USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 1 of 31
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-1340
BARDON, INC., d/b/a Aggregate Industries,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO, CLC,
Intervenor.
No. 22-1421
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO, CLC,
Intervenor, v.
Respondent. USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 2 of 31
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. (05-CA-248026)
Argued: October 25, 2023 Decided: January 8, 2024
Before DIAZ, Chief Judge, THACKER, Circuit Judge, and Julie R. RUBIN, United States District Judge for the District of Maryland, sitting by designation.
Petition for review denied and cross-application for enforcement granted by unpublished per curiam opinion.
ARGUED: Terrence J. Miglio, BUTZEL LONG, PC, Ann Arbor, Michigan, for Petitioner/Cross-Respondent. Brady John Francisco-FitzMaurice, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. ON BRIEF: Barbara E. Buchanan, Joseph E. Richotte, Blake C. Padget, BUTZEL LONG, P.C., Troy, Michigan, for Petitioner/Cross-Respondent. Usha Dheenan, Supervisory Attorney, Matheus Teixeira, Jennifer Abruzzo, General Counsel, Peter Sung Ohr, Deputy General Counsel, Ruth E. Burdick, Deputy Associate General Counsel, David Habenstreit, Assistant General Counsel, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Brandon E. Wood, BLAKE & UHLIG, P.A., Kansas City, Kansas, for Intervenor.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 3 of 31
PER CURIAM:
Bardon, Inc., a division of Lafarge Holcim U.S., d/b/a Aggregate Industries
(“Petitioner”), petitions for review of a decision and order of the National Labor Relations
Board (the “Board”) finding that Petitioner engaged in unfair labor practices, in violation
of sections 8(a)(1) and (3) of the National Labor Relations Act (“NLRA”). The Board
determined that Petitioner had coerced employees in the exercise of their right to engage
in protected union activity and improperly terminated an employee in violation of sections
8(a)(1), (3) of the NLRA.
Petitioner contends that the Board’s order is not supported by substantial evidence
in the record, particularly where the anti-union statements at issue are too vague and
inconsequential to amount to anti-union animus and the employee at issue was terminated
as a result of a safety violation. Petitioner also avers that the Board exceeded its authority
pursuant to section 10(c) of the NLRA when it ordered Petitioner to reinstate the
wrongfully terminated employee. In turn, the Board asks this court to affirm its decision
and order in full.
Because substantial evidence in the record supports the Board’s decision and order,
we deny the petition for review and grant enforcement of the Board’s order.
I.
A.
1.
Petitioner operates approximately 225 facilities in the United States, including a
quarry facility in Millville, West Virginia (the “Millville Facility”) where it mines, crushes,
3 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 4 of 31
and sizes rock. The Millville Facility covers several acres and includes 30 conveyor belts.
These conveyor belts are up to 300 feet in length, and the machinery that drives them is
powerful enough to create a risk of serious, potentially fatal, injury. At the Millville
Facility, Petitioner employs approximately 50 individuals, 37 of whom are hourly
employees.
This appeal involves Petitioner’s actions leading up and subsequent to a successful
vote by the Millville Facility employees to be represented by the International Brotherhood
of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–CIO, CLC
(the “Union”).
Most pertinent to this case are the second shift Millville Facility employees,
including Jose Molina (“Molina”), a maintenance mechanic who led the Union campaign.
At the relevant time, Molina had been employed with Petitioner for 16 years. Second shift
employees Moris Alberto (“Alberto”), a maintenance mechanic who had worked for
Petitioner for four years, and Thomas Johns (“Johns”), an 18-year-old truck driver who
was newly employed by Petitioner, also supported the Union, but not openly. The only
supervisor on the second shift during the relevant time was Curtis Mills (“Mills”), who had
held that position for 15 years. His son, C.W. Mills (“C.W.”), was the lead mechanic for
the third shift. The highest ranking official at the Millville Facility was plant manager
Andrew Wright (“Wright”), who began working for Petitioner in February 2019.
2.
Prior to 2019, Petitioner’s hourly employees had unsuccessfully attempted to
unionize the Millville Facility on multiple occasions. On June 5, 2019, the Union made
4 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 5 of 31
another attempt to represent the hourly employees at the Millville Facility. Molina led the
Union campaign by distributing pro-union literature and union authorization cards to
coworkers, collecting signed cards, and inviting coworkers to offsite Union meetings.
In response to the petition to unionize, Pat Lane (“Lane”), the director of labor
relations for Lafarge Holcim U.S., met with Millville Facility managers and supervisors to
strategize about Petitioner’s response to the Union campaign. As a result, Petitioner began
holding mandatory meetings for employees during each of the three work shifts to
campaign against the Union. These mandatory meetings were led by plant manager
Wright, regional operations manager James Bottom (“Bottom”), and regional human
resources manager Terri Collins (“Collins”).
Managers also held one-on-one meetings with employees to discuss the Union
petition. For instance, Bottom met individually with Molina, Alberto, and Johns for
between 15 minutes and 1.5 hours each. Molina testified that Bottom asked him “about
what kind of problems we [were] having at work” and why the employees “wanted the
Union in.” J.A. 202. 1 Despite Bottom’s promises to address Molina’s concerns, Molina
responded, “[E]very time . . . that a union tries to come in, [Petitioner] makes a bunch of
promises, and nothing gets done.” Id. Alberto testified that when Bottom met with him,
Bottom asked him how he intended to vote in the Union campaign, but Alberto did not
divulge his vote. Johns testified that while he was working the night before the Union
election, Bottom entered the vehicle he was operating and accompanied Johns for up to 1.5
1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
5 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 6 of 31
hours. During that time, Bottom asked Johns how he “felt about the Union” and whether
he knew anybody in a union. J.A. 498–99. Johns also recounted that during this
conversation, Bottom stated that the Union would take salary, vacation time, and retirement
account funds from employees.
