Olympic Supply Inc. d/b/a Onsite News

National Labor Relations Board - Administrative Judge Opinions

Sep 28, 2012

05-CA-076019 (N.L.R.B. Sep. 28, 2012)

JD-55-12
Baltimore, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
OLYMPIC SUPPLY, INC. d/b/a ONSITE
NEWS,
Respondent,
Case No. 5-CA-076019
and 5-RD-001500
UNITE HERE! LOCAL 7,
Charging Party.
Matthew J. Turner and John D. Doyle, Jr., Esqs.,
for the General Counsel.
Charles Hildebrandt, Esq. (The Roberts Law Group),
of Washington, DC, for the Respondent.
Krista Strothmann, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. ROSAS, Administrative Law Judge. This case was tried in Baltimore,
Maryland on August 27, 2012. The charging party, “Unite Here! Local 7” (the Union), filed the
charge on March 6, 20121 and the General Counsel issued the complaint on May 24, 21012
alleging that Olympic Supply, Inc. d/b/a Onsite News (the Company or Respondent) violated
Section 8(a)(1) of the National Labor Relations Act (the Act)2 by: (1) during an unspecified time
in or around mid-February 2012 at one of its Baltimore Washington International Marshall
Airport (BWI) concessions, threatening employees with stricter enforcement of its work rules if
they voted for the Union in an upcoming decertification election; and (2) on or about February
23, 2012 at it BWI location, again threatening employees with stricter enforcement of its work
rules if the employees voted for the Union in the election.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the arguments by the parties at trial and the post-hearing brief filed by the
General Counsel,3 I make the following

1 All dates are 2012 unless otherwise indicated.
2 29 U.S.C. Secs. 151–169.
3 Neither the Company nor the Charging Party submitted post-hearing briefs.
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2
FINDINGS OF FACT
I. JURISDICTION5
The Company, a Delaware corporation, with an office and place of business in
Mitchellville, Maryland, has been engaged in the operation of retail concessions at BWI, where it
annually derives gross revenues in excess of $500,000. The Company admits, and I find, that it
is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 10
and that the Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Company’s Operations15
The Company operates retail and newspaper concessions at BWI. London Perry has
been the Company’s general manager at BWI since 2008.4 The Company employs 32
employees at BWI, including 4 supervisors, 3 managers, and sales associates, stock clerks and
runners at its six airport locations.20
The charges arise out of Perry’s interaction with two sales associates, Kevin Wheeler
and Monae Whitehead, regarding his enforcement of Company rules and the role of the Union.
5 The conversations took place at or near one of the Company’s BWI concession locations
known as UL-6. Wheeler has been employed by the Company at BWI since July 2011, joined 25
the Union in October of 2011 and took an active role with the Union in December 2011.6
Whitehead has been employed by the Company since 2010 but, unlike Wheeler, has never
been a Union supporter or member.
B. The Company’s Relationship With The Union30
Since at least April 23, 2007, the Union has been the collective-bargaining
representative of the following unit of the Company’s employees (the bargaining unit):
All regular full-time and regular part-time retail and food and beverage concession 35
employees, including lead associates, sales associates, and stock associates employed
by each of the Employers at Baltimore Washington International Airport; but excluding all
other employees, clerical workers, security guards, managers, and supervisors as
defined in the Act.7
40

