WXGI, Incorporated v. NLRB , 243 F.3d 833 ( 2001 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WXGI, INCORPORATED, and its 
successor, GEE COMMUNICATIONS,
INCORPORATED,
Petitioners,
 No. 00-1323
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.
WXGI, INCORPORATED, and its  No. 00-1510
successor, GEE COMMUNICATIONS,
INCORPORATED,
Respondents.

On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board.
(5-CA-27367)
Argued: December 5, 2000
Decided: March 13, 2001
Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
2 WXGI, INC. v. NLRB
Petition for review denied and cross-application for enforcement
granted by published opinion. Judge Traxler wrote the opinion, in
which Chief Judge Wilkinson and Senior Judge Hamilton joined.
COUNSEL
ARGUED: Tim Schulte, Thomas Hunt Roberts, THOMAS H. ROB-
ERTS & ASSOCIATES, P.C., Richmond, Virginia, for WXGI and
Gee. Robert James Englehart, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Board. ON BRIEF: Leonard R.
Page, General Counsel, Aileen A. Armstrong, Deputy Associate Gen-
eral Counsel, Fred L. Cornnell, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board.
OPINION
TRAXLER, Circuit Judge:
WXGI, Inc., and its successor Gee Communications, Inc., petition
this court for review of the February 29, 2000 Decision and Order of
the National Labor Relations Board (the "Board") determining that
WXGI, Inc. violated § 8(a)(1) and § 8(a)(3) of the National Labor
Relations Act, 29 U.S.C.A. §§ 158(a)(1), (a)(3) (West 1998) (the
"Act"), by discharging four employees because of their actual or sus-
pected union-organizing activities, and that Gee Communications,
Inc. was a successor to WXGI, Inc. for purposes of imposing joint
and several liability. The Board cross-petitions for enforcement of its
Decision and Order. For the reasons stated below, we deny WXGI,
Inc.’s petition for review and grant the Board’s cross-petition for
enforcement.
I.
This case arises out of the termination of four employees of WXGI,
Inc., which operated a country music radio station (WXGI AM-950)
WXGI, INC. v. NLRB 3
in Richmond, Virginia. In March 1997, J.D. Keatley ("Keatley"), the
owner of WXGI, Inc., entered into a contract to sell the radio station
to David Gee ("Gee"), the future president of Gee Communications,
Inc. ("Gee Communications"). Problems soon arose, however, when
Keatley attempted to renege on the agreement, prompting Gee to file
a lawsuit to force Keatley to complete the transfer of ownership of the
radio station. In June 1997, Keatley and Gee reached a settlement
agreement under which WXGI, Inc. hired Gee as the general manager
of the radio station pending completion of the transfer from Keatley
to Gee. Keatley, however, remained the owner of the station and
maintained control over certain business matters, including payroll.
On August 29, 1997, the Federal Communications Commission
approved the assignment of the WXGI radio license to Gee Commu-
nications. However, the relationship between Gee and Keatley contin-
ued to deteriorate to the point that Gee obtained a court order on
September 29, 1997, barring Keatley from the station premises. Nev-
ertheless, Keatley remained the owner of the station until October 17,
1997, when the business was finally transferred from WXGI, Inc. to
Gee Communications.
During this acrimonious time, WXGI, Inc. had approximately 12
to 14 employees. This case arises out of Gee’s September 30, 1997
termination of four of these employees for their actual or suspected
organizing activities at the station on behalf of the United Food and
Commercial Workers International Union, Local 400, AFL-CIO (the
"Union"). Three of the terminated employees, Mark Matthews, Steven
Giles, and Wiley Southworth, were prime-time on-air radio personali-
ties for WXGI, Inc. The fourth was sales account executive, and
sometimes on-air personality and country music performer, Bobby
Overman a/k/a Bobby Shannon ("Shannon").1 Shannon had been the
general manager of WXGI, Inc. for Keatley, until Gee assumed the
position under the June 1997 settlement agreement. As part of his
duties, Shannon had solicited and handled the Union’s sales account
for WXGI, Inc.
1
It appears that "Bobby Shannon" was the name used by Bobby Over-
man in his capacity as an on-air personality and country music per-
former. To remain consistent with the Board’s order, we too refer to him
as "Shannon."
4 WXGI, INC. v. NLRB
Shannon, Matthews, Giles and Southworth (collectively the "dis-
criminatees") were viewed by Gee as a close-knit, cohesive group or
clique led primarily by Shannon. They were also viewed as loyal to
Keatley in the dispute between Gee and Keatley over transfer of the
radio station. Hence, when Gee assumed the position of general man-
ager of the radio station in June 1997, the atmosphere was tense. In
addition to the acrimonious atmosphere caused by the feud between
Keatley and Gee, it became known that Gee intended to make at least
some changes in the station operation and programming format. Of
particular distaste to the discriminatees, Gee sought to rehire John
Trimble as a station manager for Gee Communications. Trimble had
been a prior general manager for Keatley’s WXGI, Inc., but had been
terminated by Keatley some time before. He was admittedly not well-
liked or well-received by the discriminatees.
