The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN W. HANCOCK, JR.,
INCORPORATED,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, No. 02-2012
and
UNITED STEELWORKERS OF AMERICA,
AFL-CIO CLC,
Intervenor.
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
and
UNITED STEELWORKERS OF AMERICA,
AFL-CIO CLC,
Intervenor, No. 02-2183
v.
JOHN W. HANCOCK, JR.,
INCORPORATED,
Respondent.
On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(11-CA-18716)
Argued: May 8, 2003
Decided: September 3, 2003
2 JOHN W. HANCOCK v. NLRB
Before LUTTIG and MICHAEL, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Petition for review denied and enforcement granted by unpublished
per curiam opinion.
COUNSEL
ARGUED: James Francis Edwards, Jr., EDWARDS, BALLARD,
BISHOP, STURM, CLARK & KEIM, P.A., Spartanburg, South Car-
olina, for Hancock. David Arthur Fleischer, Senior Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. ON BRIEF: Jeffrey A. Lehrer, EDWARDS, BALLARD,
BISHOP, STURM, CLARK & KEIM, P.A., Spartanburg, South Car-
olina, for Hancock. Arthur F. Rosenfeld, General Counsel, John F.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate General
Counsel, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This case, which arises under the National Labor Relations Act
(NLRA), 29 U.S.C. § 151 et seq., involves a union organizing cam-
paign at the John W. Hancock, Jr., Inc. (Hancock) plant in Salem,
Virginia. The General Counsel of the National Labor Relations Board
(the Board) charged Hancock (i) with violating § 8(a)(1) of the NLRA
JOHN W. HANCOCK v. NLRB 3
when it attempted to coerce opposition to the union by threatening to
close the plant and fire employees and (ii) with violating § 8(a)(3) by
firing two employees because of their support of the union. After a
hearing an administrative law judge found that Hancock’s actions vio-
lated the NLRA. The Board adopted most of the ALJ’s findings and
ordered Hancock to cease and desist from the unlawful conduct, offer
the unlawfully discharged employees reinstatement with back pay,
and post copies of a remedial notice. Hancock filed a petition for
review, and the Board filed a cross-application for enforcement.
Because the Board’s findings are supported by substantial evidence,
we deny the company’s petition and enforce the Board’s order.
I.
Hancock’s Salem plant, where the company makes steel joists and
racks, has been the subject of two previous unsuccessful organizing
drives by the United Steelworkers of America, AFL-CIO. The cam-
paign at issue here started in March 2000. On May 21, 2000, the
union held a meeting off-site. Beginning the next day, management
responded with anti-union speeches and meetings. On June 5, 2000,
two union supporters, Larry Pugh and Paul Akers, were fired, ostensi-
bly for being on company premises off-shift and without permission.
On June 20 the union filed an unfair labor practices charge with the
Board. The General Counsel issued a complaint alleging four viola-
tions of the Act. The complaint alleged that the company had commit-
ted unfair labor practices by threatening employees with termination,
by threatening to close the plant, and by interrogating an employee
about his union involvement. It also alleged that the company had
unlawfully terminated Pugh and Akers because of their union activity.
Following a hearing the ALJ found that the company had committed
each of the four violations. The Board upheld the ALJ’s decision and
adopted his findings on three of the violations (it dismissed the
unlawful interrogation charge). The company petitions for review of
the Board’s decision on the three violations it upheld; the Board seeks
enforcement of its order.
II.
We affirm the Board’s factual findings (in this case, the adopted
findings of the ALJ) as long as they are "supported by substantial evi-
4 JOHN W. HANCOCK v. NLRB
dence on the record considered as a whole." 29 U.S.C. § 160(e). See
also Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir.
1998). "Substantial evidence" is "such relevant evidence as a reason-
able mind might accept as adequate to support a conclusion." Alpo
Petfoods, Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir. 1997) (citation
omitted). We "may [not] displace the Board’s choice between two
fairly conflicting views." Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951). We accept factual findings based on credibility
determinations unless there are "exceptional circumstances." Field-
crest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996) (citation
omitted). Exceptional circumstances exist when "a credibility deter-
mination is unreasonable, contradicts other findings of fact, or is
based on an inadequate reason or no reason at all." Id. (citation omit-
ted).
III.
A.
