NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,589, PEPSI-COLA BOTTLING COMPANY OF FAYETTEVILLE, INC. and UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 204 aw UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

PEPSI-COLA BOTTLING COMPANY OF FAYETTEVILLE, INC. and UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 204 aw UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC.

315 NLRB No. 130.Case Nos. 11-CA-14889, -15034, -15181, -15281, -15289, -15383 and -15556. December 16, 1994 Lowell M. Goerlich, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Paris Favors Jr., for General Counsel. Joel I. Keiler, Reston, Virginia and Margie Case, Raleigh, North Carolina, for Respondent. Shelda J. Upchurch, Durham, North Carolina, for Charging Party.

Union Right to Information--Failure to Furnish--Lawful Refusal.--Although an employer refused to furnish a union with relevant requested information relating to the termination of two employees, the employer’s refusal to do so was lawful. The union had previously filed unfair labor practice charges involving two employees and, therefore, the employer was privileged to deny the information request. Section 8(a)(5).

Back reference: ¶3135.138.

Discrimination--Antiunion Motives--Union Organizing.--In an attempt to nullify its employees’ support for a union, an employer committed several unfair labor practices that discriminated against union activists. These coercive acts included discharging six unionists, disparately disciplining a union supporter, assigning more onerous work to employees and withholding a scheduled wage increase. Section 8(a)(3).

Back reference: ¶4010.408.

Unilateral Changes by Employer--Fact Finding--Work Conditions.--On the facts, by unilaterally making changes in its employees’ wages, hours and working conditions, without notifying a union and giving it an opportunity to bargain over such changes, an employer violated its bargaining duty. Section 8(a)(5).

From Text of Board’s Decision

On May 11, 1994, Administrative Law Judge Lowell M. Goerlich issued the attached decision. The Respondent filed exceptions and a supporting brief.

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The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings, [1] and conclusions [2] and to adopt the recommended Order, as modified.

The judge found, inter alia, that the Respondent unlawfully refused to provide the information requested by the Union in its letter dated July 14, 1993. The Respondent excepts to that finding. We find merit in the Respondent’s exception insofar as it relates to part of the Union’s information request.

Items 1 and 2 of the Union’s information request involved lists of all terminations and hires since January 18, 1993. The union representative who testified at the hearing stated, as the reason for requesting these items, a need to update its files because she had been newly assigned to service the plant. As to these matters, we agree with the judge’s conclusion that the information was necessary to the Union for adequate representation of employees and, thus, the Respondent’s refusal to furnish it violated Section 8(a)(5) and (1) of the Act.

As to items 3 and 4 in its letter, the Union requested information concerning the terminations of employees Schriber and Faass. The day after it sent its letter to the Respondent, the Union filed unfair labor practice charges with the Board concerning the discharges of these employees. It is well established that the Board procedures do not include pretrial discovery. For that reason, the Board has held that when information is sought that relates to pending 8(a)(3) charges, it generally will not find that a refusal to provide such information violates the Act. Union-Tribune Publishing Co., [1992-93 CCH NLRB ¶17,214] 307 NLRB 25, 26 (1992), and WXON-TV, [1987-88 CCH NLRB ¶19,500] 289 NLRB 615, 617 (1988). We recognize that WXON-TV is factually different from the instant case. In that case, an 8(a)(3) and (5) charge was filed the day after the information was sought. In the instant case, the 8(a)(3) charge was filed on the day after the information was sought and the 8(a)(5) charge was added 2 weeks later. Despite this difference in timing, we believe that the inference is plain that the information was sought because of its relationship to the 8(a)(3) charge. American Oil Co., 171 NLRB 1180, 1188 (1968). Thus, for the reasons stated in the above decisions, we conclude that the Respondent did not violate Section 8(a)(5) when it failed to provide the information described in items 3 and 4 of the Union’s July 14, 1993 request. [3]

