*2 GINSBURG, Before HENDERSON GARLAND, Judges. Circuit Opinion for the Court filed Circuit Judge GINSBURG.
Opinion dissenting part filed Circuit Judge GARLAND. GINSBURG, Circuit Judge: In 2002 Beverage Northeast Corpora- subsidiaries, tion decided to close one of its Inc., B. Vetrano Distributors and consoli- date operations at another facility. Be- fore the closing, Northeast and the union represented at Vetrano bargained over the effects of the planned During consolidation. one bargaining ses- sion, six delivery Vetrano drivers walked job off the and went to the union hall to ask their employer’s bargaining represen- tatives about employment. future suspended Northeast the drivers and dis- charged five of them for leaving work. The National Labor Relations Board sub- sequently determined the walkout was protected by Section 7 of the National Act, Labor Relations 29 U.S.C. disciplinary measures were therefore practices. unfair labor The Board also found impermissibly Northeast dealt di- rectly employee with one over mandato- ry subject of collective bargaining when it argued Thomas W. Budd the cause and revised its offers of severance to those filed petitioners. the briefs for employees who were not discharged. The second session between Beverage Corp., 349 N.L.R.B. Northeast (2007). and Northeast Union was scheduled for 10:00 a.m. on at29 the union hall. re- Everett, Gary That morning, the Union’s Board’s decision that en- view of the *3 steward, shop was scheduled to work from practices. in unfair gaged a.m., 3:30 to 7:30 the opening facility and enforcement of its cross-appeals Board for trucks, loading planned after which he to in holding We find the Board erred order. attend the He told session. the from work was employees’ departure the other “going Vetrano drivers he was to a by grant Act. therefore protected the We meeting morning try get to some petition deny the for review and enforce- everybody answers for to see what was respect ment of the Board’s order with to going on.” suspended discharged employees. the grant the enforce- We drivers Other scheduled to make deliv- ment of the Board’s order as it relates to day eries that told Everett wanted to dealing employ- too; direct with an meeting, attend the Everett said he pay. concerning ee severance if it meeting, did not know was a closed leaving but that work to attend the meet- Background I. ing “would not be an authorized union Nevertheless, thing to do.” Northeast, the drivers a Rhode Island-based dis- left to attend the drinks, meeting hope work in acquired and soft tributor beer getting information about how the in consoli- beverage two distributors Connecticut: jobs. dation would affect their facility in Everett Beverages, Burt’s a nonunion Distributors, Joseph Pignatella, called Bethel, Vetrano driver and B. Vetrano already who had finished and left in work the facility unionized Bristol. Local No. facility, to tell him the 1035, going drivers were International Brotherhood of Team- meeting join to so he the could them. The represented the drivers and ware- sters drivers who left work at Vetrano to attend housemen at Vetrano. The contract be- were, seniority: in meeting the order of contained a tween Vetrano and Union (10 (1 years), Chris Fedor Paul Johnson “guar- no-strike clause which the Union (11 months), year), Ri- Jerzy Marczewski will no employer there be antee[d] (1 month), strikes, Bosques cardo Robert Collins stoppages, or oth- authorized work (17 (10 days), days). and Russell Towle op- concerted interference with normal er shortly The men left before a.m. John 8:00 employees.” erations Vetrano, general manager, found out acquisitions, In the wake of the North- Pignatella, from who about their consultant, operations east retained an called him around 8:00 a.m. Reveliotty, closing Alex who recommended consolidating opera- Vetrano and the two The drivers first went to a coffee facility. May questions management tions the Burt’s On formulate until union hall representatives opened. 2002 Northeast met with to wait When hall, of the Union and informed them of the arrived at the union the Union’s Hammond, manager, consolidation. After that business John met planned meeting, parking expressed learned of the con- them lot. He and, implica- surprise presence about its at their and instructed solidation concerned jobs, in- to work. The tions for their several of them them to return Secre- Union, Roos, tary/Treasurer of quired employer of their or of the Union Chris Adler, attorney, Gregg received no definitive answers. and the Union’s but return to work. The that five of the six drivers who had left also told the men to refused, discharged; 29 would be saying men wanted answers work Fedor, questions jobs. long about their The Chris view of his tenure to their only a representatives Company, said the was with the would receive union in- yet one-day suspension. and answers were not available. John Vetrano closed representatives eventually de- formed the other five drivers that it was The union day. to introduce their last Northeast sent them each cided allow drivers letter, employer’s representa- themselves to the dated June 18 and mailed June tives, stay confirming discharge. but said the drivers could not his ar- representatives after that. Northeast’s discharged Also on June the five *4 introducing around 10:45. rived After drivers, having “help seen a wanted” ad- employer’s representa- themselves to the newspaper, vertisement in a went to Burt’s tives, the drivers left to return to the job and applications. filled out North- warehouse. consultant, Reveliotty, east’s told the hir- meeting, ing
