12-335-ag (L)
Carnegie Linen Services, Inc. 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.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 29th day of November, two thousand twelve.

Present:    AMALYA L. KEARSE,
            CHESTER J. STRAUB,
            ROSEMARY S. POOLER,
                        Circuit Judges.
_____________________________________________________

CARNEGIE LINEN SERVICES, INC.,

                                          Petitioner-Cross-Respondent,

                                 -v-                                     12-335-ag(L), 12-734-ag (XAP)


NATIONAL LABOR RELATIONS BOARD,

                        Respondent-Cross-Petitioner.
_____________________________________________________

Appearing for Petitioner:                 NICHOLAS STEVENS, of counsel, Starr, Gern, Davison, &
                                          Rubin, P.C., Roseland, NJ.

Appearing for Respondent:                 DOUGLAS CALLAHAN, Attorney (Usha Dheenan, Supervisor
                                          Attorney, on the brief), for Lafe E. Solomon, Acting General
                                          Counsel, Celeste J. Mattina, Deputy General Counsel, John H.
                                          Ferguson, Associate General Counsel, Linda Dreeben, Deputy
                                          Associate General Counsel, National Labor Relations Board,
                                          Washington, DC
       Petition for review and cross-petition for enforcement of a decision and order of the
National Labor Relations Board.


      ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED and the cross-petition for enforcement
is GRANTED.

        Petitioner Carnegie Linen Services, Inc. (“Petitioner”) petitions for the review of a
decision of the National Labor Relations Board (the “Board”) affirming an administrative law
judge (“ALJ”) finding that Petitioner violated Sections 8(a)(1) and 8(a)(3) of the National Labor
Relations Act (“NLRA”), 29 U.S.C. §§ 158(a)(1), (3). Respondent NLRB cross-petitions for
enforcement of the December 31, 2011 NLRB order. We assume the parties’ familiarity with the
facts and procedural history of the case.

        “We must enforce the Board’s order if the Board’s legal conclusions have a reasonable
basis in law, and if its factual findings are supported by substantial evidence on the record as a
whole.” NLRB v. Windsor Castle Health Care Facilities, Inc., 13 F.3d 619, 623 (2d Cir. 1994)
(internal citation omitted). “When the Board’s findings are based on the ALJ’s assessment of the
credibility of the witnesses, they will not be overturned unless the testimony is hopelessly
incredible or the findings flatly contradict either the law of nature or undisputed documentary
testimony.” NLRB v. Thalbo Corp., 171 F.3d 102, 112 (2d Cir. 1999) (internal quotation marks
omitted).

        Section 8(a)(1) of the NLRA makes it “an unfair labor practice for an employer . . . to
interfere with, restrain, or coerce employees in the exercise of the rights” listed in Section 7 of
the NLRA, which includes the right to “form, join, or assist labor organizations.” 29 U.S.C. §§
157, 158(a)(1). The ALJ and the Board found that Petitioner violated Section 8(a)(1) by offering
money to employee Jose Luis Diaz and inflicting bodily injury on Diaz in response to his union
activities. The ALJ credited Diaz’s testimony that Michael Garlasco, Petitioner’s general
manager, offered Diaz money to cease his union activities, and that Gary Perlson, Petitioner’s
owner, threw coffee on Diaz in response to his union activities. The ALJ did not credit
testimony by Garlasco that he did not offer a bribe, or testimony by Garlasco and Diaz’s
supervisor Nelson Astacio that Perlson did not intentionally throw coffee. The ALJ’s credibility
determinations are not flatly contradicted by the record. Accordingly, substantial evidence
supports the Board’s findings.

         The ALJ also found that Petitioner violated Sections 8(a)(1) and 8(a)(3) . . . by
terminating Diaz in response to his union activities. Section 8(a)(3) of the NLRA makes it “an
unfair labor practice for an employer by discrimination in regard to hire or tenure of employment
or any term or condition of employment to encourage or discourage membership in any labor
organization.” 29 U.S.C. § 158(a)(3). “A violation of 8(a)(3) in fact constitutes a derivative
violation of Section 8(a)(1) when the employer’s acts served to discourage union membership or
activities[.] The same proof is therefore required to establish a violation of either section.”
Office & Prof'l Emps. Int'l Union v. NLRB, 981 F.2d 76, 81 n.4 (2d Cir. 1992) (internal quotation

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marks omitted). Evaluation of a claim in violation of Section 8(a)(3) requires a “dual motivation
analysis.” NLRB v. Starbucks Corp., 679 F.3d 70, 80 (2d Cir. 2012). (The analysis is named
after Wright Line, 251 NLRB 1083 (1980), the NLRB decision that originated it.). “Initially, the
[Board] must establish a prima facie case that protected conduct was a motivating factor in the
employer’s decision to fire. The burden then shifts to the employer to show, as an affirmative
defense, that the discharge would have occurred in any event and for valid reasons.” Starbucks,
679 F.3d at 80 (internal quotation marks omitted).

        Here, the ALJ found that Diaz engaged in union activities and that Petitioner knew about
the union activities through its employee Garlasco. Furthermore, the ALJ found that Diaz was
terminated for engaging in union activities and that the alternative reasons Petitioner gave, that
Diaz was terminated for communications with a rival company and for lunging at Perlson during
the coffee incident, were pretextual. The Board noted that, while the ALJ did not explicitly
conduct a Wright Line analysis, his findings satisfied the standard. We agree. Additionally, the
ALJ’s findings, based on testimony, are not flatly contradicted by the record. Accordingly, the
Board’s findings have a reasonable basis in law and are supported by substantial evidence.

        Finally, Petitioner claims that the ALJ’s denial of its request for adjournment violated
due process. Petitioner moved to adjourn until the conclusion of criminal charges filed against
Perlson, stemming from the coffee-throwing incident that the ALJ found violated Section
8(a)(1). Petitioner argues that, until the criminal charges have concluded, Perlson could not
testify without violating his Fifth Amendment right to avoid self-incrimination. Petitioner
argues that this required adjournment. However, we have held that “the granting or denial of a
continuance is a matter within the trial examiner’s discretion.” NLRB v. Interboro Contractors,
Inc., 432 F.2d 854, 860 (2d Cir. 1970). In this case, the ALJ adjourned the hearing for more than
six months to accommodate Perlson’s involvement in the criminal case; the ALJ denied a request
for a further adjournment after the criminal case itself was postponed for an additional two
months. In proceeding with the unfair labor practice hearing, the ALJ declined to draw a
negative inference against Petitioner due to Perlson’s failure to testify. Other witnesses testified
about the coffee incident on behalf of Petitioner. Accordingly, the ALJ did not abuse his
discretion.

        We have considered Petitioner’s remaining arguments and find them to be without merit.
For the reasons stated herein, the petition for review is DENIED and the cross-petition for
enforcement is GRANTED.

                                                     FOR THE COURT:
                                                     Catherine O=Hagan Wolfe, Clerk




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