International Longshore & Ware v. NLRB , 363 F. App'x 488 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
INTERNATIONAL LONGSHORE & No. 08-74148
WAREHOUSE UNION, Local 17,
NLRB Nos. 20-CA-32930
Petitioner, 20-CA-33195
BLUE DIAMOND GROWERS,
MEMORANDUM *
Respondent - Intervenor,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent.
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted December 11, 2009
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, ** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M.G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.
Plaintiff International Longshore & Warehouse Union, Local 17 (the
“Union”) seeks review of a final order of the National Labor Relations Board (the
“Board”) dismissing the Union's unfair labor practice charges against Blue
Diamond Growers (the “Company”). The Union alleges that the Company fired
two employees for their union activity, in violation of Sections 8(a)(1) and 8(a)(3)
of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), and that the
Board's decision dismissing the charges is not supported by substantial evidence.
We have jurisdiction pursuant to 29 U.S.C. § 160(f) and we affirm the Board’s
decision.
Because the parties are familiar with the factual and procedural history of
this case, we need not recount it here. The Union first argues that the Board erred
in failing to remand to the Administrative Law Judge (“ALJ”) to make specific
credibility findings. While failure to make more than boilerplate comments
regarding overall witness credibility may be grounds for overturning or remanding
an ALJ’s decision, remand is permissive, not mandatory, and we give great
deference to the ALJ’s credibility determinations. See Retlew Broad. Co. v. NLRB,
53 F.3d 1002, 1006 (9th Cir. 1995). Here, the ALJ explained that where any
testimony conflicted with his findings, such testimony had been discredited. The
Board did not err by failing to remand.
We cannot say that the Board’s decision that the Company would have fired
the employees even in the absence of their union activity was unsupported by
substantial evidence in the record as a whole, and we therefore affirm. See 29
U.S.C. § 160(e); Cal. Pac. Med. Ctr. v. NLRB, 87 F.3d 304, 307 (9th Cir. 1996).
The Company maintained a misappropriation rule that it had applied in the past to
trash in the dumpster, and it had informed employees that permission was required
to remove items from the trash. We will not reverse the Board’s decision simply
because there is evidence to the contrary, or because we would have decided the
case differently on a de novo review. See Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951); SKS Die Casting & Machining, Inc. v. NLRB, 941 F.2d 984,
988 (9th Cir. 1991).
AFFIRMED.