National Labor Relations Board v. Mountaineer Steel, Inc. , 8 F. App'x 180 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.  No. 00-1120
MOUNTAINEER STEEL, INCORPORATED,
Respondent.

On Application for Enforcement of an Order of the
National Labor Relations Board.
(9-CA-34103-1, 9-CA-34103-2)
Argued: January 24, 2001
Decided: April 27, 2001
Before WILKINS and MICHAEL, Circuit Judges, and
Claude M. HILTON, Chief United States District Judge for
the Eastern District of Virginia, sitting by designation.
Enforcement granted by unpublished per curiam opinion.
COUNSEL
ARGUED: Forrest Hansbury Roles, HEENAN, ALTHEN &
ROLES, Charleston, West Virginia, for Mountaineer Steel. Rachel
Irene Gartner, NATIONAL LABOR RELATIONS BOARD, Wash-
ington, D.C., for Board. ON BRIEF: Leonard R. Page, General
Counsel, Linda Sher, Associate General Counsel, Aileen A. Arm-
strong, Deputy Associate General Counsel, Peter Winkler, Supervi-
sory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Board.
2 NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The National Labor Relations Board (the Board) petitions this
court for enforcement of an order issued against Mountaineer Steel,
Inc. The Board’s decision affirmed an administrative law judge’s rul-
ing that Mountaineer Steel had violated certain provisions of the
National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(a)(1), (3).
Because we conclude that the Board’s decision is supported by sub-
stantial evidence and is correct as a matter of law, we grant the
Board’s petition for enforcement.
I.
Mountaineer Steel repairs and maintains coal mining equipment.
The company’s busiest time of year occurs during a six-week period
each summer, which is known as miners’ vacation. The company
employs a variety of workers (machinists, welders, mechanics, etc.),
and all decisions regarding hiring, firing, and layoffs are made by the
company’s president, Roy Stanley, with input from two foremen,
Grover Chambers and Harry Chambers.
In 1995 Mountaineer Steel entered into a collective bargaining
agreement (the 1995 Agreement) with the United Mine Workers of
America, AFL-CIO, and the International Union, United Mine Work-
ers of America, Local 1582, AFL-CIO (collectively, "the Union").
When the 1995 Agreement was signed, the Union did not represent
a majority of Mountaineer Steel’s employees. Because the Union did
not represent a majority of employees, the Agreement was only
enforced for a short period of time.
Early in the summer of 1996 one of Mountaineer Steel’s employ-
ees, Lawrence Kammerer, learned of the 1995 Agreement and dis-
cussed the possibility of union representation with other employees.
NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL 3
One of the employees, Ronnie Williams, contacted the Union. On or
before July 20, 1996, Jerry Kerns, Sr., a Union representative, went
to Mountaineer Steel’s work site and spoke to company employees
about union representation. Kerns asked the employees at the work
site if they "were aware that [they] were under a union contract." At
the time Kerns made this statement, one of the foremen, Harry Cham-
bers, was present.
Roy Stanley and Grover Chambers met on July 22 or 23 to discuss
the need for a possible layoff. Earlier in the season the company had
hired sixteen to eighteen new employees in anticipation of the
increased work load during miners’ vacation. Although many of the
employees had been working substantial amounts of overtime, Stan-
ley and Grover Chambers testified that they met on July 22 or 23 to
discuss layoffs because they were concerned that there would not be
enough work for all of the current employees.
Several days later, on July 29 or 30, Grover Chambers approached
a group of employees who were discussing the Union and eating
lunch in the company’s shop area. Chambers singled out employee
Williams and said, "I thought you was a union radical and now I
know you are."
On July 31 the president of Local 1582, Jerry Kerns, Jr., and
another Union representative, Jerry Kerns, Sr., met with sixteen to
twenty Mountaineer Steel employees in a restaurant parking lot. The
meeting’s participants discussed the 1995 Agreement and the possi-
bility of union representation. As several witnesses testified, the pri-
mary purpose of the meeting was to obtain union representation to
improve working conditions. The employees wanted to know how
they could join the Union, and the Union officials furnished check-
off/authorization cards to any employee who wanted to join the
Union. The cards authorized the company to deduct dues from the
employees’ wages and also authorized the Union to act as the
employees’ "representative in all matters concerning wages, hours,
and other terms and conditions of employment." Sixteen employees
signed the checkoff/authorization cards during the meeting. In addi-
tion, two employees present at the meeting took the cards with them
and signed them on August 3.
