instances cell phones are the means
by which employees are able to exercise NLRA rights. Not only would a reasonable
employee interpret the Respondent’s challenged rules to interfere with employees’ cell
phone-enabled NLRA activities, but those rules cannot reasonably be interpreted as not
interfering with such activities. Moreover, the rule will certainly chill employees from 35
complaining about unfair labor practices since an employee who has audio documentation of
a violation is more likely to risk filing a charge that might provoke the employee than would be
an employer who had only his or her word.
The Respondent’s challenged prohibitions place a particularly weighty burden on the 40
types of NLRA activity discussed above. The Respondent does not identify any

6 This issue is no longer in the case, since the Respondent has complied with the order pertaining to
the unlawful interrogation.
7 The record did not show whether Kelly contacted these officials using his personal cell phone. At
any rate, possession of a cell phone either did, or would have, facilitated this communication about a
safety emergency affecting a group of employees.
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alternative means of engaging in those audio recording activities and phone calls that
employees would be expected to have at their disposal without running afoul of the
challenged policies. By prohibiting employees from possessing the means to engage in
these NLRA-protected activities the Respondent necessarily and completely forecloses
that activity. In this regard, the interference represented by the Respondent’s rules is 5
more complete than would be the case if the rule simply prohibited employees from
making audio recordings or phone calls, since depriving employees of the equipment
used for that activity means that employees would not be able to record or make a call
even when the need to do so was so compelling that it justified an exception to the
prohibition.8 Moreover, given that the rule does not permit the possession of such10
equipment in the production and warehouse work areas, the rule necessarily does not
differentiate between uses that are protected by the NLRA and those that are
unprotected, a circumstance that led the Board to find the prohibitions in Whole Foods
and T-Mobile, unlawfully overbroad. Whole Foods, slip op. at 4, T-Mobile, slip op. at 4
15
The Respondent attempts to minimize the extent to which it is interfering with
employees’ exercise of NLRA rights by suggesting that the prohibition is limited to
working time inasmuch as all employee time at the production line is “working time.”
This argument fails if for no other reason than that the prohibition encompasses
nonworking time. Specifically, the Respondent not only prohibits employees from 20
possessing cell phones in their work areas, but provides that cell phones are to be kept
in lockers, except during “break periods in designated areas.” The Respondent has not
“designated” any areas where it permits employees to use cell phones while on breaks,
and certainly has not shown that such areas include all areas where employees are
present in the facility during non-working time. Second, the rule places no discernible 25
limits on the Respondent’s discretion to decide what areas, if any, are designated for
cell phone use. The Board has held that an employer rule that requires an employee to
obtain management’s permission before recording for NLRA purposes or engaging in
other types of protected activity violates the Act. Whole Foods, slip op. at 3; G4S
Secure Solutions (USA), Inc., 364 NLRB No. 92, slip op. at 1 (2016), enfd.707 Fed. 30
Appx. 610 (11th Cir. 2017); General Electric, Co., 169 NLRB 1101, 1102 and1104
(1968), enfd. 411 F.2d 750 (9th Cir. 1969). The Respondent’s rule limits employees’
ability to engage in recording activity to those instances in which the employer has
granted permission by designating an area were such activity is allowed. Third, the
record shows that not even all the time that employees are in the production area is 35
work-time. Rather employees begin their breaks at the production line when a line lead
relieves them. This means that there would be periods of time when employees are on
break in the production areas, but prohibited from possessing cell phones. Moreover,
the Respondent did not present evidence that the group of employees assigned to the

8 Both the Supreme Court and the NLRA itself recognize that circumstances sometimes justify
employees taking action that would otherwise be prohibited. See NLRB v. Washington Aluminum Co.,
370 U.S. 9, 16-17 (1962) (employer violated the NLRA when it discharged employees for violating plant
rules by ceasing work where the reason the employees did so was that the plant was bitterly cold); see
also 29 U.S.C. Section 502 (employees who cease working because of “abnormally dangerous
conditions” are protected even where such action would otherwise be an unlawful strike).
JD–76–19
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warehouse area are on “work-time” whenever they are in the warehouse or otherwise
prohibited from possessing personal cell phones.
