Anheuser-Busch, Inc. v. N.L.R.B., 02-1740.

Decision Date01 August 2003
Docket NumberNo. 02-1740.,No. 02-1897.,02-1740.,02-1897.
Citation338 F.3d 267
PartiesANHEUSER-BUSCH, INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. National Labor Relations Board, Petitioner, v. Anheuser-Busch, Incorporated, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Arthur G. Telegen, FOLEY HOAG, L.L.P., Boston, Massachusetts, for Anheuser-Busch.

Christopher Warren Young, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board.

ON BRIEF: Robert A. Fisher, FOLEY HOAG, L.L.P., Boston, Massachusetts, for Anheuser-Busch. Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Frederick C. Havard, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board.

Before WIDENER, KING, and SHEDD, Circuit Judges.

Petition for review denied and cross-application for enforcement granted by published opinion. Judge KING wrote the opinion, in which Judge WIDENER joined. Judge SHEDD wrote an opinion concurring in part and dissenting in part.

OPINION

KING, Circuit Judge:

Anheuser-Busch Incorporated ("Busch") petitions this Court for review of a Decision and Order entered against it by the National Labor Relations Board (the "Board"). Anheuser-Busch, Inc., 337 N.L.R.B. No. 2 (Dec. 19, 2001) (the "Order"). 1 By its Order, the Board affirmed an earlier decision of an Administrative Law Judge (the "ALJ"), who concluded that Busch, on four occasions, had violated § 8(a)(1) of the National Labor Relations Act (the "Act").2 The Board has cross-applied for enforcement of its Order. As explained below, we deny the petition for review and grant the Board's cross-application for enforcement.

I.

Busch operates twelve breweries in the United States, including a brewery in Baldwinsville, New York (the "Baldwinsville brewery"). At the Baldwinsville brewery, certain of Busch's employees are represented by the Brewery Conference of the International Brotherhood of Teamsters and the International Brotherhood of Teamsters, Local No. 1149 (collectively, the "Teamsters"). In 1998 and 1999, the Teamsters and brewery management engaged in contract negotiations on a new collective bargaining agreement, leading to several controversial incidents at the Baldwinsville brewery. As a result of these incidents, the Teamsters filed a series of charges with the Board, asserting that Busch had committed a host of unfair labor practices. Ultimately, on December 2, 1999, the charges were consolidated into a complaint against Busch (the "Complaint"), issued by the Board's Regional Director for the New York area.3

In order to assess the Teamsters's allegations, the ALJ conducted a hearing in Syracuse, New York, from March 8 through 10, 2000. On July 7, 2000, the ALJ issued his decision, making findings of fact and conclusions of law, and preparing a recommended order (the "ALJ Decision").4 The ALJ concluded that Busch had committed four unfair labor practices involving three employees who worked at the Baldwinsville brewery, specifically, Patrick Lamirande, Joseph Rimualdo, and Brian Meany. After the ALJ Decision was filed with the Board, Busch filed exceptions to it. On review, the Board affirmed the ALJ's findings of fact and conclusions of law, and it adopted his recommended order.5 Order at 1. As noted above, Busch has petitioned for our review of the Order, and the Board has cross-applied for its enforcement. We possess jurisdiction pursuant to 29 U.S.C. § 160(f).

II.
A. Incidents Involving Patrick Lamirande

On December 15, 1998, Teamsters member Patrick Lamirande, a production operator at the Baldwinsville brewery, allegedly obstructed an independent contractor doing work for Busch (the "Contractor Incident"). At approximately 11:15 the following morning, Mark Burlingame and Art Lux, members of the brewery's management, approached Lamirande and began questioning him about the incident. Lamirande promptly requested the presence and assistance of Dan Finn, a shop steward in Lamirande's department, who was already aware of the facts underlying the Contractor Incident.6 Assuming Finn was at lunch, Burlingame declined this request, calling instead for Fred Vogel, another shop steward in Lamirande's department. Vogel arrived at the site of Lamirande's questioning within fifteen minutes, and after speaking privately with Lamirande, Vogel renewed the request for Finn's presence. Burlingame denied this request, stating that Lamirande should respond to the allegations immediately. Lamirande declined to discuss the matter without Finn, and Burlingame sent him home for the day.