4 The Company admitted in its answer that Perry has been a Company supervisor within the
meaning of Section 2(11) of the Act and agent within the meaning of Section 2(13) of the Act.
5 No written evidence of the rules was offered, but their existence is not disputed.
6 Wheeler conceded on cross-examination that, although he referred to himself at times as a
Union shop steward, he had no formal designation as such. (Tr. 39-40, 50-52.) Nevertheless,
his role as a Union advocate was not challenged and appeared credible.
7 Joint Exh. 1.
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3
The most recent collective-bargaining agreement (CBA) between the Union and the
Company was effective from April 23, 2007, through April 22, 2011, having automatically
renewed on April 22, 201 0, pursuant to Section 26.1 of said agreement.8
On February 22, 2011, two months before the CBA expired, the Company sent the 5
Union a written notice of termination:
After careful consideration of the present business environment, the best interest of
the company and considering the employees' petition to decertify the Union filed in
August 2010, pursuant to Article 26.1 of the Collective Bargaining Agreement., we 10
hereby terminate the Collective Bargaining Agreement, with UNITE Here, Local 7,
effective April 22, 20 11.
Of course, we will continue to discuss proposals for a new Collective Bargaining
Agreement. I am available on Tuesday, March 1, 2011 at 11:30 am, in my D.C. Office to 15
speak with you to continue negotiations regarding a new Collective Bargaining
Agreement.9
On April 25, 2011, Selena Lumpkins, a Company employee, filed a petition with the
National Labor Relations Board’s Regional Office for Region 5 (the Regional Director). The 20
petition, designated as Case 5-RD-1500, sought to decertify the Union as the bargaining unit’s
collective-bargaining representative.10
C. The Election
25
On May 5, 2011, the Regional Director approved a Stipulated Election Agreement in
Case 5-RD-1500 executed by Company and Union representatives. With respect to the time
and place of the election, however, the agreement noted that the “Date, Hours and Place will be
determined by the Regional Director following the disposition of any blocking unfair labor
practice charge.”1130
On February 15, after the disposition of blocking unfair labor practice charges in cases
5-CA-36588 and 5-CA-63228 and pursuant to the Stipulated Election Agreement in Case 5-RD-
1500, Region 5 reopened the processing of the petition in Case 5-RD-1500. On March 2,
Region 5 notified the parties of the details of the election to be held in Case 5-RD-1500 on 35
March 9.12
On March 9, a secret-ballot election was conducted under the direction and supervision
of the Regional Director in the bargaining unit. The tally of ballots, which was made available to
the parties at the conclusion of the election, showed the following results:40
Approximate number of eligible voters 30
Void ballots 0
Votes cast for Intervenor 7
Votes cast against participating labor organization 1545

8 Joint Exh. 1, Paragraph 2, Attachment A.
9 Joint Exh. 1, Paragraph 3, Attachment B.
10 Joint Exh. 1, Paragraph 4; GC Exh. 1-A.
11 Joint Exh. 1, Paragraph 5.
12 Joint Exh. 1, Paragraphs 6-8.
JD-55-12
4
Valid votes counted 22
Challenged Ballots 0
Valid votes counted plus challenged ballots 22
A majority of the valid votes counted plus challenged ballots were not cast for the Union 5
as Intervenor. On May 4, the Union filed 6 timely objections to conduct affecting the results of
the election. On May 25, the Regional Director issued a Report on Objections and Notice of
Hearing. In his Report, the Regional Director found that Objection 1 raised issues of fact and
credibility that were similar to the facts alleged in the instant unfair labor practice proceeding,
Case 5-CA-076019. Objection 1 alleged that the Company, in or around February 2012 and 10
prior to the election, threatened employees with stricter enforcement of rules if employees were
represented by the Union. Accordingly, the unfair labor practice and representation cases were
consolidated for trial.13
D. Perry’s Conversation with Wheeler15
The issue in both cases is whether Perry, during the period leading up to the election,
engaged in conversations with Wheeler and Whitehead constituting unfair labor practices and
conduct sufficiently objectionable to invalidate the decertification election.
20
In Wheeler’s case, his conversation with Perry was preceded by the filing of a Step One
grievance on February 8, 2012 alleging the violation of his seniority rights under Article 11.2 of
the CBA. The written grievance did not provide any other details.14 The Step One grievance
meeting was held on February 23 in the stock room adjacent to UL-6. Union organizer Margaret
Ellis accompanied Wheeler to the meeting.15 At the meeting, she asserted that Wheeler’s hours 25
had been reduced in violation of the CBA’s seniority provisions. Perry initially replied that
business was slow and everyone’s hours had been reduced. After Ellis responded that
Wheeler’s reduction in hours was attributable to his involvement in collective bargaining, Perry
said that it was due to his tardiness. Wheeler, however, has never been subjected to any form
of discipline for tardiness. The meeting ended after Perry refused to reinstate Wheeler’s hours30
and provide backpay.16
After the meeting, Wheeler returned to work at UL-6. Ellis followed him and they
discussed the grievance meeting. Shortly thereafter, Perry approached them and stated that
Wheeler was not supposed to be talking to a Union representative while working. Ellis left and 35
Perry continued the discussion. He showed Wheeler a record of instances in which he arrived
late,17 but quickly pivoted to the subject of the Union. Perry advised Wheeler that, in the future,