On September 1, Gee met with Trimble to discuss Trimble’s poten-
tial return to the WXGI radio station, at which time Trimble presented
Gee with a document entitled "John Trimble’s Operating Proposal for
WXGI Radio." J.A. 69. Among other things, the document proposed
a new program format and vested Trimble with the sole authority to
select all music played by the on-air personalities. It also proposed the
termination of all current on-air personalities and control board opera-
tors, with the exception of on-air personalities Don Price and Phillip
Rucker. Trimble proposed that notices of termination be given on
September 15, 1997, with an effective termination date of September
30, 1997. Under the proposal, Trimble also vested in himself the
authority to select all future on-air personalities. Gee, however,
balked at Trimble’s termination demand. Because the Union, which
already placed a fairly large amount of business with the station, had
indicated that it intended to increase its sales account with the station,
Gee wanted to keep Shannon on in a full-time capacity. He also
wanted to retain Matthews and at least one other on-air personality in
at least some regularly-scheduled work and the remainder of the on-
air personalities, including Giles and Southworth, in some form of
part-time or on-call employment.
On September 9, 1997, Gee posted an announcement on the bulle-
tin board in the station office notifying the employees that Trimble
would be re-joining WXGI radio. Although it does not appear that the
four discriminatees were aware of Trimble’s specific request that all
WXGI, INC. v. NLRB 5
on-air personalities be terminated, Giles at least became concerned
that Trimble’s arrival would herald a less secure job future for him
and his three friends. It appears undisputed that the discriminatees’
discomfort with the prospect of Trimble’s return was made known to
Gee.
On September 15, 1997, Gee responded to Trimble’s operating
proposal orally and in writing, generally accepting the proposal with
the exception of the employee termination request. Instead, Gee
agreed to inform all present on-air personalities that they would be
used as "on call" only, at Trimble’s request, and that Mark Matthews
and David Holt, another on-air personality, would be asked to take
some regularly scheduled weekend work. There was no evidence that
Gee at any time thereafter informed Trimble that his intent to retain
all four discriminatees, and other on-air personalities, had changed.
On September 21, 1997, "Shooters" restaurant and bar hosted a tra-
ditional, "old time," country music charity event. Although WXGI,
Inc. did not sponsor the event, Shannon, Giles and Southworth served
as masters of ceremonies, and Matthews attended. Gee testified that
he received telephone reports that the four had asked customers to
write letters protesting the station’s recent decision to move from a
"legendary" country music format to a more "modern" country music
format. Although Gee later described the incident at Shooters as a "re-
bellion," it did not cause him to cease ongoing discussions with Mat-
thews about continued employment or prompt him to withdraw an
outstanding employment offer which he had previously extended to
Shannon. Nor were Giles or Southworth confronted about the inci-
dent.
During this time, the atmosphere at the radio station continued to
be quite unsettled in the minds of the discriminatees. Trimble’s pro-
posed deadline for providing on-air personalities with a notice of their
termination — September 15 — had passed, consistent with the evi-
dence that Gee intended to retain all four discriminatees in some
capacity after the transfer of ownership of the station, but there is no
indication that the discriminatees were aware of this fact. Gee had
apparently been in some negotiations with Shannon and Matthews
concerning their potential for continued employment, but Giles and
Southworth may well have feared for their job security altogether.
6 WXGI, INC. v. NLRB
Coincidentally, WXGI was to operate a remote broadcast from the
booth of the Union at the Virginia State Fair beginning on September
26, 1997. At a breakfast meeting two days before, Shannon, who was
continuing to handle the Union’s account, introduced Matthews, who
was scheduled to perform the remote broadcast from the Union booth,
to Union Representative Paul Evans. Evans discussed the situation at
the station with Matthews and gave him cards to distribute to the sta-
tion employees for an organizing campaign, along with a Union
bumper sticker and a Union button to show his support. Later that
day, Giles also met with Evans at the Union booth at the fairgrounds.
Evans told Giles about his conversation with Shannon and Matthews
earlier that day, and his suggestion that the radio employees seek
Union representation. Giles also obtained Union bumper stickers and
Union buttons to show support for the Union, and Union cards to be
filled out by coworkers interested in the Union.
Between September 24 and September 28, both Matthews and
Giles signed and returned a Union card to Evans. Matthews placed a
Union bumper sticker on his car, drove to the station at least three
separate times with the sticker visible on his car, and spoke with three
or four employees about Union representation. Giles also spoke
openly to eight or nine employees at the station about the Union, and
was successful in obtaining signed Union cards from seven of his
coworkers. Giles also displayed a Union bumper sticker on his auto-
mobile on Monday, September 29, and wore a Union button to work
on that date. Shannon testified that he did not discuss the Union with
anyone, but did sign a card given to him by Giles. Southworth testi-
fied that Giles also urged him to sign a card, but that he had not done
so prior to his termination.2
On September 30, 1997, "judgment day" according to Gee, the
group of four were summarily terminated, effective immediately.
Giles testified that he arrived at the station at 4:45 a.m. for his sched-
uled morning shift. As he parked in the front lot, he observed Mat-
thews’ car in the lot with the Union bumper sticker on it. At 8:00
2
Although Shannon and Southworth apparently thought the cards only
indicated a desire to hear more about the Union, the card purportedly
signed by Shannon contained authorization for representation by the
Union, not merely an invitation to hear more about it.
