Olympic Supply Inc. d/b/a Onsite News

National Labor Relations Board - Board Decisions

Apr 23, 2013

359 N.L.R.B. 797 (N.L.R.B. 2013)

ONSITE NEWS 797

359 NLRB No. 99
Olympic Supply, Inc. d/b/a Onsite News and Unite
Here! Local 7. Cases 05–CA–076019 and 05–
RD–001500
April 23, 2013
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
On September 28, 2012, Administrative Law Judge
Michael A. Rosas issued the attached decision. On No-
vember 7, 2012, Judge Rosas issued a supplemental deci-
sion, also attached.
1

The Respondent filed exceptions and a supporting
brief, and the Acting General Counsel and the Charging
Party filed answering briefs.
The National Labor Relations Board has considered
the decision, supplemental decision, and the record in
light of the exceptions
2
and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions
3
and

1 The judge’s September 28 decision stated that the Respondent
failed to submit a posthearing brief. The judge later received notice,
however, that the Respondent had filed the brief erroneously with the
Board’s Regional Office instead of with the Division of Judges. Upon
the judge’s request, the Board returned the case to the judge for recon-
sideration in light of the Respondent’s posthearing brief. Thereafter,
the judge issued a supplemental decision, finding that the Respondent’s
brief failed to show errors in the fact findings or to raise any legal ar-
guments that were not previously considered, and that the original
decision should stand in its entirety.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In crediting employee Monae Whitehead’s affidavit testimony, the
judge inadvertently stated that, at the hearing, counsel for the Acting
General Counsel “impeached” Whitehead’s hearing testimony with her
affidavit testimony. In fact, counsel introduced Whitehead’s affidavit
testimony as her past recollection recorded. Our decision is not affect-
ed by the judge’s error.
Last, we note that the Regional Director dismissed, without a hear-
ing, Union Objections 2, 3, 4, 5, and 6, and that the Union did not re-
quest review of these dismissals.
3 We agree with the judge that the Respondent violated Sec. 8(a)(1)
by threatening employees with stricter enforcement of work rules if
they supported the Union, and that these threats constitute objectionable
conduct sufficient to set aside the election. “[I]t is the Board’s usual
policy to direct a new election whenever an unfair labor practice occurs
during the critical period since ‘[c]onduct violative of Section 8(a)(1)
is, a fortiori, conduct which interferes with the exercise of a free and
untrammeled choice in an election.’” Clark Equipment Co., 278 NLRB
498, 505 (1986), quoting Dal-Tex Optical Co., 137 NLRB 1782, 1786
(1962). The only exception to this policy is where the Board finds that
it is “virtually impossible” to conclude that the misconduct could have
affected the election results. Id. In finding that the Respondent’s con-
to adopt the recommended Order as modified and set
forth in full below.
4

ORDER
The National Labor Relations Board orders that the
Respondent, Olympic Supply, Inc. d/b/a Onsite News,
Mitchellville, Maryland, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with stricter enforcement of
its work rules if the employees vote for or otherwise sup-
port the Union or any other labor organization.
(b) In any like or related manner interfering with, re-
straining, 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.
(a) Within 14 days after service by the Region, post at
its facilities in Baltimore Washington International Thur-
good Marshall Airport in Baltimore, Maryland, copies of
the attached notice marked “Appendix.”
5
Copies of the
notice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-

duct does not fall within this exception, we rely on the fact that the
threats were made by a high-ranking manager and on employee Kevin
Wheeler’s unrebutted testimony that, before the election, he dissemi-
nated the threats to seven other employees. See Longview Fibre Paper
& Packaging, 356 NLRB 796, 808–808 (2011); Airstream, Inc., 304
NLRB 151, 152 (1991). Accordingly, we sustain Union Objection 1,
and shall set aside the election and direct that a new election be held.
See La-Z-Boy Midwest, 241 NLRB 334, 335 (1979).
4 We shall modify the judge’s recommended Order in accordance
with our decision in Excel Container, Inc., 325 NLRB 17 (1997), and to
conform to the Board’s standard remedial language. We shall also
substitute a new notice to conform to the modified Order.
5 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798
rent employees and former employees employed by the
Respondent at any time since February 2012.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 5 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that Case 05–RD–001500 is
severed and remanded to the Regional Director for Re-
gion 5 for the purpose of conducting a second election as
directed below.
[Direction of Second Election omitted from publica-
tion.]

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 vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT threaten you with stricter enforcement of
work rules if you vote for or otherwise support the Union
or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.

