REVISED, April 6, 2001

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60439

VALMONT INDUSTRIES, INC.,

Petitioner-Cross-Respondent,

VERSUS

NATIONAL LABOR RELATIONS BOARD,

Respondent-Cross-Petitioner.

Petition for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board

March 12, 2001

Before WIENER and STEWART, Circuit Judge and ROSENTHAL, District

Judge.*

ROSENTHAL, District Judge:

Valmont Industries, Inc. petitions for review of the National

Labor Relations Board’s Decision and Order finding unfair labor

practices. The Board cross-petitions for enforcement of its Order.

The Board’s Order affirmed the decision of an administrative law

judge that Valmont violated sections 8(a)(1) and (a)(3) of the

* District Judge for the Southern District of Texas, sitting by designation. National Labor Relations Act,

(a)(1) and (a)(3), by

giving two employees written warnings motivated by antiunion

animus; discharging one of those employees and issuing a written

warning to another for asking a coworker if he had signed a union

card, in violation of the company’s no-solicitation policy; and

orally warning a fourth employee for distributing union literature,

also in violation of the no-solicitation policy.1 One member of

the Board dissented in part, finding insufficient evidence that the

first two warnings were motivated by antiunion animus and

concluding that because the discharged employee had violated a

valid no-solicitation rule, he was properly fired.

This court has carefully reviewed the record as a whole. See

Asarco, Inc. v. NLRB,

(5th Cir. 1996). Based on the

facts disclosed in the record, and on the deferential review the

law requires this court to apply, this court grants enforcement as

to part of the Board’s Order and denies it in part. Specifically,

we conclude that the record provides substantial evidence that

Valmont violated sections 8(a)(3) and (a)(1) by issuing a written

warning to the employee who asked her coworker if he had signed a

union card and violated section 8(a)(1) by issuing an oral warning

to the employee who distributed leaflets. We also conclude that

substantial evidence supports the finding that Valmont violated

1 The ALJ also considered a charge that Valmont engaged in impermissible surveillance on August 20, 1997. After the hearing, General Counsel for the NLRB conceded that the case for surveillance was not made. The ALJ dismissed that charge.

2 section 8(a)(1) by firing the employee for violating the no-

solicitation rule. We grant enforcement of the Board’s Order with

respect to these findings. However, we do not find that

substantial evidence supports the finding that Valmont violated

sections 8(a)(3) and (a)(1) by issuing the first two written

warnings. Nor do we find substantial evidence to support the

finding that the firing or the oral warning violated section

8(a)(3). We deny enforcement of the Board’s Order with respect to

these findings and remand to the Board to modify its Order in

conformity with this opinion.

I. Background

Petitioner, Valmont Industries, Inc., manufactures steel poles

at a plant in Brenham, Texas. The United Steelworkers of America,

AFL-CIO, CLC (the “Union”) supervised an unsuccessful

organizational campaign among Valmont’s employees, ultimately

losing an NLRB-conducted election in September 1996.

After this campaign, and in part because of it, Valmont

instituted a no-solicitation rule. That rule provided:

Distribution of literature during the working time of any employee involved is prohibited. Working time does not include breaks or meal times. Distribution of literature is also prohibited in working areas.

Solicitation by employees on their working time or on the working time of any employee solicited is prohibited.

3 The parties agree that the no-solicitation policy is facially

valid.

In late July 1997, the union began a second effort to organize

Valmont’s employees. The disciplinary actions at issue in this

suit issued shortly after the start of this second organizational

campaign.

A. Valmont’s Warning of Lewis and Sharp

On Monday, July 28, 1997, Michael Sharp, an employee in the

shipping department, took a malfunctioning machine to the plant’s

maintenance shop for repair. The maintenance shop is at the end of

a building that also contains the large pole and small pole

manufacturing departments. Sharp went first to the maintenance

shop, then to the large pole department, where Edgar Lewis worked.

Sharp found Lewis and they had a brief conversation. It is

undisputed that Sharp’s ordinary work duties would not take him to

Lewis’s department or work station.

Sharp later explained that when he discovered he did not have

a pen needed to complete a maintenance request form, he went to

find his friend Lewis to borrow one. Lewis walked to his nearby

locker to find a pen. Sharp testified that he filled out the

maintenance request form, entering the time as “8 a.m.,” and

including the date and his signature, and went back to the

maintenance shop. Lewis and Sharp both testified that their

conversation lasted less than two minutes and consisted of Sharp

4 asking for, receiving, and returning a pen to complete the

maintenance form.

Foreman Sam Gregg and leadman Billy Dotson observed the

conversation between Lewis and Sharp. In their later testimony

before the ALJ, both denied having seen Lewis hand Sharp a pen or

any other item. Dotson and Gregg testified that the conversation

between Lewis and Sharp lasted between three and five minutes. As

they watched the conversation, Gregg commented to Dotson “[a]bout

what [they] were seeing . . . about [Lewis] and [] Sharp’s being

together.” Gregg privately speculated that the two were talking

about the union. Valmont management and supervisors knew that

Lewis, and, to a lesser extent, Sharp, had been active in the 1996

organizational campaign. Neither Gregg nor Dotson was able to hear

what Lewis and Sharp said.

Later that day, Gregg reported to Allen Abney, the

manufacturing manager, that he had seen Lewis and Sharp talk for “a

few minutes” and that they stopped talking when they noticed Gregg

and Dotson watching. Gregg did not mention his speculation that

Lewis and Sharp were talking about union activities.

The second union organizational campaign began on Thursday,

July 31, three days after Lewis and Sharp had their brief

conversation. The campaign began with the union’s distribution of

cards to members of an in-plant organizing committee, including

Edgar Lewis. The committee members were to obtain signatures on

the cards and return them to union officials. Lewis took part in

5 visiting employees at their homes in early August to talk to them

about the organizational campaign. There is no evidence in the

record that Valmont management knew of these visits. The record

discloses that union supporters began distributing leaflets in the

plant beginning on approximately August 10 and that leafleting at

the plant entrance began on August 19.

On August 1, Lewis received a final written “corrective

action” for “wasting company time.” The written warning, read by

Abney in a meeting attended by Gregg, Dotson, and the human

resources manager, Roger Bower, identified the date of violation as

the week of July 28 and described the violation as follows:

Edgar Lewis has been observed numerous times wasting company time by not returning from break on time, talking to other employees at his work station during working time, leaving his assigning [sic] work station and distracting other employees while they are working. We counseled with Edgar on 11-27-96 regarding this unexceptable [sic] behavior. This behavior is a violation of company policy which states that “intentional waste of time, loitering, or leaving an assigned work area during work hours without authorization”, is not permitted. It is important that Edgar understands [sic] that waste of company time will not be tolerated and any other violation of company policy will result in further corrective action up to and including termination from employment. This is a final notice.

Lewis asked why he was receiving a final written warning when he

had received no written warning in the previous six months.

