Olympic Supply Inc. d/b/a Onsite News

National Labor Relations Board - Administrative Judge Opinions

Nov 7, 2012

05-CA-076019 (N.L.R.B. Nov. 7, 2012)

JD-62-12
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.
SUPPLEMENTAL DECISION
MICHAEL A. ROSAS, Administrative Law Judge. On August 27, 2012,1 this case was tried
in Baltimore, Maryland. On September 28, a Decision issued (the Decision), which found, inter alia,
that Olympic Supply Co., d/b/a Onsite News (the Company), violated Section 8(a)(1) of the
National Labor Relations Act (the Act). On October 2, an Erratum issued.
In footnote 3, the Decision noted that the Company did not submit post hearing briefs. On
October 19, however, my office received a letter from the Company’s trial counsel, dated October
10, explaining that he complied with the applicable service and filing requirements by emailing a
brief to the General Counsel and charging party, and electronically filing it with the Judges Division
in a timely manner. He also attached a copy of the electronic certificate received upon filing the
brief. The electronic filing indicates, however, that the brief was E-Filed with “NLRB Region 05,
Baltimore, Maryland” not the Judges Division.
Having reviewed the Boards Rules and Regulations, as well as the Board’s current
instructions to parties for E-Filing, I found that neither provision provides litigants with any direction
as to which of the various E-rooms to file particular documents with. Accordingly, I requested that
the Board’s Executive Secretary transfer the case from the Board back to me for

1 All dates are in 2012, unless otherwise indicated.
JD-62-12
2
reconsideration of the Decision based on the Company’s brief.2 In an Order, dated October 24,
Deputy Executive Secretary rescinded his office’s previous Order Transferring Proceeding to the
Board and transferred the case back to me in order to “consider the brief and issue a revised
Decision and Order.”
Based upon the entire record, which now includes the Company’s filed brief, I find that the 5
Decision remains correct and should stand in its entirety. The brief failed to raise any new matters
that were not previously considered. In its brief, the Company contends that none of the witnesses
provided testimony in support of the alleged violations. That is incorrect.
The General Counsel presented testimony by London Perry, the Company’s general
manager, and two employees, Kevin Wheeler and Monae Whitehead. The Company called Perry 10
as its only witness. The testimony of all three witnesses established that Perry spoke with Wheeler
and Whitehead in February about his enforcement of Company rules and the Union’s relationship
in that regard.
As fully explained at footnotes 16 and 18, I found Wheeler fairly credible, while Perry’s
testimony was fraught with evasiveness and inconsistencies. As explained at footnote 19, I found 15
both Whitehead and Perry less than credible. Although an extremely reluctant witness, Whitehead
was impeached by her prior sworn statement, which I credited, detailing Perry’s threat to strictly
enforce the rules if the Union prevailed in the election. Perry did not, however, refute the portion of
Whitehead’s testimony that I credited when called as a witness by the Company. After distilling
through the testimony, the facts clearly revealed that Perry informed Wheeler and Whitehead in 20
February that he would have to be stricter in enforcing employee rules if the Union remained as the
employees’ bargaining representative.
I find, therefore, that the Company’s brief failed to demonstrate that the findings of fact
contained in the Decision were flawed or should otherwise be revised. I also find that the
Company’s brief, which relies on Miller Industries Towing Equipment, Inc., 342 NLRB 1074, 1084 25
(2004), failed to cite any legal precedent or advance any connected argument, which was not
previously considered or addressed. I find, as a result, that the Decision should stand in its
entirety.3
Dated, Washington, D.C. November 7, 2012
30
________________________
Michael A. Rosas
Administrative Law Judge

2 With the assistance of administrative staff, I was shown how an E-Filer enters the Board’s electronic
filing system and is then presented with a choice of offices with whom to file a document. Such offices
include the Board’s Regional Offices and the Judges Division. In this case, it appears that the Company
chose the option of filing its brief with the Baltimore Regional Office instead of the Judges Division. While
one can wonder why counsel did not select the Judges Division, an argument could be made that counsel
chose to E-File with the Baltimore Regional Office because the hearing was conducted there.
3 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.