     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




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