American Crane Corp v. NLRB

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMERICAN CRANE CORPORATION,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

No. 98-2660

INTERNATIONAL BROTHERHOOD OF

BOILERMAKERS, IRON SHIP BUILDERS,

BLACKSMITHS, FORGERS AND HELPERS,

AFL-CIO,

Intervenor.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v. No. 98-2775

AMERICAN CRANE CORPORATION,

Respondent.

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor Relations Board.

(11-CA-16292, 11-CA-16583, 11-CA-16763, 11-CA-17235)

Argued: December 2, 1999

Decided: January 24, 2000

Before TRAXLER and KING, Circuit Judges,

and Margaret B. SEYMOUR, United States District Judge

for the District of South Carolina, sitting by designation.

_________________________________________________________________

Petition for review denied and cross-application for enforcement

granted by unpublished opinion. Judge King wrote the opinion, in

which Judge Seymour joined. Judge Traxler wrote an opinion concur-

ring in part and dissenting in part.

_________________________________________________________________

COUNSEL

ARGUED: Gary Alan Reeve, LAW OFFICE OF MOWERY &

YOUELL, Worthington, Ohio, for American Crane. Jill Ann Griffin,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Board. Mark Aloysius Kistler, BLAKE & UHLIG, Kansas City, Kan-

sas, for Intervenor. ON BRIEF: Spencer Martin Youell, LAW

OFFICE OF MOWERY & YOUELL, Worthington, Ohio; Jack W.

Burtch, Jr., MCSWEENEY, BURTCH & CRUMP, P.C., Richmond,

Virginia, for American Crane. Frederick L. Feinstein, General Coun-

sel, Linda Sher, Associate General Counsel, John D. Burgoyne, Act-

ing Deputy Associate General Counsel, Frederick C. Havard,

Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for Board. Michael T. Manley, BLAKE &

UHLIG, Kansas City, Kansas, for Intervenor.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

KING, Circuit Judge:

American Crane Corporation petitions for review of the September

30, 1998 Decision and Order of the National Labor Relations Board

("NLRB" or "Board"), affirming the findings of an Administrative

Law Judge ("ALJ") that American Crane violated the National Labor

Relations Act ("NLRA" or "Act") by engaging in myriad unfair labor

practices. The Board cross-applies for enforcement of its Decision

and Order. For the reasons that follow, we deny American Crane's

2

petition for review and grant the Board's cross-application for

enforcement.

I.

The employees of American Crane's manufacturing facility in Wil-

mington, North Carolina, voted on October 12, 1994 to accept repre-

sentation by the International Brotherhood of Boilermakers, Iron Ship

Builders, Blacksmiths, Forgers & Helpers, AFL-CIO (the "Union").

Between November 18, 1994 and October 23, 1996, the Union filed

four charges with the NLRB, alleging that American Crane had com-

mitted a host of unfair labor practices during a twenty-five month

period commencing in the weeks prior to the representation election

and continuing through September 1996. These charges resulted in

the issuance of complaints by the Board on April 4, 1996 and Novem-

ber 29, 1996.1

The matter was assigned to an ALJ, who, during eight days of hear-

ings, considered the testimony of more than two dozen witnesses and

received into evidence scores of exhibits. The ALJ subsequently

issued a Decision on June 24, 1997, concluding that American Crane

had violated several provisions of Section 8(a) of the NLRA.

The ALJ found seven independent violations of Section 8(a)(1) of

the Act, which proscribes "interfer[ing] with, restrain[ing], or coerc-

[ing] employees" who attempt to exercise their rights to self-organize

_________________________________________________________________

1 The NLRB acted pursuant to the authority granted it by the Act,

which provides, in pertinent part:

Whenever it is charged that any person has engaged in or is

engaging in any . . . unfair labor practice, the Board . . . shall

have power to issue and cause to be served upon such person a

complaint stating the charges in that respect, and containing a

notice of hearing before the Board or a member thereof . . . .

29 U.S.C. § 160(b). The Union was granted leave to intervene in the pro-

ceedings. See id. ("In the discretion of the member, agent, or agency con-

ducting the hearing or the Board, any other person may be allowed to

intervene in the said proceeding and to present testimony."); 29 C.F.R.

§ 102.29 (1998) (detailing the administrative process regarding motions

to intervene).