OLYMPIC SUPPLY, INC. D/B/A ONSITE
NEWS

Matthew J. Turner and John D. Doyle Jr., Esqs., for the Gen-
eral Counsel.
Charles Hildebrandt, Esq. (The Roberts Law Group), of Wash-
ington, D.C., 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, 2012,1 and the General Counsel issued the
complaint on May 24, 2012, alleging that Olympic Supply, Inc.
d/b/a Onsite News (the Company or Respondent) violated Sec-
tion 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 Air-
port (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’s 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 de-
meanor of the witnesses, and after considering the arguments
by the parties at trial and the posthearing brief filed by the Gen-
eral Counsel,3 I make the following
FINDINGS OF FACT
I. JURISDICTION
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 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 Operations
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.
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 em-
ployed by the Company at BWI since July 2011, joined the
Union in October 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.

1 All dates are 2012, unless otherwise indicated.
2 29 U.S.C. §§ 151–169.
3 Neither the Company nor the Charging Party submitted posthearing
briefs.
4 The Company admitted in its answer that Perry has been a compa-
ny supervisor within the meaning of Sec. 2(11) of the Act and agent
within the meaning of Sec. 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 designa-
tion as such. (Tr. 39–40, 50–52.) Nevertheless, his role as a union
advocate was not challenged and appeared credible.
ONSITE NEWS 799
B. The Company’s Relationship with the Union
Since at least April 23, 2007, the Union has been the collec-
tive-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 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

The most recent collective-bargaining agreement (CBA) be-
tween the Union and the Company was effective from April 23,
2007, through April 22, 2011, having automatically renewed on
April 22, 2010, pursuant to section 26.1 of said agreement.8
On February 22, 2011, 2 months before the CBA expired, the
Company sent the Union a written notice of termination:

After careful consideration of the present business environ-
ment, 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 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 a.m., in my D.C. Office to speak with
you to continue negotiations regarding a new Collective Bar-
gaining Agreement.9

On April 25, 2011, Selena Lumpkins, a company employee,
filed a petition with the National Labor Relations Board’s Re-
gional Office for Region 5 (the Regional Director). The peti-
tion, designated as Case 05–RD–001500, sought to decertify
the Union as the bargaining unit’s collective-bargaining repre-
sentative.10
C. The Election
On May 5, 2011, the Regional Director approved a Stipulat-
ed Election Agreement in Case 05–RD–001500 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.”11
On February 15, after the disposition of blocking unfair labor
practice charges in Cases 05–CA–036588 and 05–CA–063228
and pursuant to the Stipulated Election Agreement in Case 05–
RD–001500, Region 5 reopened the processing of the petition
in Case 05–RD–001500. On March 2, Region 5 notified the
parties of the details of the election to be held in Case 05–RD–

7 Jt. Exh. 1.
8 Jt. Exh. 1, par. 2, attachment A.
9 Jt. Exh. 1, par. 3, attachment B.
10 Jt. Exh. 1, par. 4; GC Exh. 1-A.
11 Jt. Exh. 1, par. 5.
001500 on March 9.12
On March 9, a secret-ballot election was conducted under the
direction and supervision of the Regional Director in the bar-
gaining unit. The tally of ballots, which was made available to
the parties at the conclusion of the election, showed the follow-
ing results:

Approximate number of eligible voters 30
Void ballots 0
Votes cast for Intervenor 7
Votes cast against participating labor
organization 15
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 as Intervenor. On May 4, the Un-
ion filed six 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 credi-
bility that were similar to the facts alleged in the instant unfair
labor practice proceeding, Case 05–CA–076019. Objection 1
alleged that the Company, in or around February 2012 and prior
to the election, threatened employees with stricter enforcement
of rules if employees were represented by the Union. Accord-
ingly, the unfair labor practice and representation cases were
consolidated for trial.13
D. Perry’s Conversation with Wheeler
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 decertifica-
tion election.
In Wheeler’s case, his conversation with Perry was preceded
by the filing of a step-1 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 had been reduced in violation of
the CBA’s seniority provisions. Perry initially replied that busi-
ness was slow and everyone’s hours had been reduced. After
Ellis responded that Wheeler’s reduction in hours was attribut-
able 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 hours and pro-
vide backpay.16

