PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PERFORMANCE FRICTION CORPORATION,
Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,
                                               No. 95-3151
Respondent,

UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS,
AFL-CIO, CLC,
Intervenor.

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.

PERFORMANCE FRICTION CORPORATION,
                                               No. 96-1096
Respondent,

UNITED AUTOMOBILE, AEROSPACE &
AGRICULTURAL IMPLEMENT WORKERS,
AFL-CIO, CLC,
Intervenor.

On Petition for Review and Cross-application
for Enforcement of an Order
of the National Labor Relations Board.
(11-CA-16040)

Argued: March 6, 1997

Decided: June 30, 1997
Before WILKINSON, Chief Judge, LUTTIG, Circuit Judge,
and BLACK, Senior United States District Judge for the
District of Maryland, sitting by designation.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Luttig wrote the opinion, in which Chief Judge Wilkinson
and Senior Judge Black joined.

_________________________________________________________________

COUNSEL

ARGUED: William Lawrence Rikard, Jr., PARKER, POE, ADAMS
& BERNSTEIN, L.L.P., Charlotte, North Carolina, for Petitioner.
Robert James Englehart, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Respondent. Marcia Weil Borowski,
STANFORD, FAGAN & GIOLITO, Atlanta, Georgia, for Intervenor.
ON BRIEF: Keith M. Weddington, Stacy K. Weinberg, PARKER,
POE, ADAMS & BERNSTEIN, L.L.P., Charlotte, North Carolina,
for Petitioner. Frederick L. Feinstein, General Counsel, Linda Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, Frederick C. Havard, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Respondent. Stephen A. Yokich, INTERNATIONAL UNION, UAW,
Washington, D.C., for Intervenor.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Petitioner Performance Friction Corporation appeals from the judg-
ment and order of respondent National Labor Relations Board finding
that petitioner violated sections 8(a)(1) and (a)(3) of the National
Labor Relations Act, 29 U.S.C. § 158(a)(1),(3), by instituting a new
disciplinary system in order to discourage union activity and by dis-
charging pro-union employees under that new system. For the reasons

                   2
stated herein, we affirm the Board's conclusions of violation, but
remand for the Board to fashion a more narrowly tailored remedy.

I.

Performance Friction manufactures high-performance, non-
asbestos automotive disk brake pads for major automotive manufac-
turers and for professional race car teams appearing in the Nascar
Winston Cup and Indianapolis 500. J.A. at 859. Since 1986, when
current owner and president Donald Burgoon acquired the company,
Performance Friction's workforce has grown rapidly, from approxi-
mately 25 employees in 1986, to 100 employees in 1989, and to
nearly 400 workers in 1994. J.A. at 731, 753, 859. Performance Fric-
tion attributes its growth to a commitment to quality which, according
to former employee and union activist Susan Hudson, was almost
fanatical, J.A. at 201; see also J.A. at 962. Over the course of this
period of growth, Performance Friction's annual turnover rate has
been high, the company discharging and replacing virtually its entire
workforce annually. J.A. at 378, 881.

In November 1993, several months before union activity at the
company began, Performance Friction put into place a new compen-
sation plan designed to increase worker productivity. Under this plan,
employees were assigned to one of seven pre-defined pay levels.
From this pre-defined level, employees could advance by taking and
passing, at their own pace, certain job-related tests, rather than await
end-of-the-year evaluation. J.A. at 333-35, 452, 491-92. Shortly after
this plan was instituted, Performance Friction's"scrap rate" (the
monthly amount of scrap material as a percentage of total production,
J.A. at 353-54), improved from 10.9% in December 1993 to 4.2% in
April 1994, dropping to a low of 2.7% in October 1994. J.A. at 1055.

In early February 1994, the United Automobile, Aerospace, Agri-
cultural Implement Workers of America (the "Union") began efforts
to unionize Performance Friction's 400-member workforce. Burgoon,
aided by Mike Ford, his assistant production manager and second-in-
command of the company, opposed the Union through what it now
concedes were unlawful labor practices.1
_________________________________________________________________
1 Performance Friction, for example, does not challenge that it illegally

          threatened employees that it would be futile for them to select

                    3
Either shortly before or shortly after the unionization effort began,
the company implemented a new and more strict disciplinary system
which would make it easier for Performance Friction to discharge
employees. J.A. at 864. Under the old disciplinary system, an
employee would be suspended without pay for three days if he com-
mitted two major violations in 30 days, and would be discharged for
a third violation within the 30-day period. J.A. at 864. The new sys-
tem, which was designed to operate in tandem with the new pay level
structure and advancement plan, eliminated the 3-day suspension and
allowed Performance Friction to discipline employees for committing
fewer violations over a longer period of time. Thus, an employee who
committed either two major violations in 90 days or three major vio-
lations in six months would be demoted one pay level, or, if he was
already at the lowest pay level, would be discharged. J.A. at 864.

