Flat Rate Movers, Ltd. v. National Labor Relations Board , 488 F. App'x 524 ( 2012 )


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  •      11-4915 (L)
    Flat Rate Movers, LTD. v. NLRB
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
    ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
    PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
    DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
    ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
    SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
    1            At a stated term of the United States Court of Appeals
    2       for the Second Circuit, held at the Daniel Patrick Moynihan
    3       United States Courthouse, 500 Pearl Street, in the City of
    4       New York, on the 21st day of November, two thousand twelve.
    5
    6       PRESENT: DENNIS JACOBS,
    7                              Chief Judge,
    8                JOHN M. WALKER, Jr.,
    9                              Circuit Judge,
    10                SANDRA DAY O’CONNOR,
    11                              Associate Justice (Retired).*
    12
    13       - - - - - - - - - - - - - - - - - - - -X
    14       FLAT RATE MOVERS, LTD.,
    15                Petitioner/Cross-Respondent,
    16
    17                    -v.-                                            11-4915 (Lead)
    18                                                                    11-5094 (XAP)
    19       NATIONAL LABOR RELATIONS BOARD,
    20                Respondent/Cross-Petitioner.
    21       - - - - - - - - - - - - - - - - - - - -X
    22
    *
    The Honorable Sandra Day O’Connor, Associate Justice
    (Retired) of the United States Supreme Court, sitting by
    designation.
    1
    1   FOR APPELLANT:             Ivan D. Smith, Lewis Brisbois
    2                              Bisgaard & Smith LLP, New York,
    3                              New York.
    4
    5   FOR APPELLEES:             Robert J. Englehart, National
    6                              Labor Relations Board,
    7                              Washington, D.C. (Jeffrey W.
    8                              Burritt, Lafe E. Solomon,
    9                              Celeste J. Mattina, John H.
    10                              Ferguson, & Linda Dreeben,
    11                              National Labor Relations Board,
    12                              Washington D.C., on the brief)
    13
    14        Appeal from an order of the National Labor Relations
    15   Board.
    16
    17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
    18   AND DECREED that the petition for review is DENIED and the
    19   cross-petition for enforcement is GRANTED.
    20
    21        Flat Rate Movers, LTD. (“Flat Rate” or “the Company”)
    22   seeks review of a decision and order of the National Labor
    23   Relations Board (“the Board”) dated November 16, 2011, in
    24   which the Board upheld an Administrative Law Judge’s (“ALJ”)
    25   finding that Flat Rate had engaged in unfair labor practices
    26   in violation of Sections 8(a)(1) and 8(a)(3) of the National
    27   Labor Relations Act (the “Act”), 
    29 U.S.C. § 158
     et seq. We
    28   assume the parties’ familiarity with the underlying facts,
    29   the procedural history, and the issues presented for review.
    30
    31        The Board’s findings of fact must be supported by
    32   substantial evidence on the record considered as a whole.
    33   
    29 U.S.C. § 160
    (e). Evidence is substantial when “a
    34   reasonable mind might accept [it] as adequate to support a
    35   conclusion.” Universal Camera Corp. v. NLRB, 
    340 U.S. 474
    ,
    36   477 (1951). “Where competing inferences exist, we defer to
    37   the conclusions of the Board.” Abbey’s Transp. Servs., Inc.
    38   v. NLRB, 
    837 F.2d 575
    , 582 (2d Cir. 1988). We will reverse
    39   the Board’s legal determinations only if they are arbitrary
    40   and capricious. Cibao Meat Prods., Inc. v. NLRB, 
    547 F.3d 41
       336, 339 (2d Cir. 2008).
    42
    43        The charges at issue here stemmed from the discharge of
    44   forty employees in July 2009, shortly after Local 116 of the
    45   Retail, Wholesale and Department Store Union, UFCW (“the
    46   Union”) began an organizing drive seeking to represent Flat
    47   Rate’s movers. Following a multi-day hearing, the ALJ
    2
    1   concluded that Flat Rate had unlawfully interrogated its
    2   employees about their union sympathies; threatened pro-union
    3   employees with reprisals; discharged employees to discourage
    4   its workforce from engaging in union activities; and
    5   provided separation agreements containing unenforceable
    6   releases of liability that were signed by fifteen discharged
    7   employees.
    8
    9        Flat Rate argues that the Board did not establish
    10   knowledge of the employees’ protected activity or animus
    11   towards such activity. In particular, Flat Rate points to a
    12   June 8, 2009, meeting in which two of its owners allegedly
    13   discussed the need to initiate layoffs due to financial
    14   strains on the Company. Flat Rate stresses that the ALJ
    15   incorrectly stated that the June 8 meeting occurred on June
    16   28, which would have placed it four days after the Union
    17   organizing began and thus (according to the Company) falsely
    18   implied a causal link between the two events. Flat Rate
    19   asserts that this error “permeates every remaining portion
    20   of the ALJ’s analysis” and “taints his final determination.”
    21
    22        But Flat Rate overstates the significance of the June 8
    23   meeting. The ALJ explained that the memorandum produced
    24   during that meeting “clearly shows that no final decision
    25   had yet been made” with respect to the layoffs. This
    26   statement is consistent with the Company’s intention to
    27   monitor June sales before rendering a decision. As such,
    28   Flat Rate did not commit to layoffs on June 8, let alone
    29   specify how many workers would be discharged, or which.
    30   These determinations occurred over several meetings in late
    31   June and early July, according to the uncontradicted
    32   testimony of Director of Human Resources Jasmine Rosado. By
    33   that time, Flat Rate was well aware of the Union’s
    34   activities.
    35
    36        The Company also challenges the ALJ’s findings that
    37   managers threatened and interrogated employees before,
    38   during, and after their departure meetings in order to
    39   discourage union involvement. The ALJ heard testimony from
    40   a number of employees and managers on these issues. As the
    41   ALJ correctly observed, “[t]he issue here is essentially one
    42   of credibility.” We see no reason to overturn the ALJ’s
    43   credibility determinations. See NLRB v. Am. Geri-Care,
    44   Inc., 
    697 F.2d 56
    , 60 (2d Cir. 1982) (explaining that such
    45   findings “will not be overturned unless they are hopelessly
    46   incredible or they flatly contradict either the law of
    3
    1   nature or undisputed documentary testimony”) (internal
    2   quotation marks omitted).
    3
    4        As to the releases, the ALJ recited numerous reasons
    5   for not enforcing them, including: the inability of many
    6   employees to read English (especially legalese); the absence
    7   of legal counsel; the Company’s failure to provide an
    8   adequate explanation of the document’s significance;
    9   opposition by the Board’s General Counsel; and “totally
    10   inadequate” consideration ranging from $150 to $400. These
    11   facts easily satisfy the Independent Stave test for
    12   enforceability. See BP Amoco Chemical-Chocolate Bayou, 351
    
    13 N.L.R.B. 614
    , 615 (2007) (citing Independent Stave Co., 287
    
    14 N.L.R.B. 740
    , 743 (1987)).
    15
    16        Finding no merit in Flat Rate’s remaining arguments, we
    17   hereby DENY the petition for review and GRANT the cross-
    18   petition for enforcement.
    19
    20
    21                              FOR THE COURT:
    22                              CATHERINE O’HAGAN WOLFE, CLERK
    23
    4
    

Document Info

Docket Number: 11-4915 (L)

Citation Numbers: 488 F. App'x 524

Judges: Day, Dennis, Jacobs, John, O'Connor, Sandra, Walker

Filed Date: 11/21/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023