4 NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL
On August 2, just two days after the meeting between the employ-
ees and Union representatives, employee Jeffrey Phillips had a con-
versation with foreman Grover Chambers. Chambers told Phillips that
he had heard rumors that the employees were going to try to "vote the
union in" and asked Phillips if he had attended the July 31 meeting.
Phillips responded, saying that he had attended the meeting and that
"plenty of people had signed the cards." Chambers, after indicating
that he was surprised by some of the people who had reportedly
signed cards, said: "if you people want to vote yourselves out of a
damn job, go ahead, I can go back to Smithers (his former employer)
any day of the week." That same day the company discharged six
employees who had signed the Union checkoff/authorization cards.
Company president Stanley told Williams, one of the employees who
was discharged, that there would be six or seven additional employees
laid off and "then if this stuff don’t straighten up, there’ll be some
more Friday, this union stuff." The following day, on August 3, Stan-
ley approached employees Phillips and Simpkins to discuss the layoff.
Stanley said that the company was short on funds and that "he
couldn’t afford to pay union [wages]."
Sometime between July 31 and August 5 Mountaineer Steel’s man-
agement staff made several threatening statements regarding
employee support for the Union. Foreman Grover Chambers
approached employee Kammerer and asked him if he knew how
many people had signed the Union cards and said that "people who
are organizers could be labeled as troublemakers." In addition, in
early August foreman Harry Chambers told employees Lee Hancock
and William Sergeant that anyone who signed a Union card would be
laid off or terminated.
On August 5 the company discharged four additional employees,
including Phillips, Simpkins, and Kammerer. All four of these men
attended the July 31 meeting and signed authorization cards.
On August 8 Stanley and Mountaineer Steel’s lawyer met with
Union representatives to discuss the current relationship between the
Union and the company. At the conclusion of the meeting, Union rep-
resentative Jerry Kerns, Sr. pushed a stack of signed check-
off/authorization cards across the table in front of Stanley and said,
"this is something I want you all to know about." Although Stanley
NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL 5
refused to take the cards, the company’s lawyer picked up the cards
and left the meeting with Stanley. Included in the stack of cards were
ones signed by employees Stroud, Lambert, and Vance. Later in the
day the company laid off Stroud. The company laid off Lambert on
August 13 and Vance on August 19.
Upon charges filed by the Union, the Board’s General Counsel
issued a complaint against Mountaineer Steel on December 10, 1996,
alleging several violations of the National Labor Relations Act
(NLRA), 29 U.S.C. § 158(a)(1), (3). After a hearing an ALJ deter-
mined that Mountaineer Steel had violated section 8(a)(1) of the
NLRA by threatening employees with termination for union activi-
ties, by creating the impression of surveillance of the employees’
union activities, and by coercively interrogating employees about
employee participation in union activities. Moreover, the ALJ decided
that the company’s discriminatory termination of fourteen employees
violated sections 8(a)(3) and 8(a)(1) of the Act. The ALJ issued a rec-
ommended order that would require Mountaineer Steel to cease and
desist from violating the NLRA and to offer reinstatement to the men
who were laid off. Mountaineer Steel appealed to the Board, which
affirmed and adopted the ALJ’s decision and recommended order on
August 27, 1998. See Mountaineer Steel, Inc., 326 N.L.R.B. 787,
1998 WL 614889 (Aug. 27, 1998). The Board now petitions this court
for enforcement of its order.
"The scope of our inquiry in reviewing the Board is limited."
Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998).
We defer to the Board’s interpretations of the NLRA if they are "ra-
tional and consistent with the Act." NLRB v. Curtin Matheson Scien-
tific, Inc., 494 U.S. 775, 787 (1990). Credibility determinations are
left to the discretion of the Board absent "exceptional circumstances."
NLRB v. Air Prods. & Chem., Inc., 717 F.2d 141, 145 (4th Cir. 1983).
If the factual findings adopted by the Board are supported by substan-
tial evidence in the record, the findings are "conclusive," 29 U.S.C.