It is not clear how many employees have been discharged under the
new disciplinary system since its institution. However, Performance
Friction had, between April 19, 1994, and the time this case was
heard by the administrative law judge in December 1994, discharged
a total of approximately 180 employees; and, according to its counsel,
the company has now terminated over 300 employees total. J.A. at
1102-05; Petitioner's Reply Br. at 10 n.3. Among the first individuals
discharged under the new disciplinary system were union activists
Martha Hinson, Jerry Kennedy, Merrie Rowe, Hayward Steele, and
Susan Hudson, and they were all discharged between April 19 and
May 24 of 1994. J.A. at 1103. In addition, union supporter Manuel
Mantecon was discharged on May 30 for not returning to work after
having been on medical leave. J.A. at 1102.

In response to these discharges, the Union commenced this litiga-
tion on May 23, 1994, initially claiming only that the six union activ-
_________________________________________________________________
          the Union as their collective bargaining representative; impliedly
          threatened to reduce wages if employees selected the Union to
          represent them; interrogated employees about their union sympa-
          thies and activities, and the activities and sympathies of fellow
          employees; solicited grievances from employees and expressly
          or impliedly promised to remedy those grievances in order to
          discourage union activities among employees.

J.A. at 884, 915.

                    4
ists listed above had been illegally discharged. Later, however, after
discovering that other employees also had been discharged under the
new disciplinary system, the Union expanded its claims through a
second amended complaint, which charged as follows:

          On or about 4-19-94, [Performance Friction] discrimina-
          torily implemented a more [stringent] disciplinary policy in
          order to discourage support for, and activities on behalf of
          the union.

          Pursuant to this unlawfully implemented disciplinary policy,
          the employer discharged . . . [five of the six union activists
          (excluding Mantecon), as well as Kyle Meyers, Leslie
          Teague, Michael Thompson, Nedra Stewart, and Bernard
          Young.]

          The employer discharged [the six union activists] because of
          their membership in, and/or activities on behalf of the union.

J.A. at 926.

At trial, Performance Friction moved to dismiss the claims of Mey-
ers, Teague, Thompson, Stewart, and Young, on the ground that the
General Counsel presented no evidence at all regarding these individ-
uals and, specifically, no evidence regarding their affiliation with or
sympathy for the Union. J.A. at 308. The administrative law judge
denied the motion, and, instead, permitted the General Counsel to
expand the charge yet further, so as also to allege company violations
against "all other unknown and unnamed people" discharged under
the new disciplinary system. J.A. at 314, 904 n.1. At the conclusion
of the hearing, the ALJ held for the General Counsel, finding, as mod-
ified by the Board, that Performance Friction had"instituted a new
and more strict disciplinary system in response to employee union
activity both to discourage such activity and to rid itself of Union
activists," J.A. at 884, and that, pursuant to this system, the company
had "discharged union activists and employees Martha Hinson, Mer-
rie Rowe, Haywood Steele, Susan Hudson, Jerry Kennedy, Kyle
Meyers, Bernard Young, Leslie Teague and others," in violation of
sections 8(a)(1) and (3) of the National Labor Relations Act.2 J.A. at
_________________________________________________________________
2 Sections 8(a)(1) and (3) of the National Labor Relations Act provide
that

                    5
902. The ALJ and Board also found that the company had discharged
Manuel Mantecon because of his union activities, in violation of the
Act, albeit not under the new system. J.A. at 902. 3

The Board ordered Performance Friction to "[c]ease and desist
from . . . [i]nstituting a new and stricter disciplinary system in
response to employee union activity to discourage such activity or to
rid itself of union activists," J.A. at 903, and, in addition, to not only
re-instate those named individuals as to whom the General Counsel
presented proof of unlawful discrimination, but to re-instate, with
backpay, all individuals who were discharged under the new disci-
plinary system. Thus, the Board ordered Performance Friction to take
the following "affirmative action":

          (a) Rescind the new and stricter disciplinary system which
          was instituted by [Performance Friction] in response to
          employee union activity.