3

and collectively bargain. 29 U.S.C. § 158(a)(1). With respect to the

termination of two employees, the suspension of a third, and warnings

and unfavorable evaluations given a fourth, the ALJ found that Amer-

ican Crane had violated both Sections 8(a)(1) and 8(a)(3) of the Act,

the latter barring "discrimination in regard to hire or tenure of

employment or any term or condition of employment to. . . discour-

age membership in any labor organization." 29 U.S.C. § 158(a)(3).2

American Crane timely filed exceptions with the Board. See 29

U.S.C. § 160(c); 29 C.F.R. § 102.46 (1998). The company objected

to the ALJ's findings that it had committed unfair labor practices in

four specific instances: (1) that, prior to the representation election,

the company had coercively interrogated employees Freddie Clem-

mons and Cleatus Brown regarding their union activities; (2) that it

had warned, suspended, and ultimately discharged Clemmons because

of his association with the Union; (3) that the company had disci-

plined Brown and given him unfavorable performance evaluations on

account of his Union ties; and (4) that it had discharged employee

Johnny Thompson as a result of his Union affiliation.3

_________________________________________________________________

2 The Board considers any violation of Section 8(a)(3) to be a concur-

rent violation of Section 8(a)(1), and we have endorsed this approach.

See Robertshaw Controls Co., Acro Div. v. NLRB, 386 F.2d 377, 383

(4th Cir. 1967) ("Any act which violates § 8(a)(3) necessarily violates

§ 8(a)(1) . . . .").

The ALJ also found that discipline imposed by a company supervisor

against the fourth employee was motivated, at least in part, by the

employee's testimony in the proceedings below. The supervisor's actions

therefore violated Section 8(a)(4) of the Act, which forbids employers

from "discharg[ing] or otherwise discriminat[ing] against an employee

because he has filed charges or given testimony under this subchapter[.]"

29 U.S.C. § 158(a)(4).

Lastly, the ALJ found that American Crane had, on several occasions,

refused to bargain with the Union concerning certain policy changes and

employment actions, in contravention of Sections 8(a)(1) and 8(a)(5).

Section 8(a)(5) of the Act requires that an employer collectively bargain

with "the representatives of his employees." 29 U.S.C. § 158(a)(5). On

appeal to the Board, however, the Union and the company jointly moved

to withdraw the refusal-to-bargain allegations; that motion was granted.

3 In its brief before this Court, American Crane challenges numerous

findings of unfair labor practices to which it filed no exceptions with the

4

A panel of the Board issued a Decision and Order affirming nearly

all of the ALJ's findings. American Crane Corp. , 326 N.L.R.B. No.

153 (Sept. 30, 1998). The Board ordered American Crane to cease

and desist from coercively interrogating its employees about their

Union activities; to reinstate Clemmons and Thompson with backpay;

and to expunge from its personnel records all references to the

adverse employment actions taken against Clemmons, Brown, and

Thompson.

American Crane now petitions us for review of the Board's Deci-

sion and Order. See 29 U.S.C. § 160(f) (providing for review in the

court of appeals for "the circuit wherein the unfair labor practice . . .

was alleged to have been engaged in . . . ."). The Board has filed a

cross-application for enforcement of the same. See 29 U.S.C.

§ 160(e).

II.

Familiar principles guide our examination of the NLRB's Decision

and Order. The Board's findings regarding questions of historical fact

are conclusive if, viewed in the context of the entire record, they are

supported by substantial evidence. 29 U.S.C. § 160(e), (f). Whether

the circumstances of a particular case constitute an unfair labor prac-

tice under Section 8 of the Act generally presents a mixed question

of law and fact, and the Board's conclusions in this respect must like-

wise be upheld if "supported by substantial evidence based upon the

record as a whole." Sam's Club v. NLRB, 173 F.3d 233, 239 (4th Cir.

1999) (citations omitted). Even if the Board's determinations are con-

trary to the greater weight of the evidence, they may not be over-

turned if "it would have been possible for a reasonable jury to reach

_________________________________________________________________

Board. Our review of these findings is foreclosed by Section 10(e) of the

Act, which provides that "[n]o objection that has not been urged before

the Board . . . shall be considered by the court[of appeals], unless the

failure or neglect to urge such objection shall be excused because of

extraordinary circumstances." 29 U.S.C. § 160(e); accord, Eastern Omni

Constructors, Inc. v. NLRB, 170 F.3d 418, 425 (4th Cir. 1999) (citation

omitted). American Crane does not contend that extraordinary circum-

stances excuse its failure to initially bring to the Board's attention the

additional issues it has presented for our review.

