Northeast Beverage Corp. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2008 Decided January 30, 2009

No. 07-1206

NORTHEAST BEVERAGE CORPORATION AND B. VETRANO

DISTRIBUTORS, INC.,

PETITIONERS

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL NO.

1035,

INTERVENOR

Consolidated with 07-1265

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Thomas W. Budd argued the cause and filed the briefs for

petitioners.

David A. Fleischer, Senior Attorney, National Labor

Relations Board, argued the cause for respondent. With him

2

on the brief were Ronald E. Meisburg, General Counsel, John

H. Ferguson, Associate General Counsel, Linda Dreeben,

Deputy Associate General Counsel, and Meredith L. Jason,

Supervisory Attorney. Jason Walta, Attorney, entered an

appearance.

Gregg D. Adler argued the cause and filed the brief for

intervenor.

Before: GINSBURG, HENDERSON and GARLAND, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GINSBURG.

Opinion dissenting in part filed by Circuit Judge

GARLAND.

GINSBURG, Circuit Judge: In 2002 Northeast Beverage

Corporation decided to close one of its subsidiaries, B.

Vetrano Distributors Inc., and consolidate its operations at

another facility. Before the closing, Northeast and the union

that represented the employees at Vetrano bargained over the

effects of the planned consolidation. During one bargaining

session, six Vetrano delivery drivers walked off the job and

went to the union hall to ask their employer’s bargaining

representatives about their future employment. Northeast

suspended the drivers and discharged five of them for leaving

work. The National Labor Relations Board subsequently

determined the walkout was protected by Section 7 of the

National Labor Relations Act, 29 U.S.C. § 157, and the

disciplinary measures were therefore unfair labor practices.

The Board also found Northeast impermissibly dealt directly

with one employee over a mandatory subject of collective

bargaining when it revised its offers of severance to those

3

employees who were not discharged. Northeast Beverage

Corp., 349 N.L.R.B. 1166 (2007).

Northeast and Vetrano petition for review of the Board’s

decision that they engaged in unfair labor practices. The

Board cross-appeals for enforcement of its order. We find the

Board erred in holding the employees’ departure from work

was protected by the Act. We therefore grant the petition for

review and deny enforcement of the Board’s order with

respect to the suspended and discharged employees. We deny

the petition and grant enforcement of the Board’s order as it

relates to Northeast’s direct dealing with an employee

concerning severance pay.

I. Background

Northeast, a Rhode Island-based distributor of beer and

soft drinks, acquired two beverage distributors in

Connecticut: Burt’s Beverages, a nonunion facility in Bethel,

and B. Vetrano Distributors, a unionized facility in Bristol.

Local No. 1035, International Brotherhood of Teamsters

represented the drivers and warehousemen at Vetrano. The

contract between Vetrano and the Union contained a no-strike

clause by which the Union “guarantee[d] the employer that

there will be no authorized strikes, work stoppages, or other

concerted interference with normal operations by its

employees.”

In the wake of the acquisitions, Northeast retained an

operations consultant, Alex Reveliotty, who recommended

closing Vetrano and consolidating the two operations at the

Burt’s facility. On May 13, 2002 Northeast met with

representatives of the Union and informed them of the

planned consolidation. After that meeting, the Vetrano

employees learned of the consolidation and, concerned about

4

its implications for their jobs, several of them inquired of

their employer or of the Union but received no definitive

answers.

The second bargaining session between the Union and

Northeast was scheduled for 10:00 a.m. on May 29 at the

union hall. That morning, Gary Everett, the Union’s shop

steward, was scheduled to work from 3:30 to 7:30 a.m.,

opening the facility and loading trucks, after which he

planned to attend the bargaining session. He told the other

Vetrano drivers he was “going to a meeting that morning to

try and get some answers for everybody to see what was

going on.”

