* The Honorable Sandra Day O’Connor, Associate Justice (Retired) of the United States Supreme Court, sitting by designation.

1 11-4915 (L) Flat Rate Movers, LTD. v. NLRB



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 21 st** **day of November, two thousand twelve.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **JOHN M. WALKER, Jr.,** 8 **Circuit Judge ,**  9 **SANDRA DAY O’CONNOR,** 10 **Associate Justice (Retired)**

. * 11 12 - - - - - - - - - - - - - - - - - - - -X 13 **FLAT RATE MOVERS, LTD.,** 14 **Petitioner/Cross-Respondent ,**  15 16 **-v.- 11-4915 (Lead)** 17 **11-5094 (XAP)** 18 **NATIONAL LABOR RELATIONS BOARD,** 19 **Respondent/Cross-Petitioner**

**.** 20
- - - - - - - - - - - - - - - - - - - -X 21 222 **FOR APPELLANT:** Ivan D. Smith, Lewis Brisbois 1 Bisgaard & Smith LLP, New York, 2 New York. 3 4 **FOR APPELLEES:** Robert J. Englehart, National 5 Labor Relations Board, 6 Washington, D.C. (Jeffrey W. 7 Burritt, Lafe E. Solomon, 8 Celeste J. Mattina, John H. 9 Ferguson, & Linda Dreeben, 10 National Labor Relations Board, 11 Washington D.C., on the brief ) 12 13 Appeal from an order of the National Labor Relations 14 Board. 15 16 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 17 **AND DECREED**that the petition for review is **DENIED** and the 18 cross-petition for enforcement is **GRANTED**

. 19 20 Flat Rate Movers, LTD. (“Flat Rate” or “the Company”) 21 seeks review of a decision and order of the National Labor 22 Relations Board (“the Board”) dated November 16, 2011, in 23 which the Board upheld an Administrative Law Judge’s (“ALJ”) 24 finding that Flat Rate had engaged in unfair labor practices 25 in violation of Sections 8(a)(1) and 8(a)(3) of the National 26 Labor Relations Act (the “Act”), 29 U.S.C. § 158 et seq

. We 27 assume the parties’ familiarity with the underlying facts, 28 the procedural history, and the issues presented for review. 29 30 The Board’s findings of fact must be supported by 31 substantial evidence on the record considered as a whole. 32 29 U.S.C. § 160(e). Evidence is substantial when “a 33 reasonable mind might accept [it] as adequate to support a 34 conclusion.” Universal Camera Corp. v. NLRB , 340 U.S. 474, 35 477 (1951). “Where competing inferences exist, we defer to 36 the conclusions of the Board.” Abbey’s Transp. Servs., Inc. 37 v. NLRB , 837 F.2d 575, 582 (2d Cir. 1988). We will reverse 38 the Board’s legal determinations only if they are arbitrary 39 and capricious. Cibao Meat Prods., Inc. v. NLRB , 547 F.3d 40 336, 339 (2d Cir. 2008). 41 42 The charges at issue here stemmed from the discharge of 43 forty employees in July 2009, shortly after Local 116 of the 44 Retail, Wholesale and Department Store Union, UFCW (“the 45 Union”) began an organizing drive seeking to represent Flat 46 Rate’s movers. Following a multi-day hearing, the ALJ 473 concluded that Flat Rate had unlawfully interrogated its 1 employees about their union sympathies; threatened pro-union 2 employees with reprisals; discharged employees to discourage 3 its workforce from engaging in union activities; and 4 provided separation agreements containing unenforceable 5 releases of liability that were signed by fifteen discharged 6 employees. 7 8 Flat Rate argues that the Board did not establish 9 knowledge of the employees’ protected activity or animus 10 towards such activity. In particular, Flat Rate points to a 11 June 8, 2009, meeting in which two of its owners allegedly 12 discussed the need to initiate layoffs due to financial 13 strains on the Company. Flat Rate stresses that the ALJ 14 incorrectly stated that the June 8 meeting occurred on June 15 28, which would have placed it four days afterthe Union 16 organizing began and thus (according to the Company) falsely 17 implied a causal link between the two events. Flat Rate 18 asserts that this error “permeates every remaining portion 19 of the ALJ’s analysis” and “taints his final determination.” 20 21 But Flat Rate overstates the significance of the June 8 22 meeting. The ALJ explained that the memorandum produced 23 during that meeting “clearly shows that no final decision 24 had yet been made” with respect to the layoffs. This 25 statement is consistent with the Company’s intention to 26 monitor June sales before rendering a decision. As such, 27 Flat Rate did not commit to layoffs on June 8, let alone 28 specify how many workers would be discharged, or which

. 29 These determinations occurred over several meetings in late 30 June and early July, according to the uncontradicted 31 testimony of Director of Human Resources Jasmine Rosado. By 32 that time, Flat Rate was well aware of the Union’s 33 activities. 34 35 The Company also challenges the ALJ’s findings that 36 managers threatened and interrogated employees before, 37 during, and after their departure meetings in order to 38 discourage union involvement. The ALJ heard testimony from 39 a number of employees and managers on these issues. As the 40 ALJ correctly observed, “[t]he issue here is essentially one 41 of credibility.” We see no reason to overturn the ALJ’s 42 credibility determinations. SeeNLRB v. Am. Geri-Care, 43 Inc. , 697 F.2d 56, 60 (2d Cir. 1982) (explaining that such 44 findings “will not be overturned unless they are hopelessly 45 incredible or they flatly contradict either the law of 464 nature or undisputed documentary testimony”) (internal 1 quotation marks omitted). 2 3 As to the releases, the ALJ recited numerous reasons 4 for not enforcing them, including: the inability of many 5 employees to read English (especially legalese); the absence 6 of legal counsel; the Company’s failure to provide an 7 adequate explanation of the document’s significance; 8 opposition by the Board’s General Counsel; and “totally 9 inadequate” consideration ranging from $150 to $400. These 10 facts easily satisfy the Independent Stavetest for 11 enforceability. SeeBP Amoco Chemical-Chocolate Bayou , 351 12 N.L.R.B. 614, 615 (2007) (citing Independent Stave Co. , 287 13 N.L.R.B. 740, 743 (1987)). 14 15 Finding no merit in Flat Rate’s remaining arguments, we 16 hereby **DENY** the petition for review and **GRANT** the cross17 petition for enforcement. 18 19 20 FOR THE COURT: 21 CATHERINE O’HAGAN WOLFE, CLERK 22 23