The opinion
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