Other drivers scheduled to make deliveries that day told

Everett they wanted to attend the meeting, too; Everett said he

did not know if it was a closed meeting, but that leaving work

to attend the meeting “would not be an authorized union thing

to do.” Nevertheless, the drivers left work to attend the

meeting in hope of getting information about how the

consolidation would affect their jobs. Everett called Joseph

Pignatella, a Vetrano driver who had already finished work

and left the facility, to tell him the drivers were going to the

meeting so he could join them. The drivers who left work at

Vetrano to attend the meeting were, in order of seniority:

Chris Fedor (10 years), Paul Johnson (1 year), Jerzy

Marczewski (11 months), Ricardo Bosques (1 month), Robert

Collins (17 days), and Russell Towle (10 days). The men left

shortly before 8:00 a.m. John Vetrano, the general manager,

found out about their leaving from Pignatella, who called him

around 8:00 a.m.

The drivers first went to a coffee shop to formulate

questions for management and to wait until the union hall

opened. When they arrived at the union hall, the Union’s

5

business manager, John Hammond, met them in the parking

lot. He expressed surprise at their presence and instructed

them to return to work. The Secretary/Treasurer of the

Union, Chris Roos, and the Union’s attorney, Gregg Adler,

also told the men to return to work. The men refused, saying

they wanted answers to their questions about their jobs. The

union representatives said the meeting was closed and

answers were not yet available. The union representatives

eventually decided to allow the drivers to introduce

themselves to the employer’s representatives, but said the

drivers could not stay after that. Northeast’s representatives

arrived by around 10:45. After introducing themselves to the

employer’s representatives, the drivers left to return to the

Vetrano warehouse.

When the drivers had left the meeting, Northeast’s

attorney, Thomas Budd, informed the Union that the drivers’

leaving work was improper and, as a result, they would be

suspended indefinitely pending an investigation. Under

protest from the Union, Northeast said the drivers could

return to work the next day, May 30, but it would interview

them to determine the appropriate discipline. Meanwhile, the

six drivers who had walked off the job returned to the

warehouse around 11:30 a.m., where a manager informed

them they had been suspended. (Everett and Pignatella, who

were not scheduled to work at the time of the meeting, were

not disciplined.) The Union later filed a grievance, claiming

the suspension violated the collective-bargaining agreement.

On May 31, Northeast sent the six drivers a letter

explaining that it was conducting an investigation into their

“illegal job action” and would “impose appropriate discipline

up to and including discharge.” John Vetrano was put in

charge of interviewing the six drivers, and Everett was

present for each interview.

6

At a meeting on June 14, Northeast informed the Union

that the state liquor authority had approved the consolidation

and the Vetrano facility would be closing the next day. It also

informed the Union that five of the six drivers who had left

work on May 29 would be discharged; Chris Fedor, in view

of his long tenure with the Company, would receive only a

one-day suspension. John Vetrano informed the other five

drivers that it was their last day. Northeast sent them each a

letter, dated June 18 and mailed June 19, confirming his

discharge.

Also on June 19, the five discharged drivers, having seen

a “help wanted” advertisement in a newspaper, went to Burt’s

and filled out job applications. Northeast’s consultant,

Reveliotty, told the hiring staff at Burt’s not to interview or

hire the five drivers because they had been fired for walking

off the job at Vetrano. Northeast had a policy of not rehiring

discharged employees.

At the June 14 meeting, Northeast had also informed the

Union that Everett, Pignatella, and Fedor would be offered

employment at Burt’s or, if they declined employment, a

severance package; Fedor would receive $15,000, Everett

$11,000, and Pignatella $10,600. A few days later, Everett

approached Reveliotty and told him the severance-package

offers were unfair. Although Fedor had a higher salary,

Everett said he and Pignatella had greater seniority and

performed several “intangible” services for the Company,

such as opening the warehouse in the morning and bringing in

trucks at night.