Valmont’s written progressive discipline policy provides for

discussion, a documented verbal reprimand, a written reprimand,

6 final notice, then termination. Abney responded that the

discipline was for a repetition of the conduct that had led to the

final written warning Lewis received in November 1996. Lewis

pointed out that under Valmont’s policy, the six-month probation

period after a final warning had elapsed two months earlier. Lewis

asked how he could be accused of “loafing” when his production

level was higher than that of the majority of employees in similar

positions. Abney did not respond, other than by stating that Lewis

had been seen leaving his work station to talk to other employees

and talking to employees who visited his work station.

In the hearing before the ALJ, Abney testified that Gregg’s

oral report that Lewis and Sharp had talked for a few minutes on

July 28 formed the basis for the final written corrective action

issued to Lewis on August 1, 1997. Abney testified that during the

August 1 meeting, Lewis admitted to his July 28 conversation with

Sharp. Lewis disputed this testimony, asserting that neither

Sharp’s name nor a specific conversation was mentioned during the

August 1 meeting. The written corrective action form does not

refer to a conversation with Sharp. The ALJ credited Lewis’s

version of the meeting and found that Abney did not refer to Sharp

or the July 28 conversation at Lewis’s workstation in explaining

why Lewis had received the final written warning.

Abney testified that he and Bower decided to give Lewis a

written final warning on August 1, 1997, because Abney had orally

counseled Lewis about “disrupting employees while they [were]

7 working and soliciting” in April or May 1997. The ALJ noted that

the written corrective action form did not mention oral warnings

issued to Lewis in April or May 1997 and found that Abney and Bower

did not refer to prior oral counseling when they gave Lewis the

form in the August 1 meeting. Lewis testified that he had received

no discipline since the November 27, 1996 written warning. The ALJ

accepted Lewis’s version as credible. However, the ALJ’s treatment

of the testimony relating to the prior oral counseling is

inconsistent, as explained more fully below.

On August 5, 1997, Sharp also received a warning in the form

of a written corrective action. The warning accused Sharp of

“loafing” by leaving his assigned workstation. Sharp asked Bower

for the name of his accuser; Bower did not respond. Sharp told

Bower that he thought that the source was Dotson, who Sharp

remembered seeing when he went to borrow Lewis’s pen to fill out

the maintenance request form. Sharp explained the reason he had

gone to Lewis’s workstation and told Bower to check with Sharp’s

leadman and to pull the maintenance request form itself for

corroboration. Bower proceeded to issue Sharp the written warning.

Later that day, Bower reviewed the maintenance request form

that Sharp had completed on July 28. Bower noted the time Sharp

wrote on the form, 8:00 a.m. The following day, August 6, Abney

asked Gregg to provide a written statement of his observations of

the July 28 exchange between Sharp and Lewis. Gregg did so. He

testified that Abney also asked Dotson to provide a written

8 statement on August 6. Dotson testified inconsistently that he had

already prepared a written statement on his own initiative on the

date of the incident, July 28. The ALJ found that Dotson’s

testimony that he had prepared his statement on the day he saw

Lewis and Sharp talking was not credible.

In their written statements, both Dotson and Gregg placed the

time of the conversation they observed at 8:15 a.m., after Sharp

had filled in the maintenance form. However, in their testimony

before the ALJ, neither Gregg nor Dotson could recall the time of

the conversation between Lewis and Sharp. Gregg and Dotson both

testified that they did not look at their watches or a clock and

had no way to determine the time or length of the conversation they

reported. Their testimony was inconsistent with their written

statements, which did state the time and length of the conversation

they had witnessed. Both their testimony and written statements

varied from Lewis’s and Sharp’s consistent accounts that they

talked for less than two minutes, before Sharp submitted the

maintenance request form at 8:00 a.m., and about finding a pen to

complete that form. The ALJ found Gregg and Dotson to lack

credibility and gave “no weight” to the time recorded in Dotson’s

and Gregg’s written statements.

The ALJ credited Lewis’s and Sharp’s account of their July 28

conversation, finding that they talked for one to two minutes about

Sharp’s need for a pen to complete the maintenance request form, a

work-related topic. It is undisputed that engaging in a work-

9 related conversation on working time is not a valid basis for

discipline at Valmont.

B. Valmont’s Discharge of Lewis and Warning of Fontenot

On August 19, 1997, shortly after the distribution of union

literature at the plant had begun, Valmont suspended Lewis’s

employment and issued a warning to another employee, Laura

Fontenot. A few days after Lewis’s suspension, Valmont terminated

his employment. Lewis was suspended, then fired, and Fontenot was

warned, for violating Valmont’s rule against solicitation on

“working time.” Valmont alleged that Lewis and Fontenot had each

asked Lonny Hutchison, a leadman, if he had signed a union card.

Many of the facts leading to the discipline were vigorously

disputed before the ALJ. The ALJ credited Lewis’s and Fontenot’s

accounts and rejected the contradictory testimony Hutchison

provided.

In their testimony before the ALJ, Lewis and Hutchison

disputed where their conversation took place, when it took place,

and whether Hutchison was working when he and Lewis talked. Lewis

testified that on August 12, 1997, he began his break at 1:30 p.m.,

when a signal sounded the start of the shift-wide break for the day

shift workers. As Lewis left the restroom, he ran into Hutchison

in an aisle between production areas, as Hutchison was leaving the

break room.

10 Lewis had previously given Hutchison a union card, at

Hutchison’s request. When Lewis encountered Hutchison, Lewis said,

“I guess you decided not to sign a card.” Hutchison replied that

he had not yet made up his mind. Lewis asked Hutchison to let him

know when Hutchison did decide; Hutchison said he would. The two

men walked off in opposite directions. Lewis testified that

because the shift-wide break had begun, he could ask about the

union card without violating the rule against soliciting during

working time.

In one of two written statements Hutchison provided to Abney,

Hutchison stated that Lewis had stopped him as Hutchison reached

the press in the small pole department and asked him if he had

signed a union card. In his first written statement, Hutchison

wrote, “To my knowledge, this took place after break, but I am not

certain.” In a second written statement, Hutchison stated that his

conversation with Lewis occurred at approximately 1:35 p.m., which

was during the official shift-wide break. In his second statement,

Hutchison stated that Lewis had stopped him after Hutchison left

the break room in the area of the small pole press.

In his testimony before the ALJ, Hutchison contradicted his

already inconsistent written statements. He admitted that his

conversation with Lewis occurred during the regularly scheduled

shift-wide break, as Lewis had described. He also admitted that

the conversation occurred in the aisle near the restroom, as Lewis

had stated.

11 Hutchison did consistently maintain that he was not on break

himself when he and Lewis had their brief exchange. Hutchison,

ordinarily a day-shift worker, was working an extended evening

shift, beginning at 1:00 p.m. and continuing to 11:00 p.m. Under

Valmont policy, an employee’s first break occurs two hours into a

shift. On that date, Hutchison’s first break was not until 3:00

p.m.; he did not join the day-shift break period at 1:30 p.m.

However, at 1:30 p.m., Hutchison had gone to the break room to look

for another employee, who was on break. Hutchison had just walked

out of the break room when he encountered Lewis in the aisle.

On August 12, Hutchison also talked to Laura Fontenot, a saw

operator. The discussion began with Fontenot questioning Hutchison

about disposing of some scrap metal, then proceeded to an exchange

about signing a union card. Fontenot and Hutchison gave different

accounts of their discussion about the union card in their

testimony before the ALJ.

