# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2008 Decided January 30, 2009

No. 07-1206

N ORTHEAST B EVERAGE C ORPORATION AND B. V ETRANO
D ISTRIBUTORS

, I NC

., P ETITIONERS

v.

N ATIONAL L ABOR R ELATIONS B OARD

, R ESPONDENT

I NTERNATIONAL B ROTHERHOOD OF T EAMSTERS

, L OCAL N O

. 1035,

I NTERVENOR

Consolidated with 07-1265

On Petition for Review and Cross-Application for

Enforcement

of an Order of the National Labor Relations Board

Thomas W. Budd argued the cause and filed the briefs for petitioners.

David A. Fleischer , Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him2

on the brief were Ronald E. Meisburg , General Counsel, John H. Ferguson , Associate General Counsel, Linda Dreeben

, Deputy Associate General Counsel, and Meredith L. Jason

, Supervisory Attorney. Jason Walta , Attorney, entered an

appearance.

Gregg D. Adler argued the cause and filed the brief for

intervenor.

Before: G INSBURG , H ENDERSON and G ARLAND

, Circuit Judges

.

Opinion for the Court filed by Circuit Judge G INSBURG

.

Opinion dissenting in part filed by Circuit Judge

G ARLAND

.

G INSBURG

, Circuit Judge : In 2002 Northeast Beverage Corporation decided to close one of its subs idiaries, 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 driv ers walked off the job and went to the union hall to ask their employer’s bargaining representatives about their fu ture employment. Northeast suspended the drivers and discharg ed five of them for leaving

work. The National Labor Re lations 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 manda tory subject of collective bargaining when it revised its o ffers of severance to those3

employees who were not discharged. Northeast Beverage Corp. , 349 N.L.R.B. 1166 (2007).

Northeast and Vetrano petiti on for review of the Board’s decision that they engaged in unfair labor practices. The Board cross-appeals for enforcemen t 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 enforcemen t of the Board’s order as it relates to Northeast’s direct dealing with an employee concerning severance pay.

I. Background

Northeast, a Rhode Island-ba sed distributor of beer and soft drinks, acquired two be verage 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 wa rehousemen at Vetrano. The

contract between Vetrano and th e Union contained a no-strike clause by which the Union “gua rantee[d] the employer that

there will be no authorized stri kes, 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 consolidatin g 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. Afte r that meeting, the Vetrano employees learned of the consolidation and, concerned about4

its implications for their jobs , several of them inquired of their employer or of the Uni on 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 bargaini ng 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, t oo; 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 driv ers left work to attend the meeting in hope of getting information about how the

consolidation would affect thei r jobs. Everett called Joseph Pignatella, a Vetrano driver w ho 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 we re, 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 To wle (10 days). The men left shortly before 8:00 a.m. J ohn 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 a nd to wait until the union hall opened. When they arrived at the union hall, the Union’s5

business manager, John Hammond, met them in the parking lot. He expressed surprise at their presence and instructed

them to return to work. Th e 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 que stions about their jobs. The union representatives said the meeting was closed and answers were not yet availabl e. The union representatives eventually decided to allo w 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 pendi ng an investigation. Under protest from the Union, Northe ast 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 wa s conducting an inves tigation into their “illegal job action” and would “impose appropriate discipline up to and including discharge.” John Vetrano was put in charge of interviewing the six drivers, and Everett was present for each interview.6

At a meeting on June 14, Northeast informed the Union that the state liquor authority had approved the consolidation and the Vetrano facility would be closing the next day. It also

informed the Union that five of the six drivers who had left work on May 29 would be discharged; Chris Fedor, in view of his long tenure with the Co mpany, would receive only a one-day suspension. John Vetrano informed the other five

drivers that it was their last da y. Northeast sent them each a letter, dated June 18 and mailed June 19, confirming his discharge.

Also on June 19, the five disc harged drivers, having seen a “help wanted” advertisement in a newspaper, went to Burt’s and filled out job applications. Northeast’s consultant, Reveliotty, told the hiring staff at Burt’s not to interview or hire the five drivers because they had been fired for walking off the job at Vetrano. North east had a policy of not rehiring discharged employees.