WXGI, INC. v. NLRB 7
a.m., Giles spoke with Gee in the control room for about ten minutes
and Giles had his Union button on at the time. Shortly after 10 a.m.,
as Giles was ending his morning shift, Gee terminated Giles. The ter-
mination letter indicated that the termination was due to Gee’s belief
that his new format change was "contrary to [Giles’] preference" and
to Giles’ "stated strong objection and reaction to the station’s decision
to employee [sic] John Trimble." J.A. 46. During the conversation,
Giles testified that Gee also referred to him as a member of Keatley’s
"team."
Southworth, who was scheduled to begin his shift at the end of
Giles’ shift, was terminated almost immediately after Giles. His ter-
mination letter indicated only that it was due to his "strong objection
and reaction to the station’s decision to employee [sic] John Trimble."
J.A. 47. Southworth had no further discussion about the matter with
Gee. Although Gee would later claim that Southworth was terminated
in part due to his participation in the Shooters’ incident, no mention
of this incident was made to Southworth at the time or in his letter
of termination.
Matthews was terminated just prior to his scheduled, 2 p.m. remote
broadcast from the Union’s booth at the State Fair. Exactly what Gee
told Matthews, and who was present during the conversation, is dis-
puted. According to Matthews, Gee arrived and asked Matthews to
talk privately, but Matthews refused because he was about to begin
his broadcast. Gee then proceeded to terminate Matthews in the pres-
ence of two Union representatives, Tom Rogers and Willie Snow.
Gee informed Matthews that he had heard about the efforts of Mat-
thews, Southworth, and Giles to form a union and that he was dis-
heartened because Matthews had kept things from him, lied to him,
and deceived him. According to Matthews, Gee also told him that if
Matthews reconsidered his position over the next thirty days, Gee
would be willing to speak to him about future employment with the
station. Union representatives Rogers and Snow confirmed overhear-
ing Gee’s references to the union-organizing activities as being the
impetus for Matthews’ termination and, afterwards, the Union flatly
refused to accept Gee’s proposed substitute for Matthews at the
broadcast booth, indicating that there were indeed Union persons
present when Matthews was terminated and that the act had immedi-
ately engendered ill-will with the Union.
8 WXGI, INC. v. NLRB
Like Giles’ and Southworth’s termination letters, Matthews’ writ-
ten termination letter purported to blame the termination decision
upon a new format change which Gee felt to be "contrary to [Mat-
thews’] preference" and Matthews’ "stated strong objection and reac-
tion to the station’s decision to employee [sic] John Trimble." J.A. 45.
However, it also referenced an opportunity for Matthews to enjoy
future employment at the station:
This termination for you is contrary to my stated desire to
offer you continous [sic] employment. The decision to ter-
minate your employment comes with recent information of
your behavior and remarks! I encourage you to reflect over
the next 30 days and if interested, reapply to WXGI.
J.A. 45.
Gee categorically denies telling Matthews that he was being termi-
nated for his union affiliation or, for that matter, mentioning union
activities at all. Despite the language of the termination letter, he con-
tends instead that Matthews was terminated in private pending an
investigation of a complaint WXGI had received from a member of
the community which Gee felt might implicate Matthews. According
to Gee, on September 29, David Holt informed him that Holt had
received a telephone call a day or so earlier from a woman in the
community claiming that an employee known as "Cowboy" — which
apparently is Matthews’ on-air personality name — had engaged in
improper, and perhaps illegal, conduct. Gee asserts that this alleged
complaint was the primary reason for Matthews’ termination, and that
the reference to a possibility of reinstatement after thirty days was for
the purpose of allowing Gee an opportunity to investigate further.3
Shannon was terminated, also at the State Fair location, at about
the same time as Matthews. According to the Gee, Shannon was the
"catalyst" of the group of four and was to be fired as part of their
3
The complaint appears to have never been substantiated and the par-
ties earlier stipulated that its substance was not relevant to the unfair
labor practices charge. Because the Board’s rejection of the complaint as
the motivation for Matthews’ discharge is also not dependent upon its
particular details, we see no reason to elaborate further.
WXGI, INC. v. NLRB 9
"judgment day." Shannon testified that he personally observed Gee
talking to Matthews at the broadcast booth, that Union representatives
were present at the time, and that he personally heard some reference
being made to a thirty-day time frame. He did not, however, profess
to have overheard any specific discussion about the Union or about
any union-organizing activities. When Shannon entered the booth
area, Gee asked Shannon to accompany him outside where Shannon
was terminated, purportedly for not being a "team player." Shannon’s
termination letter, however, gave no clear reason for the discharge,
referencing only a June 1997 agreement between Keatley and Shan-
non concerning Shannon’s termination:
On June 3, 1997 you and J.D. Keatley entered into a termi-
nation notice of your 4-25-97 contract of employment! As
a further clarification of any intent on part of W.X.G.I., or
Gee Communications, Inc. I now also reaffirm or establish
the desire of W.X.G.I. to terminate its relationship with you!
