Pepsi-Cola General Bottlers, 701 (2002)

Docket Number:09-CA-38197

Pepsi-Cola General Bottlers, Inc. and Steven C. Saunders. Case 9-CA-38197

June 25, 2002



On October 29, 2001, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed a limited cross-exception and a brief in support of the judge's decision and its limited cross-exception. The Charging Party filed a reply 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.


The recommended Order of the administrative law judge is adopted, and the complaint is dismissed.

Naima R. Clarke, Esq., for the General Counsel.

Edward S. Dorsey, Esq., of Cincinnati, Ohio, for the Respon dent-Employer.



BRUCE D. ROSENSTEIN, Administrative Law Judge. This case was tried before me on August 29, 2001, in Cincinnati, Ohio, pursuant to a complaint and notice of hearing (the complaint) issued by the Regional Director for Region 9 of the National Labor Relations Board (the Board) on May 23, 2001. The complaint, based upon an original charge filed by Steven C.

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. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In adopting the judge's credibility determinations, we do not rely on his specific finding that Charging Party Saunders' testimony was inconsistent regarding the extent of his knowledge of an incident in February 1993 involving former employees Assum and Radcliff. This does not affect our affirmance of the judge's overall discrediting of Saunders' testimony.

We adopt the judge's dismissal of the complaint on the basis that it is time-barred. Thus, we find it unnecessary to pass on the judge's alternative fin dings regarding the substantive allegations of the complaint. We also find it unnecessary to consider whether the judge erred by denying admission of the corroborative evidence of Human Re-source Manager Handley's contemporaneous notes of a conversation he had with alleged discriminatee Saunders, because the denial was at most a harmless error.

Saunders (the Charging Party or Saunders) on January 11, 2001, alleges that Pepsi-Cola General Bottlers, Inc. (the Respondent or Pepsi) has engaged in certain violations of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act). The Respondent filed a timely answer to the complaint denying that it had committed any violations of the Act.


The complaint alleges that Respondent, since about July 15, 2000,1 has refused to hire, or consider for hire, the Charging Party. The Respondent, as part of its affirmative defense, argues that it made the decision not to hire Saunders and communicated that decision to him on June 22, more than 6 months before the charge was filed.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following



    The Respondent is a corporation engaged in the manufacture, sale, and distribution of soft drinks. It has an office and place of business located in Cincinnati, Ohio, where it annually purchases and receives goods valued in excess of $50, 000 directly from points outside the State of Ohio. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that Teamsters Local 1199, an affiliate of the International Brotherhood of Teamsters, AFL-CIO (the Union), is a labor organization within the meaning of Section 2(5) of the Act.


    1. Background

      Respondent is a business in the highly competitive beverage industry. As part of its sales, distribution, and manufacturing operations, the Respondent employs, among others, certain employees who are covered by collective-bargaining agreements with the Union. The bargaining unit positions include such titles as merchandiser, full service driver, forklift operator, and machine operator. At all material times, Daniel Handley was the human resource manager and Kathleen A. McCabe, esquire, held the position of employee relations manager at Respondent.

      Saunders held the position of...

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