13 No evidence was submitted in support of Objections 2-6 and they were dismissed. (GC
Exh. 1-L)
14 GC Exh. 4.
15 Ellis did not testify.
16 I base these findings primarily on Wheeler’s testimony. (Tr. 44-45.) He was fairly credible,
while Perry was somewhat evasive in his answers and much of his testimony as a Rule 611(c)
witnesses was nonresponsive (“e.g., that’s what the paper said”).He also demonstrated a
selective lack of recollection of certain events. In the case of the stock room meeting, he initially
failed to recall the encounter. Subsequently, he provided contradictory testimony as to the
reason why he reduced Wheeler’s hours. Initially, he testified that the reduction was due entirely
to Wheeler’s habitual lateness. However, as the questioning proceeded, he added that it was
also a part of an overall reduction in hours for employees. (Tr. 16-17, 44-45.)
17 Wheeler conceded that Perry showed him a record detailing his lateness to work. (Tr. 47.)
JD-55-12
5
he should speak to Perry directly about any problems rather than relying on the Union.
Otherwise, Perry would have to be stricter if the Union continued to be involved. Wheeler
rejected the overture, insisted that Perry should have issued a written discipline if lateness was
indeed a problem and asked for clarification as to what Perry meant by the Union’s involvement.
Perry explained that he would have to be stricter because he would have to comply with the 5
CBA provisions. Perry concluded the conversation by noting that he would rather be lenient in
such situations, but would have to strictly apply the rules if the Union remained as the
employees’ bargaining representative.18
E. Conversation between Perry and Whitehead10
The other alleged infraction also occurred during February 2012. On that occasion,
Whitehead approached Perry in the hallway area near UL-6 and told him that she did not want
the Union to continue as her labor representative. Perry responded that, “if the Union came in,
he would have to start going by the book. He said he had been lenient with employees, but if the 15
Union came in, then he would have to start going by the book.”19
LEGAL ANALYSIS
I. Section 8(a)(1) Charges20
The General Counsel contends that the Company violated Section 8(a)(1) of the Act by
threatening Wheeler and Whitehead during February 2012 with stricter enforcement of work
rules if the Union continued as their labor representative. The Company denies that Perry’s
remarks constituted threats and insists that he was simply conveying an intention to continue 25
adhering to Company rules if the Union continued representing its employees.
In analyzing a Section 8(a)(1) charge, “[t]he test is whether the employer engaged in
conduct which, it may be reasonably said, tends to interfere with the free exercise of employee
rights under the Act.” American Freightways Co., 124 NLRB 146, 147 (1959). Section 8(a)(1) 30
violations do not turn on the employer’s motive or on whether the coercion succeeded or failed.
Gissel Packing Co., 395 U.S. 575 (1969); Almet, Inc., 305 NLRB 626 (1991);
Perry informed Wheeler and Whitehead during February, the month prior to the election,
that he would cease being lenient and have to be stricter if the Union continued serving as the 35