§ 160(e), and we must uphold the Board’s decision, see Medeco, 142
F.3d at 742. Substantial evidence is "such relevant evidence as a rea-
sonable mind might accept as adequate to support a conclusion." Alpo
Petfoods, Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir. 1997) (internal
quotation marks and citations omitted). Thus, this court may not "dis-
place the Board’s choice between two fairly conflicting views, even
6 NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL
though the court would justifiably have made a different choice had
the matter been before it de novo." Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951); see also Alpo, 126 F.3d at 250 (holding
that this court must uphold the NLRB’s decision even though it
"might have reached a different result had we heard the evidence in
the first instance") (internal quotation marks and citation omitted).
Mountaineer Steel challenges the Board’s decision on the ground
that the ALJ’s underlying findings are not supported by substantial
evidence. Because we conclude that the findings are based on sub-
stantial evidence in the record, we grant enforcement of the Board’s
order.
II.
Under section 7 of the NLRA, 29 U.S.C. § 157, employees have
the right to "form, join, or assist labor organizations . . . and to engage
in other concerted activities for the purpose of . . . mutual aid or pro-
tection." Section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), makes
it an unfair labor practice for an employer "to interfere with, restrain,
or coerce employees in the exercise of [Section 7] rights." To estab-
lish a violation under Section 8(a)(1), the General Counsel must dem-
onstrate that under the circumstances an employer’s conduct "had a
reasonable tendency" to coerce or intimidate employees. Standard-
Coosa-Thatcher Carpet Yarn Div., Inc. v. NLRB, 691 F.2d 1133, 1137
(4th Cir. 1982). The question of whether conduct is coercive is "es-
sentially for the specialized expertise of the NLRB." Daniel Constr.
Co. v. NLRB, 341 F.2d 805, 811 (4th Cir. 1965).
The Board adopted the ALJ’s determination that Mountaineer Steel
violated section 8(a)(1). The Board thus concluded that the company
unlawfully threatened employees with termination, created the
impression of surveillance, and coercively interrogated employees
regarding employee union activity. On appeal the company chal-
lenges these conclusions on the ground that they are not supported by
substantial evidence. Contrary to the company’s assertions, the factual
record supports the conclusions of the Board.
A.
An employer violates section 8(a)(1) of the NLRA when it coer-
cively interrogates its employees about their union activities or the
NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL 7
union activities of their fellow employees. See NLRB v. Air Prods. &
Chems., Inc., 717 F.2d 141, 145, 147 (4th Cir. 1983). The Board
found that on at least two occasions, one of Mountaineer Steel’s
supervisors coercively interrogated employees. Employee Jeffery
Phillips testified that he was questioned by Grover Chambers, one of
the company’s foremen, in the afternoon of August 2. James Simp-
kins, another employee, was present for portions of the conversation
and corroborated Phillips’s testimony. According to Phillips, Cham-
bers asked Phillips whether he had attended the July 31 Union
representative-employee meeting and whether he was "involved."
Chambers then told Phillips, "if you people want to vote yourselves
out of a damn job, go ahead, I can go back to Smithers (his former
employer) any day of the week." In addition, employee Lawrence
Kammerer testified that Chambers asked him whether he knew how
many persons signed Union cards and said that employees who were
organizers could be labeled as "troublemakers." Kammerer said that
the conversation took place between July 31 and August 5.
Mountaineer Steel insists that Chambers could not have made the
comments to Phillips because he was on vacation with his family. The
company introduced the testimony of Chambers, his wife, and Stanley
as well as Chambers’s handwritten time cards to demonstrate that he
was on vacation at Myrtle Beach from July 28 to August 2 and that
he did not return until 7:00 p.m. on August 2. Thus, Mountaineer
Steel asserts that the Board’s conclusion that the company coercively
interrogated its employees is not supported by substantial evidence.
We disagree. The ALJ found that the testimony of Chambers and
his wife regarding their vacation was not credible. The ALJ discred-
ited Grover Chambers’s vacation defense for several reasons. First,
several employees reported that Chambers was in the shop during the
time (July 28 to August 2) he claims to have been away on vacation.
For example, Ronnie Williams testified that on July 28 or 29 Cham-
bers had called him a "union radical." Williams also said that Cham-
bers had supervised him during the week of July 28. Second,
Chambers claimed that he stayed in a hotel in Myrtle Beach, yet he
produced no receipt or other record of his stay. Chambers also said
that his new car "acted up" on the way to Myrtle Beach and that he
returned the car to the dealer for repairs and then borrowed his broth-
er’s truck to complete the trip. Again, Chambers produced no record
8 NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL
to verify any car repairs. Because credibility determinations are left
to the discretion of the trier of fact absent "exceptional circum-
stances," NLRB v. Air Prods. & Chem., Inc., 717 F.2d 141, 145 (4th
Cir. 1983), the ALJ did not err when she rejected the company’s
claim that Chambers was on vacation and could not have made the
statements attributed to him. Thus, the Board’s determination that the
company coercively interrogated employees is supported by substan-
tial evidence.