Wright also met separately with each of the hourly employees two or three times to
campaign against the Union. During a meeting with Molina, Wright tried to persuade
Molina there was no need for the Union if Molina would give him “a chance” to improve
the Millville Facility. J.A. 83. Molina responded by complaining about Mills’ conduct as
a supervisor. Molina told plant manager Wright that Mills showed unfair favoritism and
required employees to perform tasks in an unsafe manner. After this conversation, and
prior to the Union representation election, Wright told Mills about Molina’s criticism of
him. During the Union campaign, Molina also expressed his complaints about Mills to
human resources manager Collins.
Prior to the Union election, Mills told Molina, Alberto, and third shift employee
Timothy Rutherford (“Rutherford”) that he knew that Molina and the second shift
employees were the “troublemaker[s]” “carrying the train” for the Union. J.A. 597, 599.
And in the week before the Union election, Mills told the employees that “he only had to
be nice [to them] for one more week.” J.A. 385.
3.
On June 27, 2019, the Millville Facility held the Union representation election. The
employees voted in favor of Union representation and, by the end of that day, Mills,
Wright, and Lane were aware of the result.
6 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 7 of 31
The following day, June 28, Molina and Alberto were the maintenance mechanics
working on the second shift. Johns was also on duty. Mills instructed Molina and Alberto
to repair a conveyor belt that had gotten off track. With 20 years of experience between
them, both Molina and Alberto were well accustomed to repairing belts at the Millville
Facility. Per industry standards, if it is not possible to align the belt with “less involved
approaches” such as “tapping the rollers along the length of the belt” or “turning the
adjustment bolt . . . that drives the belt,” the mechanics must “remove [the] metal safety
guards that screen the tail pulley assembly” in order to make the repair. J.A. 1701. These
safety guards “create a cage around the mechanism” that prevents employees from placing
their hands within the area where the moving parts can cause serious or fatal injury. Id.
When Molina and Alberto attempted to track the belt, their less invasive approaches
were unsuccessful, so Molina informed Mills that the repair would take longer than
expected and would require the employees to “get in the tail section.” Id. Although his
shift had not started, C.W. approached the repair area where Molina and Alberto (as well
as Johns who had come to offer assistance) were working. C.W. observed that the
employees had removed the safety guards without “lock[ing] out” the belt. Id.
Locking out (or LOTOTO) is part of Petitioner’s corporate-wide health and safety
management policy. After turning off the power supply to the equipment being repaired,
locking out requires an employee to: (1) lock out the power supply by placing a lock on
the appropriate breaker in the breaker room to secure it in the “off” position; (2) tag out the
lock by placing a tag on the lock that lists the employee’s name; and (3) try out the
equipment to confirm it is de-energized by asking the plant operator to try running the
7 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 8 of 31
equipment. The policy identifies violations of Petitioner’s lockout protocol as being among
the more serious of two categories of misconduct and states that such a violation can “result
in immediate disciplinary action up to, and including, separation of employment.” J.A.
1305.
Upon observing the lack of lockout procedure by Molina, Alberto, and Johns, C.W.
called Mills to report that the three employees were working on the belt without locking it
out. But instead of going straight to the repair area to address the situation, Mills went to
the breaker room some distance away and took a photograph showing that the breaker for
the conveyor belt was not locked out. Mills took the photograph at 9:04pm. Mills then
drove to the area where the work was being performed, and at 9:08pm, Mills photographed
the employees working on the belt without locking it out. After being approached by Mills,
Molina and Alberto locked out the belt. Mills discussed the matter with C.W., who then
contacted Wright by text message to inform him about the incident. Wright responded that
Mills should “handle” it. J.A. 1702. Mills subsequently texted Wright and provided him
with the photographs he had taken. Wright told Mills to “document everything.” Id. That
day or the following day, Wright contacted his superior, regional operations manager
Bottom, to discuss the lockout violation.
4.
The following morning, June 29—two days after the Union representation vote—
Petitioner suspended Molina, Johns, Mills, and C.W., pending investigation into the
8 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 9 of 31
lockout violation. 2 Petitioner assembled a local team to investigate the June 28 alleged
lockout violation. The investigation team included Wright, Collins, and Jeffrey Harmon
(“Harmon”) (regional manager for health and safety). The local investigation team
reported to a corporate review team (“CRT”) made up of Lane, Collins, and three other
corporate officials (the director of safety for Lafarge Holcim U.S., the general manager for
Petitioner’s mid-Atlantic region, and Petitioner’s in-house legal counsel).
After conducting two rounds of interviews, the local investigation team
recommended to the CRT that Molina, Alberto, and Johns all be terminated. The CRT
agreed with that recommendation. Collins came to the Millville Facility on July 12 and
notified Molina, Alberto, and Johns that they were terminated effective immediately. All
three termination letters included the following language:
The Company has taken this action because you violated the Company Safety Standards for Machine Guarding and Lock Out – Tag Out – Try Out (LOTOTO) when you removed guards from the M25 Conveyor Belt and were attempting to perform repairs without first locking out the equipment properly; thus placing you and others at risk for serious injury or death.
J.A. 1703. Johns’ termination letter also explained that Johns’ termination was additionally
based on the conclusion that Johns “provided false information during an investigation into
2 Petitioner did not initially suspend Alberto. But when Alberto’s role in the repair later came to light, he was also suspended pending the investigation.
