Tasty Baking Co. v. National Labor Relations Board

• Decision Date: 22 June 2001
• Docket Number: No. 00-1030,00-1030
• Citation: 254 F.3d 114
• Parties: (D.C. Cir. 2001) Tasty Baking Company, Petitioner v. National Labor Relations Board, Respondent
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 114

254 F.3d 114 (D.C. Cir. 2001)

Tasty Baking Company, Petitioner v. National Labor Relations Board, Respondent

No. 00-1030

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 3, 2000

Decided June 22, 2001

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Barry Simon argued the cause and filed the briefs for petitioner.

Frederick C. Havard, Supervisory Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Leonard R. Page, General Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Jeffrey Horowitz, Attorney. Frederick L. Cornnell, Jr. and Steven B. Goldstein, Attorneys, entered appearances.

Before: Ginsburg, Randolph, and Garland, Circuit Judges.

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)(1) 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 crossapplication for enforcement of its order.

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 Flannery, 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 Flannery 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 substitute 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 abovedescribed 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 Flannery 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. Finally, the Board found that the company violated section 8(a)(1) by demoting Edwina Flannery from her supervisory position in retaliation for her husband's union activities, and violated sections 8(a)(1) and (3) by transferring Edwina Flannery to the night shift because her husband continued working for the union.

The company petitions for review. It contends that the General Counsel's complaint concerning Edwina Flannery's demotion is time-barred because it was not "closely related" to any charge that was timely filed with the NLRB. TBC also alleges that certain of its procedural rights were violated during the hearing conducted by the ALJ. The company further argues that substantial evidence does not support any of the Board's findings that the company committed unfair labor practices. Finally, TBC challenges the Board's authority to order reinstatement of Edwina Flannery to her supervisory position.

II

The company contends that the complaint concerning Edwina Flannery's demotion was time-barred under NLRA 10(b), 29 U.S.C. 160(b), which states that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge." TBC notes that the NLRB has construed section 10(b) to permit prosecution of an alleged violation that was not timely charged if it is "closely related" to the allegations in a timely filed charge. See TBC Br. at 7-8 (citing Nickles Bakery of Indiana, Inc., 296 N.L.R.B. 927, 928 (1989)). TBC contends that the allegation concerning Edwina Flannery's June 1995 demotion fails the "closely related" test.

The initial charge was timely filed on October 16, 1995, and stated that the company had unlawfully "demot[ed] an employee for supporting and associating with the union." J.A. 838. On February 12, 1996, the General Counsel filed a complaint based upon that charge, specifically alleging that Edwina Flannery was demoted from her position as "supervisor" because of the union activities of one of her relatives. J.A. 832. TBC argues, citing Drug Plastics & Glass Co. v. NLRB, 44 F.3d 1017, 1021, (D.C....