12 Jt. Exh. 1, pars. 6–8.
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800
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 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, 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 contin-
ued 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 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 Whitehead
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
Union came in, then he would have to start going by the
book.”19

answers and much of his testimony as a Rule 611(c) witnesses was
nonresponsive (“e.g., that’s what the paper said”). He also demonstrat-
ed a selective lack of recollection of certain events. In the case of the
stockroom meeting, he initially failed to recall the encounter. Subse-
quently, 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 question-
ing 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.)
18
I based this finding on Wheeler’s testimony (Tr. 45–48), as cor-
roborated 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 punctu-
ated 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 affi-
davit, 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.)
Legal Analysis
I. THE 8(A)(1) CHARGES
The General Counsel contends that the Company violated
Section 8(a)(1) of the Act by threatening Wheeler and White-
head 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
adhering to company rules if the Union continued representing
its employees.
In analyzing an 8(a)(1) charge, “[t]he test is whether the em-
ployer engaged in conduct which, it may be reasonably said,
tends to interfere with the free exercise of employee rights un-
der the Act.” American Freightways Co., 124 NLRB 146, 147
(1959). Section 8(a)(1) violations do not turn on the employ-
er’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
bargaining unit’s labor representative. These comments, which
were made during the month leading up to the union decertifi-
cation election, were not predictions of the effects of unioniza-
tion 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).
As noted by the General Counsel, the lack of any objective
basis for Perry’s statements that he would have to forgo lenien-
cy is evident from both historical and representational perspec-
tives. First, it is undisputed that Perry had been lenient previ-
ously 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 practice. Hence, there was no basis for the as-
sertion 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
Express, Inc., 355 NLRB 1399, 1402–1405 (2010) (employer
violated Sec. 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 breaktimes rules); Schaumburg Hyundai, Inc., 318
NLRB 449, 450 (1995) (employer violated Sec. 8(a)(1) by in-
forming 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 have to play by their game”).
Perry’s remarks are distinguishable from situations where an
ONSITE NEWS 801
employer conveys relatively innocuous statements of its intent
to adhere to specific provisions in a collective-bargaining
agreement. Dish Network Corp., 358 NLRB 174, 174 (2012)
(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. 1997) (employer’s an-
nouncement 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 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 ELECTION
The Union’s Objection 1 asserts that the Company, in or
around February, threatened employees with stricter enforce-
ment of rules if they were represented by a union. As previous-
ly 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
continued to serve as the bargaining unit’s labor representative.
In addition to constituting unfair labor practices, Perry’s re-
marks amounted to conduct that destroyed the laboratory condi-
tions 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 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 March 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 an 8(a)(1) violation of the type here
interferes with the exercise of free speech and untrammeled
choice in an election. White Plains Lincoln Mercury, 288
NLRB 1133, 1137–1138 (1988).
CONCLUSIONS OF LAW
1. The Company, Olympic Supply Inc. d/b/a Onsite News, is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. The Union, UNITE HERE! Local 7, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
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.
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.
6. By the foregoing violations of the Act, which occurred
during the critical period before the March 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 the election in Case 05–RD–001500.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist there
from and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]

Matthew J. Turner and John D. Doyle Jr., Esqs., for the Gen-
eral Counsel.
Charles Hildebrandt, Esq. (The Roberts Law Group), of Wash-
ington, D.C., 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 Sep-
tember 28, a decision issued (the decision), which found, inter
alia, that Olympic Supply Co. d/b/a Onsite News (the Compa-
ny) 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 posthearing
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 require-
ments 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 certifi-
cate received upon filing the brief. The electronic filing indi-
cates, however, that the brief was E-Filed with “NLRB Region
05, Baltimore, Maryland,” not the Judges Division.
Having reviewed the Board’s 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 direc-
tion as to which of the various E-rooms to file particular docu-
ments with. Accordingly, I requested that the Board’s Execu-
tive Secretary transfer the case from the Board back to me for
reconsideration of the decision based on the Company’s brief.2

1 All dates are in 2012, unless otherwise indicated.
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,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802
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 “con-
sider the brief and issue a revised Decision and Order.”
Based on the entire record, which now includes the Compa-
ny’s filed brief, I find that the 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 testi-
mony 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 as
its only witness. The testimony of all three witnesses estab-
lished that Perry spoke with Wheeler and Whitehead in Febru-
ary about his enforcement of company rules and the Union’s
relationship in that regard.

an argument could be made that counsel chose to E-File with the Bal-
timore Regional Office because the hearing was conducted there.
As fully explained at footnotes 16 and 18, I found Wheeler
fairly credible, while Perry’s testimony was fraught with eva-
siveness and inconsistencies. As explained at footnote 19, I
found 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 White-
head’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
February that he would have to be stricter in enforcing employ-
ee rules if the Union remained as the employees’ bargaining
representative.
I find, therefore, that the Company’s brief failed to demon-
strate 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 (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

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 pur-
poses.