Opinion

National Labor Relations Board v. Transport Service Company

  • 973 F.2d 562
  • 141 L.R.R.M. (BNA) 2163
  • 1992 U.S. App. LEXIS 19785
Court
Court of Appeals for the Seventh Circuit
Filed
Aug 26, 1992
Status
Published
Author
Flaum
On the bench
Flaum, Manion, Curran
Cited by
7 cases
Authority
More cited than 25.7%

The opinion

FLAUM, Circuit Judge,

concurring in part and dissenting in part.

I join nearly all of the panel’s cogent opinion, but dissent from the portion that *574 declines to enforce the NLRB’s order to make washer James DeMoss whole for Transport’s failure to timely reinstate him. That decision rests upon the conclusion that there is insufficient evidence in the record to support the AU’s finding, adopted by the Board, that DeMoss was qualified to perform utility work. While the factual issue posed is a close one, we must bear in mind Congress’ admonition that the Board’s findings of fact are “conclusive” so long as they are “supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160 (e); see generally Universal Camera Corp. v. NLRB, 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1951). That is to say, our standard of review is deferential; we may neither “dabble in fact-finding [nor] displace reasonable determinations simply because we would have come to a different conclusion if we reviewed the case de novo. ” NLRB v. P*I*E* Nationwide, Inc., 923 F.2d 506, 513 (7th Cir.1991).

The Board’s finding that washer DeMoss was qualified to perform utility work clears this admittedly low evidentiary hurdle. It is undisputed that Roscoe Stajkovich, a superintendent at Transport, offered DeMoss a utility position six weeks prior to the strike. At the evidentiary hearing before the ALJ, Stajkovich shifted gears, claiming that DeMoss was no longer qualified for the position. The AU reflected upon Staj-kovich’s testimony as follows:

Given Stajkovich’s admitted offer to De-Moss, I am hardly persuaded and reject [his] belated assessment. Overall, I found the testimony of Stajkovich to be conclusionary [sic], elusive and considerably less forthright as evidenced by his inability to state whether he was serious when he made his offer to DeMoss.

ALJ Op. at 14. What the ALJ put delicately we will state bluntly: the ALJ believed that Stajkovich lied when he testified that DeMoss was unqualified to perform utility work after the strike. This is a credibility determination to which we must attribute “significant weight.” E.g., Kopack v. NLRB, 668 F.2d 946, 953 (7th Cir.), cert. denied, 456 U.S. 994 , 102 S.Ct. 2278 , 73 L.Ed.2d 1290 (1982). I accordingly conclude that the ALJ was justified in finding that if Transport had deemed DeMoss qualified to perform utility work six weeks prior to the strike, DeMoss was also qualified to do so after the strike. The situation of washer Paul Anderson is different, for the. evidence pretty clearly demonstrates that the skills required of utility workers in 1987 had evolved significantly since Anderson held a utility position in 1984.

I would enforce the Board’s order as to washer DeMoss.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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