According to Budd, Northeast’s attorney, Reveliotty told

him on June 17 that the employees were upset about the

severance offers. That same day, Budd told Gregg Adler, the

7

Union’s attorney, the Company would modify its offer and

give each employee $15,000. According to Adler, however,

Budd told him only that he expected Fedor to accept a job at

Burt’s, in which event more money would be available to

increase the severance payments offered to Everett and

Pignatella; as Adler understood that, no offer had yet been

made.

In any event, on or about June 18 Reveliotty telephoned

Everett to say he had discussed the matter with the president

of Northeast and the Company would offer $15,000 to each of

the three drivers. Everett then called Roos, the

Secretary/Treasurer of the Union, to tell him he was not

accepting a job at Burt’s because of the increased severance

offer. Having heard from Roos that Everett had received an

offer of $15,000, Adler sent Budd a fax accusing Reveliotty

of dealing directly with an employee over a mandatory

subject of collective bargaining. In a letter dated June 19,

Budd apologized for “any misunderstanding” and explained

that as he understood their conversation of June 17, he had

communicated the Company’s new offer of $15,000.

On these facts, a panel of the Board unanimously held

that Northeast violated §§ 8(a)(1) and (5) by bypassing the

Union and dealing directly with Everett concerning his

severance pay. A majority of the panel concluded that the

walkout of May 29 was concerted activity for “‘mutual aid’

directly related to a labor dispute”; was not in breach of the

no-strike clause in the collective bargaining agreement

between Northeast and the Union or otherwise indefensible;

and was therefore protected activity. Accordingly, the Board

held Northeast violated §§ 8(a)(1) and (3) of the National

Labor Relations Act by suspending the six employees,

discharging five of them, and refusing to consider hiring the

five discharged employees at Burt’s. The Board further held

8

Northeast’s reason for disciplining the employees were

“pretextual,” masking anti-union animus.

Member Schaumber, dissenting, would have held the

employees did not have a “labor dispute” with the employer,

wherefor their leaving work to obtain answers to their

questions about job security was not protected by § 7 of the

Act; Member Schaumber further concluded the Company’s

stated reason for the discipline was not pretextual but

motivated by a legitimate business justification, viz., the

employees’ unauthorized departure during working time.

The Board ordered Northeast to offer jobs at Burt’s to the

five discharged employees; make them whole for any losses

suffered as a result of their suspensions and of the refusal to

hire them at Burt’s; expunge from their records any reference

to the suspensions and discharges; and notify current and

former employees of the Board’s decision.

II. Analysis

We must uphold the order of the Board unless, upon

reviewing the record as a whole, we conclude the Board’s

findings are not supported by “substantial evidence,” 29

U.S.C. § 160(f), or the Board failed to apply the proper legal

standard or departed from established precedent without a

reasoned justification. Mail Contractors of America v. NLRB,

514 F.3d 27, 31 (D.C. Cir. 2008). We conclude the Board

erred in applying NLRB v. Washington Aluminum Co., 370

U.S. 9 (1962) to the facts of this case. We also hold the

Board’s decision that Northeast engaged in impermissible

direct dealing is supported by substantial evidence. We

therefore grant the petition for review in part and deny

enforcement of the Board’s order with respect to the

suspended and discharged employees.

9

A. The Walkout

Northeast argues the walkout on May 29 was not

protected: If it was a strike or other concerted interference

with normal operations, then it was unprotected because it

violated the no-strike clause in the collective bargaining

agreement. If it was not a strike, then it was a usurpation of

working time for personal purposes and unprotected by

Section 7 of the Act, which protects employees’ “right to self-

organization, to form, join, or assist labor organizations, to

bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or

protection.” 29 U.S.C. § 157.

The Board concluded the May 29 work stoppage was not

a strike because, when the drivers left the Vetrano facility,

“they did not have a plan to pressure the employer to grant

any concessions or to take any action.” Northeast Beverage

Corp., 349 N.L.R.B. at 1167. As the Board described the

walkout:

The employees were not receiving answers to

their questions regarding such issues as

whether they would retain their employment,

what their seniority status would be, and what

their pay would be after the merger. They

decided to attend the meeting to demonstrate

their anxiety about these matters, and to seek

answers to their questions.