5

the [same] conclusion." Allentown Mack Sales & Serv., Inc. v. NLRB,

522 U.S. 359, 366-67 (1998).

A.

The Board adopted the ALJ's finding that American Crane had

coercively interrogated Clemmons and Brown regarding their Union

activities. In reviewing the Board's conclusion to ensure that it is sup-

ported by substantial evidence, we do not inquire whether the compa-

ny's actions actually resulted in coercion. Instead, we need only

ascertain whether the language or conduct at issue had a reasonable

tendency to coerce or intimidate the targeted employees from exercis-

ing the rights accorded them by Section 7 of the Act.4 Eastern Omni

Constructors, Inc. v. NLRB, 170 F.3d 418, 423 (4th Cir. 1999) (cita-

tions omitted). If, considering the totality of the circumstances, it can

be said that American Crane's questioning of Clemmons and Brown

reasonably tended toward coercion or intimidation, then we must

uphold the Board's decision that the company committed an unfair

labor practice prohibited by Section 8(a)(1). Id.

1.

In mid-August 1994, Clemmons was selected by his peers to con-

tact the Union. The primary purpose of this overture was to obtain

signature cards for distribution to the employees, in the hopes of

authorizing a representation election.

Not long thereafter, Clemmons, who worked in the tool room of

the machine shop, was approached by Frank Moelter, the machine

shop supervisor. As the two men conversed in isolation, Moelter

related that he had heard that Clemmons was going to organize a

union. In response, Clemmons maintained that he had not yet decided.

The ALJ found Moelter's solicitation of the extent of Clemmons's

union involvement to be coercive. We have previously explained that

a variety of factors may be relevant to a determination of coercive-

_________________________________________________________________

4 Section 7 guarantees employees, inter alia, the right to self-organize

and to form, join, or assist labor organizations. 29 U.S.C. § 157.

6

ness, "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 the questioning." NLRB v. Nueva Engineering,

Inc., 761 F.2d 961, 966 (4th Cir. 1985) (citation omitted).

In Nueva Engineering, we upheld the Board's decision that the

respondent employer had coercively interrogated an employee regard-

ing his sentiments about unions in general. We concluded that sub-

stantial evidence supported the Board's finding of coerciveness in

light of (1) the employer's stated opposition to its employees' attempt

to organize; (2) the exchange having occurred in the office of the

vice-president, initiated by a production foreman with the power to

hire and fire; with (3) no explanation to the employee of the purpose

behind the questioning; and (4) no assurances against retaliation. Id.5

The third and fourth factors underlying our decision in Nueva

Engineering are, as the ALJ noted, also evidenced in this case.

Moelter's reasons for attempting to ascertain Clemmons's intentions

were left unexplained,6 and Moelter offered no assurances that Clem-

mons could confide in him without fear of reprisal. Indeed, Clem-

mons's guarded response -- equivocal and of dubious accuracy --

suggests a tinge of trepidation as to the potential consequences of

confessing his association with the Union. It turned out, of course,

that Clemmons's apparent concern was not without foundation, see

Section II.B.1., infra.

There are some factual distinctions, certainly, between Nueva

_________________________________________________________________

5 We noted also the presence of an aggravating factor, i.e., the supervi-

sor's contemporaneous statement to the employee that mass layoffs

would occur in the event that the organizing campaign succeeded. We

observed that "[t]his open threat of reprisal for union activity underscores

the coercive nature of [the supervisor's] interrogation." Nueva

Engineering, 761 F.2d at 966.

6 American Crane does not contend that either Moelter's questioning of

Clemmons, or that of Jack Yow with regard to Cleatus Brown, see Sec-

tion II.A.2., infra, was prompted by a"legitimate business justification"

that would require us to balance the employer's interest in obtaining the

information against the interest of the employees in the non-infringement

of their Section 7 rights. See generally Eastern Omni, 170 F.3d at 423.

7

Engineering and the case at bar. The interrogation at issue here took

place in a production area, rather than in an executive's office, and

it is unclear whether Moelter had the power to fire Clemmons.

