* 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

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

New York, on the 21st 4 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,

Associate Justice (Retired).* 11

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
2

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
3

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
4

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 cross18 petition for enforcement.

19

20

21 FOR THE COURT:

22 CATHERINE O’HAGAN WOLFE, CLERK

23