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UNPUBLISHED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

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO, CLC,

Intervenor, v.

BARDON, INC., d/b/a Aggregate Industries,

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Petition for review denied and cross-application for enforcement granted by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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,

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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

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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.

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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.

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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

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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

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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.

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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.,

(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,

(4th Cir. 1985) (per curiam) (quoting

(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.

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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

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inconsistent denials of the same.

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

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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

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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.

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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,

(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,

. It is “more than a scintilla of evidence, but less than a preponderance.” Sinai

Hosp. of Balt., Inc. v. NLRB,

(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,

(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.”

“Reviewing courts owe deference to factual findings, assessing them only to

determine whether they are supported by substantial evidence.” Eldeco, Inc. v. NLRB,

(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,

(4th Cir. 1992) (citing Universal Camera Corp. v. NLRB,

(1951)). When factual findings “rest upon credibility determinations,” we

accept them absent “exceptional circumstances.” Eldeco,

(“Exceptional

circumstances include cases where a credibility determination is unreasonable, contradicts

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other findings of fact, or is based on an inadequate reason or no reason at all.” (internal

quotation marks omitted)).

III.

A.

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.

1.

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,

, 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,

, 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,

(4th Cir. 2010) (internal quotation marks omitted). Because

“[d]eterminations concerning tendency to coerce are essentially for the specialized

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experience of the Board,” we “grant considerable deference to the Board’s decisions on

such matters.”

(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.”

(citing Corliss Resources, Inc.,

, 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.”

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.

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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,

, and the ALJ’s determination in this regard is accorded substantial deference,

absent exceptional circumstances. Sam’s Club v. NLRB,

, 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.

2.

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,

(4th

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Cir. 2015) (quoting NLRB v. Southern Md. Hosp. Ctr.,

(4th Cir. 1990)

(per curiam)). The question is whether the statements have a reasonable tendency to

intimidate.

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.

3.

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,

, 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,

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(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.”

(citations omitted). The

standard is objective, see PPG Indus., Inc.,

, 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.,

, 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.”

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,

, 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,

.

4.

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.,

, 775 (1964), enf’t denied,

(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

“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.

B.

1.

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.

(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,

, 942 (4th Cir. 1995). On appeal,

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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,

(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.,

(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,

(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.,

(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,

(internal quotation marks

omitted). Both direct and circumstantial evidence can support a finding of anti-union

animus. FPC Holdings, 64 F.3d at 942.

2.

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.,

(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.

3.

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,

, 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.,

(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.”

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,

(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,

,

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,

(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

4.

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.”

(1st Cir. 1982) (emphasis in original). The question more

appropriately is: would the stated grounds “have led to [the employee’s] dismissal in the

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absence of his protected conduct”?

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.”

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.

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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,

(1984)

(quoting

(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.”

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.,

(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].”

(internal quotation marks

omitted).

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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.,

(1983), abrogated on other grounds by Director, Off. of Workers’ Comp. Programs v.

Greenwich Collieries,

(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,

(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.,

. 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,

(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

31