Since the Respondent’s facially neutral prohibitions on the possession of cell phones
would reasonably be interpreted to potentially interfere with employees’ exercise of NLRA
rights, I turn to the second part of the balancing test – i.e., does that interference outweigh the 5
Respondent’s “legitimate justifications” for the cell phone rules. I find that the Respondent’s
interference with the exercise of NLRA rights does, in this case, outweigh any legitimate
justifications for that interference. To support the Respondent’s contention that legitimate
concerns about food contamination justify its cell phone prohibition, Rank testified that
“hav[ing] a cell phone or something above the belt would allow a foreign material to be 10
dropped in a container.” Rank’s testimony – the only testimony offered by the
Respondent about its justifications for the cell phone prohibition – suggests that the
Respondent could meet concerns about contamination without interfering with
employees’ exercise of the NLRA rights. Specifically, if the problem is, as Rank
testified, the risk posed by an employee keeping a cell phone “above the belt,” then that 15
concern could be addressed by a restriction that requires employees to keep such
devices in pants pockets or otherwise secured below the belt. Indeed, that is exactly
what the Respondent’s rules do with respect to employees’ possession of other
personal items – including “pens, pencils, combs” – that would contaminate product if
dropped into an open food processing container. Although the Respondent’s concerns 20
about food safety could constitute a legitimate justification for a more limited restriction
on cell phones (e.g., requiring that they be secured below the waist, or not used while
operating equipment) that concern is not a legitimate justification for the much broader
prohibition it has imposed. Nor, notably, would concerns about contamination explain
why the Respondent extended the prohibition to employees working in the warehouse 25
where beverage production does not take place and there is no reason to believe that
contamination from a dropped cell phone is possible.
The Respondent’s claim that it believes that possession of cell phones on the
production line poses an unacceptable contamination risk is also contradicted by the 30
fact that its rules permit line leads and supervisors to possess, and even use, such
devices in those areas. Rank tried to explain this by asserting that line leads do not
work on the production line. The record shows that, to the contrary, line leads at the
facility regularly work on the production lines doing the same tasks as regular
employees. Rank also suggested that concerns about permitting line leads to carry cell 35
phones are outweighed by the countervailing interest in allowing those individuals “to
communicate . . . to the outside world or to management.” He did not state, however,
that he gave any consideration to the fact that employees also have a countervailing
interest – i.e., their freedom to engage in NLRA-protected documentation of coercive,
unsafe or otherwise problematic activity or conditions in the workplace. The 40
Respondent’s argument that its ban is justified by overriding contamination concerns is
undercut still further by the fact that the corporate rule prohibits employees from
possessing a “personal” cell phone, but allows them to possess cell phones that “are
company issued or approved.” The Respondent did not present evidence that
company-issued or approved cell phones would not pose the same risks that are posed 45
JD–76–19
12
by possession of personal cell phones. However, since the Respondent would be able
to repossess a company-issued cell phone at any time, restricting employees to using
only company phones minimizes the risk that a cell phone would end up providing
evidence of alleged unfair labor practices or safety violations at the facility.
5
In weighing the Respondent’s contamination justification, I also considered that
the Respondent did not identify a single instance when a cell phone had ever caused
contamination at any of its 15 production facilities. Nor did the Respondent present
evidence showing that such contamination, even if it ever were to occur, could go
undetected or would be difficult to remedy.10
In considering how much weight to give to the Respondent’s contamination
justification, I considered the Respondent’s argument that its facilities are subject to
regulatory requirements imposed by the FDA. See 21 CFR Section 110 (2016). This
argument would be more persuasive if the Respondent had shown that the prohibition 15
on cell phones was mentioned by, or necessary to comply with, requirements imposed
by the FDA.9 However, the regulations identified by the Respondent, while requiring
regulated entities to implement controls to protect food safety, make no mention of cell
phones or electronic devices and do not state that those items are to be banned from
either production or warehouse areas. Indeed, it is clear the Respondent’s argument 20
that the FDA bans the possession of cell phones on the manufacturing floor does not
even convince the Respondent since, as discussed earlier, the Respondent allows line
leads and managers to possess cell phones and allows any employee to possess a cell
phone as long as it is “company issued or approved.”10

9 See Hoffman Plastic Compounds v. NLRB, 535 U.S. 137, 143-144 (2002) (“’[T]he Board is obliged
to take into account other “equally important Congressional objectives”’” when considering action that
would “potentially trench upon federal statutes and policies unrelated to the NLRA.”) and Southern
Steamship Co. v. NLRB, 316 U.S. 31, 47 (1942) (“[T]he Board has not been commissioned to effectuate
the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally
important Congressional objectives. Frequently the entire scope of Congressional purpose calls for
careful accommodation of one statutory scheme to another, and it is not too much to demand of an
administrative body that it undertake this accommodation without excessive emphasis upon its immediate
task.”).