9 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 10 of 31
the matter, which violates both our incident reporting protocols and our major work rules
for honesty.” 3 Id.
B.
Acting on an unfair labor practice charge filed by the Union, the Board’s General
Counsel filed a complaint (the “Complaint”) alleging that Petitioner violated sections
8(a)(1) and (3) of the NLRA by threatening and interrogating employees, creating the
impression that employees’ Union activities were under surveillance, and discharging
Molina in order to discourage Union membership. 4 An employer violates section 8(a)(1)
of the NLRA if “under all of the circumstances, the employer’s conduct . . . reasonably
tend[s] to coerce or intimidate employees” in the exercise of their protected rights. NLRB
v. Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th Cir. 1997). “Section 8(a)(3) makes
it an unfair labor practice for an employer to discriminate ‘in regard to hire or tenure of
employment to encourage or discourage membership in any labor organization.’” Salem
Leasing Corp. v. NLRB, 774 F.2d 85, 87 (4th Cir. 1985) (per curiam) (quoting 29 U.S.C.
§ 158(a)(3)).
3 After hearing his testimony, the ALJ determined that Johns had, during an interview with the local investigation team, falsely stated that he had not helped with the June 28 repair. In a later interview, and again under oath during trial, Johns admitted that he initially made false statements to Petitioner regarding his role in the repair. 4 Although the Complaint also alleged that Petitioner discharged Alberto and Johns in violation of NLRA section 8(a)(3), those allegations have been resolved by a partial settlement agreement and are not at issue in this appeal.
10 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 11 of 31
In January 2021, the parties appeared before the ALJ for an evidentiary hearing on
the merits. C.W. was called by Petitioner as a witness. Prior to the hearing, C.W. twice
met with Lane and Petitioner’s trial attorneys to prepare C.W.’s testimony. During the
initial meeting, C.W. was asked about “sides” of the Union campaign, “[l]ike who they
thought like was Union sides or like Company sides or . . . who associate [sic] with who.”
J.A. 779–80. During the second meeting, he was asked, “just pretty much like who I
thought was [on] what side.” J.A. 782–83. At trial, C.W. testified that he did not recall
Petitioner’s attorneys telling him he was not required to participate in the meetings or
reassuring him that Petitioner would not retaliate against him if he decided not to
participate. As a result, the Board’s General Counsel amended the Complaint to allege
that, in preparation for trial, Petitioner improperly interrogated employees about Union
memberships, activities, and sympathies.
Following the evidentiary hearing, the ALJ held that Petitioner violated sections
8(a)(1) and (3) of the NLRA. The ALJ determined that Petitioner violated section 8(a)(1)
when Mills told the second shift employees the “office” knew they were the
“troublemaker[s]” behind the Union campaign and that Mills “only had to be nice [to them]
for one more week.” J.A. 1710–12. The ALJ found the testimonies of Molina, Alberto,
and Rutherford credible as their recollection of Mills’ statements was “clear, certain, and
generally corroborative of one another.” J.A. 1698 Specifically, the ALJ found that despite
the employees’ stake in the litigation, their testimony regarding Mills’ menacing statements
about the Union petition and election were more compelling than Mills’ “exaggerated” and
11 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 12 of 31
inconsistent denials of the same. Id. The ALJ concluded Mills’ statements amounted to
anti-union animus.
The ALJ also held that Petitioner violated section 8(a)(1) by improperly
interrogating employees about Union affiliations on at least two occasions. First, the ALJ
concluded that Bottom’s one-on-one meeting with Johns in his truck during his work shift
prior to the Union election constituted a coercive interrogation considering the difference
in authority between Bottom, as regional manager, and Johns, a new hourly employee who
was only 18 years old and working his first job at the time of the interview. The ALJ noted
additional support for the coerciveness of the interview, including: (1) the fact that Johns
could not leave the conversation as Bottom had conducted the interview while riding in the
vehicle Johns was operating at work; (2) the length of the interview, which lasted as long
as 1.5 hours; and (3) that Bottom failed to provide Johns any assurance that the questions
were benign and he would not be retaliated against by Petitioner. And the ALJ held that
Petitioner violated section 8(a)(1) when it questioned C.W. about the “Union sides” at the
Millville Facility. J.A. 1709.
Regarding Molina’s lockout violation, the ALJ held that Petitioner violated
section 8(a)(3) by terminating Molina because he engaged in pro-Union activities. The
ALJ found prima facie evidence that Molina’s termination was motivated by anti-union
animus. The ALJ pointed out that the timing of Molina’s termination, which began with
his suspension two days after the Union vote, provided strong evidence of animus. The
ALJ also relied on Mills’ statements that the second shift employees were the
“troublemaker[s]” behind the Union campaign and that he only had to be nice for one more
12 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 13 of 31
week solidified that Molina’s termination, which began with Mills’ report of the lockout
violation, violated the NLRA.
The ALJ then found that Petitioner failed to show that absent any anti-union animus,
it would have terminated Molina anyway. The ALJ reasoned that Petitioner subjected
Molina to disparate treatment by using its lockout policy as grounds for his termination
when it had not previously terminated any employee at the Millville Facility for a lockout
violation. Based on the evidence, the ALJ concluded, “prior to the Molina incident,
[Petitioner] did not discipline employees at the Millville [F]acility for failing to lock out
equipment before removing guards” despite the official lockout policy. J.A. 1705. In
contrast, the record revealed that prior to the Union election supervisors actually
encouraged employees to skip lockout protocols because they were under pressure to
increase production.