B.
An employer creates an impression of surveillance when an
employee would reasonably assume from the employer’s statements
that his union activities had been placed under surveillance. See
NLRB v. Grand Canyon Mining Co., 116 F.3d 1039, 1046 (4th Cir.
1997). The Board determined that on two occasions, Mountaineer
Steel created an impression of surveillance. First, Ronnie Williams
testified that Grover Chambers approached him while he was discuss-
ing union activities with his co-employees and said, "I thought you
was a union radical and now I know you are." The Board found that
the statement, "I thought you was a union radical," indicated that
Chambers had been monitoring Williams’s conduct. Also, the state-
ment, "and now I know you are," created an impression that Cham-
bers had been watching Williams’s activities. Second, the Board
found that Chambers’s conversation with Phillips created an impres-
sion of surveillance. During his August 2 conversation with Phillips,
Chambers said that he knew about the July 31 meeting and that he
was surprised at the identity of some of the people who had reportedly
signed cards.
Mountaineer Steel responds in the same way it did to the General
Counsel’s allegation of coercive interrogation. The company claims
that Chambers was on vacation and therefore could not have made the
statements to Williams and Phillips. As noted above, the ALJ acted
within her discretion when she discredited the company’s evidence
that Grover Chambers was on vacation. There was substantial evi-
dence to support the ALJ’s finding that Chambers made the state-
ments attributed to him. Accordingly, the Board did not err when it
determined that the company created an impression of surveillance.
NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL 9
C.
An employer also violates section 8(a)(1) of the NLRA when it
threatens its employees with discipline or termination in response to
union-related activities. See Grand Canyon Mining, 116 F.3d at 1044.
The Board concluded that the company threatened its employees with
termination in violation of section 8(a)(1). The ALJ found that on one
occasion, in late July or early August 1996, foreman Harry Chambers
told employees Lee Hancock and William Sargent, "If anybody
signed a union card, he [will] be laid off or fired." Although Cham-
bers denied making this statement, the ALJ found that he was not a
credible witness. The ALJ noted that at the time of the hearing Han-
cock and Sargent were working for Chambers at a different company.
The ALJ therefore concluded that the statements of Hancock and Sar-
gent were more credible because "by testifying to Harry’s threat, they
undoubtedly placed themselves at risk of economic reprisal." The
ALJ also credited Hancock and Sargent’s testimony because Hancock
testified that Chambers called him at home twenty-eight times in an
effort to harass and pressure him into signing a statement that would
assist Mountaineer Steel in the current dispute. The phone calls were
made from Saturday night on May 17, 1997, to 2:00 a.m. on the
morning of May 18, 1997, less than forty-eight hours prior to Han-
cock’s testimony in the hearing. In addition, the ALJ found that Stan-
ley (the company president) told employee Williams that more layoffs
would occur unless the "union stuff" did not end. Stanley, Grover
Chambers, Perry Miller (Stanley’s secretary), and Ronnie Lee
Thompson (a security guard) were present and all denied that Stanley
made the comment. The ALJ determined, however, that Stanley, Gro-
ver Chambers, Miller, and Thompson were not credible on this point.
Mountaineer Steel claims that the ALJ’s credibility determinations
are unsupportable. It argues that the Board erroneously discredited
Harry Chambers’s testimony because "it improperly attributed
enhanced credibility to Hancock and Sargent due to their current sta-
tus as employees and the danger that they would suffer economic
reprisal." The company cites Fieldcrest Cannon, Inc. v. NLRB, 97
F.3d 65 (4th Cir. 1996), for the proposition that credibility determina-
tions should not be based on employee status alone. In addition, the
company argues that the ALJ did not offer a sufficient basis to dis-
10 NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL
credit the testimony of Grover Chambers, Miller, Stanley, or Thomp-
son.
