Silverman v. J.R.L. Food Corp.

196 F.3d 334, 1999 WL 1037155
CourtCourt of Appeals for the Second Circuit
DecidedNovember 16, 1999
DocketDocket No. 99-6189
StatusPublished
Cited by21 cases

This text of 196 F.3d 334 (Silverman v. J.R.L. Food Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Silverman v. J.R.L. Food Corp., 196 F.3d 334, 1999 WL 1037155 (2d Cir. 1999).

Opinion

PER CURIAM.

Petitioner Daniel Silverman, as a Regional Director of the National Labor Relations Board (“NLRB” or the “Board”), appeals from so much of an order of the United States District Court for the Southern District of New York, Richard Conway Casey, Judge, as denied his petition for a temporary injunction reinstating Alba Cortes to her employment with respondent J.R.L. Food Corp. (“JRL”) pending the outcome of the Board’s underlying unfair labor practice proceeding against JRL. On appeal, the NLRB contends principally that the district court failed to accord appropriate deference to the factual determinations of the Administrative Law Judge (“ALJ”). We agree, and we therefore reverse and remand for entry of the requested injunction.

The National Labor Relations Act (“the Act”), 29 U.S.C. § 151 et seq. (1994), empowers the NLRB, “upon issuance of a complaint ... charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred ... for appropriate temporary relief or restraining order.” Id. § 160(j). To warrant the granting of relief under this section, the district court must find (1) “reasonable cause to believe that an unfair labor practice has occurred”; and (2) “that [granting] injunctive relief would be just and proper.” Silverman v. Major League Baseball Player Relations Committee, Inc., 67 F.3d 1054, 1059 (2d Cir.1995); see, e.g., Kaynard v. MMIC, Inc., 734 F.2d 950, 953 (2d Cir.1984); Kaynard v. Mego Corp., 633 F.2d 1026, 1030 (2d Cir.1980).

A court considering whether to grant temporary equitable relief pursuant to § 160® should give “[appropriate deference” to the contentions of the NLRB and should decline to grant relief only if the NLRB’s legal or factual premises are “fatally flawed.” Silverman v. Major League Baseball Player Relations Committee, Inc., 67 F.3d at 1059; see Kaynard v. Mego Corp., 633 F.2d at 1033; Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047, 1051 (2d Cir.1980). “[A]n Administrative Law Judge’s factual findings are part of the record and cannot be ignored,” Local 259, United Automobile, Aerospace and Agricultural Implement Workers of America v. NLRB, 776 F.2d 23, 27 (2d Cir.1985); “the significance” of those findings “depends largely on the importance of credibility in the particular case,” Ewing v. NLRB, 732 F.2d 1117, 1120 (2d Cir.1984) (internal quotation marks omitted). In reviewing a district court’s decision on a § 160® petition, we will not overturn the court’s findings of fact unless they are clearly erroneous, but we “may fully review its conclusions of law, including find[336]*336ings of reasonable cause.” Kaynard v. Mego Corp., 633 F.2d at 1030.

The unfair labor practice proceeding underlying the present petition focuses on one of JRL’s stores and the attempt of a local union (the “Union”), which had represented the employees at that store prior to its acquisition by JRL, to obtain recognition as the collective bargaining representative of the employees working at the store after JRL’s acquisition. JRL is charged with violating the Act by, inter alia, directing its employees not to join the Union, interrogating employees about their Union activities, and threatening employees with discharge or a reduction in their work hours if they joined the Union. One such employee was Cortes, who had been a cashier at the store until JRL terminated her employment in late 1998. The ALJ held an evidentiary hearing at which testimony was received from numerous witnesses, including Cortes and other former employees, JRL co-owner Ruben Luna, and Manuel Matista, general manager of the store in question.

Cortes testified that, inter alia, Luna had incessantly warned her against joining the Union and had instructed her to fend off the Union by saying, falsely, that she was a relative of the owner and therefore was not interested in joining. Luna also asked her to tell him if other employees approached her about the Union, and he stated that he need not give employees 40-hour work weeks if they joined the Union and that he had already reduced the hours of one employee for getting involved with the Union. Cortes also testified that, when Luna eventually instructed her not to return to work, his explanation was that he had a new policy of not employing neighborhood residents in the store.

Luna, in contrast, testified that he had never spoken to Cortes about the Union and that it was Cortes who had introduced the subject with him. He also testified that he had fired her not because of any new policy, but because he caught her “passing merchandise,” i.e., giving store merchandise to her friends. Luna testified that he had seen Cortes giving away merchandise three times before he fired her, and that he thereafter learned from Matista that she had been giving away merchandise for four-to-five months.

In a Decision dated April 12, 1999, (“Decision”), the ALJ found that JRL had engaged in many (though not all) of the unfair labor practices with which it was charged. With regard to Cortes in particular, although finding Cortes’s testimony (a) as to the frequency and duration of Luna’s conversations about the Union to be “somewhat exaggerated,” Decision at 20, and (b) as to precisely when she signed a Union card to be contradicted by other evidence, the ALJ found that she had been discharged because of her support of the Union. He found that on more than one occasion Luna had interrogated Cortes as to her own and other employees’ involvement with the Union, had asked her to report to him if any employees approached her about the Union, and had threatened a reduction in employees’ hours if they supported the Union. In making those findings, the ALJ relied in part on his assessments of the credibility of Cortes and Luna. He credited Cortes’s testimony as to Luna’s acts, noting that her testimony in that regard was consistent with the testimony of other witnesses, “who were particularly credible.” Id. at 22 n. 25. He discredited Luna’s general denials that he had spoken to any of his employees about the Union, noting, inter alia, that those denials were contrary to the consistent testimony of the former employees.

As to JRL’s professed reason for firing Cortes, the ALJ noted that at the hearing “Cortes adamantly denied that she had given merchandise away to her friends and denied that Luna ever accused her of this,” and the ALJ “f[ou]nd her denial that she passed merchandise convincing.” Id. at 23. In contrast, the ALJ rejected the testimony of Luna, who “claimed that he saw her passing merchandise three times before he spoke to her and told her he had [337]

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196 F.3d 334, 1999 WL 1037155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silverman-v-jrl-food-corp-ca2-1999.