18 I based this finding on Wheeler’s testimony (Tr. 45-48.), as corroborated by Perry’s
testimony. Perry conceded that he told Wheeler he could no longer tolerate lateness as he had
done previously and would be documenting such infractions in order to avoid problems with the
Union. (Tr. 23-24). On rebuttal, he offered the conclusory assertion that he never told Wheeler
that he would more strictly enforce the rules if the Union were to win the decertification vote. He
did not, however, backtrack from earlier testimony regarding the effect of the Union’s continued
role on how he would address instances of lateness. (Tr. 35.)
19 Whitehead’s initial testimony appeared tentative and was punctuated with frequent
glances toward Perry at counsel’s table. (Tr. 69-71.) The selectivity of that testimony became
evident when the General Counsel, to her dismay, impeached her testimony with a sworn
affidavit detailing the full extent of Perry’s remark about the effects of the Union “coming in.” (Tr.
74-77.) I found the statements in Whitehead’s affidavit, which she did not disavow, more reliable
than her testimony. Moreover, Perry, during his rebuttal testimony, did not refute either her
testimony or the statements in her affidavit. (Tr. 89.)
JD-55-12
6
bargaining unit’s labor representative. These comments, which were made during the month
leading up to the union decertification election, were not predictions of the effects of unionization
based on objective fact; nor did they address consequences beyond the Company’s control.
NLRB v. Gissel Packing Co., 395 U.S. at 618; Systems West, LLC, 342 NLRB 851 (2004).
5
As noted by the General Counsel, the lack of any objective basis for Perry’s statements
that he would have to forego leniency is evident from both historical and representational
perspectives. First, it is undisputed that Perry had been lenient previously in addressing
employee lateness. Secondly, during those periods of leniency, employees had been
represented by the Union. There is no evidence, however, that the Union ever grieved such a 10
practice. Hence, there was no basis for the assertion that the Union would suddenly begin to
grieve such leniency if it prevailed in the decertification election.
Accordingly, Perry’s statements to Wheeler and Whitehead constituted unlawful threats
to enforce tardiness rules more strictly if the Company remained unionized. See also DHL 15
Express, Inc., 355 NLRB 1399, 1402-1405 (2010) (employer violated Section 8(a)(1) by
informing employee that, if the union prevailed in the upcoming election, he would be less
flexible and be compelled to more strictly enforce tardiness policy); Miller Industries Towing
Equipment, Inc., 342 NLRB 1074, 1084 (2004) (unlawful for employer to tell employees that the
presence of a union would cause it to be less lenient and strictly enforce break times rules); 20
Schaumburg Hyundai, Inc., 318 NLRB 449, 450 (1995) (employer violated Section 8(a)(1) by
informing employees, while waiving proposed collective bargaining agreement, that shop would
be run “strictly by union rules”); Treanor Moving & Storage Co., 311 NLRB 371, 375 (1993)
(unlawful for employer to tell employees that it “used to let you guys get away with this kind of
stuff” but “now you are union and you guys are playing your game and the company is going to 25
have to play by their game”).
Perry’s remarks are distinguishable from situations where an employer conveys
relatively innocuous statements of its intent to adhere to specific provisions in a collective
bargaining agreement. Dish Network Corporation, 358 NLRB No. 29, slip op. at 1 (2012) 30
(employer may inform its employees that unionization will bring about “a change in the manner
in which employer and employee deal with each other); International Baking Co., 348 NLRB
1133, 1135 (2006) (employer’s explanation that it would be unable to be flexible with lateness
policy, if a disciplinary provision was included in collective bargaining agreement, was not
unlawful); Ben Venue Laboratories, 317 NLRB 900, 900 (1995), enfd. 121 F. 3d 709 (6th Cir.35
1997) (employer’s announcement that it would discontinue its open door policy if employees
voted to unionize not unlawful); FGI Fibers, 280 NLRB 473, 473 (1986) (employer’s statement
that it would discontinue open door policy if Union was voted in because it would be required to
go through grievance and other union procedures not unlawful); Tri-Cast, Inc., 274 NLRB 377
(1985) (employer’s remark that his “informal and person-to-person” interaction would change 40
and operations run “by the book, with a stranger” was not unlawful); United Artists Theatre, 277
NLRB 115, 115 (1985) (employer’s statement that employees would vote away their right to
deal with management directly if they voted for the Union not unlawful).
II. The Union Objection to the Election45
The Union’s Objection 1 asserts that the Company, in or around February, threatened
employees with stricter enforcement of rules if they were represented by a Union. As previously
found, Perry informed at least two employees, Wheeler and Whitehead, in February that he
would be less flexible and forced to be stricter in enforcing Company rules if the Union 50
continued to serve as the bargaining unit’s labor representative. In addition to constituting unfair
JD-55-12
7
labor practices, Perry’s remarks amounted to conduct that destroyed the laboratory conditions
during the critical period and should be sustained. Eaton Technologies, Inc., 322 NLRB 848,
853-854 (1997); Peck Incorporated, 269 NLRB 451, 459 (1989).
Perry’s remarks to two people in different scenarios – one a Union supporter, while the 5
other was opposed to the Union – during the month leading up to the election, strongly suggests
that his comments were not limited to those employees. Under the circumstances, the May 9
election must be set aside and a second election ordered. It is the Board’s usual policy to direct
a new election whenever an unfair labor practice occurs during the critical period where a
Section 8(a)(1) violation of the type here interferes with the exercise of free speech and 10
untrammeled choice in an election. White Plains Lincoln Mercury, 288 NLRB 1133, 1137-1138
(1988).
CONCLUSIONS
15
1. The Company, Olympic Supply Inc. d/b/a Onsite News, is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. The Union, UNITE HERE! Local 7, is a labor organization within the meaning of Section 2(5)
of the Act.20
3. At all material times, London Perry has been a supervisor of the Company within the meaning
of Section 2(11) of the Act and an agent of the Company within the meaning of Section 2(13) of
the Act.
25
4. By threatening employees with stricter enforcement of work rules if they supported the
Union, the Company violated Section 8(a)(1) of the Act.
5. The aforementioned unlawful conduct engaged in by the Company constitute unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.30
6. By the foregoing violations of the Act, which occurred during the critical period before the May
9 election, and by the conduct cited by the Union in Objection 1, the Company has prevented
the holding of a fair election, and such conduct warrants setting aside said election in Case 5-
RD-001500.35
REMEDY
Having found that the Company has engaged in certain unfair labor practices, I shall
order it to cease and desist there from and to take certain affirmative action designed to 40
effectuate the policies of the Act.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended20
45