When the drivers had left the staff at Burt’s not to interview or hire Budd, attorney, they Thomas in- the five drivers because had been job formed the walking Union the drivers’ fired for off the at Vetrano. and, result, improper work was Northeast had a policy rehiring as of not suspended indefinitely pending discharged employees. would be investigation. an protest Under from the At the 14 meeting, June Northeast had Union, Northeast said the drivers could Everett, Pig- also informed the Union that day, May return to work the next but it natella, and Fedor would be offered em- would interview them to determine or, ployment at Burt’s if declined appropriate discipline. Meanwhile, the six employment, a package; severance Fedor job drivers who had walked off re- $15,000, $11,000, would receive Everett turned to the warehouse around 11:30 $10,600. later, Pignatella days and A few a.m., a manager where informed them approached Reveliotty Everett and told (Everett suspended. had been Pigna- and him the severance-package offers were un- tella, who were not scheduled to work at Although higher salary, fair. Fedor had a the time of the meeting, were not disci- Pignatella greater Everett said he and had plined.) The grievance, Union later filed a seniority performed “intangi- several claiming the suspension violated the collec- ble” services for the Company, such as tive-bargaining agreement. opening the morning warehouse
On Northeast sent the six driv- bringing night. in trucks at ers a letter explaining that it was conduct- Budd, According to Northeast’s attor- ing investigation job an “illegal into their ney, Reveliotty told him on June 17 that action” and would “impose appropriate dis- upset were about the sever- cipline up to and including discharge.” day, ance offers. That same Budd told put John in charge Vetrano was of inter- Adler, Gregg attorney, Union’s drivers, viewing the six and Everett was Company modify would and give offer present for each interview. $15,000. employee each According to Adler, however,
At a on June only Budd told him informed the liquor Union that the state expected accept job he Fedor authority Burt’s, approved had money consolidation which event more would facility closing the Vetrano would be be available to increase pay- the severance day. the next It also informed the Pignatella; Union ments offered to Everett and that, yet questions job no offer had their about security as Adler understood was not Act; protected by been made. 7 of the Member Schaumber further concluded the Compa- event, any In or about June 18 Revel- ny’s discipline stated reason for the was iotty telephoned say Everett he had pretextual not but motivated aby legiti- president discussed the matter with the justification, viz., mate business the em- would offer Company Northeast and the ployees’ unauthorized departure during $15,000 to of the three drivers. Ev- each working time. Roos, Secretary/Trea- erett then called Union, him surer of the to tell he was not The Board ordered Northeast to offer job accepting a at Burt’s because of the jobs at Burt’s to discharged the five em- Having increased severance offer. heard ployees; any make them whole for losses had an from Roos Everett received suffered as a result of suspensions $15,000, sent a fax offer of Adler Budd Burt’s; and of the refusal to hire them at accusing Reveliotty dealing directly with expunge any from their records reference employee mandatory subject an over a suspensions discharges; to the bargaining. collective a letter dated notify current and former *5 19, “any apologized June Budd for misun- Board’s decision. derstanding” explained and that as he un- 17,
derstood their conversation of June he Analysis II. Company’s the of- had communicated new uphold must We the order of the $15,000. fer of unless, upon Board reviewing the record facts, panel On these of the Board whole, as a we conclude the Board’s find unanimously held that Northeast violated ings supported by are not “substantial evi 8(a)(1) (5) §§ by bypassing and the Union dence,” 160(f), § 29 U.S.C. or the Board dealing directly with Everett concern- apply failed to the proper legal standard or A ing pay. majority his severance of the departed precedent from established with panel May concluded that the walkout of Mail Con justification. out a reasoned “ activity 29 was concerted for ‘mutual aid’ NLRB, tractors America v. 27, 514 F.3d of directly dispute”; related to a was (D.C.Cir.2008). 31 conclude the We Board not in breach in of the no-strike clause the NLRB v. Washington applying erred in bargaining agreement collective between Co., Aluminum 370 82 S.Ct. U.S. Northeast and the Union or otherwise in- (1962) L.Ed.2d 298 to the facts of this case. defensible; and protected was therefore We also hold the Board’s decision that activity. Accordingly, held Board engaged impermissible Northeast in direct 8(a)(1) (3) §§ Northeast violated of the dealing supported by is substantial evi byAct suspend- National Labor Relations grant dence. therefore We ing employees, discharging the six five of part review in enforcement them, refusing hiring to consider respect the Board’s order with to the sus discharged employees at five Burt’s. The pended discharged employees. Board further held Northeast’s reason for A. The Walkout
disciplining employees were “pretextu- al,” masking animus. anti-union argues Northeast the walkout on Schaumber, If dissenting, May protected:
Member
would
29 was not
it was a
have held the
did not have a
strike or other concerted interference with
unprotected
dispute”
employer,
operations,
“labor
with the
where-
normal
then it was
clause in
for their
work to obtain answers to
because it violated the no-strike
concerns,
bargaining agreement.