J.A. 44. Of course, this is inconsistent with Shannon’s continued
employment, with Gee at the helm of WXGI, Inc., from June through
September and an outstanding written offer of employment Gee had
extended to Shannon which Shannon had signed, but not yet returned.
A few hours after his discharge, Shannon went to Keatley’s home to
obtain his paycheck. In response to Shannon’s inquiry, Keatley told
Shannon that he knew Gee had terminated Shannon and, furthermore,
that Gee knew about the union-organizing attempt.
Following the terminations, the Union filed an unfair labor prac-
tices charge against WXGI, Inc. and Gee Communications. The
Board issued a complaint on September 23, 1997, and the matter was
assigned to an Administrative Law Judge ("ALJ"). The ALJ con-
ducted a four-day hearing, and issued a decision on August 29, 2000,
concluding that WXGI, Inc. violated § 8(a)(1) and § 8(a)(3) of the Act
by terminating Shannon, Matthews, Giles, and Southworth for their
actual or perceived union-organizing activities at the station, and that
Gee Communications, Inc. was a successor corporation to WXGI,
Inc. subject to joint and several liability for the violations. A panel of
the Board issued a Decision and Order affirming the ALJ’s findings
and conclusions and adopting his recommended Order with one modi-
fication. Among other things, the Board ordered WXGI, Inc., and its
10 WXGI, INC. v. NLRB
successor Gee Communications, to cease and desist from discharging
employees or telling them that they are being discharged because of
actual or suspected Union activities by them or other employees; to
cease and desist from coercively interrogating its employees about the
Union activities by them or other employees;4 and to reinstate Shan-
non, Giles, Southworth, and Matthews with back pay and expunge
their employment records of the unlawful discharges.5
WXGI and Gee Communications now petition this court for review
of the Board’s Decision and Order, see 29 U.S.C.A. § 160(f) (West
1998), asserting that the Board’s findings are not supported by sub-
stantial evidence and that Gee Communications was not a successor
to WXGI, Inc. The Board filed a cross-application for enforcement of
the Decision and Order. See 29 U.S.C.A. § 160(e) (West 1998).
II.
WXGI, Inc. and Gee Communications first assert that the Board’s
determination that WXGI, Inc. violated Section 8(a)(1) and (a)(3) by
terminating Shannon, Matthews, Giles, and Southworth should be
4
A few days before the trial began before the ALJ, Gee’s attorney con-
tacted a part-time announcer with WXGI. Among other things, the attor-
ney asked the employee if his working conditions were pleasant, whether
he knew anything about a union forming at the station, and whether he
had filled out a union card. When the employee admitted that he had
filled out a card, the attorney asked him if he was going to form a union.
The Board concluded that Gee Communications, by its agent, coercively
interrogated the employee concerning union activities without complying
with the requisite standards for trial preparation investigations, constitut-
ing a violation of § 8(a)(1) of the Act. Because petitioners have not pur-
sued a challenge to this violation on appeal to this court, the Board’s
order with regard to it is entitled to summary enforcement. See NLRB v.
Frigid Storage, Inc., 934 F.2d 506, 509 (4th Cir. 1991).
5
The ALJ had recommended that the Board order Shannon to be rein-
stated on a full-time basis, but that Giles, Southworth, and Matthews be
reinstated only to the on-call or part-time status they would have alleg-
edly held under Gee’s plan. Because there were indications that two
other on-air personalities with WXGI, Inc. were retained on a full-time
basis, the Board instead deferred the issue of the type of reinstatement
and amount of back pay to the compliance stage.
WXGI, INC. v. NLRB 11
overturned because the alleged discriminatees were terminated not for
their actual or perceived union activities, but for obvious and lawful
business reasons. We disagree.
A.
Section 8(a)(1) of the Act makes it an unfair labor practice for an
employer "to interfere with, restrain, or coerce employees in the exer-
cise of the rights guaranteed in" Section 7 of the Act. 29 U.S.C.A.
§ 158(a)(1). Under Section 7, employees are guaranteed, among other
things, "the right to self-organization, to form, join, or assist labor
organizations." 29 U.S.C.A. § 157 (West 1998). Section 8(a)(3)
makes it an unfair labor practice for an employer to "discriminat[e]
in regard to hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any labor
organization." 29 U.S.C.A. § 158(a)(3). In other words, Section
8(a)(3) directly "protects [employees] against work transfers or firings
due to anti-union animus." Dorsey Trailers, Inc. v. NLRB, 233 F.3d
831, 839 (4th Cir. 2000).
In order to make a prima facie showing of a discrimination viola-
tion under Section 8(a)(3) of the Act, the General Counsel must dem-
onstrate by a preponderance of the evidence that: (1) the employee
was engaged in protected activity, such as union-organizing activity;
(2) the employer was aware of the protected activity; and (3) the pro-
tected activity was a substantial or motivating reason for the employ-
er’s decision to take an adverse employment action against the
employee. See Sam’s Club v. NLRB, 173 F.3d 233, 242 (4th Cir.
