Miceli & Oldfield, Inc., (2011)

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Miceli & Oldfield, Inc. and Edward Ryce. Case 72013

CA201352862

August 12, 2011

DECISION AND ORDER

BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND PEARCE

On December 3, 2010, Administrative Law Judge Keltner W. Locke issued the attached bench decision and certification. The Acting General Counsel filed exceptions and a supporting brief, the Respondent filed an answering brief, and the Acting General Counsel filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge2019s rulings, findings,¹ and conclusions,² and to adopt his recommended Order dismissing the complaint.

¹ The Acting General Counsel excepts to the judge2019s credibility findings. The Board2019s established policy is not to overrule an administrative law judge2019s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

2. For the reasons stated by the judge, we find that the Respondent met with the Charging Party, employee Edward Ryce, in order to present him with a previously prepared disciplinary notice concerning Ryce2019s chronic tardiness. The Acting General Counsel nevertheless contends that the meeting was transformed into an investigatory meeting when the discussion turned to Ryce2019s performance and productivity, and that Ryce was therefore entitled to have a union representative present under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). The Acting General Counsel2019s argument in support of his position is primarily based on Ryce2019s testimony. Based on the judge2019s decision as a whole, however, it is evident that the judge implicitly discredited the portions of Ryce2019s testimony that could arguably establish a Weingarten violation and, as stated above, we have found no basis for overturning the judge2019s credibility resolutions. Accordingly, based on the implicitly credited testimony of the Respondent2019s vice president, Peter Miceli, we find that any additional discussion between Miceli and Ryce during their meeting was unrelated to discipline and did not give Ryce a reasonable basis for believing that he had a right to have a union representative present.

   ORDER

   The recommended Order of the administrative law judge is adopted and the complaint is dismissed.

   Dated, Washington, D.C. August 12, 2011

   Wilma B. Liebman, Chairman

   Craig Becker, Member

   Mark Gaston Pearce Member

   (SEAL) NATIONAL LABOR RELATIONS BOARD

   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 Board2019s 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 201cAppendix A,201d 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.

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 recommended²

   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.

   ² If no exceptions are filed as provided by Sec. 102.46 of the Board2019s 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.

   357 NLRB No. 49

   2

   DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

   ORDER

   The complaint is dismissed.

   Dated Washington, D.C. December 3, 2010

   APPENDIX A

   BENCH DECISION

   STATEMENT OF THE CASE

   KELTNER W. LOCKE, Administrative Law Judge: In this case, the General Counsel of the National Labor Relations Board, whom I will call the 201cGeneral Counsel201d or the 201cGovernment,201d alleges that Miceli and Oldfield, Inc., which I will call the 201cRespondent,201d denied an employee2019s request for union representation in violation of Section 8(a)(1) of the Act. Based on the Charging Party2019s own testimony, I conclude that Respondent did not violate the Act. Therefore, I recommend that the Complaint be dismissed.

   Procedural History

   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. 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.

   Today, I am issuing this bench decision pursuant to Section 102.35(a)(10) of the Board2019s Rules and Regulations.

   Admitted Allegations

   Based on admissions in the Respondent2019s 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).

   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 distribution of food products....