Miceli & Oldfield, Inc.

National Labor Relations Board - Administrative Judge Opinions

Dec 3, 2010

07-CA-052862 (N.L.R.B. Dec. 3, 2010)

JD(ATL)–25–10
Taylor, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
MICELI & OLDFIELD, INC.
Respondent
and Case 7–CA–52862
EDWARD RYCE, An Individual
Charging Party
Eric Cockrell, Esq.,
for the General Counsel.
Russell Linden, Esq.,
for the Respondent.
BENCH DECISION AND CERTIFICATION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge. I heard this case on October 26,
2010, in Detroit, Michigan. After the parties rested, I heard oral argument, and on October 27,
2010, issued a bench decision pursuant to Section 102.35(a)(10) of the Board’s Rules and
Regulations, setting forth findings of fact and conclusions of law. In accordance with Section
102.45 of the Rules and Regulations, I certify the accuracy of, and attach hereto as “Appendix
A,” the portion of the transcript containing this decision.1 The Conclusions of Law and
recommended Order are set forth below.
CONCLUSIONS OF LAW
1. The Respondent, Miceli & Oldfield, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Charging Party, Edward Ryce, is an individual.

1 The bench decision appears in uncorrected form at pp. 109 through 117 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as Appendix A to this Certification.
JD(ATL)–25–10
2
3. The Respondent did not violate the Act in any manner alleged in the complaint.
On the findings of fact and conclusions of law herein, and on the entire record in this
case, I issue the following recommended25
ORDER
The complaint is dismissed.
10
Dated Washington, D.C. December 3, 2010
15
____________________________
Keltner W. Locke
Administrative Law Judge
20