An employer’s use of threats of plant closure to coerce employees
to reject a union is an unfair labor practice barred by § 8(a)(1) of the
NLRA, 29 U.S.C. § 158(a)(1). NLRB v. Nueva Eng’g, Inc., 761 F.2d
961, 966 (4th Cir. 1985). An employer’s statement is not an unlawful
threat if it is an objective "prediction as to the precise effects [the
employer] believes unionization will have on [the] company . . . [and]
convey[s] an employer’s belief as to demonstrably probable conse-
quences beyond [its] control." NLRB v. Gissel Packing Co., 395 U.S.
575, 618 (1969). On the other hand, if the employer is saying it will
close a plant upon unionization "solely on [its] own initiative for rea-
sons unrelated to economic necessities," the statement may be a
threat. Id.; see also Be-Lo Stores v. NLRB, 126 F.3d 268, 285-86 (4th
Cir. 1997). The ALJ and the Board found that Hancock, through man-
ager Chris Moore, threatened employee David Waller with plant clo-
sure if the employees unionized. Hancock argues that this finding is
not supported by substantial evidence.
Waller testified that Moore told him that if the employees voted to
bring in the union, the company’s shareholders would respond by
shutting down the side of the plant that makes steel racks "because we
have lost some money for so many consecutive years." Moore testi-
JOHN W. HANCOCK v. NLRB 5
fied that he never mentioned the union. The ALJ accepted Waller’s
version and found that Moore had threatened plant closure in viola-
tion of § 8(a)(1). Hancock first notes slight variations in Waller’s
accounts of Moore’s statement at different points in his testimony and
argues that the ALJ should not have credited Waller’s version over
Moore’s in the face of this inconsistency. The variations in Waller’s
testimony are too slight, however, for us to overturn the ALJ’s credi-
bility determination. See Fieldcrest Cannon, 97 F.3d at 69-70.
Hancock further argues that because the plant’s ongoing lack of
profitability was, in Waller’s words, "a big part" of what Moore said,
Moore’s statement was not necessarily a threat. The statement was,
the company says, a simple prediction about the plant’s future and
was therefore not a violation of § 8(a)(1). See Gissel, 395 U.S. at 618-
19. The ALJ offered a plausible basis for the conclusion that the state-
ment was a coercive threat: Moore’s statement acknowledged that the
plant had been unprofitable for some time, but would only be shut
down if the union came in; unionization, not unprofitability, was the
event that would precipitate the closure. Hancock offers other plausi-
ble interpretations of Moore’s statement, but it is the Board’s job, not
ours, to choose among "fairly conflicting views" of the evidence. See
Universal Camera, 340 U.S. at 488. The Board adopted the ALJ’s
finding that Moore’s statement was a threat of closure in violation of
§ 8(a)(1), and we will not disturb that finding. See id.
B.
Threatening an employee with discharge in order to coerce him to
reject a union also violates § 8(a)(1). NLRB v. Grand Canyon Mining
Co., 116 F.3d 1039, 1046 (4th Cir. 1997). The ALJ found (1) that on
June 6, 2000, the day after Akers and Pugh were discharged, manager
Roger Sloan told employee Preston Connor that Akers and Pugh had
been let go because of their union activity and (2) that this statement
constituted an unlawful threat of termination. The Board adopted
these findings.
Sloan denied making the statement about Akers and Pugh, but the
ALJ credited Connor’s testimony that the statement was made. We
will not disturb that credibility determination. Fieldcrest Cannon, 97
F.3d at 69-70. Hancock argues that even if Sloan made the statement,
6 JOHN W. HANCOCK v. NLRB
he did not make a direct threat, but only reported news that he had
heard from others: Sloan said, "I heard they let [Akers and Pugh] go
for handing out union cards to the nightshift." "A supervisor’s explicit
statement to an employee that the company laid off his fellow
employees because of their union activities reasonably could coerce
or intimidate the remaining employees." Grand Canyon Mining, 116
F.3d at 1046. That Sloan cast his statement as the repetition of news
he received from others does not eliminate its coercive nature. A
statement is coercive for purposes of § 8(a)(1) if it "had a reasonable
tendency in the totality of circumstances to intimidate." Equitable
Gas Co. v. NLRB, 966 F.2d 861, 866 (4th Cir. 1992) (citation omit-
ted). Under the circumstances, the ALJ was reasonable in finding that
Sloan’s repetition of what he had heard had a tendency to intimidate
employees. The ALJ’s finding, adopted by the Board, that Sloan’s
statement was coercive is supported by substantial evidence.