Hutchison asserted that Fontenot told him that she had used

the scrap metal as a pretext for coming to Hutchison’s work area

for the specific purpose of asking him to sign a union card.

Hutchison accused Fontenot of asking him to pretend that she was

authorized to be in his work area. In his first written statement,

Hutchison stated that the conversation occurred on August 15, at

2:45 p.m., which would have been before the horn sounded to signal

ten minutes left on the shift. In a second written statement,

Hutchison dated the conversation as taking place on August 12. In

12 the written statements, Hutchison stated that when Fontenot asked

Hutchison if he had signed a union card, Hutchison said that he

would not. Fontenot asked why he had not signed a card; Hutchison

responded that Valmont did not need a union. Fontenot told

Hutchison that he could sign a union card and still vote against

the union in the election.

Fontenot disputed Hutchison’s account. Fontenot consistently

told her management and the ALJ that on August 11, Fontenot’s

leadman instructed Fontenot to ask Hutchison to take care of some

scrap metal. On August 12, after the horn sounded signaling ten

minutes remaining in the shift, Fontenot confirmed with her leadman

that he wanted her to have Hutchison take care of the scrap metal.

Fontenot then went to the small pole department to talk to

Hutchison. They talked about the scrap metal as they walked toward

the aisle in the small pole department. Hutchison agreed to handle

the scrap metal. At the aisle, Fontenot asked Hutchison if he had

signed a union card. When Hutchison said he had not, Fontenot

said, “great,” and continued toward the timeclock area to clock

out.

A few days later, Hutchison reported his conversations with

Lewis and Fontenot to Abney, complaining about disruption to

himself and other employees. Based on Hutchison’s report, Abney

decided to discipline both Lewis and Fontenot for violating

Valmont’s no-solicitation policy.

13 On August 19, Lewis met with Gregg, his foreman, as well as

Abney and Bower. Bower told Lewis that he had been seen leaving

his work station to solicit for the union between 1:30 p.m. and

2:00 p.m. on August 12. Lewis denied the accusation. Bower told

Lewis that he was on indefinite layoff pending investigation.

Lewis asked who had seen him soliciting, but received no response.

On August 22, Lewis was called to the plant, where he met with

Abney and Bower. Bower read from a written corrective action form,

stating that on August 12, at around 1:30 p.m., Lewis had entered

the small pole production area and engaged in a nonwork-related

conversation with another employee while that employee was on

working time. Lewis again denied the accusation. Lewis asked the

source; Abney declined to provide it, stating that he had to

protect the identity of the person. Lewis pointed out that 1:30

p.m., the time stated in the corrective action, was in fact break

time. Abney responded that even if Lewis was on break, he had been

in a work area at the time of the conversation. Abney’s response

reflected his misunderstanding of the no-solicitation policy as

prohibiting oral solicitation outside the break room, restrooms, or

lunch room, at any time. It is undisputed that the no-solicitation

policy did not impose such a broad prohibition.

On August 19, Bower and Abney issued Fontenot a written

corrective action form, stating that Fontenot had left her work

station and solicited an employee during working hours and in a

working area, and had misrepresented where she was going and why.

14 Fontenot explained that her leadman had assigned her the task of

talking to Hutchison about the scrap metal. She denied that she had

solicited anyone, insisting that she had merely asked Hutchison

whether he had signed the union card at the end of their work-

related conversation. Fontenot also pointed out that she did not

even go to Hutchison’s work area until after the ten-minute horn

sounded. Fontenot gave consistent testimony before the ALJ.

The ALJ credited the testimony Lewis and Fontenot provided and

found Hutchison to lack credibility. The ALJ specifically found

that Lewis and Hutchison had their brief exchange in the aisle,

near the restroom, while Lewis was on break, just after Hutchison

had exited the break room. The ALJ concluded that although

Hutchison may not have regarded himself as on break, he was not

working. Instead, he was “wandering around the plant looking for

a coworker who was on break.” The credited evidence led the ALJ to

conclude that Lewis did not violate the no-solicitation rule,

because that rule permits oral solicitation on nonworking time,

even in a work area. The ALJ emphasized that Valmont supervisors

consistently misunderstood the rule to prohibit solicitation in

working areas, even on nonworking time.

As to Fontenot, the ALJ noted the discrepancy between

Hutchison’s various statements regarding the date of his

conversation with Fontenot. The ALJ also rejected Hutchison’s

contention that Fontenot had contrived a pretext for coming to his

work area. The ALJ found that Fontenot only asked Hutchison if he

15 had signed a union card and neither asked him to sign a card nor

told him that he could sign a union card and later vote against the

union. Based on the credited testimony, the ALJ found that Fontenot

did not misrepresent her purpose or engage in solicitation.

C. The Warning of Niemeyer

Grady Niemeyer worked the night shift at Valmont. At 7:00

a.m. on August 19, 1997, when the night shift ended, Niemeyer went

outside the building and began distributing union leaflets to

employees as they left. After all the employees appeared to have

left, Niemeyer reentered the building to retrieve an item he had

forgotten. When he went back into the building, Niemeyer saw

another employee standing inside the entryway, in an area where the

timeclock, a bulletin board, and a vending machine were located.

Niemeyer handed the employee a leaflet. That employee had already

begun his shift.

Foreman Sam Forman observed the incident from his seat at a

desk in the entryway, near the timeclock. Forman told Niemeyer

that he had violated the no-solicitation rule prohibition against

distributing literature in work areas. Forman said that “anywhere

inside the building [wa]s a work area.” Niemeyer responded that he

did not know that he was doing anything wrong and would only

distribute literature outside the building in the future.

On August 22, 1997, Niemeyer received an oral corrective

action for distributing literature in a work area. Niemeyer

16 challenges whether the entry area was a work area for the purpose

of the no-solicitation rule.

II. THE NLRA AND THE STANDARD OF REVIEW

Section 7 of the National Labor Relations Act guarantees an

employee the right to engage in “concerted activities for the

purpose of collective bargaining or other mutual aid or

protection.”

. Section 8(a)(1) protects the

employee’s right to engage in concerted activities by making it an

unfair labor practice for an employer “to interfere with, restrain,

or coerce employees in the exercise of the rights guaranteed in [§

7].” Section 8(a)(3) provides that “[i]t shall be an unfair labor

practice for an employer . . . by discrimination in regard to hire

or tenure of employment or any term or condition of employment to

encourage or discourage membership in any labor organization.”

(a)(1) and (3).

An employer violates sections 8(a)(1) and 8(a)(3) by

disciplining or discharging an employee because of his union

activity. See NLRB v. Adco Electric, Inc.,

(5th Cir.

1993); Huck Mfg. Co. v. NLRB,

(5th Cir. 1982).

However, an employer’s action that violates section 8(a)(1) does

not necessarily violate section 8(a)(3). A section 8(a)(1)

violation does not require a showing of antiunion animus; a section

8(a)(3) violation does. Compare Mobil Exploration & Producing

U.S., Inc. v. NLRB,

(5th Cir. 1999) (employer’s

17 conduct, rather than motive, is controlling in determination of

section 8(a)(1) violation) with Asarco,

(finding

of antiunion animus necessary to finding of section 8(a)(3)

violation).