10 To support its assertion that the Boeing balancing test weighs in its favor, the Respondent cites
Campbell Soup Co., 159 NLRB 74 (1966), enfd. 380 F.2d 372 (5th Cir. 1967). See Brief of Respondent at
Page 21. In that case the Board approved of a rule that was enforced to prohibit an employee from
wearing a pro-union hat and button in a factory where soup was being manufactured and canned. I have
some doubts about the precedential value of the result in that case given that it was decided 50 years
before the Board adopted the Boeing balancing test, has not been cited in a Board decision in over 30
years, and that it arose at a very different time in terms of the automation and computerization of
manufacturing. At any rate, I find that the factors weigh differently in that case than in the instant one.
The decision shows that the Respondent used the rule to prohibit an employee from wearing a pro-union
hat and union buttons in his work area, but did not prohibit him from entering the facility while wearing
those items. Thus the restriction there did not preclude the employee from exercising his NLRA right to
convey a union message to co-workers at the facility. In the instant case, by contrast, the employees’
ability to use audio recording to document NLRA violations or unsafe conditions at the facility is
completely precluded since employees cannot record such conduct or conditions from inside the lockers
where the Respondent requires them to deposit any cell phones they bring into the facility. In addition,
the decision in Campbell shows that the restriction on NLRA activity was more narrowly tailored than the
JD–76–19
13
Based on the above, and the record as whole, I find that the Respondent does
not have a “legitimate” food contamination justification for its rules. That is not to say
that it does not have an interest in preventing contamination. Of course it does. But the
record here shows that that interest is not connected to its cell phone prohibition. Even
if the contamination justification could be seen as “legitimate,” it would be too 5
speculative and attenuated to outweigh the heavy burden that the Respondent’s
prohibition places on employees’ exercise of their NLRA rights.
The Respondent also proffers a second justification for the prohibition on
personal cell phones. It argues that banning personal cell phones and electronic 10
devices is necessary because allowing employees to possess them in the production
and warehouse areas would present unacceptable risks of injury to persons or
property. This, it should be noted, is the only justification that appears to be asserted to
justify the prohibition as it relates to the warehouse employees since the warehouse
would not be expected to have, and was not shown to have, open containers or food 15
processing surfaces that could be contaminated by cell phones. Based on my review of
the record, I find that the Respondent has not shown that this purported concern over
injuries is a legitimate justification for the rules. The Respondent does not identify a
single incident when, prior to its promulgation of the rules in 2014 and 2015, one of its
employees was distracted by a cell phone while performing work duties, much less any 20
in which such distraction created a safety issue. Even Rank, the only witness who
testified about the Respondent’s justification for the rule, did not claim to know of any
instances in which cell phone distraction had been a problem for the Respondent.
Rather than present any evidence, the Respondent’s attorneys rely on their own
evidence-free assertion that employees with cell phones would recklessly neglect their 25
duties and engage in a parade of horribles of distracted behavior. Specifically, counsel
asserts that if Respondent’s employees had cell phones they would not use them “for
protected concerted activities, but for playing games, checking and commenting on
Facebook statuses, checking Snapchat posts or posting on Snapchat, texting family and
friends, reading the news or other online sources, watching live sports games or 30
movies, and engaging in any other distracting conduct.” Brief of Respondent at Pages
14 to 15. The Respondent’s interference with employees’ NLRA rights cannot be
justified by counsel simply assuming the worst about employees.