These minor differences, however, are of little moment. The salient

facts are that (1) like the employee in Nueva Engineering, Clemmons

was isolated from his peers during the questioning; and (2) Moelter,

like the production foreman in Nueva Engineering , directly super-

vised the subject of his interrogation and was substantially involved

in disciplining the employees under his charge. It hardly strains cre-

dulity to posit that an isolated employee is more vulnerable to coer-

cion than one in the company of his compatriots, or that employees

would be particularly anxious not to incur the wrath of the one person

who, day in and day out, twirls the key to their job security.

Although it had not openly declared its hostility to the Union in the

manner of the employer in Nueva Engineering, see, e.g., supra note

5, American Crane was nonetheless strongly opposed to the efforts of

its employees to organize. On cross-examination before the ALJ,

Moelter was asked whether he understood the company's position to

be that "it did not want the Union to win the election." Moelter

responded, "Definitely." In an environment where the employer was

cognizant of an employee's organizational efforts prior to those plans

beginning to bear fruit, it seems a fair inference that the employee

was similarly aware of his employer's predilection for keeping its

workplace union-free.

And, to be sure, Clemmons was not just any employee; he had been

specifically chosen by his co-workers to seek out the Union's assis-

tance. If the employees' attempt to organize could possibly be

thwarted through coercion or intimidation, there was surely no more

inviting target than Clemmons. Moreover, the nature of the informa-

tion sought by Moelter was not merely Clemmons's stance on unions

generally, as was the case with the interrogation at issue in Nueva

Engineering, but whether Clemmons personally was going to orga-

nize a union. Moelter's question went right to the heart of the rights

protected by Section 7 of the Act, see supra note 3, and thus was

inherently more likely to coerce or intimidate than a more indirect

line of inquiry.

8

We recognize that reasonable minds could differ as to the potential

coercive effect of Moelter's query.7 It is, however, precisely because

of this uncertainty that we must defer to the Board's "specialized

experience" with regard to resolving these sorts of questions. Eastern

Omni, 170 F.3d at 423 (quoting NLRB v. Grand Canyon Mining Co.,

116 F.3d 1039, 1044 (4th Cir. 1997)) (internal citation omitted). We

therefore conclude that, in light of all the circumstances surrounding

Moelter's interrogation of Clemmons, the Board's finding of a Sec-

tion 8(a)(1) violation is supported by substantial evidence.

2.

About a week before the representation election, in the wake of a

number of incidents that gave rise to findings of unfair labor practices

by American Crane, see supra notes 2 and 3, and Section II.B.1. infra,

supervisor Jack Yow approached Brown while both men were in the

restroom. Yow asked where Brown's Union button was. Brown, who

had not yet openly declared his position on the Union, retorted that

the answer was none of Yow's business.

The ALJ found Yow's interrogation to have a reasonable tendency

to coerce or intimidate, and we agree. Against the backdrop of an

increasingly tense and hostile unionization campaign, Yow isolated

Brown and questioned him point-blank as to his Union loyalties. Yow

did not explain why he wanted this information, and he offered no

assurances that Brown could answer truthfully without fearing repri-

sal. We hold that, under these circumstances, substantial evidence

_________________________________________________________________

7 Indeed, the Board itself could not unanimously agree that Moelter had

engaged in unlawful interrogation. See American Crane Corp., 326

NLRB No. 153, at 1 n.3 (Member Hurtgen's observation that Moelter's

question, at most, "may arguably have created an impression of surveil-

lance"). Even were we to accept Member Hurtgen's characterization of

Moelter's actions, however, we have previously noted that "an employer

violates section 8(a)(1) of the Act if it gives employees the impression

that it is conducting surveillance of their union activities." NLRB v.

Grand Canyon Mining Co., 116 F.3d 1039, 1045 (4th Cir. 1997) (cita-

tions omitted).

9

supports the Board's finding that Yow's inquiry violated Section

8(a)(1) of the Act.8

B.

We next consider whether substantial evidence likewise supports

the Board's determination that American Crane's discipline of Clem-

mons, Brown, and Thompson -- pursuant to which Clemmons and

Thompson were discharged -- was motivated by the company's

desire to discourage its employees from belonging to the Union. The

ALJ found that American Crane's animus toward the Union and its

adherents caused the company to treat Clemmons, Brown, and

Thompson more harshly than it treated (or would have treated) other

employees whose support for the Union was less discernible or non-

existent.

To prove a discrimination violation under Section 8(a)(3) of the

Act, the Board's General Counsel must first demonstrate by a prepon-

derance of the evidence that (1) the employee had been engaged in

protected activity; (2) of which the employer was aware; and (3) such

activity was a substantial or motivating reason for the employer's

decision to alter the employee's terms or conditions of employment.

