N.L.R.B. v. United Sanitation Service, Div. of Sanitas Service Corp., No. 83-3194

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore GODBOLD, Chief Judge, TJOFLAT and HENDERSON; ALBERT J. HENDERSON
Citation737 F.2d 936
Parties116 L.R.R.M. (BNA) 3302, 101 Lab.Cas. P 11,143, 16 Fed. R. Evid. Serv. 66 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED SANITATION SERVICE, DIVISION OF SANITAS SERVICE CORPORATION, Respondent.
Decision Date26 July 1984
Docket NumberNo. 83-3194

Page 936

737 F.2d 936
116 L.R.R.M. (BNA) 3302, 101 Lab.Cas. P 11,143,
16 Fed. R. Evid. Serv. 66
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
UNITED SANITATION SERVICE, DIVISION OF SANITAS SERVICE
CORPORATION, Respondent.
No. 83-3194.
United States Court of Appeals,
Eleventh Circuit.
July 26, 1984.

Page 937

Elliott Moore, Deputy Associate Gen. Counsel, Paul Bateman, N.L.R.B., Washington, D.C., for petitioner.

G. William Baab, Mullinax, Wells, Baab & Cloutman, Dallas, Tex., for amicus curiae Southern Conference of Teamsters.

Herbert B. Mintz, W. Russell Hamilton, Miami, Fla., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before GODBOLD, Chief Judge, TJOFLAT and HENDERSON, Circuit Judges.

ALBERT J. HENDERSON, Circuit Judge:

The National Labor Relations Board ("Board") petitions for enforcement of an order directed against United Sanitation Services, Division of Sanitas Service Corporation ("Company") for violations of sections

Page 938

8(a)(1) and 8(a)(3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1), (3) ("Act").

After reviewing the findings of the Administrative Law Judge ("ALJ"), the Board concluded that the Company engaged in certain unfair labor practices before, during and after an employee representation election in Miami, Florida. The Board specifically found that the Company urged its employees to report pressure tactics by union organizers in their efforts to secure signature cards, asked employees if they had been invited by union agents to join the union, requested employees to report to management the names of fellow workers who attended union meetings, threatened to discharge employees in retaliation for their pro-union sentiments or activities, warned employees they would be fired if they engaged in a strike, and informed employees that management maintained a list of pro-union employees. The Board also found that the Company violated sections 8(a)(3) and (1) of the Act by dismissing Terry Lee because of his purported union activity. The Board maintains that this conduct interfered with the rights of the employees to organize for the purpose of collective bargaining in violation of Section 7 of the Act. 29 U.S.C. Sec. 157.

The Board ordered the Company to cease and desist from engaging in these alleged unfair labor practices and from interfering with, restraining or coercing employees in the exercise of their rights guaranteed by section 7 of the Act. Affirmatively, the Board ordered the Company to pay to the estate of Terry Lee, who died on February 21, 1981, the monetary value of any loss of earnings that he may have suffered by virtue of his alleged discriminatory discharge, together with interest, and to post an appropriate notice.

In this enforcement proceeding, the Company challenges four of the Board's findings. It denies that it unlawfully (1) threatened to fire those employees who engaged in union activities, (2) threatened to discharge striking employees, (3) interrogated employees in an effort to determine if union agents invited them to join the union, and (4) discharged employee Terry Lee for his union activities. 1

The first two issues raised by the Company do not require detailed analysis. There was substantial evidence supporting the Board's determination. In our review of the Board's decision, we are bound by the Board's factual determinations if they are supported by substantial evidence on the record considered as a whole. Weather Tower v. NLRB, 676 F.2d 483, 487 (11th Cir.1982). If the Board has made a "plausible inference from the evidence, this court may not overturn its findings, although if deciding the case de novo, the court might have made contrary findings." Id., citing Sturgis Newport Business Forms, Inc. v. NLRB, 563 F.2d 1252, 1256 (5th Cir.1977). 2

These allegations of error essentially attack credibility determinations of the Administrative Law Judge. The former Fifth Circuit Court of Appeals has consistently held that credibility resolutions are peculiarly within the province of the ALJ and the Board and are entitled to deference unless inherently unreasonable or self-contradictory. See, e.g., NLRB v. Proler International Corp., 635 F.2d 351, 355 (5th Cir.1981); NLRB v. Standard Forge and Axle Co., 420 F.2d 508, 510 (5th Cir.1969), cert. denied, 400 U.S. 903, 91 S.Ct. 140, 27 L.Ed.2d 140 (1970). Nothing in the record suggests that the ALJ's determinations were either unreasonable or self-contradictory.

