National Labor Relations Board v. Seaport Printing & AD Specialities Inc. ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 27, 2006
_______________________ Charles R. Fulbruge III
Clerk
No. 05-60347
_______________________
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
versus
SEAPORT PRINTING & AD SPECIALITIES INC,
d/b/a Port Printing Ad and Specialties,
Respondent.
On Application for Enforcement of an Order of the
National Labor Relations Board
(No. 15-CA-17300)
Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.
PER CURIAM:*
NLRB seeks enforcement of its order compelling Seaport
Printing & Ad Specialties Inc., inter alia, to recognize and
bargain with Lake Charles Printing and Graphics Union, Local 260.
This court, having carefully reviewed the parties’ briefs and
pertinent portions of the record in light of the parties’ oral
arguments, concludes that:
First, this case is governed by Levitz Furn. Co. of the
Pac., 333 NLRB 717 (2001), where the Board, overturning the prior
good faith doubt standard, held that “an employer may unilaterally
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
withdraw recognition from an incumbent union only where the union
has actually lost the support of the majority of the bargaining
unit employees.” Id. at 717. Levitz is rational, consistent with
the NLRA, within the Board’s authority to adopt, and adequately
reasoned to withstand judicial review. See Allentown Mack v. NLRB,
522 U.S. 359, 369, 118 S. Ct. 818, 824 (1998).
Second, there is substantial evidence to support the
Board’s findings and credibility choices and its conclusion that
Seaport did not meet the Levitz standard. That the Board may have
interpreted ambiguous facts and statements by employees differently
from this court is within its role as factfinder. Further, while
the ALJ characterized Soileau’s testimony concerning employees’
opinions about the union as hearsay, the ALJ also noted that most
of the testimony was not objected to by the General Counsel. The
ALJ was entitled, as factfinder, to afford less credibility to such
testimony, concluding as he did that Seaport needed more definitive
evidence to satisfy the Levitz test.
We are thus constrained to AFFIRM the judgment of the
NLRB.
ORDER ENFORCED.
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