Sam's Club, 173 F.3d at 242. Once the requisite showing has been

made, the burden shifts to the employer to produce evidence of a

legitimate business motive, i.e., that it would have taken the same

action even if the affected employee had not been engaged in pro-

tected activity. Id. at 242-43.

If the employer meets its burden of production, no violation of Sec-

tion 8(a)(3) may be found unless, in light of all the evidence, the Gen-

eral Counsel establishes by a preponderance thereof"that union

_________________________________________________________________

8 American Crane's attempt to characterize Moelter's and Yow's inter-

rogation as "casual" or "sporadic" are unavailing. The responses of

Clemmons and Brown indicate that they perceived the questioning to be

anything but a "casual comment made within the free flow of conversa-

tion between workers and supervisors." J.C. Penney Co., Inc. v. NLRB,

123 F.3d 988, 994 (7th Cir. 1997) (citation omitted). Moreover, it merely

states the obvious to note that a "sporadic" violation of Section 8(a)(1)

is nonetheless a violation.

10

antipathy did actually play a part in the decision." Id. at 243 (quoting

NLRB v. Instrument Corp., 714 F.2d 324, 327 (4th Cir. 1983)). That

the employer's stated reasons for its actions are shown to be pretex-

tual is not enough, standing alone, to permit the finding of a violation;

the General Counsel must affirmatively adduce evidence of sufficient

substance to support a rational conclusion that anti-union animus

more likely than not factored into the employer's decision. Sam's

Club, 173 F.3d at 243 (citing Instrument Corp.).

1.

Clemmons was suspended and eventually terminated for allegedly

threatening co-worker Russel Luhm during the first of a series of con-

frontations between the two on September 28, 1994, two weeks

before the representation election. Clemmons, as we have noted,

began the campaign to organize American Crane's employees, and

the company was aware of his leadership status.

With regard to the incident involving Luhm and Clemmons, the

ALJ found that (1) the two men engaged in several heated exchanges,

during which each provoked the other with various belligerent com-

ments; (2) Luhm aggressively initiated physical contact with Clem-

mons in the bathroom, bumping into Clemmons's chest so that

Clemmons had to move his head back; (3) Luhm instigated a subse-

quent verbal altercation in the toolroom; and (4) Clemmons promptly

reported the matter, indicating his preference to Moelter that further

conflict be avoided.9 Plainly, Luhm was at least as culpable as Clem-

mons for the entire unfortunate episode, yet only Clemmons was dis-

charged. Indeed, Luhm was not disciplined at all.

Why the discrepancy? The evidence gives rise to a strong inference

that Clemmons was treated differently because his views concerning

the Union were different from Luhm's. During his initial confronta-

tion with Clemmons, Luhm looked pointedly at Clemmons's Union

button and said, "Bull." A few moments later, Luhm told Clemmons,

"You better watch it, buddy, because the Company's got ways of

dealing with people like you."

_________________________________________________________________

9 More precisely, Clemmons told Moelter, "If you don't get Russ off

my back, I'm going to have to knock him on his ass."

11

It did not take long for "the Company" to make a prophet of Luhm.

American Crane suspended Clemmons soon after the incident, and it

discharged him on October 7, scant days before the election. At the

hearing below, the company could offer only the flimsiest justifica-

tion for its actions. Carol Davis, the company's Human Resources

Manager, testified that Clemmons was suspended for being "upset

with Mr. Luhm in the bathroom because [Luhm] was calling his

Mother a name." The ensuing termination was apparently based on

Clemmons's failure to deny Moelter's attribution to him of certain

statements, perceived to be threatening, that Clemmons supposedly

made during the bathroom confrontation.

When pressed, however, Davis could not point to any particular

statement that Clemmons might have made that would have justified

his termination. In fact, Davis could not recall any specific statement

attributed to Clemmons by Moelter. All that Davis could say is that

Clemmons "threatened" Luhm by "call[ing] him names, curs[ing] at

him."10 Asked if she were aware of anyone at American Crane having

previously been fired for using profanity, Davis responded in the neg-

ative.

Davis did mention that American Crane had, from time to time, ter-

minated certain employees for engaging in aggressive behavior

toward others. All of these instances, however, involved far more

serious conduct than that at issue here. In one case, an employee had

thrown a sharp wedge at a supervisor. On another occasion, an

employee had actually wielded a knife against a co-worker. A third

incident involved an employee who had interfered with a colleague's

job performance, and who had made specific threats of bodily harm.