Under section 8(a)(3), “[t]he NLRB must establish a prima

facie case by proving that union animus was a motivating factor in

the employer’s decision to [discipline] the employee.” Asarco v.

NLRB,

(5th Cir. 1996). “Generally, an employer

violates § 8(a)(3) only if its actions are motivated by anti-union

animus.” Goldtex Inc. v. NLRB,

(4th Cir. 1994).

“Unwise and even unfair decisions to discharge employees do not

constitute unfair labor practices unless they are carried out with

the intent of discouraging participation in union activities.

Accordingly, determining whether the employer’s actions were

motivated by anti-union animus is necessarily the crucial first

step in a § 8(a)(3) case.” Id.; see also Carleton College v. NLRB,

(8th Cir. 2000); USF Red Star, Inc. v. NLRB,

(4th Cir. 2000).

A reviewing court will uphold the Board’s decision if it is

reasonable and supported by substantial evidence on the record

considered as a whole. See Mobil Exploration,

;

NLRB v. Thermon Heat Tracing Serv., Inc.,

(5th

Cir. 1998). Substantial evidence is “such relevant evidence that

a reasonable mind would accept to support a conclusion.” Universal

Camera Corp. v. NLRB,

(1951); see also Thermon

18 Heat,

. Under the substantial evidence standard of

review, “the ALJ’s decision must be upheld if a reasonable person

could have found what the ALJ found, even if the appellate court

might have reached a different conclusion had the matter been

presented to it in the first instance.” Standard Fittings Co. v.

NLRB,

(5th Cir. 1988). The standard of review

of the Board’s findings of fact and application of the law is

deferential, as both parties recognize. “Recognizing the Board’s

expertise in labor law, [the court] will defer to plausible

inferences it draws from the evidence, even if we might reach a

contrary result were we deciding the case de novo.” Thermon Heat,

.

This court is bound by the credibility choices of the ALJ,

unless: (1) the choice is unreasonable; (2) the choice contradicts

other findings of fact; (3) the choice is based on inadequate

reasons or no reasons; or (4) the ALJ failed to justify the choice.

See Asarco,

. Absent extraordinary circumstances,

a reviewing court does not substitute its view of credibility for

that of the ALJ or weigh the credibility of one witness against

another and search for contradictory inferences. Id.; see also USF

Red Star,

; Albertson’s, Inc. v. NLRB,

(10th Cir. 1998). This court will also “defer to

plausible inferences [the ALJ] drew from the evidence, even though

we might reach a contrary result were we deciding this case de

novo.” Blue Circle Cement Co., Inc. v. NLRB,

(5th

19 Cir. 1994) (internal quotation omitted). The Board’s conclusions

of law are also entitled to deference if they have a reasonable

basis in the law and are not inconsistent with the Act. See NLRB

v. Yeshiva Univ.,

(1980).

In this case, the NLRB adopted the ALJ’s findings that Valmont

violated the Act by issuing written corrective actions to Lewis and

Sharp based on their prior support for the union and Valmont’s

belief that they were talking about the union during work time; by

discharging Lewis for soliciting Hutchison; by issuing a written

corrective action to Fontenot for asking Hutchison if he had signed

a union card; and by issuing an oral corrective action to Niemeyer

for distributing union literature in a nonworking area. The ALJ and

the Board found a section 8(a)(3) violation and a derivative, but

not an independent, section 8(a)(1) violation, in Valmont’s

warnings to Lewis and Sharp. The ALJ and the Board found a

violation of both section 8(a)(1) and section 8(a)(3) as to the

firing of Lewis and the warnings issued to Fontenot, Lewis, Sharp

and Niemeyer.

III. Discussion

A. The Written Warnings Issued to Lewis and Sharp

The ALJ based his finding that the written warnings to Lewis

and Sharp violated section 8(a)(3) and, derivatively, section

8(a)(1), on circumstantial evidence that Valmont disciplined Lewis

and Sharp because of their known previous support for the union and

20 the belief that they were talking about the union on July 28. The

ALJ specifically relied on three categories of circumstantial

evidence: 1) evidence showing that Valmont gave inconsistent

reasons for issuing the warning to Lewis; 2) evidence showing that

Valmont failed to conduct a meaningful investigation before issuing

the warnings; and 3) evidence that the warnings were more severe

discipline than Valmont had issued to other employees for conduct

similar to the alleged offenses. The issue is whether substantial

evidence from the record as a whole supports the finding that

Valmont was motivated by antiunion animus.

In analyzing the alleged section 8(a)(3) violation, the ALJ

applied the burden-shifting analysis set out in Wright Line,

(1980), enf’d.

(1st Cir. 1981). The

General Counsel of the NLRB must prove, by a preponderance of the

evidence, that antiunion animus was a substantial factor in the

employer’s decision to discipline the employee.2 See Thermon Heat,

; Asarco,

; NLRB v. Mini-Togs, Inc.,

2 Several courts have suggested that the term “prima facie case” is inappropriate in this context. We agree. The term “prima facie case” is more often used for the allocation of burdens of proof in Title VII cases. However, the General Counsel’s burden is not the same as that of the plaintiff in a Title VII case. The General Counsel must do more than simply support an inference that protected conduct is a motivating factor in the employer’s decision. The General Counsel’s burden is to persuade the Board that the employer acted out of antiunion animus. “Because of the continuing confusion surrounding the nature of the General Counsel’s burden, we agree with those courts who have suggested that the Board no longer use the term ‘prima facie case,’ in the Wright Line context.” NLRB v. CWI of Maryland, Inc.,

, 330 n.7 (4th Cir. 1997)(collecting cases).

21

, 1032–33 (5th Cir. 1993). Once the General Counsel

makes the required showing, the burden shifts to the employer to

prove by a preponderance of the evidence that it would have

discharged or disciplined the employee even if the employee had not

engaged in union activity. See Thermon Heat,

;

Asarco,

. Put another way, if the General Counsel

proves that antiunion animus was a “motivating factor” in an

employer’s decision to discharge or discipline an employee, the

burden shifts to the employer to prove that the employee would have

been disciplined in any event, for a valid reason.

“Overt direct evidence of an unlawful motive is not a

prerequisite to a finding that disciplinary action resulted

therefrom.” See NLRB v. Esco Elevators, Inc.,

(5th Cir. 1984). Circumstantial evidence of discriminatory animus

may be sufficient. See

Courts have found a variety of factors

to be probative of antiunion animus in employee discipline cases,

including: the timing of the employer’s action in relationship to

union activity, see Adco,

; Jet Star, Inc. v. NLRB,

(7th Cir. 2000); Cumberland Farms, Inc. v. NLRB,

(1st Cir. 1993); the presence of other unfair

labor practices, see NLRB v. Advance Transportation Co.,

; the failure to investigate the conduct alleged as the basis

for the discipline, see Esco Elevators,

n.5;

disparate treatment of the disciplined employee or discipline that

deviates from the employer’s past disciplinary practice, see

22 Marshall Durbin Poultry Co. v. NLRB,

(5th Cir.