At the June 14 meeting, Northeast had also informed the Union that Everett, Pignatella , and Fedor would be offered employment at Burt’s or, if they declined employment, a severance package; Fedor would receive $15,000, Everett $11,000, and Pignatella $10,600. A few days later, Everett approached Reveliotty and told him the severance-package offers were unfair. Although Fedor had a higher salary, Everett said he and Pignatell a had greater seniority and performed several “intangibl e” services for the Company, such as opening the warehouse in the morning and bringing in trucks at night.

According to Budd, Northeast’ s attorney, Reveliotty told him on June 17 that the employees were upset about the

severance offers. That same day, Budd told Gregg Adler, the7

Union’s attorney, the Company would modify its offer and give each employee $15,000. According to Adler, however, Budd told him only that he expected Fedor to accept a job at Burt’s, in which event more money would be available to increase the severance payments offered to Everett and Pignatella; as Adler understood that, no offer had yet been

made.

In any event, on or about June 18 Reveliotty telephoned Everett to say he had discusse d the matter with the president of Northeast and the Company would offer $15,000 to each of

the three drivers. Everet t then called Roos, the Secretary/Treasurer of the Un ion, to tell him he was not accepting a job at Burt’s because of the increased severance offer. Having heard from Roos that Everett had received an offer of $15,000, Adler sent B udd a fax accusing Reveliotty of dealing directly with an employee over a mandatory subject of collective bargaining. In a letter dated June 19, Budd apologized for “any misunde rstanding” and explained

that as he understood their c onversation of June 17, he had communicated the Company’s new offer of $15,000.

On these facts, a panel of the Board unanimously held that Northeast violated §§ 8(a)(1) and (5) by bypassing the Union and dealing directly with Everett concerning his severance pay. A majority of the panel concluded that the walkout of May 29 was concerte d activity for “‘mutual aid’ directly related to a labor dis pute”; was not in breach of the no-strike clause in the collective bargaining agreement

between Northeast and the Uni on or otherwise indefensible; and was therefore protected acti vity. Accordingly, the Board held Northeast violated §§ 8(a)(1) and (3) of the National Labor Relations Act by suspending the six employees, discharging five of them, and refusing to consider hiring the five discharged employees at Bu rt’s. The Board further held8

Northeast’s reason for disciplining the employees were “pretextual,” maski ng anti-union animus.

Member Schaumber, dissenting, would have held the employees did not have a “labor dispute” with the employer, wherefor their leaving work to obtain answers to their questions about job security wa s not protected by § 7 of the Act; Member Schaumber further concluded the Company’s stated reason for the discip line was not pretextual but motivated by a legitimat e business justification, viz ., the employees’ unauthorized departure during working time.

The Board ordered Northeast to offer jobs at Burt’s to the five discharged employees; make them whole for any losses suffered as a result of their suspensions and of the refusal to hire them at Burt’s; expunge fr om their records any reference to the suspensions and discharges; and notify current and former employees of the Board’s decision.

II. Analysis

We must uphold the order of the Board unless, upon reviewing the record as a whole, we conclude the Board’s findings are not supported by “substantial evidence,” 29 U.S.C. § 160(f), or the Board failed to apply the proper legal standard or departed from es tablished preced ent without a reasoned justification. Mail Contractors of America v. NLRB

, 514 F.3d 27, 31 (D.C. Cir. 2008). We conclude the Board erred in applying NLRB v. Washington Aluminum Co. , 370 U.S. 9 (1962) to the facts of this case. We also hold the

Board’s decision that North east engaged in impermissible direct dealing is supported by substantial evidence. We therefore grant the petition fo r review in part and deny

enforcement of the Board’s order with respect to the suspended and discharged employees.9