The Board concluded this situation amounted to a “labor

dispute” within the meaning of § 2(9) of the Act, that is, a

“controversy concerning terms, tenure or conditions of

10

employment, or concerning the association or representation

of persons in negotiating, fixing, maintaining, changing, or

seeking to arrange terms or conditions of employment.” 29

U.S.C. § 152(9). The “controversy,” according to the Board,

“was that the employees wanted definitive answers to their

employment-related concerns, and their employer was not

providing such answers.” 349 N.L.R.B. at 1167. Thus, “their

attendance at the meeting was in furtherance of their ‘mutual

aid’ to obtain information about [their employment]” and was

protected by § 7 under Washington Aluminum.

In that case, the Supreme Court held a spontaneous

walkout, undertaken to protest bitterly cold working

conditions about which the employees had previously

complained, was protected by § 7. The Court explained that

the walkout “did grow out of a ‘labor dispute’ within the plain

meaning of the definition of that term in § 2(9) of the Act.”

370 U.S. at 15. The record in that case showed “a running

dispute between the machine shop employees and the

company over the heating of the shop on cold days — a

dispute which culminated in the decision of the employees to

act concertedly in an effort to force the company to improve

that condition of their employment.” Id. at 15-16.

Nothing in Washington Aluminum suggests the Act

protects an employee walkout that is not part of an ongoing

“labor dispute” over “terms, tenure or conditions of

employment.” Here there was no such dispute; on the

contrary, there was a collective bargaining agreement dealing

with those subjects and ongoing bargaining over its

application to an impending change of circumstances. The

Board attempts to find a “labor dispute” in the facts of this

case but its effort is unconvincing and does not amount to a

11

reasonable reading either of § 2(9) or of Washington

Aluminum.∗

In prior cases where employees absented themselves

from work to engage in union activities or to seek information

unrelated to an ongoing labor dispute, the Board has found

∗

Our dissenting colleague points to no facts that establish an

ongoing labor dispute — that is, a controversy — between the

drivers and Northeast. That the pending consolidation created “a

particularly vulnerable time” for the employees, dissenting op. at 1,

and that they felt an urgent “need for the information” about their

future employment, dissenting op. at 2, do not make for a “labor

dispute.” Nor does the employees’ “hop[e] to influence their

employer to retain them after the merger,” id., mean there was a

labor dispute or that § 7 otherwise entitled them to walk off their

old jobs in order to apply for new ones.

Neither does our dissenting colleague reconcile the facts of

this case with the Supreme Court’s decision in Washington

Aluminum, which he states broadly “held that employees who left

their shop because it was too cold were protected by Section 7.”

Dissenting op. at 3 n.1. But why were they protected by Section 7?

Because, the Court said, their walkout “gr[e]w out of a ‘labor

dispute’ within the plain meaning of the definition of that term in §

2(9) of the Act.” 370 U.S. at 15. As our dissenting colleague

correctly notes, we defer to the Board’s reasonable interpretation of

its own precedents, dissenting op. at 1, but we will not uphold an

order of the Board when it has “erred in applying established law to

the facts of the case,” Jochims v. NLRB, 480 F.3d 1161, 1167 (D.C.

Cir. 2007), as the Board has misapplied Washington Aluminum

here. “We are not obligated to defer to an agency’s interpretation

of Supreme Court precedent under Chevron or any other principle.

There is therefore no reason for courts — the supposed experts in

analyzing judicial decisions — to defer to agency interpretations of

the Court’s opinions.” Univ. of Great Falls v. NLRB, 278 F.3d

1335, 1341 (D.C. Cir. 2002) (internal citation and quotation marks

omitted).

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their actions unprotected. In Gulf Coast Oil, 97 N.L.R.B.