20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the 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-55-12
8
ORDER
The Company, Olympic Supply Inc. d/b/a Onsite News, of Baltimore, Maryland, its
officers, agents, successors, and assigns, shall
5
1. Cease and desist from
(a) Threatening employees with stricter enforcement of work rules if they support the
Union or any other labor organization as their labor representative.
10
(b) In any like or related manner, interfering with, restraining or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
15
(a) Within 14 days after service by the Region, post at its facilities within Baltimore
Washington International Airport copies of the attached notice marked “Appendix.”21 Copies of
the notice, on forms provided by the Regional Director for Region 5, after being signed by the
Company’s authorized representative, shall be posted by the Company and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are 20
customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or
other electronic means, if the Company customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Company to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the pendency of 25
these proceedings, the Company has gone out of business or closed the facility involved in
these proceedings, the Company shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by the Company at any time
since February 23, 2012.
30
(b) Within 21 days after service by the Region, file with the Regional Director for Region
5 a sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Company has taken to comply.
IT IS FURTHER ORDERED that the election held on May 9, 2012, in Case 05-RD-35
001500, be set aside, and that this case be severed and remanded to the Regional
Director to conduct a new election when he deems appropriate.
Dated, Washington, D.C. September 28, 2012
40
__________________________
Michael A. Rosas
Administrative Law Judge

21 If this Order is enforced by a judgment of a United States court of appeals, the words in
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD-55-12
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten you with stricter enforcement of our work rules if you select UNITE
HERE! Local 7, or any other labor organization, as your collective-bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
Olympic Supply Inc. d/b/a Onsite News
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Bank of America Center – Tower II, 100 South Charles Street, Suite 600, Baltimore, MD 21201-2700
(410) 962-2822, Hours: 8:15 a.m. to 4:45 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (410) 962-2880.