The next morning, December 17, 1998, Lamirande was directed to Burlingame's office for a meeting with management. Upon reporting to the office, he met with Vogel, Burlingame, Lux, Howard Ormsby (a Teamsters business agent), and Ken Silva (a brewery assistant manager). Ormsby, speaking on Lamirande's behalf, requested that Finn be allowed to attend the meeting and represent Lamirande, but Silva insisted that Finn's presence was unnecessary. Lamirande was questioned without Finn, and Burlingame thereafter informed Lamirande that he would be disciplined for the Contractor Incident. As a result of these events, the Teamsters filed a charge with the Board, alleging that Busch had committed two unfair labor practices in refusing Lamirande's requests (on December 16 and 17) to be represented by Finn.

In assessing the Teamsters's allegations, the ALJ ruled that, under the Supreme Court's seminal decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975), and pursuant to the Board's related precedents, "an employee has the right to specify the representative he or she wants, and the employer is obligated to supply that representative absent some extenuating circumstances." ALJ Decision at 6. Pursuant to this principle, the ALJ concluded that, although Finn may have been eating lunch when Burlingame initially wanted to question Lamirande, Finn was nevertheless "available" as a representative. Id. Finn had previously circumscribed his lunch breaks in order to represent employees. In any event, Finn would have completed his lunch break within fifteen minutes of Lamirande's initial request. By its Order, the Board agreed with the ALJ's ruling that Busch had committed two unfair labor practices in denying Lamirande's requests to be represented by a particular shop steward. Order at 1.

B. Incidents Involving Joseph Rimualdo

In 1987, Joseph Rimualdo, a member of the Teamsters, began working in the packaging, bottling, and shipping department of the Baldwinsville brewery. In 1998, he became a shop steward, and he soon learned of certain safety issues in two other departments of the brewery. In January of 1999, he filed six grievances related to those safety issues. Upon being informed of these grievances, Fred Singler, the manager of Rimualdo's department, met with Rimualdo and the managers of the two departments involved in the safety grievances, Lux and Nick Alivero. In this meeting, Singler asserted that Rimualdo had failed to follow the proper procedures for addressing the safety issues. Rimualdo admitted that this assertion was accurate, and the meeting adjourned. Four days later, upon seeing Rimualdo drinking a Labatt's Blue beer in a tavern near the brewery, Lux said, "This is two strikes. You got one for filing safety grievances and you got one for drinking Labatt's Blue." ALJ Decision at 11. As a result of this incident, the Teamsters charged Busch with an unfair labor practice, asserting that Lux had threatened Rimualdo for filing safety grievances, an activity protected by the Act.

Before a hearing was conducted on this charge, Rimualdo was involved in another incident at the brewery. On August 25, 1999, Rimualdo, with a group of fellow employees, was hand stamping dates on packages of beer. On that occasion, Rimualdo accidentally got ink on his hands. Lux approached the group and, according to Rimualdo, said, "You got to be careful what you say and what you do around this guy, he's bad news." Lux then stated to Rimualdo: "You got to be pretty good with having ink on your fingers." Id. at 12. The latter comment, according to Rimualdo, referred to Rimualdo's recent arrest and fingerprinting in a domestic incident involving his ex-wife. Lux told him, "You made it very tough for me, filing those charges with the [Board]. We'll see in September." Id. Rimualdo claimed that, after these statements, Lux threatened to get even with him in some way.7 Based on this incident (the "Stamping Incident"), the Teamsters, on September 8, 1999, charged Busch with another unfair labor practice charge, alleging that Busch had "interfered with, restrained and coerced Rimualdo in the right to engage in protected, concerted activity by threatening and disciplining him for filing a charge with the [Board]."8

As to Lux's comments at the tavern, the ALJ found that they were based on Rimualdo's apparent disloyalty in drinking a competitor's beer, rejecting the Teamsters's assertion that Busch had threatened Rimualdo because he had filed safety grievances. ALJ Decision at 11. The ALJ thus concluded that Lux's comments to Rimualdo at the tavern did not constitute an unfair labor practice. Id. On the Stamping Incident, however, the ALJ found that Lux had threatened Rimualdo because of the Teamsters's pending charge before the Board, and he thus concluded that Busch had committed an unfair labor practice. Id. at 12. By its Order, the Board agreed with the ALJ's determinations. Order at 1.

C. Incidents Involving Brian Meany

On February 11, 1999, Teamsters member Brian Meany, an employee in the brewing department of the Baldwinsville brewery, attended a mandatory company communications meeting conducted by Michael Harding, a senior executive...

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