On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.
The opinion of the court was delivered by: Ginsburg, Circuit Judge
Argued September 12, 2008
Before: GINSBURG, HENDERSON and GARLAND, Circuit Judges.
Opinion dissenting in part filed by Circuit Judge GARLAND.
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 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.
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 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 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 ...