Tasty Baking Co. v. National Labor Relations Board

254 F.3d 114, 349 U.S. App. D.C. 37, 167 L.R.R.M. (BNA) 2496, 2001 U.S. App. LEXIS 13922
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 22, 2001
Docket00-1030
StatusPublished
Cited by62 cases

This text of 254 F.3d 114 (Tasty Baking Co. v. National Labor Relations Board) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tasty Baking Co. v. National Labor Relations Board, 254 F.3d 114, 349 U.S. App. D.C. 37, 167 L.R.R.M. (BNA) 2496, 2001 U.S. App. LEXIS 13922 (D.C. Cir. 2001).

Opinion

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Tasty Baking Company (TBC) petitions this court for review of a decision and order of the National Labor Relations Board (NLRB). The Board found that the company committed unfair labor practices in violation of sections (8)(a)(l) and (3) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(1), (3). TBC alleges that part of the complaint filed by the NLRB’s General Counsel was time-barred, that the hearing conducted by the Board’s Administrative Law Judge (ALJ) was procedurally flawed, that the Board’s factual conclusions are unsupported, and that the Board’s prescribed remedy is improper. We reject these challenges and grant the Board’s cross-application for enforcement of its order.

*119 I

TBC operates a plant in Philadelphia, Pennsylvania, where approximately 700 workers produce baked goods on daytime and overnight shifts. In 1994, Teamsters Union Local 115 began an organizing drive among TBC employees. The union lost a representation election in April 1995, but, upon the union’s objection, the Board set aside the results and ordered a new election in March 1996.

The events forming the basis of the present case began in the summer of 1995, after the first representation election. In mid-June, Production Operations Director Thomas Kenney demoted Edwina Flan-nery, the wife of well-known union activist and “oven man” Michael Flannery, 1 from the supervisory position she had held for nearly five years. This demotion took place despite management’s recent assurances that her position was safe and that she was the company’s “newest rising star.” Tr. at 185. On August 10, 1995, after Edwina Flannery’s demotion, Superintendent Charles Britsch told her that the fact that her husband was outside the plant distributing union literature “was not helping [her] chances of staying on day work,” and that if he continued she “could very seriously end up on night work.” Id. at 200. Michael Flannery continued leafleting, and a month later the company transferred his wife to the night shift.

On January 16, 1996, Michael Flannery received a disciplinary warning from his supervisor, alleging that Flannery had twice failed to remove crumbs from the crumbs depositor. 2 Flannery filed a written grievance, protesting that it was not his responsibility to remove the crumbs. When Flannery met with Britsch to discuss the grievance on January 18, Britsch said that the warning stemmed from the company’s new “get tough” policy. Id. at 124-25. Britsch also said that he and Flannery were “enemies,” and that while Flannery might think that he was doing the right thing for the employees, Britsch felt that he (Britsch) was “doing the right thing for Tasty Bake and will do whatever I have to to keep the union out.” Id. at 125.

On January 26, 1996, Operations Director Kenney met with an employee, William Martin, to discuss Martin’s suggestion that metal detectors be installed at the entrance to the workplace. Kenney told Martin that the suggestion was “stupid,” and speculated that Michael Flannery was behind it. Id. at 220. Martin denied this, and then told Kenney that Michael Flan-nery should not have received the “crumbs” warning because it was Martin’s, not Flannery’s, responsibility to remove the crumbs from the depositor. Kenney responded that he did not care whose job it was, and “that he had told Mike that if Mike f**ked him, he would f**k Mike back.” Id. at 221. Kenney then told Martin that “if you f**k me, I’ll f**k you back,” and concluded: “[N]ow I’m getting Mike. I told him I was going to do it. Now I’m doing it.” Id. at 221-22.

On January 31, 1996, sanitation employee Robert Nolan, another vocal union supporter, received a three-day suspension and was subsequently issued a written warning for “insubordination” resulting from an incident with Linda Casey, a sub *120 stitute floor monitor. According to Nolan, he had been making a telephone call during his usual break time, when Casey began “yelling and screaming” at him to get off the phone. Id. at 278. Nolan told Casey that he was talking to his wife, and asked to see his regular floor monitor. Casey refused to let Nolan explain or see his monitor, and instructed him to get off the phone and return to work, which Nolan did. Nolan testified that thereafter his regular monitor told him not to' worry about the incident. Nonetheless, Nolan received a written warning and three-day suspension for insubordination.

On April 11, 1996, Kenney approached Michael Flannery during his shift and said: “[I] don’t believe you. After what happened to your wife, you’re still pushing the union and calling OSHA [the Occupational Safety and Health Administration]. Are you going to make me fire you?” Id. at 127. Two months later, on June 6, 1996, Flannery received a written warning for reporting wrong “oven times” to other employees. Flannery received the warning notwithstanding that he had disputed the allegation and been told that he would merely receive a memo to his file.

Between August 1995 and July 1996, the union filed unfair labor practice charges with the NLRB concerning the above-described events. Those charges resulted in separate complaints filed by the Board’s General Counsel, which were eventually consolidated for hearing. The complaints charged that the company had violated sections 8(a)(1) and (3) of the NLRA, which make it an unfair labor practice for an employer: “to interfere with, restrain, or coerce employees in the exercise of’ their rights to form, join, or assist labor organizations, 29 U.S.C. § 158(a)(1); see id. § 157, and “by discrimination in regard to ... any term or condition of employment to encourage or discourage membership in any labor organization,” id. § 158(a)(3). After a hearing, the ALJ sustained the complaints with respect to the charges that are the subject of the instant petition, and the company filed exceptions with the Board.

The NLRB affirmed the ALJ’s conclusions with minor modifications. Tasty Baking Co. and Teamsters Union Local 115, 330 N.L.R.B. No. 80, 2000 WL 127513 (Jan. 31, 2000) (“Tasty Baking Co.”). The Board found that TBC violated section 8(a)(1) by: (1) telling Michael Flannery that the company had implemented a “get tough policy” in response to his union activities; (2) threatening William Martin with retaliation if he engaged in union activities; and (3) threatening Michael Flannery with discharge because of his union activities and calls to OSHA. The NLRB also found that TBC committed unfair labor practices in violation of sections 8(a)(1) and (3) of the Act by: (1) issuing a written warning to Michael Flan-nery for the “crumbs” incident; (2) issuing a three-day suspension and written warning to Robert Nolan for alleged insubordination in connection with the telephone incident; and (3) issuing a written warning to Michael Flannery for the “oven times” incident.

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Bluebook (online)
254 F.3d 114, 349 U.S. App. D.C. 37, 167 L.R.R.M. (BNA) 2496, 2001 U.S. App. LEXIS 13922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tasty-baking-co-v-national-labor-relations-board-cadc-2001.