        (b) Rescind any disciplinary action taken pursuant to the
        stricter disciplinary system which system [Performance
        Friction] instituted in response to employee union activity.
_________________________________________________________________
        (a) It shall be an unfair labor practice for an employer --

          (1) to interfere with, restrain, or coerce employees in the
          exercise of the rights guaranteed in section 157 of this
          title;

          * * *

          (3) by discrimination in regard to hire or tenure of employ-
          ment or any term or condition of employment to
          encourage or discourage membership in any labor orga-
          nization . . . .

29 U.S.C. § 158(a)(1),(3).
3 The Board omitted Michael Thompson and Nedra Stewart because the
record did not establish that they were discharged under the new disci-
plinary system. However, under the Board's order, the General Counsel
would have the opportunity, in the compliance stage of the litigation, to
establish that Thompson, Stewart, or any other employee, was discharged
under the new system, and hence, illegally. J.A. at 902 n.2.

                     6
          (c) Offer Manuel Mantecon, who was unlawfully dis-
          charged for engaging in union activities, and Martha Hin-
          son, Merrie Rowe, Haywood Steele, Susan Hudson, Jerry
          Kennedy, Kyle Meyers, Bernard Young, Leslie Teague, and
          any other employee unlawfully discharged pursuant to the
          new disciplinary system, immediate and full reinstatement
          to their former jobs or, if those jobs no longer exist, to sub-
          stantially equivalent positions, without prejudice to their
          seniority or other rights and privileges; and to make them
          whole with backpay . . . plus appropriate interest, for any
          loss of earnings they may have suffered as a result of the
          discrimination against them.

J.A. at 903. As to the unnamed individuals, Performance Friction
would have the opportunity, during the compliance phase of the liti-
gation, to prove that they would have been discharged even under the
old disciplinary system; otherwise, Performance Friction was required
to re-instate them with backpay regardless of their union affiliation.
J.A. at 885, 902 n.2.

On appeal, Performance Friction first argues that the Board's find-
ings that Performance Friction instituted the new disciplinary system
unlawfully and that it unlawfully discharged union activists under that
system and because of their union activity are not supported by "sub-
stantial evidence." Performance Friction argues, second, that the
Board's order, that Performance Friction rescind the new system and
re-hire all employees discharged under it, is overbroad.

II.

Notwithstanding Performance Friction's arguments to the contrary,
"substantial evidence," see McLean Trucking v. NLRB, 

, 1227 (4th Cir. 1983), supports the Board's conclusions that the
company unlawfully implemented its new disciplinary system on
April 19, 1994 -- shortly after the Union began organizing the com-
pany's workforce -- in order to discriminate against the Union and
union adherents, see NLRB v. Frigid Storage, 

, 510 (4th
Cir. 1991) ("A new system for discipline violates the Act if imple-
mented in retaliation for union activity."); see also Electri-Flex Co.
v. NLRB, 

, 1334 (7th Cir.), cert. denied, 

                    7
(1978), and that the company then proceeded to use that system to
unlawfully discharge known union supporters Hinson, Kennedy,
Rowe, Steele, and Hudson. The Board's conclusion that Performance
Friction discharged Mantecon in violation of the National Labor Rela-
tions Act is likewise supported by substantial evidence.

Performance Friction's assertion that it implemented the new disci-
plinary system in November 1993 (before the arrival of the Union and
therefore independent of any union activity), at the same time it
implemented its new compensation system, is belied by considerable
evidence. First, Mike Ford himself testified in sworn affidavit that the
new disciplinary system had been implemented in April 1994. J.A. at
977. Although Ford later recanted that testimony at trial, J.A. at 72,
we cannot say that the Board erred in crediting Ford's sworn affidavit
over his eleventh hour recantation. Moreover, Ford's affidavit testi-
mony was corroborated by the fact that, as the administrative law
judge found, between November 1, 1993 and April 19, 1994, "[n]o
fewer than 11 instances of discipline were issued . . . not only on
forms used under the old system, but clearly utilizing the rules of the
old system," J.A. at 868. For example, on January 19, 1994, an
employee named Jerry Wright was charged with a "minor" violation
for failing to properly complete quality paperwork, J.A. at 1360, even
though under the new disciplinary system that violation would have
been categorized as "major," J.A. at 964. Furthermore, prior to April
1994, the handbooks that Performance Friction distributed to new
employees still included the rules for the old disciplinary system. J.A.
at 161.