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board, and all objections to them shall be deemed waived for all purposes.
JD(ATL)–25–10
3
APPENDIX A
Bench Decision
Statement of the Case5
KELTNER W. LOCKE, Administrative Law Judge: In this case, the General Counsel
of the National Labor Relations Board, whom I will call the “General Counsel” or the
“Government,” alleges that Miceli and Oldfield, Inc., which I will call the “Respondent,”
denied an employee’s request for union representation in violation of Section 8(a)(1) of the 10
Act. Based on the Charging Party’s own testimony, I conclude that Respondent did not violate
the Act. Therefore, I recommend that the Complaint be dismissed.
Procedural History
15
This case began on April 16, 2010, when the Charging Party, Edward Ryce, filed the
initial charge in this matter. Mr. Ryce amended this charge on June 3, 2010.
After an investigation, the Regional Director for Region 7 of the Board issued a
Complaint and Notice of Hearing, which I will call the Complaint, on July 29, 2010. 20
Respondent filed a timely Answer.
On October 26, 2010, a hearing opened before me in Detroit, Michigan. Both the
General Counsel and the Respondent called witnesses, introduced exhibits, and then rested.
Counsel then presented oral argument.25
Today, I am issuing this bench decision pursuant to Section 102.35(a)(10) of the
Board’s Rules and Regulations.
Admitted Allegations30
Based on admissions in the Respondent’s Answer, I find that the Government has
proven the allegations raised in Complaint paragraphs 1(a) and 1(b), 2, 3, 4, 5, 6, 7(a), 7(b) and
7(c).
35
More specifically, I find that the Charging Party filed and served the charge and
amended charge as alleged.
Further, I find that Respondent is a corporation with an office and place of business in
Taylor, Michigan, and that at all material times it has been engaged in the nonretail sale and 40
distribution of food products. Additionally, I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6) and (7) of the Act, and that it meets the
Board’s standards for the exercise of jurisdiction.
Moreover, I find that at all material times, Respondent’s president, Peter Miceli, has 45
been a supervisor of Respondent within the meaning of Section 2(11) of the Act and its agent
JD(ATL)–25–10
4
within the meaning of Section 2(13) of the Act.
Additionally, I find that Local 337, International Brotherhood of Teamsters, which I
will call the “Union,” is a labor organization within the meaning of Section 2(5) of the Act. At
all material times, the Union has been the designated exclusive bargaining representative, 5
within the meaning of Section 9(a) of the Act, of a unit of Respondent’s employees which is an
appropriate unit within the meaning of Section 9(b) of the Act. This unit is described as
follows:
All full time employees employed by Respondent at its Taylor facility, including 10
warehouse employees, customer service associates without a commercial driver’s
license, and customer service associates with commercial driver’s licenses,
excluding confidential employees, guards and supervisors as defined by the Act.
The Charging Party, Edward Ryce, is an employee of Respondent and a member of this 15
bargaining unit. At all times material to this case, Mr. Ryce worked in Respondent’s
warehouse.
The Alleged Violation
20
The Charging Party works a shift which begins in the late evening and ends the
following morning. During the shift which began May 27, 2010, Mr. Ryce received his
paycheck, attached to which was a note telling him to see Respondent’s president, Peter Miceli.
According to Mr. Ryce, he saw Mr. Miceli in the break room and asked whether the meeting
involved disciplinary action, in which case Mr. Ryce wished to have a Union representative 25
present. Mr. Ryce testified that Mr. Miceli replied that the meeting did not concern discipline.
The meeting itself took place in Mr. Miceli’s office a few minutes later. Mr. Miceli
showed Mr. Ryce a memorandum which stated as follows:
30
Date: 5.24.10
To: Eddie Ryce
From: Pete Miceli35
RE: Written Warning - Tardiness
Our records indicate that the frequency and severity of your tardiness is unacceptable and
is disruptive to the order and efficiency of the warehouse operations. Out of 40
approximately 93 working days in 2010 you have been tardy approximately 89 times.
The rate of tardiness is approximately 95%. The amount of minutes tardy is averaging
124 minutes per month. We can no longer tolerate your excessive tardiness for any
reason. As of 5.18.10 you have been tardy a total of 425 minutes which equates to
approximately 7.5 hours. You have been cautioned by management regarding your 45
tardiness.
Our records indicate that you signed for a copy of the Company rules and regulations.
JD(ATL)–25–10
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For convenience purposes the rules and regulations are also contained in the back of the
collective bargaining agreement.
Effective immediately you are being provided this Written Warning under the terms of
the No Fault Absence Control program for acquiring two incidents of tardiness on May 5
17, 2010 and May 18, 2010. If you acquire another incident, you will be subject to a
one (1) day suspension.
Furthermore the company rules and regulations make it is “a condition of employment
that employees report all absences and late arrivals @734.946.4500. Furthermore, 10
Employees must report absences and late arrivals as soon as possible. Such reports
must be made two (2) hours or more prior to the scheduled starting time. The call-in
line is available 24 hours per day seven days per week and 365 days per year.”
Although the memorandum was dated May 24, 2010, Mr. Ryce did not see it or know 15
about it until the May 28, 2010 meeting. However, Mr. Miceli did not provide the Charging
Party with a copy of the memo during that meeting. During his testimony, Mr. Ryce gave the
following explanation:
Well, the thing was, uh, I eventually told him, you know. . . you’re disciplining me 20
and. . .I don’t have no representation here so we’ve got to stop right now. . .and then
basically. . .we stopped.
Mr. Ryce further testified that he and Mr. Miceli then had a meeting on June 3, 2010
and Mr. Miceli gave him a copy of the May 24, 2010 memorandum at that time. Two Union 25
representatives were present at this meeting.
Analysis
For two reasons, I conclude that Respondent did not violate the Act. First, the evidence 30
does not establish that the May 28, 2010 meeting was a disciplinary interview at which the
Charging Party had a right to Union representation. Second, even assuming that Mr. Ryce was
entitled to such representation, when he requested that the meeting stop, Mr. Miceli did stop the
meeting, and did not resume it until a Union representative, in fact, two Union representatives,
were present.35
In NLRB v. Weingarten, Inc., 420 U.S. 251 (1975), the United States Supreme Court
upheld the Board’s ruling that a bargaining unit employee has a right to union representation,
on request, during an investigatory interview that the employee reasonably believed would
result in disciplinary action. Stated another way, the Court affirmed the Board’s ruling that an 40
employer violated the Act by denying a bargaining unit employee’s request for a union
representative to be present during such an investigatory interview.
In Baton Rouge Water Works Co., 246 NLRB 995, 997 (1979), the Board held that an
employee has no Section 7 right to the presence of his union representative at a meeting with 45
his employer held solely for the purpose of informing the employee of, and acting upon, a
previously made disciplinary decision. However, the Board stressed that if the employer
engages in any conduct beyond informing the employee of a previously-made disciplinary
JD(ATL)–25–10
6
decision, the full panoply of Weingarten rights may apply.
The pivotal question, in such instances, is whether, in summoning an employee to
appear before management, the employer is concerned solely with the administration of
discipline or, on the other hand, seeks to obtain additional facts, evidence or an admission in 5
support of the disciplinary action. Texaco, Inc., 246 NLRB 1021 (1979).
Here, the record persuades me that Respondent had no purpose other than imposing the
discipline previously decided. For one thing, the memorandum which Mr. Miceli gave to the
Charging Party is dated May 24, four days before the May 28 meeting. This memo clearly 10
states the discipline to be imposed for any further violation, namely, a one-day suspension.
Moreover, Respondent did not need any more evidence, or any admission from Mr.
Ryce, to support its decision. Its own time and attendance records sufficed. Indeed, the
memorandum draws extensively on those records to summarize the extent of the Charging 15
Party’s tardiness.
In other respects, the record does not establish that Mr. Miceli was seeking other
information to support the disciplinary decision when he called Mr. Ryce into his office.
Therefore, based upon Baton Rouge Water Works and Texaco, Inc., above, I conclude that Mr. 20
Ryce had no Weingarten right to union representation at the May 28, 2010 meeting.
However, even assuming that he did have such a right, the Respondent did not violate it.
When Mr. Ryce requested union representation, Respondent did not proceed with the meeting
but rather postponed it for six days, resuming it with two union representatives present.25
One other issue remains. Mr. Ryce testified that on May 28, he saw Mr. Miceli in the
break room before the meeting in Mr. Miceli’s office. According to Mr. Ryce, while still in the
break room, he asked Mr. Miceli whether the meeting would involve disciplinary action and
Mr. Miceli said it did not.30
Based on my observations of the witnesses, I have some reservations about the
reliability of Mr. Ryce’s testimony. However, even assuming that Mr. Miceli did state, before
the meeting, that it did not involve disciplinary action, and even assuming that Mr. Ryce did
have a Weingarten right to union representation, Mr. Miceli’s statement would not be violative.35
Under Weingarten, interference with a bargaining unit employee’s Section 7 rights
occurs if the employer precludes a union representative from being present at an investigatory
interview or unduly restricts the representative’s participation. However, Respondent did
neither, but instead assumed that Mr. Ryce had a right to union representation and honored that 40
right.
In these circumstances, Respondent did not violate the Act. Accordingly, I recommend
that the Complaint be dismissed in its entirety.
45
When the transcript of this proceeding has been prepared, I will issue a Certification
JD(ATL)–25–10
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which attaches as an appendix the portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Findings of Fact, Conclusions of Law,
and Order. When that Certification is served upon the parties, the time period for filing an
appeal will begin to run.
5
Throughout the hearing, both counsel demonstrated a high level of civility and
professionalism which I note and appreciate. The hearing is closed.