In short, American Crane's "business justification" for discharging

Clemmons was woefully inadequate, and it in no way served to rebut

the compelling circumstantial case that the company took advantage

of a timely opportunity to rid itself of a principal Union organizer.11

_________________________________________________________________

10 Moelter likewise could identify no specific statement that might have

led to Clemmons's discharge. He agreed with Davis, however, that the

decision was based on what Clemmons said to Luhm in the bathroom

and not on what Clemmons later told Moelter. See supra note 9.

11 The Board is, of course, entitled to infer the employer's discrimina-

tory motive from all the evidence, both direct and circumstantial. Grand

Canyon Mining Co., 116 F.3d at 1047 (citing Nueva Engineering).

12

We therefore uphold, as supported by substantial evidence, the

Board's finding that the company's suspension and termination of

Clemmons violated Section 8(a)(3) of the Act.

2.

Brown, who worked in the receiving department, was given a writ-

ten warning on October 19, 1994, for failing to properly store crane

parts in their designated areas. Brown's supervisor, Inez Crisp, testi-

fied that her inability to locate the misplaced components had resulted

in delayed shipments and the temporary reassignment of work crews.

The representation election had been conducted only one week prior

to Brown's warning; on the day of the election, Brown had worn a

Union button in the presence of supervisors Crisp and Yow.

The ALJ found that Brown had been given no prior notice of any

alleged deficiency in his job performance. Indeed, in the wake of a

nine-part evaluation by Crisp in 1993, Brown received highly positive

scores in three categories, and was only graded below average in two.

By contrast, following another evaluation in August 1996, Brown was

deemed significantly above average in only one category; he received

below-average scores in six of the remaining eight categories, includ-

ing three in which he was accorded the lowest possible rating. About

a month after this latter evaluation, on September 25, 1996, Crisp

issued Brown a "final counseling," alleging, among other things, that

Brown had been insubordinate.

The ALJ determined that the various warnings and the poor evalua-

tion were motivated by Crisp's anti-Union animus, which the ALJ

described as "intense in nature."12 At the hearing, Crisp could provide

_________________________________________________________________

12 The ALJ found that Crisp had enforced American Crane's "no solici-

tation" rule against an employee (Zachary Givens) who had discussed the

Union on company time, while those who had violated the rule in ways

unrelated to the organization of company employees had gone unpun-

ished. Thereafter, just prior to the election, Crisp transferred Givens to

the shipping department for the purpose of isolating him from the other

employees. Crisp was also responsible for evaluating Givens, whose

scores -- like Brown's -- plummeted once his Union sentiments became

known.

13

no credible, objective evidence sufficient to support a conclusion that

Brown was incompetent or had misbehaved. In light of American

Crane's failure to adequately justify its treatment of Brown, we hold

that substantial evidence supports the Board's finding of a Section

8(a)(3) violation.

3.

Thompson, the group leader of the assembly department, was dis-

charged in the aftermath of an incident involving his supervisor, Jerry

Strickland. Thompson testified that he left work early on July 14,

1995, after he became upset with Strickland. The two had conversed

twice briefly concerning work matters, and, according to Thompson,

Strickland had insinuated that Thompson had been dishonest.

Thompson informed Strickland that he was leaving, and that

Strickland could charge him with a personal day or an "early out."

Strickland did not respond, and he remained silent even as Thompson

exited past him a few minutes later. Thompson was suspended and

ultimately discharged for being absent without authorization, and for

insubordination.

The record reveals that Thompson wore a Union button before the

election and for three weeks thereafter, and that he played an instru-

mental role in a prior unsuccessful organizing campaign. Thompson

had begun to again wear his Union button in the weeks prior to the

July 14, 1995 incident.

Employees at American Crane are entitled to four personal days

and four "late ins" and/or "early outs" per year. Although the com-

pany took the position in Thompson's case that any personal time had

_________________________________________________________________

According to the ALJ, Crisp's testimony during the hearing was "con-

tradictory" (of itself), and her demeanor rendered her a less credible wit-

ness. We must, of course, accept the ALJ's assessment of a witness's

credibility absent "exceptional circumstances" that would lead us to con-

clude it is without logical foundation. See Sam's Club, 173 F.3d at 240.

