     11-3724, 11-4066
     National Labor Relations Board v. Beach Lane Management

                          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 13th day of December, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                              Circuit Judge,
10                LAURA TAYLOR SWAIN,
11                              District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       NATIONAL LABOR RELATIONS BOARD,
15                Petitioner/Cross-Respondent,
16
17                    -v.-                                        11-3724, 11-4066
18
19       BEACH LANE MANAGEMENT, INC., FSM
20       MANAGEMENT, INC., CARPE DIEM
21       MANAGEMENT, LLC, A SINGLE EMPLOYER,
22                Respondent/Cross-Petitioner,
23       - - - - - - - - - - - - - - - - - - - -X


                *
                Judge Laura Taylor Swain, of the United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1
 2   FOR PETITIONER:        ZACHARY HENIGE (Lafe E. Solomon,
 3                          Celeste J. Mattina, John H.
 4                          Ferguson, Linda Dreeben, Ruth E.
 5                          Burdick, David A. Seid, on the
 6                          brief), National Labor Relations
 7                          Board, Washington, D.C.
 8
 9   FOR RESPONDENT:        DANIEL J. KORNSTEIN (Laurent S.
10                          Drogin, Tarter Krinsky & Drogin LLP,
11                          on the brief), Kornstein Veisz
12                          Wexler & Pollard, LLP, New York, New
13                          York.
14
15        Application for Enforcement and Cross-Petition for
16   Review of an Order of the National Labor Relations Board.
17
18        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
19   AND DECREED that the application of the National Labor
20   Relations Board to enforce its order is GRANTED, and the
21   cross-petition for review is DENIED.
22
23        Petitioner-Cross-Respondent National Labor Relations
24   Board (“NLRB”) seeks enforcement of its order. Respondents-
25   Cross-Petitioners (Beach Lane Management, Inc., FSM
26   Management, Inc., Carpe Diem Management, LLC, a single
27   employer (collectively, “BLM”)) seek review of that order.
28   The NLRB’s order requires BLM to, among other things, cease
29   and desist from engaging in unfair labor practices and to
30   reinstate four superintendents who were discharged as a
31   result of their activities on behalf of a labor union.
32
33        Our review of an NLRB order is “highly deferential.”
34   Int’l Union, UAW v. NLRB, 520 F.3d 192, 196 (2d Cir. 2008).
35   “Specifically, we review the NLRB’s factual findings to
36   determine whether they are supported by substantial evidence
37   in light of the record as a whole, and we review the Board’s
38   legal conclusions to ensure that they have a reasonable
39   basis in law.” Id. (internal citations and quotation marks
40   omitted). “We review the remedy chosen by the Board for
41   abuse of discretion.” NLRB v. G & T Terminal Packaging Co.,
42   246 F.3d 103, 119 (2d Cir. 2001).
43
44   1. Substantial evidence in the record as a whole supports
45   the conclusion that BLM discriminated against the four
46   superintendents by offering them less supplemental repair
47   work, as a result of their protected organizing activities.

                                  2
 1   Although BLM points to various potential errors in the
 2   statistical exhibits relied upon by the NLRB, we will not
 3   displace the NLRB’s decision because it is adequately
 4   supported in the record. Id. at 114.
 5
 6   2. BLM also challenges the remedial language used in
 7   Paragraph 2(b) of the NLRB’s order. BLM waived this
 8   argument by not urging it before the Board. 29 U.S.C.
 9   § 160(e); see also Elec. Contractors, Inc. v. NLRB, 245 F.3d
10   109, 115 (2d Cir. 2001).
11
12   3. Finally, BLM challenges the aspect of the order
13   requiring that it reinstate Manuel Nina. In contesting
14   Nina’s reinstatement, BLM points to Nina’s dishonesty
15   regarding his whereabouts. Specifically, Nina was
16   unavailable for two weeks while he was in the Dominican
17   Republic and presented a forged doctor’s note to cover up
18   his absence. But substantial evidence supports the NLRB’s
19   finding that BLM typically would have given Nina the benefit
20   of the doubt regarding his lack of availability, and did not
21   do so in this instance solely because of his union
22   organizing activities. Accordingly, the NLRB did not abuse
23   its discretion in ordering Nina’s reinstatement.
24
25        For the foregoing reasons, and finding no merit in
26   BLM’s other arguments, we hereby GRANT the NLRB’s
27   application for enforcement of its order and DENY BLM’s
28   cross-petition for review.
29
30                              FOR THE COURT:
31                              CATHERINE O’HAGAN WOLFE, CLERK
32
33
34




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