1513 (1952), the employees arrived at work three hours late

because they had met with union representatives to learn

about the benefits of union organization and had joined the

union. The Board found this conduct unprotected: “The

activity here amounted to an unwarranted usurpation of

company time by the employees to engage in a sort of union

activity customarily done during non-working time.” Id. at

1516. In Terri Lee, Inc., 107 N.L.R.B. 560 (1953), the

employees, upset about a cut in their piece-rate pay, left work

to consult with a union about the matter. The Board found

their activity unprotected and their discharge consequently

lawful. In terms equally applicable, mutatis mutandi, to the

present case, the Board said the employees did not “engage in

a strike or other concerted withholding of work” but “merely

intended to take the day off to obtain information from the

Union, without any purpose thereby of protesting the cut in

piece rates or of seeking any concession from [their

employer].” Id. at 562. In G.K. Trucking Corp., 262

N.L.R.B. 570 (1982), two employees absented themselves

from work to attend a union meeting where they planned to

discuss their concerns with union officials and to seek

representation. The Board held their actions unprotected and

upheld their discharge, again in terms equally applicable to

the present case:

This is the very kind of activity which can and

should take place on employees’ own time.

There was no urgency which called for a work-

time consultation with union officials and

indeed no evidence that ... the employees,

either at that meeting or at any other time,

organized their endeavor into a protest which

involved or affected working conditions.

13

Id. at 573.

This case more closely resembles Gulf Coast Oil, Terri

Lee, and GK Trucking than it does Washington Aluminum.

The Board specifically found the drivers did not have a plan

to pressure Northeast but wanted only to get information

about their employment. The Vetrano drivers knew their

shop steward, who was a member of the Union’s bargaining

team, would be at the meeting, was aware of their questions,

and would report back to them. That the drivers were

particularly anxious to get answers, and wanted to ask their

questions directly, does not distinguish this case from the

others in which employees left their jobs during working time

to seek information that just as well could have been obtained

from the union during non-working hours. Accordingly, the

employees’ leaving work was justified neither by connection

to an ongoing labor dispute with their employer nor by a

compelling necessity to attend the bargaining session that

day. The employees simply used working time to engage in

union-related activity customarily reserved for non-working

time.

Section 7 and the relevant cases thereunder do not protect

employees who leave work to seek information from their

union or their employer. The Board therefore erred in

treating the employees’ mere quest for information as a “labor

dispute.” Washington Aluminum is inapposite because there

the employees who left work were engaged in a dispute with

their employer and by leaving were seeking a change in their

working conditions.

Similarly, the Board’s attempts to distinguish Gulf Coast

Oil and Terri Lee are unconvincing. The Board distinguished

Gulf Oil on the ground that here the drivers, as evidenced by

their failure to receive answers to their questions, had no

14

“customary” way to obtain the relevant information. 349

N.L.R.B. at 1167-68. But the existence vel non of a “custom”

is irrelevant where, as here, the shop steward informed the

drivers that he would attend the meeting and report back to

them. The Board also distinguished Terri Lee on the ground

that here the drivers sought information directly from their

employer rather than from their union. Id. at 1168. This is

not a meaningful distinction; the drivers here, like the

employees in Terri Lee, were told they could not leave work

to attend this meeting and there was no reason questions had

to be addressed to the employer’s representatives then and

there. If the Terri Lee employees had left work to address

questions to the mangement of their company, the result

would have been the same.

We hold the drivers’ departure from work to obtain

information is not protected by § 7. Because the employees’

walkout was unprotected, Northeast had a legitimate business

reason for disciplining them. We therefore deny enforcement

to the Board’s order with respect to the suspensions and

subsequent discharges of the Vetrano drivers.