C.
Finally, the Board found that Hancock violated § 8(a)(3) of the Act,
29 U.S.C. § 158(a)(3), by firing Pugh and Akers because of their sup-
port for the union. Pugh and Akers were union supporters who had
both solicited others to sign authorization cards. Their terminations
arose out of separate incidents on the night of Friday, June 2, 2000.
Both Pugh and Akers worked on the day shift. That evening each of
them visited the plant during the second shift in violation of company
rules; both were fired on Monday, June 5. Each had his own reason
for returning to the plant, but neither of them went there for union
purposes. Pugh came to collect child-support payments from his
wife’s ex-husband, also a Hancock employee. This was Pugh’s usual
practice; he testified that supervisors knew he did this from time to
time. A supervisor asked him to leave, and he did. About a half-hour
later he returned to the plant parking lot in order to get the child-
support payment as the night shift let out. He was observed in the
parking lot. On Monday, June 5, he was fired for being at the plant
off-shift and for insubordination because he returned after being
asked to leave. Akers’s story is simpler. The hot water heater at his
house was broken, so he returned to the plant to shower every evening
that week. On June 2 he came in fairly late, around the time Pugh was
at the plant. No manager talked to Akers that evening, but on Monday
he was fired for being at the plant.
JOHN W. HANCOCK v. NLRB 7
Section 8(a)(3) makes it unlawful to terminate an employee on
account of his union activity. See NLRB v. Transp. Mgmt. Corp., 462
U.S. 393, 398 (1983); Goldtex, Inc. v. NLRB, 14 F.3d 1008, 1011 (4th
Cir. 1994). When the employer’s motivation for the termination may
include anti-union animus as well as legitimate reasons, the Board
uses a burden-shifting framework similar to that used under the civil
rights laws. To prove a violation in a mixed-motive case the General
Counsel must establish by a preponderance of the evidence: "1) that
the employee was engaged in protected activity, 2) that the employer
was aware of the activity, and 3) that the activity was a substantial or
motivating reason for the employer’s action." Medeco Sec. Locks, 142
F.3d at 742 (citing Wright Line, 251 N.L.R.B. 1083 (1980), enforced,
662 F.2d 899 (1st Cir. 1981)). A showing that the employer bore ani-
mus toward the union in general may be part of the proof that a partic-
ular termination was motivated by that animus. See Grand Canyon
Mining, 116 F.3d at 1048. The absence of legitimate reasons for the
termination may also help establish that it was motivated by anti-
union animus. Medeco Sec. Locks, 142 F.3d at 742.
If the General Counsel proves this prima facie case, the employer
may defend its action by showing that it would have made the same
decision absent the anti-union animus. Id. Here, the ALJ found that
the General Counsel proved his case. Hancock argues that substantial
evidence does not support the ALJ (and the Board’s) findings on the
issues of the company’s knowledge of Pugh’s and Akers’s union
activities and its anti-union animus.
The ALJ’s finding that the company knew Pugh was involved with
the union is plainly supported by substantial evidence. The ALJ found
that Chris Moore, the same manager who threatened Preston Connor
with discharge, saw employee David Waller filling out a union card
given to him by Pugh. Waller and Pugh had been discussing a hand-
gun belonging to Waller and had passed the gun and card back and
forth. (Although the gun was the subject of another charge that the
General Counsel dropped, this incident is also relevant to establishing
Hancock’s knowledge and was appropriately considered by the ALJ
for that purpose.) Waller’s testimony was somewhat equivocal as to
whether Moore arrived on the scene in time to see the union card pass
between the men. But the ALJ’s finding that he came upon the two
in time to see Waller filling out the union card and handing it back
8 JOHN W. HANCOCK v. NLRB
to Pugh is a reasonable view of the evidence and supports the conclu-
sion that the employer knew of Pugh’s union activity.
The evidence of the company’s knowledge of Akers’s union activ-
ity is not as strong, but is still sufficient to support the ALJ’s finding.