Rank attempted to impart weight to the purported safety justification by noting
that employees operate forklifts in the production and warehouse areas of the San 35
Antonio facility. Tr. 148. As noted above, he does not identify any instances when the
possession of cell phones resulted in one of its employees being distracted, much less
being so distracted as to create a safety issue. I note, moreover, that the use of forklifts
is ubiquitous in manufacturing and warehouse facilities. The Respondent did not provide
a basis for believing that the use of this standard piece of equipment represents special 40

Respondent’s is here. The employer in that case stated that, under its rule, an employee would be
allowed to wear a union button in the work area as long as the button had a secure clasp and could wear
a hat as long as it was not precariously loose-fitting and “slippery.” The balancing test in the instant case
might well dictate a different result if the Respondent had similarly tailored the prohibition to its stated
justification.
JD–76–19
14
risks at its facility. To the contrary, under the Respondent’s theory, safety concerns
would override employees’ NLRA rights to carry cell phones at any facility that uses
forklifts or similar equipment in a typical manufacturing environment. Moreover, as with
the Respondent’s claims about contamination risk, I find that the cogency and sincerity
of its risk assessment with respect to safety is undercut by the fact that the cell phone 5
policy allows line lead employees to possess and even use cell phones while
performing the same tasks as other employees and allows any employee to possess a
cell phone in work areas as long as the phone is company-issued.
Even assuming that some type of restriction on cell phones is warranted to
address safety concerns at the Respondent’s facility, the Respondent has not shown 10
that those safety concerns are a legitimate justification for the rules at-issue here. The
Respondent did not provide credible evidence that any such concerns could not be
addressed with a narrower restriction – for example, a prohibition on the use of cell
phones while driving a forklift or operating equipment – that would not trammel
employees’ rights under the Act to make phone calls or recordings for their mutual aid 15
and protection. For these reasons, I find that Respondent’s proffered safety justification
is not legitimate. Moreover, even if it were legitimate, I would find that the substantial
interference that the Respondent’s rules impose on employees’ interests in the exercise
of their NLRA rights outweighs any legitimate safety interest that is addressed by those
rules.20
As discussed earlier in this decision, the rule at-issue in this case is of a different
type than the one the Board approved in Boeing. I am also mindful of the fact that the
employer in this case is a very different type of employer than the employer in Boeing.
In Boeing, the Board noted that the employer was “one of the country’s most prominent
defense contractors,” and stated that “the American people have a substantial interest 25
in permitting [it] to prohibit the use of cameras in facilities where work is performed that
directly affects national security.” The Boeing restriction also addressed the risk of
espionage and terrorism. The primary justification that the Respondent proffers in the
instant case – the possible contamination of product – is less weighty. If a cell phone
were to be dropped into an open food container it would require a clean-up effort and 30
the disposal of tainted product. But the evidence did not show that tainted product
would have any chance of getting past quality controls and reaching consumers. As
already discussed, the Respondent did not identify a single instance in which an
employee’s possession of a cell phone resulted in contamination of food product, much
less any instance in which cell phone-tainted product escaped the plant. At any rate, the 35
Respondent’s purported concern about contamination from personal items is, to put it
diplomatically, selective in that the rules do not prohibit employees from possessing
multiple other items that present risks of contamination and allows supervisors to carry
cell phones while performing exactly the same tasks as the employees who the rules
prohibit from carrying them. 40
For the reasons discussed above, I conclude that, under the standards
announced in Boeing, the Respondent has unlawfully interfered with employees NLRA
rights in violation of Section 8(a)(1) by maintaining rules prohibiting employees from
JD–76–19
15
possessing personal cell phones on the manufacturing floor and/or at their work
stations.
CONCLUSIONS OF LAW
5
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act
2. The Respondent has unlawfully interfered with employees’ exercise of their
NLRA rights in violation of Section 8(a)(1) by maintaining rules prohibiting employees
from possessing personal cell phones on the manufacturing floor and/or at their work 10
stations.