¹	The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent further claimed essentially that the proceedings here were tinted by bias. After a careful examination of the entire record we are satisfied that this allegation is without merit. With respect to the judge’s finding that employee Faass’ disscharge was unlawful, the judge placed reliance on the fact that the Respondent waited over 2 months after Faass’ last personal injury to discharge him. We note that there is a testimonial discrepancy as to when Faass’ last personal injury occurred. We find, regardless of when the injury occurred and without relying on any 2-month delay, that the judge correctly found that the General Counsel established a prima facie case of discriminatory motivation for the discharge, and the Respondent failed either to rebut that case or establish a defense under Wright Line, [1980 CCH NLRB ¶17,356] 251 NLRB 1083 (1980). Member Devaney, in adopting the judge’s finding that several statements at the captive audience meeting constituted threats of termination for engaging in union activities, finds it unnecessary to rely on the judge’s citation of Baddour, Inc., [1991-92 CCH NLRB ¶16,711] 303 NLRB 275 (1991), in which he dissented, and which he views as distinguishable on its facts. Member Stephens would not find that employee William Bryan Frazier was an agent of the Respondent. When an employer places an employee in a position such that other employees could reasonably believe that the employee speaks on behalf of management, the employee’s actions are attributable to the employer. Here, as the judge found, employees initially asked Frazier to be their union shop steward, an incongruous circumstance if employees truly could perceive Frazier as an agent of the Respondent. Further, Frazier’s agency status rests on virtually the identical factors found insufficient to confer supervisory status on him, e.g., signing timecards, writing up employees, solving maintenance problems, and performing various reportorial duties. In Member Stephens’ view, the performance of these duties is also insufficient to cloak Frazier with agency status. He concludes, nonetheless, that even without a finding that Frazier was an agent, the record still establishes that the Respondent’s discharge of employee Munn violated Sec. 8(a)(3) and (1).
²	At one point in his decision the judge stated that employee Curtis’ discharge violated Sec. 8(a)(3) as well as Sec. 8(a)(5). There was, however, no allegation that Curtis’ discharge violated Sec. 8(a)(3), nor does the judge include such a finding in his conclusions of law. In adopting the judge, we clarify that Curtis’ discharge violated Sec. 8(a)(5) and (1) only.
³	The judge inadvertently failed to include an affirmative order requiring the Respondent to provide the information requested in the Union’s July 14, 1993 letter. We will modify the recommended Order so as to require the Respondent to provide the requested information to the extent consistent with this decision.

NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,589, PEPSI-COLA BOTTLING COMPANY OF FAYETTEVILLE, INC. and UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 204 aw UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC., (Dec. 16, 1994), National Labor Relations Board, (Dec 16, 1994)

PEPSI-COLA BOTTLING COMPANY OF FAYETTEVILLE, INC. and UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 204 aw UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC.

315 NLRB No. 130.Case Nos. 11-CA-14889, -15034, -15181, -15281, -15289, -15383 and -15556. December 16, 1994 Lowell M. Goerlich, Administrative Law Judge..

Before Stephens, Devaney and Cohen.

Paris Favors Jr., for General Counsel. Joel I. Keiler, Reston, Virginia and Margie Case, Raleigh, North Carolina, for Respondent. Shelda J. Upchurch, Durham, North Carolina, for Charging Party.

Back reference: ¶3135.138.

Back reference: ¶4010.408.

From Text of Board’s Decision

On May 11, 1994, Administrative Law Judge Lowell M. Goerlich issued the attached decision. The Respondent filed exceptions and a supporting brief.

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¹	The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent further claimed essentially that the proceedings here were tinted by bias. After a careful examination of the entire record we are satisfied that this allegation is without merit. With respect to the judge’s finding that employee Faass’ disscharge was unlawful, the judge placed reliance on the fact that the Respondent waited over 2 months after Faass’ last personal injury to discharge him. We note that there is a testimonial discrepancy as to when Faass’ last personal injury occurred. We find, regardless of when the injury occurred and without relying on any 2-month delay, that the judge correctly found that the General Counsel established a prima facie case of discriminatory motivation for the discharge, and the Respondent failed either to rebut that case or establish a defense under Wright Line, [1980 CCH NLRB ¶17,356] 251 NLRB 1083 (1980). Member Devaney, in adopting the judge’s finding that several statements at the captive audience meeting constituted threats of termination for engaging in union activities, finds it unnecessary to rely on the judge’s citation of Baddour, Inc., [1991-92 CCH NLRB ¶16,711] 303 NLRB 275 (1991), in which he dissented, and which he views as distinguishable on its facts. Member Stephens would not find that employee William Bryan Frazier was an agent of the Respondent. When an employer places an employee in a position such that other employees could reasonably believe that the employee speaks on behalf of management, the employee’s actions are attributable to the employer. Here, as the judge found, employees initially asked Frazier to be their union shop steward, an incongruous circumstance if employees truly could perceive Frazier as an agent of the Respondent. Further, Frazier’s agency status rests on virtually the identical factors found insufficient to confer supervisory status on him, e.g., signing timecards, writing up employees, solving maintenance problems, and performing various reportorial duties. In Member Stephens’ view, the performance of these duties is also insufficient to cloak Frazier with agency status. He concludes, nonetheless, that even without a finding that Frazier was an agent, the record still establishes that the Respondent’s discharge of employee Munn violated Sec. 8(a)(3) and (1).
²	At one point in his decision the judge stated that employee Curtis’ discharge violated Sec. 8(a)(3) as well as Sec. 8(a)(5). There was, however, no allegation that Curtis’ discharge violated Sec. 8(a)(3), nor does the judge include such a finding in his conclusions of law. In adopting the judge, we clarify that Curtis’ discharge violated Sec. 8(a)(5) and (1) only.
³	The judge inadvertently failed to include an affirmative order requiring the Respondent to provide the information requested in the Union’s July 14, 1993 letter. We will modify the recommended Order so as to require the Respondent to provide the requested information to the extent consistent with this decision.

From Text of Board’s Decision

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Footnotes

From Text of Board’s Decision

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Footnotes