Miceli & Oldfield, Inc., (2011)

Docket Number:07-CA-052862
 
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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.

  1. 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...

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