We can discern no reason to disregard the ALJ's credibility determina-

tions in this case.

14

to be prearranged, there was evidence that the company's practice

was to the contrary. According to the employee handbook, workers

were only required to give the company one hour's notice of a per-

sonal day, and there is no indication that American Crane had the dis-

cretion to deny such a demand. This interpretation of the policy was

verified by employee testimony, and no less an authority than the

company's manufacturing manager acknowledged previous instances

of employees not being disciplined in spite of "telling" their supervi-

sors that they were leaving.

Even if Thompson's absence could be classified as unauthorized,

it was conceded below that an employee would not be discharged

until the third such offense. Davis herself testified that a first unautho-

rized absence would result only in "verbal counseling" of the

employee by the designated supervisor.

Thompson could not have been legitimately terminated for the rea-

sons proffered by American Crane. He was not subject to discharge

for a single unauthorized absence, and, contrary to the company's

assertions, there was no evidence that he was insubordinate in any

way toward Strickland. The ALJ reached the only conclusion that he

could under these circumstances: Thompson was discharged because

he supported the Union -- a plain violation of Section 8(a)(3) of the

Act.

III.

In light of the preceding discussion, we deny American Crane's

petition for review. We grant, in its entirety, the Board's cross-

application for enforcement of its September 30, 1998 Decision and

Order.

PETITION FOR REVIEW DENIED, AND CROSS-

APPLICATION FOR ENFORCEMENT GRANTED

TRAXLER, Circuit Judge, concurring in part and dissenting in part:

Although I agree that the majority of the Board's findings are sup-

ported by substantial evidence, I believe the Board erred in finding

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that Moelter's statements to Clemmons amounted to unlawful interro-

gation in violation of § 8(a)(1), and in finding that American Crane

terminated Thompson because of his union activities in violation of

§ 8(a)(3). Thus, I respectfully dissent from the portions of the major-

ity opinion which uphold these findings.

To establish a violation of § 8(a)(1), there must be substantial evi-

dence that "the conduct in question had a reasonable tendency in the

totality of the circumstances to intimidate," even if not "coercive in

actual fact." NLRB v. Nueva Eng'g Inc., 761 F.2d 961, 965 (4th Cir.

1985) (internal quotation marks omitted). Thus, it is not unlawful for

a supervisor to question or interrogate employees"about their union

sentiments . . .[,] provided such questioning is not coercive." Id. To

determine whether a particular incident is coercive, the court "must

consider a variety of factors including the history of employer hostil-

ity to the union, the nature of information sought, the identity of the

questioner, and the place and method of the questioning." Id. at 966.

In Nueva, a high-ranking supervisor asked an employee during the

pendency of a campaign whether he supported the union. When the

employee responded in the affirmative and attempted to explain his

position, the supervisor interjected that unionization would result in

a "big layoff." Id. at 966. Several facts were recited as supportive of

the determination that the questioning was coercive. It took place

after the supervisor had followed the employee and two others home

from a cancelled union meeting, and after the vice-president of the

company had made a speech reflecting open hostility towards the

union. Additionally, it occurred in the company vice-president's

office, with no explanation of its purpose or assurance against repri-

sal.

According to Clemmons, he was selected to contact the Union in

mid-August 1994. The alleged "interrogation" by Moelter occurred

within a week or two, and consisted of a single statement: "that he

[Moelter] had heard that Clemmons was going to organize the

Union." J.A. 1458. When Clemmons responded that he had not yet

decided, the conversation ended. While true that Moelter did not

explain the purpose of his statement to Clemmons nor expressly state

that no retaliation would occur, the similarities to Nueva thereafter

end. American Crane (unlike the employer in Nueva), although

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opposed to unionization, had not instituted an anti-union campaign or

otherwise exhibited hostility to the Union when the conversation took

place. Furthermore, in my view, the conversation did not take place

in isolation. Clemmons testified that it occurred while the men were

standing by the toolroom door, in the middle of the machine shop.

There is no evidence that anyone heard Moelter's statement to Clem-

mons, but it indisputably occurred in the area where both men

worked. Clemmons was not removed from his work environment to

be "interrogated" about his union sympathies or his intentions. And,

in my view, the natural and informal nature of the surroundings seem

compatible with the absence of any formal statement of purpose or

need for an assurance against retaliation on the part of Moelter.