B. Direct Dealing

We uphold that portion of the Board’s order addressed to

Northeast’s direct dealing with an employee concerning his

severance pay. The Board found that Northeast’s consultant,

Alex Reveliotty, negotiated with Gary Everett — who,

although the shop steward, was then acting in his personal

capacity as an employee — over the severance packages he

(and Pignatella) would receive. Id. at 1195. The Board also

discredited testimony that Northeast’s attorney, Thomas

Budd, had communicated the new severance offer to union

attorney Gregg Adler before Reveliotty had made the offer to

Everett. Id. These factual findings provide substantial

15

evidence for the Board’s determination that the Company

dealt directly with an employee over a mandatory subject of

collective bargaining.

III. Conclusion

For the reasons set out above, we hold the employees’

May 29 walkout was unprotected by the Act. Therefore,

Northeast did not commit an unfair labor practice by

disciplining the drivers for leaving their work. We further

hold the Board’s finding that Northeast dealt directly with an

employee over a mandatory subject of collective bargaining is

supported by substantial evidence. Accordingly, with respect

to the suspensions and discharges of the employees, the

petition for review is granted; the Board’s cross-application

for enforcement is granted with respect to the issue of direct

dealing.

So ordered.

GARLAND, Circuit Judge, dissenting in part: This case

presents a difficult question regarding the scope of Section 7

of the National Labor Relations Act, 29 U.S.C. § 157.

“Determining whether activity is concerted and protected

within the meaning of Section 7 is a task that ‘implicates [the

Board’s] expertise in labor relations,’” and “[t]he Board’s

determination that an employee has engaged in protected

concerted activity is entitled to considerable deference if it is

reasonable.” Citizens Inv. Servs. Corp. v. NLRB, 430 F.3d

1195, 1198 (D.C. Cir. 2005) (quoting NLRB v. City Disposal

Sys., Inc., 465 U.S. 822, 829 (1984)). So, too, is the Board’s

“interpretation of its own precedent.” Ceridian Corp. v.

NLRB, 435 F.3d 352, 355 (D.C. Cir. 2006) (internal quotation

marks omitted). Of course, reasonable minds can differ about

what is reasonable, and I certainly understand my colleagues’

reservations. But I am unable to conclude that the Board’s

application of Section 7 to the facts of this case was

unreasonable.

The Board’s decision here was limited to the “particular

exigencies of the case” by a footnote setting out the views of

Chairman Battista, whose acquiescence in the Board’s order

was necessary to secure the two-member majority. Northeast

Beverage Corp., 349 N.L.R.B. No. 1166, 1168 n.12 (2007);

cf. Marks v. United States, 430 U.S. 188, 193 (1977).

Chairman Battista expressly refrained from holding “that

information gathering is always a basis for a work stoppage

irrespective of the nature of the information sought or the

duration of the work stoppage.” Northeast Beverage, 349

N.L.R.B. at 1168 n.12. He noted that the incident at issue in

this case occurred during “a particularly vulnerable time for

employees who are caught up in the transition” to a new

employer that planned to close and merge their facility; that

“[t]he employees here were not getting answers to critical

questions regarding whether they would retain employment

and, if so, what their seniority and pay would be”; and that

“[t]hey absented themselves for 3 hours to seek assurances on

2

these vital matters.” Id. The Board majority further noted

“the obvious urgency of the drivers’ need for the information”

regarding whether they would continue to be employed. Id. at

1168. And it found as facts that the drivers were seeking “to

establish that they were ‘more than names on a list,’” thus

“hop[ing] to influence their employer to retain them after the

merger”; that Northeast’s requirements regarding drivers’

delivery schedules “were highly flexible”; and that their

three-hour absence caused little or no disruption of the day’s

deliveries. Id. Together, these circumstances reasonably

support the Board’s determination “that the drivers’ conduct

was protected activity as it was ‘mutual aid’ directly related to

a labor dispute — the anticipated closing of the drivers’ work

facility and the associated effects-bargaining.” Id. at 1166.

These circumstances also reasonably support the Board’s

conclusion that the instant case is distinguishable from

precedents cited by Northeast. Id. at 1167-68.1

1

See GK Trucking Corp., 262 N.L.R.B. 570, 573 (1982) (ALJ Op.)