employer
If it
related
and their
was
the collective
strike,
a usurpation
providing
not a
then it was
not
such
answers.”
was
Thus,
working
personal purposes
time for
and N.L.R.B. at 1167.
“their attendance
Act,
which
unprotected
Section of
at the
was
furtherance of their
“right
self-organiza-
to
protects employees’
‘mutual aid’ to obtain information about
tion,
form, join,
organiza-
to
or assist labor
employment]”
protected
and was
[their
tions,
collectively through rep-
bargain
to
§
Washington
7 under
Aluminum.
choosing,
resentatives of their own
and to
case,
Supreme
Court held
engage
other concerted activities for the
walkout,
spontaneous
pro-
undertaken to
of collective
or other
purpose
bitterly cold
conditions about
working
test
protection.”
mutual aid or
29 U.S.C.
the employees
previously
which
had
com-
§ 157.
plained,
protected by
was
7. The Court
The Board concluded the
29 work
explained
grow
that the walkout “did
out
because,
stoppage was not a strike
when
dispute’
plain
of a ‘labor
within the
mean-
facility, “they
the drivers left
2(9)
§in
ing of the definition of that term
pressure
not
plan
did
have
the em-
of the Act.”
Section 7 and the relevant cases there- Dealing B. Direct protect employees under do not who leave work to seek information from their union uphold portion We that of the Board’s employer. or their Board therefore order addressed to Northeast’s direct treating employees’ erred in mere dealing employee concerning with an his quest dispute.” for information as “labor pay. severance The Board found Washington inapposite Aluminum is be- consultant, Reveliotty, Northeast’s Alex cause there the who left work who, negotiated Gary with al- Everett — engaged dispute were in a with their em- steward, though acting was then ployer seeking were personal capacity employee— his as an change working in their conditions. (and packages Pig- over the severance he natella) would Id. at receive. 1195. The
Similarly, attempts the Board’s to distin- testimony Board also discredited guish Coast Oil and Terri Lee are Gulf Budd, attorney, Thomas had unconvincing. distinguished The Board communicated the new severance offer to ground Oil on the that here the driv- Gulf attorney Gregg union Adler before Revel- ers, as evidenced their failure to receive iotty had made the offer to Everett. Id. answers to their questions, had no “cus- findings provide These factual substantial tomary” way to obtain the relevant infor- evidence for the Board’s determination mation. 349 N.L.R.B. at But 1167-68. Company directly dealt an with the existence vel non of a “custom” is *8 employee mandatory subject over a of col- where, here, irrelevant as the shop stew- bargaining. lective ard informed the drivers that he would meeting report attend the back to III. Conclusion distinguished them. The Board also Terri ground above, Lee on the that here the drivers For the reasons set out we hold sought directly information from their em- the employees’ unpro- 29 walkout was ployer Therefore, by rather than from their union. Id. tected Act. the Northeast meaningful 1168. This is not a distinc- did not practice by commit an unfair labor tion; here, disciplining the drivers like the drivers for their Lee, in they Terri were told could not work. We further hold the Board’s find- ing directly leave work to attend this that Northeast dealt with an there questions employee mandatory subject was no reason had to be over a of col-
141
(1977).
by substan-
supported
expressly
lective
is
Chairman Battista
re-
Accordingly,
respect
holding
tial
with
from
evidence.
frained
“that
information
discharges of the em-
suspensions
gathering
always
is
a basis for a work
granted;
for review is
ployees,
stoppage irrespective of the nature of the
cross-application for enforce-
the Board’s
sought
information
or the duration of the
granted
respect
ment is
with
to the issue
stoppage.”
work
Beverage,
349
dealing.
of direct
N.L.R.B. at
n. 12.