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I 15
shall order it to cease and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act. Prior to the remand, the General Counsel
asked that I order that the notice in this case be posted not just at the Respondent’s
San Antonio facility, but at all the Respondent’s facilities nationwide. I find that it is
appropriate under the circumstances present here to confine the posting remedy to the 20
one facility about which specific evidence was presented at the hearing, i.e., to the San
Antonio facility. The evidence does not show that circumstances at the Respondent’s
other facilities are sufficiently similar that an independent analysis of those
circumstances is not warranted.11 Moreover, the parameters of the policy regarding cell
phone possession in this case are set by the combined action of one rule promulgated 25
at the corporate-wide level and a second rule that was promulgated at the San Antonio
facility. The latter rule was not shown to be in place at other facilities, and certainly not
at all the Respondent’s facilities. I am unable to conclude on the record here that the
circumstances regarding facility-specific rules at other facilities would not mitigate the
unlawful interference that the corporate-wide rule imposes under the circumstances 30
shown at the San Antonio facility.
On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended Order.12
35

11 I considered that Rank, a manager at the corporate level, testified that the operations he described
did not differ meaningfully from one facility to the next. However, I found him an unreliable witness in this
regard. I note in particular that Rank testified that line lead employees did not fill-in for employees who
work on the production line when they go on breaks, but the evidence showed that at the San Antonio
facility line lead employees do exactly that.
12 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 purposes.
JD–76–19
16
ORDER
The Respondent, Cott Beverages, Inc., San Antonio, Texas, its officers, agents,
successors, and assigns, shall
5
1. Cease and desist from
(a) Interfering with employees’ exercise of their NLRA rights in violation of
Section 8(a)(1) by maintaining rules prohibiting employees at its San Antonio, Texas,
facility from possessing personal cell phones on the manufacturing floor or at their work 10
stations.
(b) In any like or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of the Act.
15
2. Take the following affirmative action necessary to effectuate the policies of the
Act.
(a) Rescind its policies prohibiting employees at its San Antonio, Texas, facility
from possessing personal cell phones on the manufacturing floor and/or at their work 20
stations.
(b) Furnish employees at the San Antonio, Texas, facility with inserts for the
current policies that (1) advise employees that the unlawful prohibition has been
rescinded, or (2) provide the language of a lawful prohibition, or to the extent that that 25
the Respondent has not already done so, publish and distribute revised policies that (1)
do not contain the unlawful prohibition, or (2) provide the language of a lawful
prohibition.
(c) Within 14 days after service by the Region, post at its facility in San Antonio, 30
Texas, copies of the attached notice marked “Appendix.”13 Copies of the notice, on
forms provided by the Regional Director for Region 16, 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. In addition to physical posting of paper 35
notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by
the Respondent 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 40
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

13 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
JD–76–19
17
notice to all current employees and former employees employed by the Respondent at
any time since January 2016.
Dated, Washington, D.C. October 7, 20195
____________________
Paul Bogas
Administrative Law Judge10
,_9---6er-\c'
JD–76–19
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 Federal labor law and
has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT interfere with your exercise of rights guaranteed you by Section 7 of the
Act by maintaining rules prohibiting you from possessing personal cell phones on the
manufacturing floor and/or at your work stations.
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 rescind the policy prohibiting you from possessing possessing personal cell
phones on the manufacturing floor and/or at your work station.
WE WILL furnish you with inserts for the current policies that (1) advise that the unlawful
prohibition has been rescinded, or (2) provide the language of a lawful prohibition, or to
the extent that that we have not already done so, publish and distribute revised policies
that (1) do not contain the unlawful prohibition, or (2) provide the language of a lawful
prohibition.
COTT BEVERAGES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935
to enforce the National Labor Relations Act. It conducts secret-ballot elections to
determine whether employees want union representation and it investigates and
remedies unfair labor practices by employers and unions. To find out more about your
rights under the Act and how to file a charge or election petition, you may speak
JD–76–19
confidentially to any agent with the Board’s Regional Office set forth below. You may
also obtain information from the Board’s website: www.nlrb.gov.
819 Taylor Street, Room 8A24, Fort Worth, TX 76102-6178
(817) 978-2921, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/16-CA-181144 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (817) 978-2925.