The company, however, has failed to point out any "exceptional
circumstances" that would compel us to reverse the credibility deter-
minations of the ALJ. NLRB v. Air Prods. & Chem., Inc., 717 F.2d
141, 145 (4th Cir. 1983). Moreover, the ALJ did not discredit Harry
Chambers’s testimony solely on the basis of the employment status
of Hancock and Sargent. Although the ALJ credited Hancock’s and
Sargent’s testimony because they were supervised by Harry Cham-
bers at another company at the time of the hearing, the ALJ cited
additional evidence that bolstered their testimony. Specifically, the
ALJ noted that Chambers made twenty-eight harassing phone calls in
an effort to pressure Hancock into signing a statement favorable to
Mountaineer Steel two days before he was scheduled to testify. The
ALJ found that this circumstance gave Hancock enhanced credibility.
The ALJ acted within her discretion when she credited Hancock, Sar-
gent, and Williams and discredited the testimony of the company’s
witnesses on the threat determination issue. We therefore hold that
substantial evidence supports the Board’s conclusion that Mountain-
eer Steel threatened its employees with unlawful termination.
III.
The Board also concluded that Mountaineer Steel’s discharge of
fourteen employees was motivated by antiunion animus and was
unlawful under sections 8(a)(1) and (a)(3). The company argues,
however, that the employees were laid off because of work slow-
downs and that the company therefore acted lawfully when it dis-
charged the workers. Because the Board’s conclusion that
Mountaineer Steel unlawfully discharged its employees is supported
by substantial evidence, we affirm on this issue.
Employers are strictly prohibited from terminating employees
because of their union activities. See 29 U.S.C. § 158(a)(1), (3);
NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 397-98 (1983). Section
8(a)(3) of the NLRA makes it an unfair labor practice for an employer
to discriminate "in regard to hire or tenure of employment or any term
or condition of employment to . . . discourage membership in any
labor organization." 29 U.S.C. § 158(a)(3). The essential inquiry in a
NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL 11
case of retaliatory termination is whether the employer’s actions were
motivated by antiunion animus. NLRB v. Nueva Eng’g, Inc., 761 F.2d
961, 968-69 (4th Cir. 1985). "Because motive is a question of fact, we
review this finding only to determine if it is supported by substantial
evidence." Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th
Cir. 1998). To prove its retaliation claim, the General Counsel must
first establish that: (1) the terminated employee was engaged in pro-
tected activity; (2) the employer was aware of the activity; and (3) the
activity was a substantial or motivating reason for the employer’s
action. See Sam’s Club v. NLRB, 173 F.3d 233, 242 (4th Cir. 1999).
Once the prima facie case has been made, the employer may over-
come the retaliatory termination charge if it can demonstrate that the
employee would have been terminated even in the absence of union
activity. See id. If, however, "the Board finds that the proffered reason
[for the termination] is pretextual, we must affirm the Board if sub-
stantial evidence supports this factual determination." Medeco, 142
F.3d at 742.
The ALJ found that the employees engaged in a protected activity
by participating in the July 31 meeting. She found that Mountaineer
Steel was aware of the employees’ union activities and discharged
employees based on their participation in the meeting and support for
the Union. Although the company insisted that it had legitimate rea-
sons for discharging the employees, the ALJ found that the compa-
ny’s justifications were pretextual. The Board adopted the ALJ’s
decision and recommended order holding Mountaineer Steel in viola-
tion of section 8(a)(3). After considering the record, we hold that the
Board’s determinations are supported by substantial evidence and
must be affirmed.
A.
The Board properly concluded that the employees were engaged in
a protected activity. Section 7 of the NLRA empowers employees to
"form, join, or assist labor organizations . . . and to engage in other
concerted activities for the purpose of . . . mutual aid or protection."
See 29 U.S.C. § 157. In this case the employees met on July 31 to dis-
cuss union representation. Mountaineer Steel claims, however, that
the July 31 meeting was not a protected activity. It contends that the
purpose of the meeting was to ask the Union to enforce the invalid
12 NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL
1995 Agreement. The company contends that the meeting was unlaw-
ful because the 1995 agreement between it and the Union was made
at a time when the Union did not have majority support from the com-
pany’s employees. It argues that the employees did not meet simply
to obtain union representation because they signed checkoff cards as
opposed to union authorization cards. As the company points out,
checkoff cards are signed by employees so that the company may
deduct union dues from an employee’s salary pursuant to a lawful
collective bargaining agreement; they usually are not signed until an
employer has a valid contract with the union. The company argues,
therefore, that if the employees were seeking representation, and not
the enforcement of the illegal 1995 Agreement, the Union would have
given them simple authorization cards.