Finally, I find it significant, albeit not dispositive, that Clemmons did

not testify that Moelter's statement sounded threatening or intimidat-

ing. The ALJ acknowledged the absence of any evidence that Clem-

mons in fact felt coerced or intimidated by Moelter, and noted that the

conversation "did not take place in an intimidating setting." J.A. 1459.

For these reasons, I believe the ALJ and the Board failed to give

appropriate effect to the "totality of the circumstances" approach we

endorsed in Nueva. Rather, the ALJ appears to have premised his

finding on the erroneous belief that "[t]he test is the nature and timing

of the interrogation" alone, J.A. 1459, concluding that Moelter's state-

ment constituted a violation because it was made"just before the

beginning of a union campaign" without an explanation of its purpose

or an assurance against reprisal, id. Contrary to our holding in Nueva,

I believe this approach renders the "[q]uestioning or interrogation of

employees about their union sentiments . . . per se unlawful," and

gives no consideration to whether the questioning was or was not

intimidating or coercive or whether it could reasonably be interpreted

as such. Nueva, 761 F.2d at 965. Hence, I fear the end result is not

a fair evaluation of a question or statement in the full context in which

it occurs, but an approach which will impose a violation upon the

employer for any question asked by a supervisor about the union in

the work environment.

I likewise find insufficient evidence to support the Board's finding

that Thompson was terminated because of his union activity in viola-

tion of § 8(a)(3). Thompson was hired by American Crane in Febru-

ary 1985. The union election in which he participated as a principal

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employee was an unsuccessful one which occurred in 1989. Thomp-

son played no such principal role in the successful October 1994 elec-

tion, apparently limiting his involvement to wearing a union button

for a few weeks before and after this latter election. Additionally, the

incident leading to Thompson's termination occurred over nine

months after this election.

The only recent union activity on the part of Thompson was that

he began to wear his union button in early July because the supervi-

sors "`started watching the men a little closer.'" J.A. 1467. This activ-

ity, in turn, coincided with American Crane's July 5, 1995 promotion

of Strickland, who had also been first employed in 1985, to supervisor

of the assembly department. Eight days later, Strickland and Thomp-

son had two disagreements regarding work-related matters. In

response, Thompson told Strickland "that he was pushing the employ-

ees too hard, that they were getting the work done, and that if this did

not stop it would turn around on Strickland and`bite him in the ass.'"

J.A. at 1467. Thompson then told Strickland that he was leaving, and

walked off the job. Strickland neither granted Thompson permission

to leave, nor attempted to prohibit his doing so, and Thompson was

subsequently discharged for walking off the job and for insubordina-

tion.

The majority upholds the Board's decision that Thompson was ter-

minated as a result of his union activities -- relying primarily upon

American Crane's allowance of four personal days and four "late ins"

and/or "early outs" per year, testimony that employees had previously

taken "early outs" without express permission, and American Crane's

progressive discipline policy which would call for a verbal warning

for a first such unauthorized absence. While the ALJ relied upon a

similar basis to find a violation, the Board specifically declined to

"pass on whether Thompson violated company policy on `early-outs'

on July 14, 1995," concluding instead that a violation of § 8(a)(1) was

established because Strickland "remained silent when Thompson

informed him that he was taking the remainder of July 14 as a per-

sonal or vacation day, [thereby] impliedly[giving] Thompson permis-

sion to leave." J.A. 1455.

Under either rationale, I believe the evidence is insufficient to sup-

port a finding that American Crane violated its employee handbook

18

policy, or that Strickland's silence in the face of Thompson's threat

constituted acquiescence to the latter's walking off the job; and both

ignore Thompson's insubordination as a reason for his dismissal.

More importantly, however, I believe that the evidence is woefully

inadequate to support a conclusion that Strickland's behavior was

motivated by Thompson's union activities, or that American Crane

utilized the walk-off incident as a ruse for firing Thompson for such

activities. The Board infers such a discriminatory intent based upon

Thompson's principal participation in an unsuccessful union election

which occurred ten years before his termination, which led to no

adverse employment actions in the aftermath, and his minor participa-

tion in a successful union election which occurred nine months before

his termination. And Thompson's brief period of wearing the union

button in early-July also seems too slim a reed upon which to rest

such an inference. There being, in my view, insufficient evidence that

Thompson's union "activity was a substantial or motivating reason"

for American Crane's decision to terminate him, see Sam's Club v.

NLRB, 173 F.3d 233, 242 (4th Cir. 1999), I respectfully dissent.

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