567 F.2d 529 (1st Cir. 1977), 77-1344, N.L.R.B. v. Blue Hills Cemetery, Inc.

• Docket Number: 77-1344.
• Citation: 567 F.2d 529
• Date: 27 December 1977
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BLUE HILLS CEMETERY, INC., Respondent.
• Court: U.S. Court of Appeals — First Circuit

Page 529

567 F.2d 529 (1st Cir. 1977)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

BLUE HILLS CEMETERY, INC., Respondent.

No. 77-1344.

United States Court of Appeals, First Circuit

December 27, 1977

Argued Nov. 8, 1977.

Howard F. Fine, Atty., Washington, D. C., with whom John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel and Elliott Moore, Deputy Associate Gen. Counsel, Washington, D. C., were on brief, for petitioner.

Hyman Borax, Braintree, Mass., for respondent.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

The principal issue in this case is whether the terms of the Board's remedial order are

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to be read to require Blue Hill Cemetery, Inc. (the employer) to reinstate Stennes to year-round rather than seasonal employment; and if so, whether the ordering of year-round reinstatement is adequately supported in the record. ^[*] The Board requires Stennes to be reinstated to "his former position, or, if such position no longer exists, to a substantially equivalent position . . . ." The employer contends that Stennes was hired as a temporary employee and that even if Stennes was unlawfully discharged, the Board's order to restore him to "his former position" should be interpreted only to require reinstatement to the temporary, spring-time position. However, the Board's rationale and findings make it clear that Stennes' "former position" must be understood to be a year-round position; and we find that the Board was within its powers in ordering reinstatement on that basis.

The cemetery superintendent, Keating, testified before the administrative law judge (ALJ) that he had promised Stennes only temporary " winter grave" work and that he discharged him on the day in question only because the tasks for which he was hired had been completed. Stennes testified, however, that Keating had said that there was plenty of work year-round, implying that he would be retained indefinitely, and there was evidence that Keating knew that Stennes was only interested in permanent work. The circumstantial evidence, including the fact that Stennes was discharged on the very day his union leadership came to the employer's attention, tends to support Stennes' version and to undermine Keating's. In any event, after hearing, the ALJ held that he did not credit Keating's testimony when it conflicted with...