Akers himself testified that there was a rumor spread throughout the
company that he and Pugh were involved with the union, though no
evidence showed that any specific manager heard this rumor. How-
ever, the ALJ also relied on several facts suggesting that management
would have been particularly attuned to such information at that time,
bolstering the inference that information about Akers’s union involve-
ment reached management. In response to the organizing campaign,
the company asked supervisors to pay close attention to activity at the
plant; each of the supervisors who saw Pugh and Akers at the plant
after hours admitted that they had been following those instructions.
Furthermore, those supervisors also noted that they did not usually
see employees returning to the plant after hours. With supervisors in
this state of heightened vigilance, it is reasonable to infer that the odd-
ity of two employees returning on the same night would at least raise
suspicions of union activity. Taken together, the evidence of the com-
pany’s knowledge of Akers’s union activity is "adequate to support
[the ALJ’s] conclusion." Alpo Petfoods, 126 F.3d at 250 (citation
omitted). Because the Board’s adopted finding is supported by sub-
stantial evidence, we will not overturn it. (The Board also rested this
determination in part on a negative inference drawn from Hancock’s
failure to call certain supervisors to testify at the hearing; the com-
pany challenges the propriety of that inference. There is sufficient
evidence to support the finding without the negative inference, so we
do not need to decide whether it was appropriate.)
The ALJ’s finding that the company bore animus against the union
is also supported by substantial evidence. The most important indica-
tions of this animus are the § 8(a)(1) violations discussed above. A
§ 8(a)(1) violation may be evidence of animus, Grand Canyon Min-
ing, 116 F.3d at 1048, although it is not necessarily conclusive on the
question, see, e.g., Alexian Bros. Med. Ctr., 307 N.L.R.B. 389, 390
(1992). It is not necessary that the subjects of the § 8(a)(1) violations
be the same employees unlawfully terminated in violation of
§ 8(a)(3). Grand Canyon Mining, 116 F.3d at 1048. Once an
employer, like Hancock, has used threats of plant closing or termina-
JOHN W. HANCOCK v. NLRB 9
tion in attempts to coerce employees to reject the union, its anti-union
animus is usually clear.
"[T]he absence of a legitimate basis for an employer’s action may
form part of the proof" that the action was motivated by anti-union
animus. Medeco Sec. Locks, 142 F.3d at 742. Relying on credibility
determinations, the ALJ found that Van Johnson, a company vice
president, had decided to terminate both Pugh and Akers before each
was called into his office to discuss his infraction and discipline. This
predetermination raises the inference that the infractions offered as
reasons for their terminations were pretextual. Furthermore, the ALJ
found that Pugh had only been asked to leave the plant, not the com-
pany property. He was therefore not disobeying any instructions when
he later returned to the parking lot. This suggests that Hancock’s
explanation for his discharge, insubordination, was pretextual.
Proof that an employer has selectively enforced rules against union
supporters or terminated union supporters for breaking rules that oth-
ers have broken without being fired also shows anti-union animus.
See Montgomery Ward & Co., Inc. v. NLRB, 97 F.3d 1448 (table),
1996 WL 532744, at *5 (4th Cir.), citing Hunter Douglas, Inc. v.
NLRB, 804 F.2d 808, 813-15 (3d Cir. 1986); see also Amer. Thread
Co. v. NLRB, 631 F.2d 316, 319-22 (4th Cir. 1980). Pugh and Akers
were fired because they violated a company rule barring employees
from the plant when they are not on shift, except for thirty minutes
at the beginning and end of the shift. The ALJ found that employees
regularly stayed longer than that without discipline, let alone termina-
tion. The ALJ also found that other employees came to the plant out-
side of their shifts and used company equipment for personal projects.
Sometimes these employees had permission, sometimes they did not.
None were disciplined. Overall, then, the ALJ’s, and therefore the
Board’s, finding that Hancock knew of the union activities of Pugh
and Akers and that the employees’ terminations were motivated by
anti-union animus was supported by substantial evidence. We there-
fore uphold the Board’s conclusion that the terminations violated
§ 8(a)(3) of the NLRA.
IV.
In sum, the Board’s determinations that Hancock’s threats violated
§ 8(a)(1) twice and that the firings of Akers and Pugh violated
10 JOHN W. HANCOCK v. NLRB
§ 8(a)(3) are supported by substantial evidence. We therefore deny
the company’s petition for review and grant enforcement of the
Board’s order.
PETITION FOR REVIEW DENIED
AND ENFORCEMENT GRANTED