The ALJ found that James Osborne (“Osborne”), a plant operator, credibly testified
that before Molina’s firing, “if a supervisor caught you with no lock on, he’d just tell you
to go put a lock on and it was over with. That’s between you and the supervisor. . . . [T]here
wasn’t nothing done about it.” J.A. 417–18. As a plant operator, Osborne was one of the
employees who would try out the machines after they were locked out to make sure they
were de-energized. Osborne testified that historically locking out was not a “zero-
tolerance” policy at the Millville Facility. J.A. 418. In further support of Petitioner’s lack
of enforcement of its lockout policy, Osborne testified that another violation occurred three
weeks after Molina’s incident, but when Osborne reported this incident to C.W., C.W. was
“unconcerned.” J.A. 1707. In that instance, it took Osborne reporting the violation to a
13 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 14 of 31
supervisor for the LOTOTO policy to be enforced. Based on this evidence, the ALJ held
that Petitioner fired Molina because of his Union activities.
Petitioner appealed the ALJ’s findings to the Board. The Board adopted the findings
and concluded that Petitioner violated section 8(a)(1) of the NLRA by intimidating the
second shift employees prior to the Union representation vote by making threats of
retaliation and holding coercive interrogations. The Board further found that Petitioner
violated section 8(a)(3) by terminating Molina for concerted activity and rejected
Petitioner’s defense that it would have fired Molina anyway because he violated lockout.
Regarding Molina’s termination specifically, the Board concluded that the General
Counsel proved Molina was engaged in protected Union activity and that Petitioner’s
decision to terminate him was motivated by anti-union animus. The Board accepted the
ALJ’s findings that the following facts supported a finding of anti-union animus: Mills’
threatening statements prior to the Union election, Molina’s firing coming close in time
following the successful Union election, and the enforcement of the LOTOTO policy
against Molina when it had not previously been grounds for termination at the Millville
Facility. The Board further held that Petitioner failed to meet its burden to prove that it
would have discharged Molina regardless of his Union activities. Based on these
violations, the Board ordered that Petitioner reinstate Molina and provide backpay for any
loss of earnings and other benefits.
Petitioner petitioned this court for review of the Board’s decision and order. And
the Board cross-petitioned for full enforcement of its order.
14 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 15 of 31
II.
Our review of the Board’s order “is limited, as we must uphold the [Board’s]
findings of facts if they are supported by substantial evidence, considering the record as a
whole.” Tecnocap, LLC v. NLRB, 1 F.4th 304, 312 (4th Cir. 2021) (internal quotation
marks omitted). “Substantial evidence” means “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Grand Canyon Mining, 116 F.3d
at 1044. It is “more than a scintilla of evidence, but less than a preponderance.” Sinai
Hosp. of Balt., Inc. v. NLRB, 33 F.4th 715, 722 (4th Cir. 2022). “Under this standard, we
can’t displace the [Board’s] choice between two fairly conflicting views of the evidence.”
S.C. State Ports Auth. v. NLRB, 75 F.4th 368, 378 (4th Cir. 2023).
We will also uphold the Board’s legal interpretations of the NLRA if they are
“rational and consistent with the Act,” even if the Board’s reading is not “the best way to
read the statute.” Id.
“Reviewing courts owe deference to factual findings, assessing them only to
determine whether they are supported by substantial evidence.” Eldeco, Inc. v. NLRB, 132
F.3d 1007, 1011 (4th Cir. 1997). “In conducting our review, we consider the entire record
before us, including the ALJ’s recommendation” and any contrary evidence. Blackburn v.
Martin, 982 F.2d 125, 128 (4th Cir. 1992) (citing Universal Camera Corp. v. NLRB, 340
U.S. 477, 488 (1951)). When factual findings “rest upon credibility determinations,” we
accept them absent “exceptional circumstances.” Eldeco, 132 F.3d at 1011 (“Exceptional
circumstances include cases where a credibility determination is unreasonable, contradicts
15 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 16 of 31
other findings of fact, or is based on an inadequate reason or no reason at all.” (internal
quotation marks omitted)).
III.
The Board held that Petitioner violated section 8(a)(1) of the NLRA on four
grounds: (1) threatening reprisal for protected activity; (2) creating a coercive impression
of surveillance; (3) interrogating employees regarding their Union support; and
(4) improperly questioning C.W. during trial preparation. We address each violation in
turn.
Petitioner argues Mills’ statements leading up to the Union representation vote were
too vague and ambiguous to amount to a violation of section 8(a)(1), but we conclude the
Board properly held that Mills made threats of reprisal.
An employer violates § 8(a)(1) by threatening reprisals against employees for
exercising rights guaranteed under section 157 of the NLRA. Equitable Gas Co. v. NLRB,
966 F.2d 861, 866 (4th Cir. 1992). This test is objective—“It makes no difference whether
the language or acts were coercive in actual fact,” nor “does it matter whether the employer
acted with anti-union animus.” Consol. Diesel Co. v NLRB, 263 F.3d 345, 352 (4th Cir.
2001) (internal quotation marks omitted). “Rather, the salient inquiry is whether the
conduct may reasonably tend to coerce or intimidate employees.” Alton H. Piester, LLC
v. NLRB, 591 F.3d 332, 336 (4th Cir. 2010) (internal quotation marks omitted). Because
“[d]eterminations concerning tendency to coerce are essentially for the specialized
16 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 17 of 31
experience of the Board,” we “grant considerable deference to the Board’s decisions on
such matters.” Id. (internal quotation marks omitted).
Substantial evidence supports the conclusion that Petitioner’s employees would
have reasonably understood Mills’ statements that they were “troublemaker[s]” and he
“only had [to] be nice for one more week” as threats of unspecified reprisal. J.A. 1712.
