N.L.R.B. v. Blue Hills Cemetery, Inc., 77-1344
Decision Date | 27 December 1977 |
Docket Number | No. 77-1344,77-1344 |
Citation | 567 F.2d 529 |
Parties | 97 L.R.R.M. (BNA) 2291, 82 Lab.Cas. P 10,262 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BLUE HILLS CEMETERY, INC., Respondent. |
Court | U.S. Court of Appeals — First Circuit |
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.
The principal issue in this case is whether the terms of the Board's remedial order are 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 that of Stennes, and went on explicitly to reject the employer's contention that Stennes had been given merely temporary employment in the spring to work...
To continue reading
Request your trial-
N.L.R.B. v. New England Lithographic Co., Inc.
...Cir. 1968). See also N. L. R. B. v. Jack August Enterprises, Inc., 583 F.2d 575, at 579 (1st Cir. 1978); N. L. R. B. v. Blue Hills Cemetery, Inc., 567 F.2d 529, 530 (1st Cir. 1977). A finding that neither the Company nor Costa envisioned a definite termination date is a finding that does no......
-
N.L.R.B. v. Lyon & Ryan Ford, Inc.
...of an administrative law judge, which are based on the first hand observations of a witness' demeanor. NLRB v. Blue Hills Cemetery, Inc., 567 F.2d 529 (1st Cir. 1977). In reviewing the ALJ's findings, however, this court should consider "the consistency and inherent probability of the testi......
-
N.L.R.B. v. American Spring Bed Mfg. Co., 81-1421
...to deciding whether on the record as a whole there is substantial evidence to support the Board's findings. NLRB v. Blue Hills Cemetery, 567 F.2d 529, 530 (1st Cir. 1977) (citations omitted). The credibility of witnesses is for the ALJ to determine, and the reviewing court will set aside su......
-
N.L.R.B. v. Horizon Air Services, Inc., 84-1869
...weight must be given to the ALJ's credibility determinations. American Spring Bed Mfg. Co., 670 F.2d at 1242; NLRB v. Blue Hills Cemetery, 567 F.2d 529, 530 (1st Cir.1977). Our chore is one of appellate review only. "[I]t is not our function to retry the case on a cold record." Id. We prese......