1999). Such showing may be by either direct or circumstantial evi-
dence. Id.Once the General Counsel has made the requisite showing, the bur-
den shifts to the employer to produce evidence of a legitimate busi-
ness motive for the adverse employment action. Id. In other words,
the employer must produce evidence that it would have taken the
same adverse action in the absence of employee participation in pro-
tected activity and anti-union animus. See id. at 242-43; Dorsey Trail-
ers, 233 F.3d at 839. "Thus, an employer might show that a worker’s
deficiencies, economic necessity, or a legitimate business policy com-
pelled disciplinary or other adverse action." Sam’s Club, 173 F.3d at12 WXGI, INC. v. NLRB
242-43 (internal quotation marks omitted). In the face of such a show-
ing, the General Counsel may not simply assert or declare that the
proffered reasons are pretextual; rather, the General Counsel must
present substantial evidence "that anti-union animus [actually] moti-
vated the employer’s choice." Id. at 243.
When reviewing a decision of the Board, we are bound by the
Board’s factual findings if they are supported by substantial evidence
on the record as a whole. See 29 U.S.C.A. § 160(e) ("[Q]uestions of
fact . . . supported by substantial evidence on the record considered
as a whole shall be conclusive."); 29 U.S.C.A. § 160(f) (same). We
likewise examine the Board’s application of the law to the facts to
determine whether it is "supported by substantial evidence based upon
the record as a whole." Sam’s Club, 173 F.3d at 239. "Substantial evi-
dence is ‘more that an scintilla’ but ‘less than a preponderance’ of
evidence. Id. It is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Id. (internal quotation
marks omitted). When engaged in fact finding, the Board "is not free
to prescribe what inferences from the evidence it will accept and
reject, but must draw all those inferences that the evidence fairly
demands." Sam’s Club, 173 F.3d at 239-40 (internal quotation marks
omitted). However, the Board’s findings will not be overturned if "it
would have been possible for a reasonable jury to reach the [same]
conclusion." Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S.
359, 366-67 (1998). Finally, although we review questions of law de
novo, we give deference to the Board’s interpretation of the Act "if
it is reasonably defensible." Industrial Turnaround Corp. v. NLRB,
115 F.3d 248, 251 (4th Cir. 1997); see also Sam’s Club, 173 F.3d at
239.
B.
In this case, WXGI Inc. and Gee Communications claim that David
Gee had no knowledge of the short-lived union-organizing activities
occurring at the station and that such activities played no role in the
decision to terminate the four discriminatees. The Board’s findings to
the contrary, they further assert, are not supported by substantial evi-
dence. We disagree.
WXGI, INC. v. NLRB 13
1.
We are satisfied that substantial evidence supports the Board’s
findings that Gee was aware of the union-organizing activities at the
station. The union-organizing activities at WXGI AM-950, a small
employer with less than 15 employees, began on September 24, 1997.
The four discriminatees were terminated on September 30, 1997. In
the interim, two of the four discriminatees placed Union bumper
stickers on their cars, which were parked in front of the station in
plain view of Gee and all of the other employees, spoke openly with
at least eight employees at the station about the Union, and obtained
seven signed Union cards. At least one of the four wore a Union but-
ton in the workplace and, on at least one occasion, in the presence of
Gee and while speaking with him. Also, Keatley’s knowledge of the
union-organizing activities of the four discriminatees, while not
imputed to Gee by the Board, substantiated the claim that the activity
occurred openly enough and to such an extent that reports of it came
to his attention despite his absence from the station. Also, Gee admit-
ted that other employees had reported to him behavior which they
considered to be divisive and disloyal; and, the ALJ felt this evidence
created a fair inference that the reports included accounts of union-
organizing activity. Also, of course, there was the evidence that Gee
specifically referred to the union-organizing attempts during his ter-
mination of Matthews. Accordingly, we are satisfied that substantial
evidence supports the Board’s finding that Gee knew about the union-
organizing activities at the radio station prior to his termination of the
four discriminatees.
2.
We are likewise satisfied that the Board’s finding that Gee acted
with a discriminatory motive when he terminated Shannon, Matthews,
Giles, and Southworth is supported by substantial evidence.
As previously outlined, there was substantial evidence in the record
that Gee knew of the union-organizing activities at the station and the
timing of the discharges could hardly be closer to the onset of that
activity. Perhaps the starkest evidence of discriminatory motive, how-
ever, was Matthews’ testimony that Gee admitted his termination was
the result of union activities. This testimony was corroborated by two
14 WXGI, INC. v. NLRB
Union officials and to a lesser extent by Shannon. WXGI, Inc. and
Gee Communications assert that this never occurred and that the ALJ
erred in crediting the testimony of Matthews and the others over that
of Gee on the issue. In conjunction with this error, they further assert,
the ALJ failed to "consider adequately" the evidence they presented
which purportedly supports a contrary finding that (1) Matthews was
terminated because of a complaint the station received that seemed to
implicate him in unlawful conduct; and (2) the reference to a possible
reinstatement after thirty days was to allow Gee an opportunity to
investigate the complaint. First, the Board’s rejection of Gee’s asser-
tion that he terminated Matthews as a result of a complaint seems
well-justified. Although a complaint against a man called "Cowboy"
appears to have been received by Holt from a woman in the commu-
nity, he conducted no independent investigation and was so uncon-
cerned that he misplaced the complainant’s telephone number and
neglected to even mention it to Gee until days later. Despite Gee’s
current attempts to rely upon the complaint as the "last straw" reason
for Matthews’ termination, Gee did not discuss the complaint with
Matthews prior to or during the termination of Matthews or reference
it in Matthews’ termination letter. Similarly, Gee’s assertion that he
intended to conduct an investigation of the complaint to determine if
Matthews could be reinstated within thirty days highlights the post-
hoc nature of the purported justification. Although Gee eventually
interviewed the woman who had complained, he only did so after
Matthews filed a claim for unemployment compensation. Gee never
forwarded the complaint to law enforcement officials, and the parties
later stipulated that the merit of the complaint was not relevant to the
unfair labor practices charge. As found by the Board, Gee’s assertion
is at best that "Matthews was discharged purportedly, in part, because
of an uninvestigated complaint, the substance of which he was not
informed." J.A. 12-13.