Substantial evidence in the record, however, undermines the com-
pany’s interpretation of the July 31 meeting. Although the employees
were under the assumption that the 1995 Agreement was enforceable,
the primary purpose of the meeting was to obtain union representation
and to improve the conditions of employment. This activity falls
within the protections of section 7. Section 7 expressly protects an
employee’s right to "engage in other concerted activities for the pur-
pose of . . . mutual aid or protection." (emphasis added). The employ-
ees’ erroneous belief in the validity of the 1995 Agreement does not
alter the fundamental purpose of the meeting, which was to authorize
the Union to act on their behalf. In addition, the cards distributed at
the meeting were not simple checkoff cards. The cards were dual-
purpose cards, which can be used by employees to authorize union
representation or request the employer to deduct wages, or both. The
cards specifically state, "By my signature, I hereby authorize the
United Mine Workers to act as my representative in all matters con-
cerning wages, hours, and other terms and conditions of employ-
ment." Moreover, it appears that the employees signed the cards
simply to authorize the Union to represent them. There is no evidence
that suggests that the cards were used to authorize Mountaineer Steel
to deduct Union dues. In fact, Jerry Kerns, Jr., the president of Local
1582, testified that the employees wanted to sign the cards "so that
[Mountaineer Steel] would know that they was wanting our represen-
tation." Because the primary purpose of the meeting was to obtain
union representation, the employees’ use of the cards was consistent
NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL 13
with the lawful purpose of the meeting—to obtain union
representation—and was therefore not illegal.
The Board also reasonably found that Mountaineer Steel had
knowledge of the protected activity. The Board determined that the
company knew that the employees were engaged in Union activities
prior to each round of layoffs. The first round of layoffs occurred on
August 2. The Board found that by July 20 the company knew that
the Union was engaged in organizing activities. Employee Ben Lam-
bert testified that Jerry Kerns, Sr., a Union representative, showed up
at a job site and asked employees if they knew that they were under
a union contract. Lambert said that Harry Chambers was present. Gro-
ver Chambers’s comments to Williams on July 29 or 30 also indicate
that the company had knowledge of union activities. Williams testi-
fied that Chambers proclaimed, "I thought you was a union radical,
and now I know you are." In addition, on August 2 Chambers
declared that he knew about the July 31 meeting, and he remarked
that he was surprised by the names of some of the people who had
signed the checkoff/authorization cards. Also, Williams testified that
Stanley told him on August 2 that he was being laid off because of
"this union stuff." Moreover, on August 9 Mountaineer Steel’s lawyer
took possession of the authorization cards. Because the lawyer was in
possession of the cards, the Board determined that the lawyer’s pos-
session imputed knowledge of the names on the cards to the company.
Mountaineer Steel argues that it did not have any knowledge of
union activity prior to the layoffs. It points out that Roy Stanley and
Grover Chambers met on July 23 to discuss layoffs. The company
claims that although Harry Chambers overheard Kerns talk about a
union contract prior to Stanley and Grover Chambers’s July 23 meet-
ing, this fact did not give them notice of union activity. In addition,
the company reiterates its arguments that the ALJ improperly discred-
ited the testimony of its management staff.
The company’s arguments, however, do not refute the substantial
evidence that supports the Board’s determination. Although the com-
pany argues that it discussed layoffs as early as July 23, this fact does
not help its case. The record demonstrates that the company had
knowledge of union activity before every layoff took place. Layoffs
occurred on August 2, 5, 9, 13, and 19. As the Board found, Harry
14 NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL
Chambers, a foreman who assisted Stanley in making decisions
regarding the hiring and firing of employees, heard Jerry Kerns, Sr.
talk to employees about Union representation on or before July 20.
On or prior to August 2 Stanley and Grover Chambers made state-
ments that indicated they were aware of union activities. In addition,
the company lawyer took possession of the Union authorization cards
only a few days before the final rounds of layoffs. Thus, the Board’s
finding that the company was aware of union activities is reasonable
and is adequately supported by the record.
The Board also concluded that the protected activity was a motivat-
ing factor in Mountaineer Steel’s decision to terminate its employees.