(finding that a failure to report to work to attend a union meeting

was unprotected where there “was no urgency which called for a

worktime consultation with union officials and indeed no evidence

that work-related problems were actually discussed”); Terri Lee,

Inc., 107 N.L.R.B. 560, 562-64 (1953) (finding that employees’

absence from work was unprotected where the employer

“specifically” warned the employees against it, and where it was

not for the purpose of seeking anything from the employer); Gulf

Coast Oil Co., 97 N.L.R.B. 1513, 1516 (1952) (finding that

employees’ late arrival at work was unprotected where it “violated

[the employer’s] known established [work] rule,” was for the

purpose of engaging in union activity that was “customarily done

during nonworking time,” and took place during work merely for

the employees’ “own convenience”).

For its part, Northeast argues that the instant case is

distinguishable from a Supreme Court precedent cited by the

Board, NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).

3

I also conclude that there is substantial evidence to

support the Board’s “separate finding” that Northeast “acted

pursuant to a plan to avoid employing a significant number of

union-represented employees at the merged Burt’s facility,”

and that “[t]he reasons advanced by [Northeast] for

suspending and discharging the drivers and for subsequently

refusing to consider and refusing to hire them for employment

at Burt’s were pretextual, and were asserted to conceal an

antiunion motive.” Id. at 1166-67 n.6; see id. at 1193 (ALJ

Op.) (concluding that Northeast failed to meet its burden

under Wright Line, 251 N.L.R.B. 1083 (1980), to demonstrate

that it would have taken the same actions “in the absence of

[the employees’] membership in and support for the Union”).

The testimony of Northeast’s operations consultant

established that, “even before May 29, 2002, [Northeast] did

not want to hire any of the Vetrano drivers and did not want

to recognize the Union at the merged facility” in Bethel. Id.

at 1167 n.6 (Board Op.); see id. at 1191-93 (ALJ Op.).

Substantial evidence showed “that under the policies in place

at B. Vetrano on May 29, [Northeast] would not have

disciplined the employees for their activities” on that day. Id.

Unlike its own precedents, we do not defer to the Board’s

interpretation of precedents of the Supreme Court. And it is

certainly true that the instant case can be distinguished from

Washington Aluminum, which held that employees who left their

shop because it was too cold were protected by Section 7. But

nothing in Washington Aluminum forecloses the Board from

finding that the conduct in this case was also protected, particularly

given the Court’s declaration that employees do not “lose their

right to engage in concerted activities under § 7 merely because

they do not present a specific demand upon their employer to

remedy a condition they find objectionable.” Id. at 14. The only

issue before this court is the Board’s determination that the drivers’

conduct was protected, and that is a determination to which we

must defer if it is reasonable.

4

at 1193; see id. at 1168 (Board Op.) (noting that “no driver

had ever before been disciplined for making late deliveries”).

It further showed that, although Northeast repeatedly “told the

Union that jobs were not available [in Bethel,] at the same

time ... it was advertising for drivers in the local newspapers.”

Id. at 1192 (ALJ Op.). “When confronted with this

contradiction, [Northeast’s president] said the ads were for

warehouse people, a blatant untruth.” Id. Similarly, the

reason Northeast gave at the hearing for not hiring the former

Vetrano drivers — that they lived too far from Bethel — was

contradicted by the fact that Northeast hired other employees

with similar commutes. Id. at 1192-93. This and other

evidence is sufficient to support the conclusion that

Northeast’s “policy was to avoid hiring Union-represented

employees” and that the reasons it offered for suspending,

discharging, and refusing to hire them at Bethel were

pretextual. Id. at 1193.

For the foregoing reasons, I would deny Northeast’s

petition and enforce the Board’s order in full.2

2

I would deny Northeast’s petition with respect to the direct

dealing issue for the reasons stated in the court’s opinion, supra.