Perhaps most telling, however, is the language of the termination
letter to Matthews. In the letter, Gee encouraged Matthews "to reflect
[on his behavior and remarks] over the next 30 days and if interested,
reapply to WXGI." J.A. 45. Absolutely no reference was made to
Gee’s purported intent to investigate a complaint, or even to investi-
gate Matthews’ unspecified "behavior and remarks." Indeed, the letter
indicates Gee’s intent to do nothing, placing all affirmative action
upon Matthews if he wished further employment. Needless to say, it
WXGI, INC. v. NLRB 15
more than strains credulity to believe that Gee would fire an
employee for an unsubstantiated report of alleged criminal behavior,
conduct no investigation, and decline to forward the information to
law enforcement authorities, but express an intent to consider rehiring
the employee so long as the employee personally "reflected" upon his
criminal behavior. In sum, substantial evidence on the record as a
whole supports the Board’s determination that Gee’s reference to
Matthews’ "behavior and conduct" was directed to Matthews’ union-
organizing activities as opposed to the alleged complaint received by
Holt.
Secondly, we are unpersuaded by the argument that the ALJ made
unsupported and ill-advised credibility determinations in reaching his
findings with regard to the heavily disputed conversation between
Matthews and Gee at the fairgrounds. After observing the testimony
and the demeanor of Gee, Matthews, Snow, and Rogers, the ALJ dis-
credited Gee’s testimony and credited that of the other three men con-
cerning Snow and Rogers’ presence in the booth and Gee’s reference
to Matthews’ union-organizing activities as a motivating factor for
Matthews’ termination.
"[T]he balancing of witnesses’ testimony is at the heart of the fact-
finding process, and it is normally not the role of reviewing courts to
second-guess a fact-finder’s determinations about who appeared more
‘truthful’ or ‘credible.’" Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65,
71 (4th Cir. 1996). Accordingly, "[a]bsent extraordinary circum-
stances, we will not disturb a factfinder’s credibility determinations."
Columbus-America Discovery Group v. Atlantic Mutual Ins. Co., 56
F.3d 556, 567 (4th Cir. 1995); see also Sam’s Club, 173 F.3d at 240.
"Exceptional circumstances include those instances when ‘a credibil-
ity determination is unreasonable, contradicts other findings of fact,
or is based on an inadequate reason or no reason at all.’" Sam’s Club,
173 F.3d at 240 (quoting NLRB v. CWI of Maryland, Inc., 127 F.3d
319, 326 (4th Cir. 1997)).
In this case, the ALJ provided sound reasons for his credibility
determinations. For example, the ALJ pointed out numerous inconsis-
tencies in Gee’s testimony, such as the fact that Gee’s testimony with
respect to the reason for the discharges was inconsistent with his own
letters of discharge and that his failure to investigate the alleged com-
16 WXGI, INC. v. NLRB
plaint of improper conduct by Matthews contradicted his testimony
that he intended to do so. With regard to Matthews specifically, the
ALJ noted that the testimony of Matthews, Rogers, and Snow con-
firmed what Gee’s letter to Matthews implied — that "Matthews was
being terminated because of his disloyal support of the Union and that
his discharge could be rescinded if Matthews recanted his union alle-
giance." J.A. 16. Also, the ALJ pointed out that Rogers’ and Snow’s
testimony that anti-union animus was the motivating factor was cor-
roborated at least in part by the fact that, immediately after Matthews
was terminated, Matthews’ replacement at the Union booth was told
that he was not welcome.
In summary, while we are mindful of the fact that there were
inconsistencies in much of the testimony presented to the ALJ by the
witnesses present at the Union booth that day, we are confident that
the ALJ carefully considered the testimony before him and made rea-
sonable determinations regarding the credibility of the witnesses. The
ALJ provided sound reasons for his determinations and we can dis-
cern no reason to disregard them.
C.
We turn now to the issue of whether the Board improperly rejected
Gee’s claim that Matthews, Giles, Southworth, and Shannon would
have been terminated for legitimate business reasons, regardless of
the presence of union-organizing activity or anti-union animus. See
Sam’s Club, 173 F.3d at 242-43; Dorsey Trailers, 233 F.3d at 839.