When considering the parties’ conflicting perspectives of Mills’ comments, the ALJ
reasoned that these statements, “standing alone, communicate[] that the employer
considers them undesirable employees because they exercised their statutorily protected
rights.” Id. (citing Corliss Resources, Inc., 362 NLRB 195, 195–96 (2015) (concluding
that “backstabbers” statement amounted to threat of reprisal)). We agree.
Mills’ statement that he “only had [to] be nice for one more week” implied future
retribution against the employees. J.A. 1712. When examining the evidence, the ALJ
emphasized, “A reasonable employee would see this remark as a threat especially since,
immediately after the election, Curtis Mills instigated the investigation that led to
‘troublemaker’ Molina being terminated after 16 years of virtually unblemished
performance as an employee.” Id. Again, we agree. 5
5 Petitioner argues that Rutherford’s testimony that Mills called Molina a troublemaker in the fall of 2018 does not support the complaint’s accusation that this occurred in “[a]bout June 2019,” J.A. 1224. Petitioner mischaracterizes Rutherford’s testimony. Rutherford testified that “[i]t may have been both,” and said in his affidavit that the statements occurred “[o]ver the months from 2018 leading up to the election.” J.A. 358. Petitioner does not point to any authority to show why such testimony does not fit into the complaint’s accusation.
17 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 18 of 31
Additionally, Petitioner challenges the ALJ’s conclusion that the employees’
accounts of the events leading up to the Union vote were more credible than those of Mills
and Bottom. The ALJ is uniquely situated to make credibility determinations, Eldeco, 132
F.3d at 1011, and the ALJ’s determination in this regard is accorded substantial deference,
absent exceptional circumstances. Sam’s Club v. NLRB, 173 F.3d 233, 240 (4th Cir. 1999)
(“Exceptional circumstances include those instances when a credibility determination is
unreasonable, contradicts other findings of fact, or is based on an inadequate reason or no
reason at all.” (internal quotation marks omitted)). The ALJ closely considered each
witness’s testimony and detailed why the employees were more credible than Petitioner’s
witnesses. For instance, the employees generally corroborated each other’s testimony of
Mills’ anti-union statements. Moreover, the ALJ did not blindly accept the employees’
testimony but instead disregarded their testimony where it was vague or inconsistent with
the record. And to the extent that Petitioner points to inconsistencies in the record to
undermine the ALJ’s credibility findings, it fails to make out exceptional circumstances
warranting reversal. Thus, the ALJ’s credibility findings are reasonable based on the
record before us.
The Board’s conclusion that Petitioner violated section 8(a)(1) by creating a
coercive impression of surveillance is likewise supported by substantial evidence.
An “employer’s observation of union activities can be reasonably construed as
excessive or coercive surveillance [where] it unreasonably chill[s] the exercise of the[]
employees’ Section 7 rights.” Intertape Polymer Corp. v. NLRB, 801 F.3d 224, 235 (4th
18 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 19 of 31
Cir. 2015) (quoting NLRB v. Southern Md. Hosp. Ctr., 916 F.2d 932, 938 (4th Cir. 1990)
(per curiam)). The question is whether the statements have a reasonable tendency to
intimidate. Id.
Here, Mills created the impression that employees’ Union activities were being
monitored when he told them that the “office” knew the second shift employees were the
“troublemaker[s]” behind the Union campaign. J.A. 1698. It would be reasonable for the
second shift employees to conclude that their Union activities had been under surveillance
“since they were holding their union meetings off-site and a number of the [second] shift
employees to whom the remarks were made had been circumspect about revealing their
views.” J.A. 1711.
The Board also appropriately held that Petitioner improperly interrogated
employees about their Union affiliations prior to the successful Union election. But
Petitioner argues that the ALJ improperly applied a subjective standard, which was in turn
adopted by the Board, when analyzing whether Petitioner’s interrogation of employees
regarding their Union support violated section 8(a)(1).
“Interrogation violates § 8(a)(1) only if it tends to coerce.” Standard-Coosa-
Thatcher Carpet Yarn, Inc. v. NLRB, 691 F.2d 1133, 1139 (4th Cir. 1982). In determining
the coerciveness of questioning or interrogation of employees about their Union
sentiments, we consider the totality of the circumstances, “including the history of
employer hostility to the union, the nature of information sought, the identity of the
questioner, and the place and method of questioning.” Intertape Polymer, 801 F.3d at 231
19 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 20 of 31
(internal quotation marks omitted). We also consider whether the questioner “explained
the purpose of [the] question” or provided “any assurances against retaliation,” and
“whether the employee was reluctant to discuss unionization.” Id. (citations omitted). The
standard is objective, see PPG Indus., Inc., 351 NLRB 1049, 1053 (2007). With respect
to Bottom’s interview of Johns, Johns was a new, young hourly employee being questioned
by Bottom, a regional level official. Johns testified that while he was operating a loader
vehicle the night before the election, Bottom entered the vehicle and accompanied Johns
for up to 1.5 hours. Johns testified that Bottom asked him how he “felt about the Union.”
J.A. 1699. The ALJ, and therefore the Board, did not err by considering whether an
employee of Johns’ level would feel coerced by a high-level official like Bottom in this
circumstance. Stoody Co., 320 NLRB 18, 18 (1995) (“The questioning of an employee
about his union sentiments by a high level supervisor in his office immediately after a
confrontation which led to discipline, with no proper reason or assurances given concerning
the questioning, reasonably tends to restrain, coerce, or interfere with statutory rights.”).
