United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2008 Decided January 30, 2009 

No. 07-1206 

NORTHEAST BEVERAGE CORPORATION AND B. VETRANO 

DISTRIBUTORS, INC., 

PETITIONERS

v. 

NATIONAL LABOR RELATIONS BOARD, 

RESPONDENT

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL NO.

1035, 

INTERVENOR

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 him 
2 

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: GINSBURG, HENDERSON and GARLAND, Circuit 

Judges. 

 Opinion for the Court filed by Circuit Judge GINSBURG. 

 Opinion dissenting in part filed by Circuit Judge

GARLAND. 

 GINSBURG, Circuit Judge: 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 
3 

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. 

I. Background 

 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 
4 

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 
5 

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 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 Company, would receive only a 

one-day suspension. John Vetrano informed the other five 

drivers that it was their last day. Northeast sent them each a 

letter, dated June 18 and mailed June 19, confirming his 

discharge. 

 Also on June 19, the five discharged 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. Northeast 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 Pignatella had greater seniority and 

performed several “intangible” 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, the 
7 

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 discussed the matter with the president 

of Northeast and the Company would offer $15,000 to each of 

the three drivers. Everett then called Roos, the 

Secretary/Treasurer of the Union, 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 Budd 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 misunderstanding” and explained 

that as he understood their conversation 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 concerted activity for “‘mutual aid’ 

directly related to a labor dispute”; was not in breach of the 

no-strike clause in the collective bargaining agreement 

between Northeast and the Union or otherwise indefensible; 

and was therefore protected activity. 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 Burt’s. The Board further held 
8 

Northeast’s reason for disciplining the employees were 

“pretextual,” masking 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 was not protected by § 7 of the 

Act; Member Schaumber further concluded the Company’s 

stated reason for the discipline was not pretextual but 

motivated by a legitimate 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 from 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 established precedent 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 Northeast engaged in impermissible 

direct dealing is supported by substantial evidence. We 

therefore grant the petition for 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 walkout on May 29 was not 

protected: If it was a strike or other concerted 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 purposes and unprotected by 

Section 7 of the Act, which protects employees’ “right to selforganization, to form, join, or assist labor organizations, to 

bargain collectively through representatives 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 May 29 work stoppage was not 

a strike because, when the drivers 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 these 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 of 
10 

employment, or concerning the association or representation 

of persons in negotiating, fixing, 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 protest 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 ‘labor 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 their employment.” Id. at 15-16. 

 Nothing in Washington Aluminum suggests the Act 

protects an employee walkout that 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 unconvincing and does not amount to a 
11 

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

Aluminum.

∗

 In prior cases where employees absented themselves 

from work to engage in union activities 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 defer 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 defer 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 organization 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 during 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 their 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 withholding of work” but “merely 

intended to take the day off to obtain information from the 

Union, without any purpose thereby 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 wanted only to get information 

about their employment. The 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 answers, and wanted to ask their 

questions directly, does not distinguish 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-working hours. Accordingly, the 

employees’ leaving work was justified neither by connection 

to an ongoing labor dispute with 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 customarily 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. The 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 were engaged in a dispute with 

their employer and by leaving were seeking a change in their 

working conditions. 

 Similarly, the Board’s attempts 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 no 
14 

“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 the 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 there was no reason questions had 

to be addressed to the employer’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’ departure from work to obtain 

information is not protected by § 7. Because the employees’ 

walkout was unprotected, Northeast had a legitimate business 

reason for disciplining them. We therefore deny enforcement 

to the Board’s order with respect 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 with 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 then 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 findings provide substantial 
15 

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 leaving 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 discharges of the employees, the 

petition for review is granted; the Board’s cross-application 

for enforcement is granted with respect to the issue of direct 

dealing. 

So ordered. 
 GARLAND, Circuit Judge, dissenting in part: This case 

presents a difficult question regarding 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 relations,’” 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 footnote 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 that the incident at issue in 

this case occurred during “a particularly 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 they 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 on 
2 

these vital matters.” Id. The Board majority further noted 

“the obvious urgency of the drivers’ 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 employer 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 determination “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 reasonably support the Board’s 

conclusion that the instant case 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 unprotected 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 established [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 argues 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 finding” that Northeast “acted 

pursuant to a plan to avoid employing a significant number of 

union-represented employees at the merged Burt’s facility,” 

and that “[t]he reasons advanced 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 Northeast 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 Vetrano 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 “that under the policies in place 

at B. Vetrano on May 29, [Northeast] would not have 

disciplined the employees for their 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 instant 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 drivers in the local newspapers.” 

Id. at 1192 (ALJ Op.). “When 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 lived 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 avoid 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.