1994); the implausibility of the employer’s explanation of its

action, see id.; Union-Tribune Publishing Co. v. NLRB,

(7th Cir. 1993); inconsistencies between the employer’s proffered

reason for the discipline and other actions of that employer, NLRB

v. General Fabrications Corp.,

, 226 (6th Cir. 2000);

and the seriousness of the alleged violation, see Presbyterian/St.

Luke’s Medical Center v. NLRB,

(10th Cir.

1983).

This case presented no direct evidence of antiunion animus.

There is no history of antiunion statements or a background of

ongoing union hostility. The strongest form of circumstantial

evidence, proximity in time between union activity and employee

discipline, is missing. The union election ended in September

1996, ten months earlier. The ALJ noted the absence of evidence

that on August 1, the date of Lewis’s discipline, or on August 5,

the date of Sharp’s discipline, Valmont knew that the union had

begun a second organizational effort in which Lewis and Sharp were

involved.

The ALJ noted that the timing of the warnings in relation to

the beginning of the union’s second campaign was “suspicious.”

However, the ALJ did not rely on this proximity in time as any

evidence of antiunion discrimination. The record supports this

approach. The record evidence showed that the first in-plant

evidence of a new union organizational effort appeared on

23 approximately August 10, several days after Valmont issued the

warnings. There is no other evidence that Valmont knew of the

second organizational effort before then.

Noting the lack of evidence that Valmont knew of the

resumption of union activity on August 1, the ALJ relied on the

evidence that in April or May 1997, months after the 1996 election

had ended, Abney had orally counseled Lewis against soliciting his

coworkers, to prove that Valmont management believed that Lewis and

Sharp were talking about the union on July 28. However, the ALJ

rejected this same evidence when Valmont offered it to show a good

faith belief that Lewis was continuing to talk to other employees

on nonwork subjects, ignoring recent warnings to stop such conduct.

This inconsistent treatment diminishes the deference to which the

ALJ’s finding is entitled. See Asarco,

.

An ALJ may not rest its entire decision that antiunion animus

motivated an employee’s discipline on a finding that the employer

gave a pretextual reason for its action. See, e.g., Union-Tribune

Publishing Co.,

; Goldtex, Inc.,

(evidence of pretext does not “enter the picture until some

evidence of a discriminatory discharge has been brought forward.”).

Discrediting the employer’s stated reason for disciplinary action

can lead a factfinder to “infer that there is another motive [and

that] the motive is one that the employer desires to conceal—an

unlawful motive—at least where, as in this case, the surrounding

facts tend to reinforce that inference.” Shattuck Denn Mining

24 Corp. (Iron King Branch) v. NLRB,

(9th Cir.

1966); see also Jet Star,

; Laro Maintenance Corp.

v. NLRB,

(D.C. Cir. 1995). However, “[a] finding

of pretext, standing alone, does not support a conclusion that

[discipline] was improperly motivated,” absent other evidence of

animus. Union-Tribune Publishing Co.,

. In this case,

the ALJ gave inconsistent treatment to the evidence that

contributed to the finding of pretext. This first category of

evidence, even under deferential review, is not sufficient to

support a finding of antiunion animus.

The ALJ and Board also relied on evidence that Valmont did

not investigate whether Lewis and Sharp might have been talking

about a work-related matter – which would not have violated any

rule - until after issuing the warnings. The dissenting panel

member found the absence of a meaningful investigation irrelevant

because “the Act does not compel an employer to have a ‘meaningful

investigation’ of suspected misconduct.” The cases hold that

absence of a meaningful investigation into allegedly impermissible

conduct before imposing discipline is an accepted form of

circumstantial evidence of antiunion animus. See Esco Elevators,

n.5 (“A one-sided investigation into employee

misconduct supplies significant evidence that disciplinary action

was triggered by an unlawful motive.”); NLRB v. Big Three Indus.,

Inc.,

, 50 (5th Cir. 1974) (holding that it was of “some

relevance” that the employee was not “afforded a reasonable

25 opportunity to explain the full circumstances of what occurred”).

In this case, the credited evidence showed that Valmont gave Lewis

no chance to explain and Valmont did not try to verify Sharp’s

explanation until after issuing the warnings.

Valmont argues that it reasonably relied on Gregg’s and

Dotson’s statements in concluding that Sharp and Lewis had not

talked about work-related matters. Valmont points to Dotson’s

testimony that he prepared his written statement on his own, on

July 28, and gave it to his supervisor on the same day. However,

the ALJ found that the credited evidence established that Dotson

did not prepare his written statement until asked to do so on

August 6, 1997. There is substantial evidence to support the ALJ’s

choice to discredit Dotson’s testimony that he prepared and

submitted a written statement on the day of the incident, rather

than a week later, and this court defers to that credibility

choice. See Asarco,

; Advance Transportation, 979

F.2d at 572.

Valmont also asserts that the ALJ and the Board inconsistently

discounted Dotson’s and Gregg’s estimate of the time and length of

the conversation they observed, while crediting Lewis’s and Sharp’s

testimony on the same subjects. This argument ignores the fact

that Dotson and Gregg both testified that they did not look at a

clock or watch, had no basis for estimating the time, and could not

explain how they were able to submit written statements that gave

a definite time for the conversation between Lewis and Sharp. By

26 contrast, Sharp consistently testified that he knew precisely what

time he talked with Lewis, because he looked at his watch to record

the time, as required on the maintenance request form. The ALJ

found that Gregg’s and Dotson’s statements as to the time and

length of the conversation they witnessed were unreliable and

conflicted with their testimony. There is sufficient evidence to

support the ALJ’s choice to believe Lewis and Sharp over Dotson and

Gregg. See Asarco,

; Advance Transportation, 979

F.2d at 573 (“The law is clear: Where there are two materially

conflicting versions of the same incident, an ALJ’s credibility

determinations are entitled to deference.”).

Valmont’s contention that the ALJ erred in finding that

Valmont failed to conduct a meaningful investigation before issuing

the warnings depends on a rejection of the ALJ’s credibility

judgments. The court must defer to these judgments. This second

category of circumstantial evidence does give some support to the

Board’s finding that Valmont issued the warnings because of

antiunion animus.

Valmont argues in its brief that the undisputed fact that

Sharp had no reason to be in Lewis’s work area or to talk with

Lewis on work matters in the course of their regular duties made it

reasonable for Valmont to believe that Lewis and Sharp were not

talking about work. The ALJ found that even if Valmont reasonably,

but mistakenly, believed that Lewis and Sharp were having a

personal conversation, the discipline it imposed was more severe

27 than that imposed on other employees engaged in similar conduct.

Valmont challenges the ALJ’s and Board’s findings that the

discipline was disparate.

The ALJ examined Valmont’s records and found “no evidence that

any employee has ever been warned for loafing when engaging in a

work related conversation.” That is correct, but it does not apply

if Valmont did reasonably believe that Lewis and Sharp were not

talking about a work-related subject.