According to Gee, all four discriminatees were terminated because
they were on Trimble’s "list," were openly hostile to Trimble at times,
were opposed to the anticipated changes at the station as evidenced
in part by the incident at Shooters bar, and were generally a part of
"Keatley’s team." And, of course, Gee again points to the alleged
complaint against Matthews as the "last straw" cause of his termina-
tion. For the reasons already discussed, the Board’s rejection of Gee’s
proffered "last straw" reason for terminating Matthews is supported
by substantial evidence. We are equally satisfied that the Board’s
rejection of Gee’s claim concerning the other alleged reasons for ter-
minating the four discriminatees is supported by substantial evidence.
WXGI, INC. v. NLRB 17
We recognize that the work environment at WXGI prior to the
union-organizing activities was an unsettled one, and that at least two
of the four discriminatees feared possible termination primarily
because of Gee’s decision, announced in early September, that he
would be rehiring the disliked Trimble. Indeed, there appears to be lit-
tle dispute that this fear prompted Matthews and Giles to begin a
union-organizing campaign and to solicit their close friends and col-
leagues, Shannon and Southworth, to support their cause.
Contrary to Gee’s assertion, however, the evidence does not com-
pel a finding that these men ran to the union because they knew they
were going to be fired for other reasons. Rather, the evidence supports
the finding that Gee had rejected Trimble’s recommendation that the
station give all four discriminatees, and nearly every other on-air per-
sonality, a two-week notice in mid-September of their termination,
and that no terminations had taken place prior to the beginnings of the
union-organizing activities. Indeed, Gee’s own actions and words
indicated a contrary intent to keep all four of the discriminatees on as
employees in at least some capacity. For example, Gee had engaged
in express negotiations with Shannon for his continued employment,
and had an outstanding written offer for an employment contract with
Shannon which was never withdrawn. Similarly, Gee clearly intended
to retain Matthews in his employment after the transfer of ownership
and had engaged in discussions with Matthews to this effect as well.
Gee admitted that the light was still "green" for Matthews’ employ-
ment after the Shooters’ incident, and none of the four discriminatees’
termination letters referenced the purported "rebellion." Despite all
indications that the four men would be retained by Gee Communica-
tions’ WXGI AM-950 radio station in at least some capacity, all four
employees were abruptly terminated without notice and within days
of Matthews’ and Giles’ open efforts to organize the employees. The
fact that Shannon and Southworth were not as involved in the union-
izing effort is of little consequence. Gee admitted that the four dis-
criminatees were viewed as a clique and, in any event, the Board need
not show that the employer knew of any particular employee’s union
involvement to show that the employer acted out of union animus. See
NLRB v. Frigid Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991).
We are also unpersuaded by WXGI, Inc.’s and Gee Communica-
tions’ claim that the Board did not adequately consider the fact that
18 WXGI, INC. v. NLRB
Gee Communications did not terminate one employee who was a
member of AFTRA, the Screen Actors Guild/AFL-CIO, and that the
Union at issue was the station’s biggest advertiser. However, Gee
Communications’ failure to terminate a single-member employee of
a union tells us virtually nothing about how Gee felt about an organiz-
ing campaign for exclusive representation, nor is "discriminatory
motive, otherwise established, . . . disproved by an employer’s proof
that it did not weed out all union adherents." NLRB v. Instrument
Corp. of America, 714 F.2d 324, 330 (4th Cir. 1983) (internal quota-
tion marks omitted). Also, prior to any union-organizing activities, the
Union had made it clear that it wanted Shannon to handle its account
and that it would increase its business if Shannon were allowed to do
so. By terminating Shannon, whatever the motivating factor, Gee
alienated the Union and could very well have determined that the
price of the Union’s account was worth staving off a unionized work-
place. Accordingly, we conclude that the Board’s finding that Gee’s
decision to terminate the four men was motivated by anti-union ani-
mus and not by legitimate business reasons is supported by substantial
evidence in the record.
III.
Having determined that substantial evidence supports the Board’s
findings that WXGI, Inc. violated the Act, we turn to address the
assertion that the Board erred in finding that Gee Communications
was a "successor" to WXGI, Inc., jointly and severally liable under
the Board’s Order.
A.
It has long been settled that the "purchaser of a business, who
acquires and continues the business with knowledge that his predeces-
sor has committed an unfair labor practice in the discharge of an
employee, may be ordered by the [Board] to reinstate the employee
with backpay." Golden State Bottling Co. v. NLRB, 414 U.S. 168, 170
(1973). Such "successorship" cases are "primarily factual in nature."
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43
(1987). The Board, reviewing "the totality of the circumstances of a
given situation, . . . focus[es] on whether the new company has
‘acquired substantial assets of its predecessor and continued, without
WXGI, INC. v. NLRB 19
interruption or substantial change, the predecessor’s business opera-
tions.’" Id. (quoting Golden State, 414 U.S. at 184); see also NLRB
v. General Wood Preserving Co., 905 F.2d 803, 819 (4th Cir. 1990).
Hence, the focus is on whether there is "substantial continu-
ity" between the enterprises. Under this approach, the Board
examines a number of factors: whether the business of both
employers is essentially the same; whether the employees of
the new company are doing the same jobs in the same work-
ing conditions under the same supervisors; and whether the
new entity has the same production process, produces the
same products, and basically has the same body of custom-
ers.