Further, in weighing Bottom’s testimony against that of the employees, the ALJ
detailed why Bottom’s version strained credibility. The ALJ noted, “[W]hile [Bottom
denied] that he asked employees how they were going to vote, [he] also stated that 75
percent of the employees he talked to . . . volunteered that they would vote against
unionizing.” J.A. 1699. The ALJ found it “improbable . . . that so high a percentage of
employees would reveal their voting intentions to Bottom without even being asked.” Id.
In fact, “attempts to conceal union support weigh in favor of finding an interrogation
20 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 21 of 31
unlawful.” Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1182 (2011). Further, there was
no corroboration of Bottom’s account of the interviews.
Again, on review, the ALJ’s credibility determinations are reasonable, and there are
no “extraordinary circumstances” that support disturbing them. Eldeco, 132 F.3d at 1011.
Finally, Petitioner argues that the Board lacked substantial evidence to find that
Petitioner improperly interrogated C.W. during trial preparation. Again, the record
supports the Board’s finding that Petitioner failed to provide the requisite safeguards while
interviewing employees in preparation for trial, in violation of NLRA section 8(a)(1).
Especially in the pretrial context, “a significant risk of coerciveness arises when an
employer questions employees about a union without informing them that they may, with
impunity, decline to respond.” Standard-Coosa-Thatcher Carpet Yarn, 691 F.2d at 1141.
To mitigate this risk, the Board has “established specific safeguards designed to minimize
the coercive impact of such employer interrogation.” Johnnie’s Poultry Co., 146 NLRB
770, 775 (1964), enf’t denied, 344 F.2d 617 (8th Cir. 1965). The employer:
must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees.
21 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 22 of 31
Id. “Compliance with the Johnnie’s Poultry safeguards is the minimum required to dispel
the potential for coercion . . . .” Standard-Coosa-Thatcher Carpet Yarn, 691 F.2d at 1141
(internal quotation marks omitted).
The record supports that Petitioner exceeded “the necessities of the legitimate
purpose” of its interview of C.W. “by prying into other union matters” in violation of
section 8(a)(1). Johnnie’s Poultry, 146 NLRB at 775. Specifically, during trial, when
asked whether Petitioner’s counsel asked C.W. “anything about what other employees
might have been involved in the Union campaign,” J.A. 779, C.W. testified that he was
asked, among other questions, “who [the employees] thought . . . was Union sides or like
Company sides . . . who associated with who I guess.” J.A. 774. After hearing the parties’
evidence and testimony, the ALJ determined that the record was vague and underdeveloped
as to whether Petitioner provided C.W. any of the required assurances at the time it
questioned him.
Petitioner argues that an understanding of the general Union support of employees
at the Millville Facility was relevant for trial preparation because the Complaint was not
limited to only the three LOTOTO violating employees. And Petitioner argues that at
minimum, knowledge of the Union affiliations of the terminated employees was relevant
because whether its supervisors knew of the employees’ Union activity at the time of the
discrimination (for instance, when Molina was terminated) can support or negate a finding
that Petitioner acted with anti-union animus. In other words, if no relevant supervisor knew
of the protected activity, then Petitioner could argue it could not have acted with animus.
22 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 23 of 31
Nevertheless, the Board agreed with the ALJ that Petitioner’s counsel exceeded the
necessities of questioning by prying into the Union sympathy of employees other than the
three employees who had been terminated. We do as well. Even if we were to accept that
counsel intended to question C.W. about only the three terminated employees, the record
supports that Petitioner crossed the line by asking C.W. questions about Union support and
affiliation in general. These questions were not relevant to trial, especially where
employees were reluctant to disclose their Union sympathies.
We now turn to the Board’s holding that Petitioner violated section 8(a)(3) of the
NLRA. Petitioner contends that the Board incorrectly held that the General Counsel
proved a prima facie case of discriminatory discharge in violation of section 8(a)(3).
Petitioner reasons that the Board improperly imputed a supervisor’s anti-union animus to
the CRT, the neutral decisionmaker, and without this animus, Petitioner argues no prima
facie showing was made.
Section 8(a)(3) prohibits an employer from discriminating “in regard to hire or
tenure” to discourage membership in a labor organization. 29 U.S.C. § 158(a)(3). To
succeed on an unlawful termination claim, the General Counsel must prove “(1) that the
employee was engaged in protected activity, (2) that the employer was aware of the
activity, and (3) that the activity was a substantial or motivating reason for the employer’s
decision.” FPC Holdings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995). On appeal,
23 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 24 of 31
Petitioner challenges the Board’s finding on prong three—that Petitioner’s decision to
terminate Molina was motivated by anti-union animus.
To address whether an employer acted with a discriminatory motive, we apply what
is commonly referred to as the Wright Line test. Id. (citing Wright Line, 251 NLRB 1083
(1980)). “The Wright Line test was designed to account for the fact that employers rarely
admit that they took adverse action against employees with the unlawful intent to
discriminate.” NLRB v. Air Contact Transp. Inc., 403 F.3d 206, 215 (4th Cir. 2005). To
begin, “the NLRB General Counsel must prove by a preponderance of the evidence that
anti-union animus was a substantial or motivating factor in the discharge.” Dorsey
Trailers, Inc. v. NLRB, 233 F.3d 831, 839 (4th Cir. 2000). Once established, “[t]he burden
then shifts to the employer to prove affirmatively that the same action would have been
taken even in the absence of the employee’s union activity.” NLRB v. CWI of Md., Inc.,
127 F.3d 319, 330 (4th Cir. 1997).
Regarding findings of animus, this court will “not engage in a de novo consideration
of the record, but instead defer to the Board’s conclusion that particular conduct
demonstrates antiunion animus unless the Board exercises the power conferred on it in an
arbitrary and unreasonable manner.” Tecnocap, 1 F.4th at 324 (internal quotation marks
omitted). Both direct and circumstantial evidence can support a finding of anti-union
animus. FPC Holdings, 64 F.3d at 942.