A. The Walkout

Northeast argues the wa lkout on May 29 was not protected: If it was a strike or other concer ted interference with normal operations, then it was unprotected because it

violated the no-strike clause in the collective bargaining agreement. If it was not a strike, then it was a usurpation of working time for personal purp oses and unprotected by Section 7 of the Act, which prot ects employees’ “right to selforganization, to form, join, or assist labor or ganizations, to bargain collectively through re presentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

The Board concluded the Ma y 29 work stoppage was not a strike because, when the driv ers left the Vetrano facility, “they did not have a plan to pressure the employer to grant any concessions or to take any action.” Northeast Beverage Corp. , 349 N.L.R.B. at 1167. As the Board described the

walkout:

The employees were not receiving answers to their questions regarding such issues as whether they would retain their employment, what their seniority status would be, and what their pay would be after the merger. They decided to attend the meeting to demonstrate their anxiety about thes e matters, and to seek answers to their questions.

The Board concluded this situation amounted to a “labor dispute” within the meaning of § 2(9) of the Act, that is, a “controversy concerning terms, tenure or conditions of10

employment, or concerning the a ssociation or representation of persons in negotiating, fi xing, maintaining, changing, or seeking to arrange terms or conditions of employment.” 29 U.S.C. § 152(9). The “controversy,” according to the Board, “was that the employees wanted definitive answers to their employment-related concerns, and their employer was not providing such answers.” 349 N.L.R.B. at 1167. Thus, “their attendance at the meeting was in furtherance of their ‘mutual

aid’ to obtain information about [their employment]” and was protected by § 7 under Washington Aluminum

.

In that case, the Supreme Court held a spontaneous walkout, undertaken to prot est bitterly cold working conditions about which the employees had previously complained, was protected by § 7. The Court explained that the walkout “did grow out of a ‘l abor dispute’ within the plain meaning of the definition of that term in § 2(9) of the Act.”

370 U.S. at 15. The record in that case showed “a running dispute between the machine shop employees and the company over the heating of the shop on cold days — a dispute which culminated in the decision of the employees to act concertedly in an effort to force the company to improve

that condition of th eir employment.” Id . at 15-16.

Nothing in Washington Aluminum suggests the Act protects an employee walkout th at is not part of an ongoing “labor dispute” over “terms , tenure or conditions of employment.” Here there was no such dispute; on the contrary, there was a collective bargaining agreement dealing with those subjects and ongoing bargaining over its application to an impending change of circumstances. The Board attempts to find a “labor dispute” in the facts of this

case but its effort is unconvinc ing and does not amount to a11

reasonable reading either of § 2(9) or of Washington

Aluminum

. ∗

In prior cases where employees absented themselves from work to engage in union ac tivities or to seek information unrelated to an ongoing labor dispute, the Board has found

∗ Our dissenting colleague points to no facts that establish an ongoing labor dispute — that is, a controversy — between the drivers and Northeast. That the pending consolidation created “a particularly vulnerable time” for the employees, dissenting op. at 1, and that they felt an urgent “need for the information” about their future employment, dissenting op. at 2, do not make for a “labor dispute.” Nor does the employees’ “hop[e] to influence their employer to retain them after the merger,” id ., mean there was a labor dispute or that § 7 otherwise entitled them to walk off their old jobs in order to apply for new ones.

Neither does our dissenting colleague reconcile the facts of this case with the Supreme Court’s decision in Washington

Aluminum , which he states broadly “held that employees who left their shop because it was too cold were protected by Section 7.” Dissenting op. at 3 n.1. But why were they protected by Section 7? Because, the Court said, their walkout “gr[e]w out of a ‘labor dispute’ within the plain meaning of the definition of that term in § 2(9) of the Act.” 370 U.S. at 15. As our dissenting colleague correctly notes, we defer to the Board’s reasonable interpretation of its own precedents, dissenting op. at 1, but we will not uphold an order of the Board when it has “erred in applying established law to the facts of the case,” Jochims v. NLRB , 480 F.3d 1161, 1167 (D.C. Cir. 2007), as the Board has misapplied Washington Aluminum here. “We are not obligated to de fer to an agency’s interpretation of Supreme Court precedent under Chevron or any other principle. There is therefore no reason for courts — the supposed experts in analyzing judicial decisions — to de fer to agency interpretations of the Court’s opinions.” Univ. of Great Falls v. NLRB , 278 F.3d 1335, 1341 (D.C. Cir. 2002) (internal citation and quotation marks omitted).12