Substantial evidence also supports the Board's finding that Perfor-
mance Friction used this new system to discourage union activity and
thin its ranks of union activists by unlawfully discharging Hinson,
Kennedy, Rowe, Steele, and Hudson. Performance Friction does not
contest that, as to all of these individuals except Steele, it was fully
aware of their pro-union sentiments. See Goldtex Inc. v. NLRB, 

, 1011 (4th Cir. 1994) (describing "the most basic element
of an unlawful discharge -- namely, that the employer [be] aware of
the discharged employee's protected activities."); see also J.A. at 277-
78, 364, 377, 797-99. And the Board could have inferred that Bur-
goon and Ford were aware that Steele, too, was pro-Union, from the
fact that Steele's supervisor knew of his pro-union sentiments, J.A. at

                    8
88-91, and that Steele reported to the police that he had witnessed
Burgoon and Ford nearly run over two Union activists with their
truck, J.A. at 93. Moreover, all of these individuals were among the
very first employees disciplined and discharged under the new sys-
tem, and each of their discharges were for questionable violations of
company policy. Hinson was discharged for violating the seldom-
enforced rule of not wearing safety glasses. J.A. at 138. Rowe was
discharged after missing work because she could not find a babysitter
to care for her child, even though other employees were permitted to
miss work under similar circumstances. J.A. at 284-85. Hudson was
disciplined for making a defective product, even though she had ear-
lier been commended for spotting the defect in that very product, and
notwithstanding the fact that she was operating a malfunctioning
machine. J.A. at 182-84. Steele, who was discharged just one week
after reporting the truck incident to the police, J.A. at 94, was cited
for completing faulty paperwork; however, unlike with past instances,
Steele's supervisor refused to show him the alleged errors. J.A. at
101-02. Finally, although the evidence against Kennedy was the
weakest, even there, Kennedy was issued a violation for missing Sat-
urday work where he himself did not actually sign up for it, but,
rather, was signed up for it by his supervisor. J.A. at 593-94.

Similarly, although Mantecon was not discharged under the new
disciplinary system, substantial evidence supports the Board's conclu-
sion that he, too, was fired in retaliation for his pro-Union activities.
As with the others, Performance Friction was aware that Mantecon
was actively pro-Union, J.A. at 798, and it discharged him under
suspicious circumstances. When Mantecon returned to work after an
authorized sick leave, the company told him that he had been dis-
charged over three weeks earlier on May 4, 1994, J.A. at 251, even
though his authorized period of convalescence did not end until May
18, J.A. at 969, and notwithstanding the fact that several company
documents indicate that he was discharged on May 30, J.A. at 965,
1102.

We therefore affirm the Board's findings that Performance Friction
implemented the new disciplinary system in order to discourage union
activity and rid itself of union activists, and that the company then
proceeded to discharge certain known union activists pursuant to that
system and/or in retaliation for their pro-union activities.

                     9
III.

Although the Board did not err in determining that Performance
Friction violated sections 8(a)(1) and (a)(3) of the Act, we believe the
Board did exceed its remedial authority when it ordered Performance
Friction to cease and desist from enforcing, and actually rescind, the
new disciplinary system, and to reinstate with backpay all employees
who had been discharged under that system, whether or not anti-union
animus underlay their discharges.

Although the Board's remedial power is broad, encompassing the
power to order "such affirmative action including reinstatement of
employees with or without back pay, as will effectuate the policies"
of the Act, 29 U.S.C. § 160(c); see also NLRB v. Williams
Enterprises, 

, 1289 (4th Cir. 1995), that broad authority
is not without "limitations." See, e.g., Ultrasystems Western
Constructors v. NLRB, 

, 258 (4th Cir. 1994); cf. Sure-Tan
Inc. v. NLRB, 

, 900 (1984). Among those limitations, an
"order . . . must . . . be congruent with the scope of discrimination,
so that its enforcement neutralizes the discrimination, and does not go
beyond." 

.