Fall River, 482 U.S. at 43; see also General Wood, 905 F.2d at 819.
The Board also considers the employees’ perspective, i.e., "whether
‘those employees who have been retained will understandably view
their job situations as essentially unaltered.’" Fall River, 482 U.S. at
43 (quoting Golden State, 414 U.S. at 184). In reviewing the Board’s
determination of successor liability, we review the Board’s findings
to ensure that they are supported by substantial evidence. See General
Wood, 905 F.2d at 819. "[W]e must defer to the [Board’s] application
of successorship principles so long as it is rational and not inconsis-
tent with the Act." Holly Farms Corp. v. NLRB, 48 F.3d 1360, 1366
(4th Cir. 1995) (internal quotation marks omitted).
B.
In light of Gee’s position with WXGI, Inc., and later with Gee
Communications, Gee Communications understandably offers no
opposition to the Board’s finding that Gee Communications acquired
and continued the business with knowledge of the alleged unfair trade
practices. Gee, the owner and highest official of Gee Communica-
tions, personally made the decision to and did terminate the four dis-
criminatees. Thus, substantial evidence clearly supports this finding.
Gee Communications does, however, contest the Board’s finding
that there was no substantial change in personnel, format, music style,
facilities, or management when Gee assumed control of the station on
October 17, 1997. Asserting that there was instead "massive evidence
20 WXGI, INC. v. NLRB
[of] substantial change" at the radio station, Gee Communications
points to the fact that it moved administration and accounting to the
same location as the station; made building improvements, such as
purchasing a new air conditioner, improving the parking lot, and
replacing windows; made a number of "high-tech" upgrades to the
station’s equipment; established longer hours of broadcasting;
imposed a more structured on-air and format schedule; and improved
employee benefits and relations. In addition, Gee Communications
points to testimony that David Gee participates more actively in the
daily operation of the station than did Keatley, and that Gee Commu-
nications’ new manager, Trimble, has been given more control than
that possessed by WXGI, Inc.’s general manager before him. Finally,
Gee Communications points to evidence that, although it did continue
operation of country music radio station WXGI AM-950, the country
music format was changed from "traditional" or "legendary" country
music to "modern" country music and testimony that Shannon
believed this to be a substantial change.
We are unpersuaded by these relatively minor changes in the oper-
ation of country music radio station WXGI AM-950. When Gee
Communications assumed ownership of the radio station from WXGI,
Inc. on October 17, 1997, it clearly brought to the business new ideas
for improving the station and its relations with the employees. How-
ever, the Board’s finding that the changes did not alter the essential
nature of the employees’ jobs, see Fall River, 482 U.S. at 44, and
were not substantial considering the totality of the circumstances, is
amply supported by the record.
Gee Communications continued to operate a radio station with the
same call numbers (WXGI AM-950) under the same FCC license
from the same physical facility, broadcasting country music to the
same radio market with many of the same on-air personalities. Man-
agement of the station prior to the transfer of ownership was handled
for WXGI, Inc. by David Gee. Management of the station for Gee
Communications remained primarily with David Gee when his com-
pany completed the purchase. In fact, WXGI, Inc. and Gee Communi-
cations acknowledge that Gee remained "hands-on," despite his
employment of Trimble. At best, Gee Communications established
that it made some changes and upgrades to the station, but changes
of this type and magnitude would be expected whenever new manage-
WXGI, INC. v. NLRB 21
ment continues an existing business. And, while we appreciate the
opinion of WXGI’s former on-air country music personality concern-
ing the distinctions in country music, as well as the distinctions them-
selves, this relatively minor change in the totality of the
circumstances can hardly form the basis for a determination that Gee
Communications did not "continue[ ], without interruption or substan-
tial change, the predecessor’s business operations." Fall River, 482
U.S. at 43 (internal quotation marks omitted) (emphasis added).
Accordingly, we are satisfied that substantial evidence supports the
Board’s finding that Gee Communications was a successor to WXGI,
Inc. for purposes of the Act because the business, specifically radio
station WXGI AM-950, was continued without interruption or sub-
stantial changes, and that the Board properly applied the controlling
law to the facts before it.6
IV.
For the foregoing reasons, we deny WXGI Inc’s and Gee Commu-
nications, Inc.’s petition for review and grant the Board’s cross-
petition for enforcement.
PETITION FOR REVIEW DENIED AND CROSS-
APPLICATION FOR ENFORCEMENT GRANTED
6
WXGI, Inc. and Gee Communications have also advanced an argu-
ment, seemingly for the first time on appeal, to the effect that the Board
also lacked jurisdiction over the "new" WXGI because WXGI is now
only the landlord to the station and is no longer in the radio business. Of
course, WXGI is no longer in the radio business because it sold the sta-
tion and assigned the FCC license to Gee Communications. But, WXGI,
Inc. operated the station and was the employer of the discriminatees at
the time the unlawful terminations were made, rendering it liable under
the Board’s order. WXGI, Inc. has advanced no argument that the "new"
WXGI, Inc. is in fact a different company from the "old" WXGI, Inc.