The evidence showed that before August 1, 1997, Valmont

disciplined other employees for “loafing” or distracting others by

engaging in nonwork-related conversations. In one case, the

employee received a verbal warning for distracting other employees

by having nonwork-related conversations, and then committed three

subsequent similar infractions before receiving a written

corrective action. The evidence shows that at least two other

employees received warnings for loafing prior to August 1997. One

employee received a written warning, as his first discipline, for

loafing and insubordination; one employee received a verbal warning

for loafing and low quality work. Two employees received warnings

for loafing shortly after August 1997. In one case, the offending

employee was observed not working at various times during a day,

including ten minutes spent at a picnic table. This employee

received a verbal counsel that included the warning that any other

offense of this nature could result in his termination. In the

other case, the employee had stated that he was “killing time” when

28 his leadman observed him not working and asked him what he was

doing. This employee received a final written notice.

The ALJ relied heavily on a finding of disparate discipline to

show antiunion animus. However, the ALJ’s analysis is again

inconsistent. The ALJ credited the evidence that Abney had orally

counseled Lewis in April or May 1997 for soliciting other

employees, for the purpose of showing that Valmont believed that

Lewis and Sharp were again talking about union activities on July

28. However, the ALJ rejected this evidence for the purpose of

showing that Valmont issued Lewis the final warning on August 1

because he was continuing misconduct for which he had been recently

warned. If this evidence of 1997 oral counseling is credited, then

the August 1 discipline was for repeated recent misconduct and is

not disparate from other discipline disclosed in the record. If

the evidence is not credited, then the disparate discipline

evidence is stronger, but the evidence of antiunion animus as a

motivating factor is diminished.

The ALJ also relied on evidence that Valmont’s plant manager

and human resources manager had incorrectly applied the no-

solicitation rule to prohibit soliciting in any work area, even on

nonworking time. However, there is no evidence in the record that

Valmont applied this approach to union soliciting but not to other

forms of soliciting. This evidence might support an independent

section 8(a)(1) violation, but not a section 8(a)(3) violation.

29 The Board cites cases to support the ALJ’s reliance on

circumstantial evidence to find antiunion animus. These cases

present much stronger evidence of antiunion animus than is present

in this record. Most of the cases involved very close timing

between union activities and the employee discipline, a background

of ongoing union hostility, or explicitly antiunion comments.

These factors are conspicuously absent in this case. See, e.g.,

Adco,

(observing that “Adco is adamantly

anti-union” and noting that the employer admittedly fired one

employee for soliciting, “an unlawful reason under the Act”); Esco

Elevators,

n. 5 (record also disclosed explicitly

antiunion statements, which, combined with the absence of

investigation into the occurrence used to justify discharging the

union president, supplied significant evidence of an unlawful

motive); Big Three Indus., 497 F.2d at 51 (failure to investigate

an incident which led to an employee’s discharge, combined with the

fact that at the time of the employee’s discharge, the company was

in the midst of vigorously contested union negotiations, supported

Board’s finding of unfair labor practice).

Other recent decisions relying on circumstantial evidence of

discriminatory motive also involve a context of ongoing union

hostility not present in this record. For example, in Dorsey

Trailers, Inc. v. NLRB,

(4th Cir. Dec. 1, 2000) (no

page references available), a company facing an imminent strike had

moved its plant operations to a different state. The company had

30 refused to bargain with the union, a supervisor had made repeated

threats that the company would close the plant if the employees

voted to strike, the company refused to reinstate union members

immediately after their unconditional offer to return to work, the

company created the impression of surveillance, and the company

unilaterally instituted a new attendance policy in violation of the

collective bargaining agreement.3 Similarly, in General

Fabrications Corp., 222 F.3d at 226, the court inferred antiunion

animus from the facts that the employee’s supervisor gave false

testimony, the company undertook no meaningful investigation into

the employee’s work record, the employee was not warned or

previously disciplined for the offense for which he was terminated,

and the company’s general manager had previously made antiunion

remarks. Id.

Valmont had no history of violations of the Act. The union

election had occurred in September 1996. The ALJ did not rely on,

and the evidence did not establish, temporal proximity between the

union’s resumption of activity in late July 1997 and Valmont’s

issuance of the warnings to Lewis and Sharp. One of the strongest

forms of circumstantial evidence – the link of timing – is missing.

In summary, there is some credited circumstantial evidence

that might suggest an improper motive behind the warnings issued to

3 The Fourth Circuit ultimately concluded that Dorsey Trailers met its burden of showing that it would have relocated for economic reasons even in the absence of antiunion animus and did not violate section 8(a)(3) by moving the plant.

31 Lewis and Sharp, particularly the evidence as to how Valmont

handled the investigation. However, absent evidence of a

connection between the resumption of union activity and the

warnings, the evidence of antiunion animus as a motivating factor

is simply not substantial. The evidence of Valmont’s antiunion

animus does not approach the nature or quantity of evidence in

other cases finding a section 8(a)(3) violation. This court denies

enforcement of the Board’s Order as to the warnings issued to Lewis

and Sharp.

B. The Discharge of Lewis and the Warning of Fontenot

Valmont discharged Lewis and warned Fontenot for violating the

company’s no-solicitation rule, which provides that “[s]olicitation

by employees on their working time or on the working time of any

employee solicited is prohibited . . . .” The parties dispute the

application of the rule to this case, but do not dispute the

validity of the rule itself. It is “well-settled that it is within

the province of an employer to promulgate and enforce a rule

prohibiting [] solicitation during working hours.” Cooper Tire &

Rubber Co. v. NLRB,

(5th Cir. 1992). Absent

proof of special circumstances, however, “[i]t is not within the

province of the employer . . . to promulgate and enforce a rule

prohibiting [] solicitation by an employee outside of working

hours, although on company property.”

32 An employer must permit solicitation during meals, breaks, and

other nonworking time, even if the employee remains “clocked in”

during such times. Cooper Tire,

n.7. “[T]ime

outside working hours, whether before or after work, or during

luncheon or rest periods, is an employee’s time to use as he wishes

without unreasonable restraint . . . .”

In Cooper Tire, this

court held that an employer had to permit solicitation “during any

break times or in any break areas, including the . . . pathways to

the main break room, when both the solicitor and solicitee are on

break time, whether formal or scheduled, and are in a break area.”

at 1251 n.11. A no-solicitation rule that prohibits

solicitation on the company’s premises during “paid working hours”

is invalid because it could apply to bar solicitation en route to

and from the timeclock, in the break room and in the rest rooms.

. On its face, the Valmont rule validly prohibited

solicitation during the working time of the employees soliciting or

being solicited.

The ALJ found that Valmont discharged Lewis based on

Hutchison’s report that Lewis had solicited him to sign a union

card on Hutchison’s working time and in a working area. The ALJ

credited Lewis’s testimony that his exchange with Hutchison about

signing a union card occurred in a non-production area of the plant

during the regularly scheduled break period. The ALJ found that

Hutchison had lied about where the conversation took place and

testified inconsistently about when it occurred. Based on the

33 credited evidence, the ALJ concluded that Valmont had discharged

Lewis for misconduct that he did not commit, while he was engaged

in protected activity, a violation of section 8(a)(1).