Here, substantial evidence in the record supports the Board’s finding of anti-union
animus. First, we agree with the Board’s conclusion that the timing of Molina’s
24 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 25 of 31
termination provides powerful evidence in support of anti-union animus. NLRB v. Frigid
Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991) (upholding anti-union animus based on
“the bare timing of [the employee’s] discharge”). Molina led the employees’ efforts to
unionize. And Petitioner knew it. Molina distributed union authorization cards and
literature, collected many of the signed cards, and served as one of two designated Union
election observers—a fact that Molina shared directly with Mills, Wright, and Lane. Prior
to the Union campaign, Molina had a nearly spotless disciplinary record at the Millville
Facility. For his entire 16 year career, Molina had received only one infraction, and it was
unrelated to safety or performance. And yet, two days after Molina led a successful Union
vote, Petitioner suspended and ultimately terminated him due to an alleged safety
infraction.
Mills’ statements in violation of section 8(a)(1) also amount to substantial evidence
of anti-union animus. The Board properly found evidence of anti-union hostility in Mills’
statements made one week before the election that “the office” knew Molina was the
“troublemaker” behind the Union campaign, and that Mills “only had to be nice for one
more week.” J.A. 1891–92.
Petitioner argues that the Board erred when it imputed Mills’ anti-union animus onto
the CRT as the neutral decisionmaker that terminated Molina. This argument fails
inasmuch as Mills’ efforts to report the employees for the LOTOTO violation, right after
the successful Union vote, was the impetus for the CRT proceedings that led to Molina’s
termination. And substantial evidence supports that, prior to the incident with Molina in
25 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 26 of 31
which Petitioner used the LOTOTO violation as grounds for termination, Petitioner had
not disciplined employees at the Millville Facility for failing to lock out equipment before
removing the guards. Babcock & Wilcox Co. v. NLRB, 683 F.2d 858, 859–60 (4th Cir.
1982) (“Disparity of treatment may be evidence that a company intentionally discriminated
against an employee because of his union views.”).
Anti-union animus can be imputed to a neutral decisionmaker where a supervisor,
having exhibited anti-union animus, “significantly contributed to the accomplishment of
the discharge.” NLRB v. Neuhoff Bros. Packers, Inc., 375 F.2d 372, 374 (5th Cir. 1967)
(concluding employer acted with anti-union animus where the neutral decisionmaker’s
discharge decision was made immediately after a supervisor who had previously threatened
to fire anyone who signed a Union card recommended termination, and then that supervisor
informed the employee of the discharge). Anti-union animus can also be imputed where
“the person effecting the discharge was shown to have had an adequate awareness of [the
employee’s] union loyalties and activities.” Id. at 374–75. That is precisely what happened
here.
First, not only were members of the CRT familiar with Molina’s Union support,
they were intimately involved in Petitioner’s campaign against the Union. The CRT
consisted of Lane and Collins, as well as Petitioner’s legal counsel, the manager for its
mid-Atlantic region, and its health and safety director. Prior to the investigation, after
learning of possible support for unionization at the Millville Facility, Lane and Collins
along with Wright met with the Millville Facility employees to urge them to vote against
the Union. During those meetings, Molina was “the only employee who stated that he
26 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 27 of 31
would vote in favor of the Union.” J.A. 1699 n.6. Molina also expressed his concerns
about Mills’ conduct as a supervisor to both Wright and Collins. And on the eve of the
election, Molina told Lane and Wright separately that he would serve as the Union’s
election observer for the vote. Wright and Collins later assisted with the local investigation
and recommended to the CRT that Molina be terminated.
Wright, Collins, and Lane’s knowledge of Molina’s Union activity distinguishes
these facts from those cases where we have declined to impute knowledge to the
decisionmaker. See Gestamp S.C., LLC v. NLRB, 769 F.3d 254, 263 (4th Cir. 2014)
(reversing assignment of knowledge where ALJ did not and could not “have made such a
finding on the record before him”); Firestone Tire & Rubber Co. v. NLRB, 539 F.2d 1335,
1337–39 (4th Cir. 1976) (reversing Board animus finding where company official who
made the decision to discharge had zero knowledge that employee was involved in union);
Delchamps, Inc. v. NLRB, 585 F.2d 91, 95 (5th Cir. 1978) (reversing Board animus finding
where the supervisor solely responsible for termination had no knowledge of protected
activity). It does not spare Petitioner that the CRT did not know that prior to Molina’s
termination lockout violations were going unpunished at the Millville Facility. It is enough
to impute anti-union animus onto the CRT where Mills, who the Board found exhibited
anti-union animus, significantly contributed to the accomplishment of Molina’s discharge.
Because substantial evidence supports anti-union animus and the Board did not act
arbitrarily when it imputed that animus onto the CRT, we affirm the Board’s holding that
Petitioner’s decision to terminate Molina was motivated by anti-union animus.
27 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 28 of 31
We turn next to whether Petitioner established its affirmative defense that, absent
any protected activity, Petitioner would have taken the same adverse action against Molina.
The Board rejected this defense, which Petitioner argues was in error.
Petitioner argues that it would have terminated Molina absent his protected activity.
Petitioner points to the fact that the CRT has “terminated every employee known to have
committed a LOTOTO violation corporate-wide for the previous 8 years––all 37 of them.”