The threats of termination (for example, Harry Chambers’s statement
to Hancock and Sargent) provide direct evidence of the company’s
motivation for terminating the employees. See NLRB v. Hale Con-
tainer Line, Inc., 943 F.2d 394, 401 (4th Cir. 1991) (recognizing that
threat of discharge is equivalent of confession of discriminatory pur-
pose). In addition, the company’s other antiunion statements (for
example, Grover Chambers’s statement that those who signed autho-
rization cards would be labeled troublemakers and his statement that
Williams was a union radical) demonstrate that the protected activity
motivated its decision to terminate employees. Moreover, the fact that
the first round of layoffs took place only two days after the July 31
meeting supports the Board’s finding that the protected activity moti-
vated the company’s terminations. See FPC Holdings, Inc. v. NLRB,
64 F.3d 935, 943 (4th Cir. 1995) (noting that the timing of layoffs
may be used as evidence of antiunion animus). The record therefore
supports the Board’s conclusion that the protected activity was a sub-
stantial or motivating reason for the company’s actions.
For the foregoing reasons, the three elements of a prima facie case
of retaliatory termination were established.
B.
Mountaineer Steel insists that the terminations were business
related and were therefore not motivated by antiunion animus. It
argues that as early as July 23, 1996, Stanley talked to Grover Cham-
bers about layoffs. The company claims that it has a history of "build-
ing up for the [miners] vacation then laying off after it." Thus,
NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL 15
according to the company, the fact that layoffs occurred around the
time of August 2, 1996, was simply a normal event in the course of
its seasonal operations. In 1996 the company hired fifteen to eighteen
new employees from April to June and then laid off fifteen workers
at the conclusion of the miners vacation. In addition, it stated that its
"new job summaries" demonstrate that there was a significant reduc-
tion in work after the miners’ vacation period. The company also
points out that after the layoffs no new employees were hired for the
remainder of 1996. Finally, it asserts that some of the employees were
fired for poor work performance.
The Board rejected the company’s assertion that the employees
were discharged for legitimate business reasons. First, it found that
the company failed to prove that it actually experienced a reduction
of work after the miners’ vacation. In the week before and after the
first round of layoffs, most of the employees worked substantial
amounts of overtime. Also, the ALJ found that Stanley’s and Grover
Chambers’s testimony that there was not enough work to go around
was not credible. In addition, the Board determined that the new job
summaries were not probative because the summaries only include
hours to be worked on new jobs and do not include any hours worked
on older jobs. The Board points out that Mountaineer Steel failed to
offer any job summaries that listed the total hours actually worked for
the months of August through December 1996. Furthermore, the
Board dismissed the company’s assertion that employees were fired
because of poor work performance. The Board found that none of the
employees who were fired were ever notified or disciplined for inade-
quate work performance prior to their termination. Although some of
the employees who were fired had disciplinary issues in the past, their
misconduct was excused by Stanley. The Board concluded that the
"good ole boy atmosphere . . . prevailed until the employees signed
cards for the Union."
Substantial evidence in the record supports the Board’s finding that
Mountaineer Steel’s layoffs were pretextual. Most of the employees
were working substantial amounts of overtime hours during the week
in which they were laid off, and the company failed to introduce cred-
ible evidence of reduced work hours. Although the company intro-
duced its new job summaries, the Board found that this evidence is
not particularly probative. The summaries only reflect hours worked
16 NATIONAL LABOR RELATIONS BOARD v. MOUNTAINEER STEEL
on new jobs and do not include work hours spent on old jobs. More-
over, the company’s poor work performance justification does not
hold up. Again, some of the employees might have had discipline
problems, but the company did not seem to care until it learned that
these employees were engaged in union activities. Finally, the compa-
ny’s assertion that it has a history of "building up for the [miners’]
vacation then laying off after it" does not have adequate support in the
record. The company’s employment history demonstrates that it
retains most of its workers after the miners’ vacation. In 1992 the
company employed a total of twelve workers during the vacation and
did not lay any of them off at the conclusion of the vacation. In 1993
and 1994 the company laid off only one worker after the vacation
period had ended. In fact, the company did not undergo even a modest
layoff until 1995, the year before the discharges took place in this dis-
pute.
The record therefore shows that the Board’s pretext findings are
supported by substantial evidence. Thus, we affirm the Board’s deter-
mination that Mountaineer Steel unlawfully discharged its employees
in violation of sections 8(a)(1) and (a)(3) of the NLRA.
IV.
For the foregoing reasons, the Board’s petition for enforcement of
its order against Mountaineer Steel is granted.
ENFORCEMENT GRANTED