their actions unprotected. In Gulf Coast Oil , 97 N.L.R.B. 1513 (1952), the employees arrived at work three hours late because they had met with union representatives to learn

about the benefits of union or ganization and had joined the union. The Board found this conduct unprotected: “The activity here amounted to an unwarranted usurpation of company time by the employees to engage in a sort of union activity customarily done dur ing non-working time.” Id. at
1516. In Terri Lee, Inc ., 107 N.L.R.B. 560 (1953), the employees, upset about a cut in their piece-rate pay, left work

to consult with a union about the matter. The Board found their activity unprotected and th eir discharge consequently lawful. In terms equally applicable, mutatis mutandi , to the present case, the Board said the employees did not “engage in

a strike or other concerted w ithholding of work” but “merely intended to take the day off to obtain information from the Union, without any purpose thereb y of protesting the cut in piece rates or of seeking any concession from [their employer].” Id. at 562. In G.K. Trucking Corp ., 262 N.L.R.B. 570 (1982), two employees absented themselves from work to attend a union meeting where they planned to

discuss their concerns with union officials and to seek representation. The Board held their actions unprotected and upheld their discharge, again in terms equally applicable to the present case:

This is the very kind of activity which can and should take place on employees’ own time.There was no urgency which called for a worktime consultation with union officials and indeed no evidence that ... the employees, either at that meeting or at any other time, organized their endeavor into a protest which involved or affected working conditions.13

Id. at 573.

This case more closely resembles Gulf Coast Oil

, Terri

Lee , and GK Trucking than it does Washington Aluminum

. The Board specifically found the drivers did not have a plan to pressure Northeast but wa nted only to get information about their employment. Th e Vetrano drivers knew their shop steward, who was a member of the Union’s bargaining team, would be at the meeting, was aware of their questions, and would report back to them. That the drivers were particularly anxious to get answ ers, and wanted to ask their questions directly, does not dist inguish this case from the others in which employees left their jobs during working time to seek information that just as well could have been obtained from the union during non-work ing hours. Accordingly, the employees’ leaving work was justified neither by connection to an ongoing labor dispute w ith their employer nor by a compelling necessity to attend the bargaining session that day. The employees simply used working time to engage in union-related activity customar ily reserved for non-working

time.

Section 7 and the relevant cases thereunder do not protect employees who leave work to seek information from their union or their employer. Th e Board therefore erred in treating the employees’ mere quest for information as a “labor dispute.” Washington Aluminum is inapposite because there the employees who left work we re engaged in a dispute with their employer and by leaving were seeking a change in their working conditions.

Similarly, the Board’s at tempts to distinguish Gulf Coast

Oil and Terri Lee are unconvincing. The Board distinguished Gulf Oil on the ground that here the drivers, as evidenced by their failure to receive answers to their questions, had no14

“customary” way to obtain the relevant information. 349

N.L.R.B. at 1167-68. But the existence vel non of a “custom” is irrelevant where, as here , the shop steward informed the

drivers that he would attend th e meeting and report back to them. The Board also distinguished Terri Lee on the ground that here the drivers sought information directly from their employer rather than from their union. Id. at 1168. This is not a meaningful distinction; the drivers here, like the employees in Terri Lee , were told they could not leave work to attend this meeting and th ere was no reason questions had to be addressed to the employe r’s representatives then and

there. If the Terri Lee employees had left work to address questions to the mangement of their company, the result

would have been the same.

We hold the drivers’ depa rture from work to obtain information is not protected by § 7. Because the employees’ walkout was unprotected, Northeas t had a legitimate business reason for disciplining them. We therefore deny enforcement

to the Board’s order with re spect to the suspensions and subsequent discharges of the Vetrano drivers.