Pet’r Opening Br. at 50. Petitioner further avers that the CRT lacked any knowledge that
prior to the termination of Molina LOTOTO violations at the Millville Facility had not
been reported or punished. This argument fails where, prior to the Union vote, Mills had
not reported a single Millville Facility employee to the CRT for a LOTOTO violation.
Once Molina led the successful Union campaign, Mills—who had exhibited anti-union
animus—capitalized on the first opportunity to report Molina for a safety violation. Under
these circumstances, the Board appropriately imputed Mills’ animus onto the CRT where,
absent Molina’s Union support, Mills would not have reported the LOTOTO violation that
led to Molina’s termination.
As stated in Boston Mutual Life Insurance, Co. v. NLRB, simply because “the
grounds given by the company, under company policy, could have constituted a sufficient
basis for dismissal . . . does not show that those grounds did lead to dismissal in this
instance.” 692 F.2d 169, 171 (1st Cir. 1982) (emphasis in original). The question more
appropriately is: would the stated grounds “have led to [the employee’s] dismissal in the
28 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 29 of 31
absence of his protected conduct”? Id. Here, based on the evidence presented to the ALJ,
the answer is no.
Substantial evidence supports the Board’s conclusion that Mills would not have
reported Molina for the LOTOTO violation absent Molina’s Union support. Despite
Petitioner’s formal policy, Petitioner’s actual practice at the Millville Facility was to
tolerate LOTOTO violations. Indeed, Petitioner could not “establish a single instance,
when, prior to discharging Molina, [Petitioner] had ever disciplined a Millville employee
in any way for violating lockout procedures.” J.A. 1706 (emphasis in original). And there
is evidence that even when lockout violation reports were made, the Millville Facility
supervisors did not take any disciplinary action. Osborne testified that just three weeks
after the Molina incident, Osborne reported another LOTOTO incident to C.W., but in this
instance, C.W. was unconcerned about the violation. See J.A. 410–11. In fact, it was not
until Osborne went over C.W.’s head to a supervisor that there was punishment for this
lockout violation. When considering Osborne’s testimony, the ALJ concluded that had
Osborne not escalated the most recent violation after Molina’s to a supervisor, “the
contractor’s lockout violation would have gone unpunished.” Id. Petitioner fails to show
that absent Molina’s Union affiliation, he would have been reported to the CRT for a
LOTOTO violation. Without Mills’ report, Molina would not have been terminated for his
alleged safety violation when the record shows that this policy had never before been
grounds for termination at the Millville Facility.
29 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 30 of 31
For these reasons, we affirm the Board’s holding that Petitioner’s reason for
terminating Molina was pretextual. Therefore, the Board properly held that Petitioner
violated NLRA section 8(a)(3) when it terminated Molina based on his Union support.
C.
Petitioner argues that even if the Board properly found that it violated NLRA
section 8(a)(3) by terminating Molina, the Board exceeded its authority when it ordered
Petitioner to offer Molina reinstatement and backpay. But the law is clear, and it is to the
contrary.
Once an unfair labor practice has been found, section 10(c) of the NLRA grants the
Board the authority to issue an order requiring the violator to “cease and desist from such
unfair labor practice, and to take . . . affirmative action including reinstatement of
employees with or without backpay.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898 (1984)
(quoting 29 U.S.C. § 160(c)). The Supreme Court has read section 10(c) to “vest[] in the
Board the primary responsibility and broad discretion to devise remedies that effectuate
the policies of the [NLRA], subject only to limited judicial review.” Id. at 898–99. “The
Board’s chosen remedy in a backpay case must be enforced unless it is arbitrary,
capricious, or manifestly contrary to the statute.” NLRB v. Pepsi Cola Bottling Co. of
Fayettville, Inc., 258 F.3d 305, 310 (4th Cir. 2001) (internal quotation marks omitted). We
are nevertheless “obligated to scrutinize the whole record, taking into account whatever
fairly detracts from the evidence relied upon by the [Board].” Id. (internal quotation marks
omitted).
30 USCA4 Appeal: 22-1421 Doc: 64 Filed: 01/08/2024 Pg: 31 of 31
Section 10(c) only precludes the Board from ordering reinstatement and backpay as
remedies where an employer can prove that its actions would have been the same
“regardless of [its] forbidden motivation.” NLRB v. Transp. Mgmt. Corp., 462 U.S. 393,
401 (1983), abrogated on other grounds by Director, Off. of Workers’ Comp. Programs v.
Greenwich Collieries, 512 U.S. 267 (1994). There is no indication “that [section 10(c)]
was designed to curtail the Board’s power in fashioning remedies when the loss of
employment stems directly from an unfair labor practice.” Fibreboard Paper Prods. Corp.
v. NLRB, 379 U.S. 203, 217 (1964).
For the same reasons discussed above in the analysis of Petitioner’s affirmative
defense, Petitioner cannot claim it would have removed Molina absent its “forbidden
motivation.” Transp. Mgmt., 462 U.S. at 401. The causal link between Molina and his
termination was his protected activity and not his LOTOTO violation as demonstrated by
the timing of his discharge in relation to the Union election, the disparate enforcement of
the lockout policy against Molina, and the anti-union statements made by Mills. Therefore,
section 10(c) does not bar reinstatement or backpay. Cooper Tire & Rubber Co. v. NLRB,
866 F.3d 885, 893 (8th Cir. 2017) (“Since [employee] was discharged for a ‘prohibited
reason,’ [employer] did not fire [employee] ‘for cause’ under Section 10(c).”).
IV.
For the foregoing reasons, we deny the petition for review and grant the Board’s
cross-application for enforcement of its order in its entirety.
PETITION FOR REVIEW DENIED; CROSS-APPLICATION FOR ENFORCEMENT GRANTED