 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 self-
organization, 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 work-
       time 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.