B. Direct Dealing

We uphold that portion of the Board’s order addressed to Northeast’s direct dealing w ith an employee concerning his severance pay. The Board found that Northeast’s consultant, Alex Reveliotty, negotiated with Gary Everett — who, although the shop steward, was th en acting in his personal capacity as an employee — over the severance packages he (and Pignatella) would receive. Id. at 1195. The Board also discredited testimony that Northeast’s attorney, Thomas Budd, had communicated the new severance offer to union attorney Gregg Adler before Reveliotty had made the offer to

Everett. Id . These factual findi ngs provide substantial15

evidence for the Board’s determination that the Company dealt directly with an employee over a mandatory subject of collective bargaining.

III. Conclusion

For the reasons set out above, we hold the employees’ May 29 walkout was unprotected by the Act. Therefore,

Northeast did not commit an unfair labor practice by disciplining the drivers for leav ing their work. We further hold the Board’s finding that Northeast dealt directly with an employee over a mandatory subject of collective bargaining is supported by substantial evidence. Accordingly, with respect to the suspensions and discha rges of the employees, the petition for review is granted; the Board’s cross-application for enforcement is granted with respect to the i ssue of direct dealing.

So ordered

.G ARLAND

, Circuit Judge , dissenting in part: This case presents a difficult question rega rding the scope of Section 7 of the National Labor Relations Act, 29 U.S.C. § 157. “Determining whether activity is concerted and protected within the meaning of Section 7 is a task that ‘implicates [the Board’s] expertise in labor re lations,’” and “[t]he Board’s determination that an employee has engaged in protected concerted activity is entitled to considerable deference if it is

reasonable.” Citizens Inv. Servs. Corp. v. NLRB , 430 F.3d 1195, 1198 (D.C. Cir. 2005) (quoting NLRB v. City Disposal Sys., Inc. , 465 U.S. 822, 829 (1984)). So, too, is the Board’s “interpretation of its own precedent.” Ceridian Corp. v. NLRB , 435 F.3d 352, 355 (D.C. Cir. 2006) (internal quotation marks omitted). Of course, reasonable minds can differ about what is reasonable, and I certainly understand my colleagues’

reservations. But I am unable to conclude that the Board’s application of Section 7 to the facts of this case was

unreasonable.

The Board’s decision here was limited to the “particular exigencies of the case” by a foot note setting out the views of Chairman Battista, whose acquiescence in the Board’s order was necessary to secure the two-member majority. Northeast Beverage Corp. , 349 N.L.R.B. No. 1166, 1168 n.12 (2007); cf. Marks v. United States , 430 U.S. 188, 193 (1977). Chairman Battista expressly refrained from holding “that information gathering is always a basis for a work stoppage irrespective of the nature of the information sought or the duration of the work stoppage.” Northeast Beverage , 349

N.L.R.B. at 1168 n.12. He noted th at the incident at issue in this case occurred during “a part icularly vulnerable time for employees who are caught up in the transition” to a new employer that planned to close and merge their facility; that “[t]he employees here were not getting answers to critical questions regarding whether th ey would retain employment and, if so, what their seniority and pay would be”; and that “[t]hey absented themselves for 3 hours to seek assurances on2

these vital matters.” Id. The Board majority further noted “the obvious urgency of the driver s’ need for the information” regarding whether they would continue to be employed. Id. at
1168. And it found as facts that the drivers were seeking “to establish that they were ‘more than names on a list,’” thus “hop[ing] to influence their empl oyer to retain them after the merger”; that Northeast’s requirements regarding drivers’ delivery schedules “were highly flexible”; and that their

three-hour absence caused little or no disruption of the day’s

deliveries. Id. Together, these circumstances reasonably support the Board’s determinati on “that the drivers’ conduct was protected activity as it was ‘mutual aid’ directly related to a labor dispute — the anticipated closing of the drivers’ work facility and the associated effects-bargaining.” Id. at 1166.