It is undisputed that at the time Lewis solicited Hutchinson,

the day shift was on break. Hutchison normally worked the day

shift. On August 12, Hutchison worked during part of the day

shift. However, Hutchison was working overtime and did not join

the day shift break. When Lewis encountered Hutchison, Hutchison

had just left the break room, was not at his regular work station,

and was not actively performing production duties.

The ALJ found that although Hutchison did not regard himself

as on break, he was “not working; he was wandering around the plant

looking for a coworker who was on break.” Although Hutchison was

not on break, “there was certainly no way that Lewis, or anyone

else, could have been aware of that fact.” The unusual and narrow

question these facts present is whether an employee who is

solicited during a shift-wide break period, just after exiting a

break room, who is clocked in and not on an official break, but who

is not performing the usual duties of his job, and who appears to

be on break, is “on working time” for the purpose of a no-

solicitation rule.

Valmont argues that it should be able to discharge Lewis for

soliciting Hutchison because Hutchison was not, in fact, on break.

Valmont claims that the soliciting employee, not the employer,

should bear the risk that the employee being solicited is not on

34 break, even if he appears to be. This court’s holding in Cooper

Tire addressed a similar argument. In Cooper Tire,

, the Fifth Circuit recognized the difficulty in terms such as

“working time” and “work areas,” but rejected the employer’s

argument that these difficulties justified a blanket prohibition on

all soliciting except in the break room itself. The court held

that the employer had to permit solicitation “during any break

times or in any break areas, including the . . . pathways to the

main break room, when both the solicitor and solicitee are on break

time, whether formal or scheduled, and are in a break area.”

at

1251 n.11. In so holding, the court specifically rejected the

employer’s argument that “it should not be required to take the

risk that a non-working employee will disrupt the production of

employees who are continuing to work, since some employees will be

working while other employees are on their breaks . . . .”

. The court held that such a risk was properly on the

employer, unless it could show special circumstances that justified

a broader prohibition.

This case presents narrow and unusual facts. The soliciting

employee was on an official break. The solicited employee was not

on the official break, but was not performing the usual duties of

his job and gave every outward appearance of being on break

himself. The Board found that Lewis did not violate the no-

solicitation rule by soliciting Hutchison because Hutchison was not

on working time for the purpose of that rule. That finding is

35 supported by substantial evidence in the record and is a reasonable

application of the law, to which this court must give deference.

The ALJ and Board concluded that Valmont’s firing of Lewis for

conduct prohibited by the no-solicitation rule violated section

8(a)(3) of the NLRA. However, the analysis the ALJ and Board used

is a section 8(a)(1) analysis, not a section 8(a)(3) analysis.

“Over and again the Board has ruled that section 8(a)(1) is

violated if an employee is discharged for misconduct arising out of

a protected activity, despite the employer’s good faith, when it is

shown that the misconduct never occurred.” Ideal Dyeing &

Finishing Co.,

, 319 (1990). The ALJ and Board

found that while Valmont’s no-solicitation rule was valid, Lewis

did not in fact violate the rule because Lewis was on break and

Hutchison was not working when the solicitation occurred. The

presence of Valmont’s good faith belief that Lewis violated the no-

solicitation rule is irrelevant to this section 8 (a)(1) violation.

The absence of such a belief is, however, necessary to a section

8(a)(3) violation.

The ALJ made no specific findings or analysis of the factors

that might show antiunion animus, necessary to a section 8(a)(3)

violation. The Board went beyond the findings of the ALJ,

“infer[ring] that [Valmont’s] discharge of Lewis was motivated by

its hostility to what it believed were his pro-Union sentiments.”

There is no dispute that Lewis talked to Hutchison to further the

union. However, neither the ALJ nor the Board provided reasons for

36 concluding that hostility to the union motivated Valmont’s decision

to discharge Lewis, as required under section 8(a)(3).

Specifically, neither addressed Valmont’s assertion that it had a

reasonable, if incorrect, basis for believing that Lewis violated

the no-solicitation rule by soliciting another employee who was not

on break.

This court affirms the Board’s finding that Valmont violated

section 8(a)(1) by suspending, then discharging, Lewis for

violating the no-solicitation rule; this court does not uphold the

Board’s finding that this conduct also violated section 8(a)(3).

As to Fontenot, the ALJ found that Valmont violated sections

8(a)(1) and 8(a)(3) by issuing Fontenot a warning for violating the

no-solicitation rule. The ALJ disbelieved Hutchison’s testimony

about the incident and adopted Fontenot’s version of the events.

Fontenot testified that she visited Hutchison to ask him about the

scrap metal and, at the end of that discussion, as they walked

toward the timeclock, asked Hutchison whether he had signed a union

card. Specifically, the ALJ stated: “I do not credit any of

Hutchison’s varying accounts of his conversation with Fontenot.

His demeanor was not impressive. . . . I do not credit his

attribution of an ulterior motive to Fontenot.” The ALJ found that

Fontenot’s question did not constitute solicitation, but was merely

a question of another employee, similar to asking whether the

employee had brought a specific item for lunch and receiving a

brief answer. The ALJ found that “[r]espondent’s warning of

37 Fontenot for allegedly engaging in solicitation when, in fact, she

had only asked a question of a fellow employee, violated Section

8(a)(3) of the Act.”

The ALJ found that Fontenot did not solicit Hutchison, while

assuming that Lewis did. Lewis testified that his conversation

with Hutchison consisted of the following:

Lonny, I guess you’re not going–I guess you decided not to sign a card. He said I hadn’t made my mind on which way I’m going. I said let me know when you do. He said ok.

(Hearing Transcript, p. 277).

Fontenot testified as follows as to her conversation with

Hutchison:

I asked him, well, did you sign a Union card? . . .He said no.... I said great. . . .

(Hearing Transcript, p. 182). Characterizing Lewis’s question as

solicitation and Fontenot’s as “merely a question” emphasizes the

very slight differences between the two exchanges and points to the

undefined nature of “solicitation.”

The ALJ did not examine whether Fontenot’s question, if not

solicitation, was nonetheless protected activity under section 7.

If not, there is no independent violation of section 8(a)(1). See

Mobil Exploration,

. The ALJ held that Fontenot’s

question was not solicitation but applied section 8(a)(1) as if the

protected activity of solicitation occurred. Neither the ALJ nor

the Board analyzed whether, apart from section 8(a)(1), Valmont

violated section 8(a)(3) by issuing the warning to Fontenot. The

38 section 8(a)(3) question requires an analysis of whether, when

Valmont warned Fontenot for soliciting while she and another

coworker were still working, it had a reasonable, if incorrect,

belief that Fontenot had violated the no-solicitation rule. The

ALJ applied an incorrect legal analysis for determining whether

Valmont violated sections 8(a)(1) and (a)(3) by warning Fontenot.

This court analyzes the record as a whole, applying the correct

legal standard, to determine whether Valmont nonetheless violated

sections 8(a)(1) and (a)(3) by warning Fontenot. See CWI of

Maryland,

.