1168
He noted that the
incident at issue in this ease occurred dur-
So ordered.
ing
particularly
“a
vulnerable time for em-
GARLAND,
Judge, dissenting
ployees
Circuit
in
caught up
who are
in the transi-
part:
tion”
a
employer
new
that planned to
and merge
facility;
close
that “[t]he
question
presents
This case
difficult
employees here
getting
were not
answers
regarding
scope
7 of the
Section
to critical questions regarding whether
Act,
National Labor Relations
29 U.S.C.
and,
so,
would retain employment
if
“Determining
activity
§ 157.
whether
is
be”;
what their seniority
pay
would
protected
concerted and
within the mean-
“[t]hey
and that
absented themselves for 3
ing
‘implicates
that
Section
is
task
” hours to seek
assurances
these vital
relations,’
expertise
Board’s]
[the
matters.” Id.
majority
The Board
further
Board’s determination that an
“[t]he
urgency
noted “the obvious
of the drivers’
employee
engaged
protected
has
con-
need for
regarding
information”
activity
certed
is entitled to considerable
whether
would continue to be em-
if it
deference
is reasonable.” Citizens
ployed. Id. at 1168. And it found as facts
NLRB,
Corp.
Inv. Servs.
v.
430 F.3d
that
seeking
the drivers were
“to establish
(D.C.Cir.2005) (quoting
City
NLRB v.
were ‘more than names on a
Inc.,
822, 829,
Disposal Sys.,
465 U.S.
”
list,’
thus “hop[ing] to influence their em-
(1984)).
So,
S.Ct.
142
day.
on that
to
for their activities”
finding”
pursuant
that Northeast “acted
(Board
1193;
Op.)
at
see id. at 1168
Id.
employing
significant
plan
to avoid
(noting that “no driver had ever before
at
union-represented employees
of
number
disciplined
making
for
late deliver-
been
facility,” and that
merged
“[t]he
Burt’s
ies”).
that, although
It further showed
by
reasons advanced
for sus-
[Northeast]
that
repeatedly
Northeast
“told the Union
pending
discharging
the drivers
Bethel,] at
jobs were not available
[in
refusing to consider and
subsequently
advertising
time ...
it was
for driv-
same
at
employment
to hire them for
refusing
at 1192
newspapers.”
ers in the local
Id.
pretextual,
were
and were asserted
Burt’s
(ALJ
this
Op.). “When confronted with
an antiunion motive.” Id. at
to conceal
contradiction,
president] said
[Northeast’s
(ALJ
6;
Op.)
1166-67 n.
see id. at 1198
people, a bla-
the ads were for warehouse
meet
(concluding that Northeast failed to
Similarly,
tant untruth.”
Id.
the reason
Line,
Wright
251
its burden under
hir-
gave
hearing
Northeast
at the
for not
(1980),
N.L.R.B.
to demonstrate that
1083
ing the former Vetrano drivers' —that
“in
it would have taken the same actions
lived too far from Bethel —was contradict-
employees’] member-
the absence of [the
ed
the fact that Northeast hired other
Union”).
ship
support
in and
for the
The
employees with
commutes.
Id. at
similar
testimony
operations
of Northeast’s
con-
1192-93. This and other evidence is suffi-
that,
May
sultant established
“even before
support
cient to
the conclusion that North-
29, 2002,
did not want to hire
[Northeast]
“policy
hiring
east’s
was to avoid
Union-
any of the
drivers and did not
Vetrano
represented employees” and that the rea-
recognize
merged
want to
at the
Union
suspending, discharging,
sons it offered for
(Board
facility” in Bethel.
Id. at 1167 n. 6
refusing
to hire them Bethel were
(ALJ
Op.);
Op.).
see id. at 1191-93
Sub-
pretextual.
Id. at 1193.
stantial evidence showed “that under the
29,
reasons,
policies
place
foregoing
at B.
For the
I would
disciplined
would not have
the Northeast’s
and enforce the
[Northeast]
Co.,
9,
report
Washington
attend a union
Aluminum
work to
was
370 U.S.
Unlike,
unprotected
urgency
1099,
(1962).
where there "was no
S.Ct.
COUNTY OF PENNSYL-
VANIA, a Political Subdivision of the Pennsylvania,
Commonwealth et
al., Petitioners
v.
DEPARTMENT OF TRANSPOR- al.,
TATION, Respondents. et
No. 07-1385. Appeals,
United States Court
District of Columbia Circuit.
Argued Oct. 2008.
Decided Feb. 2009. opinion, supra. I would with re- sons stated in court’s spect dealing to the direct issue for the rea-