The Company's third contention--that it did not unlawfully interrogate employees-

Page 939

--cannot be dismissed on mere substantial evidence grounds. Subsequent to the Board's decision in this case, it adopted a new standard on the issue of unlawful interrogations in Rossmore House, 269 NLRB No. 198, 116 LRRM 1025 (1984). 3 The Company contends that were the Board to reconsider the facts of this case in light of Rossmore House it would not find the Company guilty of illegal interrogation and would accordingly modify the scope of the order and notice. Although we do not intimate an opinion as to the outcome, we believe that reconsideration of the interrogation issue is necessary and therefore vacate and remand such portions of the Board's findings and order as specifically relate to this issue. 4

The company finally urges that employee Terry Lee was discharged for legitimate reasons. This is an attack not only on the ultimate conclusion reached by the Board, but also on the admissibility of key evidence relied upon by the General Counsel in proving the reason for the discharge.

It is well settled that the discharge of an employee because of his or her union organizing efforts or other protected activity constitutes a violation of sections 8(a)(3) and (1) of the Act. See generally, NLRB v. Southern Plasma Corp., 626 F.2d 1287 (5th Cir.1980); NLRB v. Garland Knitting Mills, 408 F.2d 672, 673 (5th Cir.1969). The question of an employer's motivation in section 8(a)(3) cases is a question of fact to be resolved by the Board from a consideration of all the evidence. NLRB v. Southern Plasma Corp., 626 F.2d at 1294.

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  • Stolarczyk v. Senator Intern. Freight Forwarding, No. 03 C 8709.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 8, 2005
    ...the hearsay rule." Id-. (citing Sinclair, 74 F.3d at 759); accord, e.g., NLRB v. United Sanitation Serv., Div. of Sanitas Serv. Corp., 737 F.2d 936, 941 (11th Cir.1984) ("[U]nless application of [the predecessor to Rule 807] be limited to circumstances evidencing a clear basis of trustworth......
  • Cooper/T. Smith, Inc. v. N.L.R.B., No. 97-7024
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 14, 1999
    ...shall, "so far as practicable," be conducted in accordance with the Federal Rules of Evidence. See NLRB v. United Sanitation Serv., 737 F.2d 936, 940 (11th Cir.1984) (quoting 29 U.S.C. § 160(b)). The Board admitted testimony of docking pilots employed by Cooper. Under the Federal Rules of E......
  • Lakeland Health Care Assocs., LLC v. Nat'l Labor Relations Bd., Nos. 11–12000
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 2, 2012
    ...judge] and the Board and are entitled to deference unless inherently unreasonable or self-contradictory.” NLRB v. United Sanitation Serv., 737 F.2d 936, 938 (11th Cir.1984). While we have described this standard of review as “exceedingly narrow,” NLRB v. Contemporary Cars, Inc., 667 F.3d 13......
  • Corrugated Container Antitrust Litigation, In re, Nos. 83-2281
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 4, 1985
    ...question. 2 The court declined to permit introduction of evidence under the residual exception in N.L.R.B. v. United Sanitation Service, 737 F.2d 936 (11th Cir.1984); Lloyd v. Professional Realty Services, Inc., 734 F.2d 1428 (11th Cir.1984); Abernathy v. Superior Hardwoods, Inc., 704 F.2d ......
  • Request a trial to view additional results
20 cases
  • Stolarczyk v. Senator Intern. Freight Forwarding, No. 03 C 8709.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 8, 2005
    ...the hearsay rule." Id-. (citing Sinclair, 74 F.3d at 759); accord, e.g., NLRB v. United Sanitation Serv., Div. of Sanitas Serv. Corp., 737 F.2d 936, 941 (11th Cir.1984) ("[U]nless application of [the predecessor to Rule 807] be limited to circumstances evidencing a clear basis of trustworth......
  • Cooper/T. Smith, Inc. v. N.L.R.B., No. 97-7024
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • June 14, 1999
    ...shall, "so far as practicable," be conducted in accordance with the Federal Rules of Evidence. See NLRB v. United Sanitation Serv., 737 F.2d 936, 940 (11th Cir.1984) (quoting 29 U.S.C. § 160(b)). The Board admitted testimony of docking pilots employed by Cooper. Under the Federal Rules of E......
  • Lakeland Health Care Assocs., LLC v. Nat'l Labor Relations Bd., Nos. 11–12000
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • October 2, 2012
    ...judge] and the Board and are entitled to deference unless inherently unreasonable or self-contradictory.” NLRB v. United Sanitation Serv., 737 F.2d 936, 938 (11th Cir.1984). While we have described this standard of review as “exceedingly narrow,” NLRB v. Contemporary Cars, Inc., 667 F.3d 13......
  • Corrugated Container Antitrust Litigation, In re, Nos. 83-2281
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 4, 1985
    ...question. 2 The court declined to permit introduction of evidence under the residual exception in N.L.R.B. v. United Sanitation Service, 737 F.2d 936 (11th Cir.1984); Lloyd v. Professional Realty Services, Inc., 734 F.2d 1428 (11th Cir.1984); Abernathy v. Superior Hardwoods, Inc., 704 F.2d ......
  • Request a trial to view additional results

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