Tasty Baking Company (TBC) operates a plant in Philadelphia, Pennsylvania, where approximately 700 workers produce baked goods on daytime and overnight shifts. In Teamsters Union Local 115 began an organizing drive among TBC employees. The union lost a representation election in April but upon the union's objection, the board set aside the results and ordered a new election in March 1996. In mid-June, Production Operations Director Thomas Kenney demoted Edwina Flannery, the wife of wellknown union activist and "oven man" Michael Flannery, from the supervisory position she had held for nearly five years. This demotion took place despite management's recent assurances that her position was safe and that she was the company's "newest rising star."

On August 10, 1995, after Edwina Flannery's demotion, Superintendent Charles Britsch told her that the fact that her husband was outside the plant distributing union literature "was not helping[her] chances of staying on day work," and that if he continued, she "could very seriously end up on night work."

She responded that he was "a grown man" and that she could not tell him what to do. Michael Flannery continued leafleting, and a month later the company transferred his wife to night shift. On January 16, 1996, Michael Flannery received a disciplinary warning from his supervisor, alleging that Flannery had twice failed to remove crumbs from the crumbs depositor. Flannery filed a written grievance, protesting that it was not his responsibility to remove the crumbs. When Flannery met with Britsch to discuss the grievance on January 18, Britsch said that the warning stemmed from the company's new "get tough" policy. Britsch also said that he and Flannery were "enemies" and that while Flannery might think that he was doing the right thing for the employees, Britsch believed that he (Britsch) was "doing the right thing for Tasty Bake and will do whatever I have to do to keep the union out."

On January 26, 1996, Operations Director Kenney met with an employee, William Martin, to discuss Martin's suggestion that metal detectors be installed at the entrance to the workplace. Kenney told Martin that the suggestion was "stupid" and speculated that Michael Flannery was behind it. Martin denied this, and then told Kenney that Michael Flannery should not have received the "crumbs" warning because it was Martin's, not Flannery's, responsibility to remove the crumbs from the depositor. Kenney responded that he did not care whose job it was, and "that he had told Mike that if Mike f**ked him, he would f**k Mike back." Kenney then told Martin that, "if you f**k me, I'll f**k you back," and concluded: "[N]ow I'm getting Mike. I told him I was going to do it. Now I'm doing it."

On January 31, 1996, sanitation employee Robert Nolan, another voca union supporter, received a three-day suspension and was subsequently issued a written warning for "insubordination" resulting from an incident with Linda Casey, a substitute floor monitor. According to Nolan, he had been making a telephone call during his usual break time when Casey began "yelling and screaming" at him to get off the phone. Nolan told Casey that he was talking to his wife and asked to see his regular floor monitor. Casey refused to let Nolan explain or see his monitor and instructed him to get off the phone and return to work, which Nolan did. Nolan testified that thereafter, his regular monitor told him not to worry about the incident. Nonetheless, Nolan received a written warning and a three-day suspension for insubordination.

On April 11, 1996, Kenney approached Michael Flannery during his shift and said, "[I] don't believe you. After what happened to your wife, you're still pushing the union and calling OSHA [the Occupational Safety & Health Administration]. Are you going to make me fire you?" Two months later, on June 6, 1996, Flannery received a warning for reporting wrong "oven times" to other employees. Flannery received the warning notwithstanding that he had disputed the allegation and had been told that he would merely receive a memo to his file. TBC contends that Britsch's references to people "screwing up" and to the new "get tough" policy had nothing to do with union activity and contends that Kenney had never made any reference to Flannery calling OSHA.

Moreover, among other points, TBC states that it demoted Edwina Flannery as part of a reorganization because she couldn't get the job done. She received a positive performance evaluation in 1994. TBC points out that supervisors are not protected under the Act. It also states that because of her demotion, she lost seniority and was thus eligible only for night-shift work. TBC contends that the Board has no authority toorder Edwina reinstated as a supervisor, especially one that is on the union's side. From the General Counsel's point of view, what section(s) of the NLRA would you contend were violated in this case? The company has presented its contentions regarding legitimate business reasons for its actions.

Apply the Wright Line test and decide the unfair labor practices complaints. Discuss what protection, if any, Edwina Flannery is entitled to under the Act. If the Act was violated, what should be the remedy?

[Tasty Baking Co. v. NLRB, 254 F.3d 114 (D.C. Cir. 2001)]