In contrast to the firing of Lewis, the record provides

substantial credited circumstantial evidence that Valmont acted

with antiunion animus in issuing Fontenot the written warning. The

ALJ found that Hutchison’s attribution of “ulterior motives” to

Fontenot and his description of the conversation wholly lacked

credibility. The record discloses that Fontenot’s leadman

supported her consistent explanation of her work-related reason for

talking to Hutchison. Hutchison himself acknowledged that the

scrap metal was his responsibility. The credited evidence was that

Fontenot asked one question, which underscores the severity of the

discipline imposed. The record shows that Valmont management

received inconsistent and unsupported information from Hutchison

about his encounter with Fontenot. The record also shows that

Valmont management knew that Hutchison vehemently opposed the

union. In issuing a written warning to a first time offender, with

39 no prior oral counseling or warning, Valmont departed from its own

progressive discipline policy. See Marshall Durbin Poultry Co.,

(departure from past disciplinary practice can be

evidence of antiunion animus).

This court must defer to the ALJ’s credibility findings.

Although the ALJ applied an incorrect legal standard, substantial

evidence supports the ALJ’s finding that Valmont violated section

8(a)(3) by issuing Fontenot a written warning, and therefore

violated section 8(a)(1). The Board’s Order with respect to

Valmont’s written warning of Fontenot is enforced.

C. The Warning of Niemeyer

The ALJ found a section 8(a)(1) and 8(a)(3) violation in the

oral counseling issued to Niemeyer because the plant entrance in

which he distributed union literature was not a work area. “An

employer may lawfully prohibit his employees from distributing

literature concerning their working conditions in work areas or

during work time.” NLRB v. Transcon Lines, Inc.,

(5th Cir. 1979); see also Eastex, Inc. v. NLRB,

,

570–71 (1978); Republic Aviation Corp. v. NLRB,

,

798–99 (1945). The employer, however, may not “extend[] this

prohibition to non-working areas during non-work time . . . unless

the employer shows that a ban is necessary to maintain plant

discipline or production.” Transcon Lines,

;

Republic Aviation, 324 U.S. at 798–99.

40 Valmont argues that the entranceway area near the timeclock,

in which Forman witnessed Niemeyer distributing leaflets, was a

“work area” under the no-solicitation rule. The issue is whether

substantial evidence supports the ALJ’s conclusion that the

timeclock area was not a “work area.”

The record shows that the entrance to the building at issue

opens into an area 15 feet long and 8 feet wide. The timeclock and

a bulletin board were mounted on the wall to the right of the

entrance; a desk, with a computer, were positioned on the same side

as the timeclock and bulletin board; and a vending machine with

drinks was on the opposite wall. Forman was seated at the desk

when he observed Niemeyer handing out the leaflets, but was not

actively working.

Valmont contends that the area is a work area because of the

presence of the desk and computer, which foremen occasionally used.

The ALJ found that Valmont used the area for both work and nonwork

activities but failed to convey clearly to employees whether it

was, or was not, a working area. Resolving the ambiguity in favor

of Niemeyer, the ALJ found a violation of section 8(a)(3) in the

discipline imposed on Niemeyer for distributing literature on

nonworking time, in a nonworking area.

As early as 1971, the NLRB noted that “it is well recognized

that the timeclock area usually is not part of the work area of a

plant.” Midwest Tool and Engineering Co.,

, 1107

(1971). In that case, the Board affirmed the ALJ’s finding that

41 the area in front of and around a timeclock was not a work area,

noting that employees often congregate around a timeclock; bulletin

boards are often kept near timeclocks; and work is generally not

performed around timeclocks.

In Thermo Electric Co.,

(1976), by contrast, the Board upheld the application

of a facially valid no-solicitation rule to prevent distribution in

front of a timeclock which was “in a work area.”

The decisions recognize that entrance areas to plants, where

timeclocks, vending machines, and bulletin boards are located, are

often mixed use areas. Courts generally require a particularized

showing for an employer to apply a no-solicitation rule in such an

area. In Transcon Lines,

, this court found that

a “drivers’ room” at a trucking company’s terminal, which contained

a bulletin board, a timeclock, and coffee, soft drink and candy

vending machines was a mixed use area.

. The court

concluded that although some work did take place in the drivers’

room, it was a mixed use area for the purpose of the no-

solicitation rule. The ban on distributing literature in that area

was presumptively invalid absent a showing that it was “necessary

to maintain plant discipline or production.”

.

Similarly, in United Parcel Service,

(N.L.R.B.

1998), the Board concluded that the company violated the Act by

enforcing its no-distribution rule in a check-in area. The ALJ

concluded that the check-in area was a nonwork area, or, at most,

a mixed use area, making the employer’s application of its no-

42 distribution rule to that area presumptively invalid. The Board

found that the application of the no-distribution rule was unlawful

absent a showing that “the distribution resulted in any disruption

of production or discipline.”

.

This court finds that substantial evidence in the record

supports the ALJ’s finding that the Valmont entranceway in question

was a mixed use area. The presence of the timeclock, bulletin

board, and vending machine in the building entranceway, with the

foremen’s desk, are all consistent with a mixed use

characterization. Valmont bears the burden of making a

particularized showing that application of its no-distribution rule

to that area is valid. See, e.g., UPS v. NLRB,

(6th

Cir. 2000). Valmont has not made the required showing. By

applying its no-solicitation policy to Niemeyer’s conduct without

such a particularized showing, Valmont violated section 8(a)(1) of

the Act.

The ALJ did not apply a section 8(a)(3) analysis to Niemeyer’s

case. The ALJ does not cite, and the record does not contain,

substantial evidence that Valmont was motivated by antiunion animus

when it gave Niemeyer the oral warning. There is no evidence that

Valmont treated the distribution of union literature differently

than it did the distribution of other literature. See National By-

Products, Inc. v. NLRB,

(7th Cir. 1991) (showing of

discriminatory application of no-solicitation rule provides

evidence of section 8(a)(3) violation). Nor is there any evidence

43 on the record that an oral warning was disparate punishment or

inconsistent with Valmont’s progressive discipline. The ALJ’s

conclusory finding that Valmont violated section 8(a)(3) by

erroneously applying its valid no-solicitation rule to Niemeyer is

not supported by substantial evidence.

This court affirms the NLRB’s conclusion that Valmont violated

section 8(a)(1) when it orally warned Niemeyer for distributing

union literature in the entranceway near the time clock. This

court does not find substantial support in the record for a finding

of a section 8(a)(3) violation.

IV. CONCLUSION

Substantial evidence supports the Board’s finding that Valmont

violated section 8(a)(1) by suspending and discharging Lewis and by

warning Niemeyer. Substantial evidence also supports the Board’s

conclusion that Valmont violated sections 8(a)(1) and 8(a)(3) by

warning Fontenot. The Board’s conclusion that Valmont violated

sections 8(a)(1) and 8(a)(3) by warning Lewis and Sharp and

violated section 8(a)(3) by warning Niemeyer are not supported by

substantial evidence on the record as a whole. This court grants

in part and denies in part Valmont’s petition, as set forth above.

Accordingly, enforcement of the Board’s Order is granted in part

and denied in part. On remand, the Order shall be modified to

conform with this decision.

ENFORCEMENT GRANTED IN PART, DENIED IN PART, AND REMANDED.

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