These circumstances also r easonably support the Board’s

conclusion that the instant cas e is distinguishable from precedents cited by Northeast. Id. at 1167-68. 1

1 See GK Trucking Corp. , 262 N.L.R.B. 570, 573 (1982) (ALJ Op.) (finding that a failure to report to work to attend a union meeting was unprotected where there “was no urgency which called for a

worktime consultation with union officials and indeed no evidence that work-related problems were actually discussed”); Terri Lee,

Inc. , 107 N.L.R.B. 560, 562-64 (1953) (finding that employees’ absence from work was unprotect ed where the employer “specifically” warned the employees against it, and where it was not for the purpose of seeking anything from the employer); Gulf

Coast Oil Co. , 97 N.L.R.B. 1513, 1516 (1952) (finding that employees’ late arrival at work was unprotected where it “violated [the employer’s] known establishe d [work] rule,” was for the purpose of engaging in union activity that was “customarily done during nonworking time,” and took place during work merely for the employees’ “own convenience”).

For its part, Northeast ar gues that the instant case is distinguishable from a Supreme Court precedent cited by the Board, NLRB v. Washington Aluminum Co. , 370 U.S. 9 (1962).3

I also conclude that there is substantial evidence to support the Board’s “separate fi nding” that Northeast “acted pursuant to a plan to avoid em ploying a significant number of union-represented employees at the merged Burt’s facility,” and that “[t]he reasons a dvanced by [Northeast] for suspending and discharging the drivers and for subsequently refusing to consider and refusing to hire them for employment at Burt’s were pretextual, and were asserted to conceal an

antiunion motive.” Id. at 1166-67 n.6; see id. at 1193 (ALJ Op.) (concluding that Northeas t failed to meet its burden

under Wright Line , 251 N.L.R.B. 1083 (1980), to demonstrate

that it would have taken the same actions “in the absence of [the employees’] membership in and support for the Union”). The testimony of Northeast’s operations consultant established that, “even before May 29, 2002, [Northeast] did not want to hire any of the Ve trano drivers and did not want to recognize the Union at the merged facility” in Bethel. Id. at 1167 n.6 (Board Op.); see id. at 1191-93 (ALJ Op.).

Substantial evidence showed “t hat under the polic ies in place at B. Vetrano on May 29, [Northeast] would not have disciplined the employees for th eir activities” on that day. Id.

Unlike its own precedents, we do not defer to the Board’s interpretation of precedents of the Supreme Court. And it is certainly true that the instan t case can be distinguished from Washington Aluminum , which held that employees who left their shop because it was too cold were protected by Section 7. But nothing in Washington Aluminum forecloses the Board from finding that the conduct in this case was also protected, particularly given the Court’s declaration that employees do not “lose their right to engage in concerted activities under § 7 merely because they do not present a specific demand upon their employer to remedy a condition they find objectionable.” Id. at 14. The only

issue before this court is the Board’s determination that the drivers’ conduct was protected, and that is a determination to which we

must defer if it is reasonable.4

at 1193; see id. at 1168 (Board Op.) (noting that “no driver had ever before been disciplined for making late deliveries”). It further showed that, although Northeast repeatedly “told the Union that jobs were not available [in Bethel,] at the same time ... it was advertising for driver s in the local newspapers.”

Id. at 1192 (ALJ Op.). “Whe n confronted with this contradiction, [Northeast’s president] said the ads were for warehouse people, a blatant untruth.” Id. Similarly, the reason Northeast gave at the hearing for not hiring the former Vetrano drivers — that they li ved too far from Bethel — was contradicted by the fact that Northeast hired other employees

with similar commutes. Id. at 1192-93. This and other evidence is sufficient to support the conclusion that Northeast’s “policy was to av oid hiring Union-represented employees” and that the reasons it offered for suspending, discharging, and refusing to hire them at Bethel were pretextual. Id. at 1193.

For the foregoing reasons, I would deny Northeast’s petition and enforce the Board’s order in full. 2

2 I would deny Northeast’s petition with respect to the direct dealing issue for the reasons stated in the court’s opinion, supra

.