Here, the Board's order that the company permanently rescind its
disciplinary policy and rehire all employees discharged under that
policy exceeds the scope of the Board's remedial authority. That an
employer may have instituted a broad business plan out of anti-union
animus simply does not ipso facto establish that the enforcement of
the provisions of that plan thereafter constitutes anti-union discrimi-
nation. In other words, it does not follow from the fact that a company
adopts a particular policy out of impermissible motives, that its appli-
cation of that policy in all instances will have the impermissible dis-
criminatory effects reached by the Act. This is to say, of course, no
more than that a policy or plan may be instituted for prohibited rea-
sons (and therefore run afoul of the Act's proscriptions) yet be both
facially neutral and enforced nondiscriminatorily.

Accordingly, an order like that entered by the Board in this case,
which essentially presumes discrimination by the company in its dis-
charges under a facially neutral business plan, exceeds even the
Board's concededly broad remedial authority. It is only slight hyper-

                    10
bole that such an order is the equivalent of a hostile government
takeover of a company through administrative agency regulation.
Were we to place our imprimatur on such an order, we would in effect
be acquiescing in the Board's substitution of its own "business judg-
ment" for the employer's legitimate business judgment, in contraven-
tion of our established precedent that, "[w]here . . . there is no
evidence that the company discharged particular employees in order
to discourage union membership or activities, the company is entitled
to its own assessment of an employee's worth, an assessment which
must be respected by the Board." Goldtex Inc. , 14 F.3d at 1012; see
also NLRB v. Wright-Line, 

, 903 (1st Cir.), cert. denied,

(1982) (warning against restricting an"employer's free-
dom to apply legitimate performance standards").

Indeed, this case is paradigmatic of the perniciousness of such an
overly broad remedial order. There is absolutely no evidence that any
individual other than the five known Union activists discharged under
the new disciplinary system, was so discharged because of his union
affiliation or sympathies. The evidence does not even reveal whether
the unknown individuals whom the Board has ordered the company
to rehire were pro-Union, ambivalent towards the Union, or ardent
opponents of the Union. Yet, the Board order requires Performance
Friction not only to rehire with backpay all of these identified and
unidentified individuals, but also to rescind the company's entire per-
sonnel disciplinary system, a system which the Board does not even
suggest facially discriminates against pro-union employees, and as to
which no finding of discriminatory application has been made beyond
the five individual instances which occurred in the one-month period.
The folly of such an order is borne out by the NLRB counsel's
acknowledgment at argument that Performance Friction could rescind
its "unlawful" disciplinary policy on one day and lawfully re-
implement the exact same plan the next day, provided that the com-
pany satisfies the Board that it has been purged of its malevolence
toward the union.

In recognizing that the Board exceeds the outer limits of its author-
ity when issuing orders of the type at issue here, we are not alone
among our sister circuits. In two cases directly analogous to the case
sub judice, for example, the District of Columbia Circuit similarly
vacated the Board's remedial orders and remanded with instructions

                    11
to tailor the orders more narrowly so as not to prohibit lawful
employer activity. See McGraw-Edison Co. v. NLRB, 

,
1268-69 (D.C. Cir. 1976); Gold Coast Restaurant v. NLRB, 

, 268-69 (D.C. Cir. 1993). In those cases, the Board concluded,
and the court affirmed, that the companies had unlawfully instituted
disciplinary and warning systems in order to discriminate against the
unions, 

; 995 F.2d at 267-68, just as we have
concluded here that substantial evidence supports the Board's conclu-
sion that Performance Friction instituted its disciplinary system in
order to discriminate against the Union. In each of these cases, the
District of Columbia Circuit held that the Board's remedies -- which
required the companies inter alia to cease and desist from "[o]rdering
supervisors to issue written warnings to employees suspected of
engaging in union 

n.1, and "institut-
ing a formal written warning system because its employees engaged
in activities on behalf of the 

-- were over-
broad because they "[caught] within [their] sweep not only prohibited
conduct such as that which formed the basis for the finding of unfair
labor practices here, but a number of otherwise valid management

. As a consequence of the overbreadth of
the Board's orders, the court reasoned, the employers would have
been prevented "from making future changes in[their] disciplinary
system[s] in a non-retaliatory 

, and "prohi-
bit[ed] [from issuing] written warning[s] and [taking] numerous other
supervisory actions which have no relation to union activity," 

.

In both McGraw-Edison and Gold Coast Restaurant, the court
required the Board to amend its orders in precisely the way that we
require the Board to modify its orders herein. The court required the
Board to refashion its orders so that the employers could take any of
the actions prohibited by the Board's original orders, provided that
the actions were taken for legitimate business purposes unrelated to
the employees' union activities; that is, so that the orders "recog-
nize[d] the area in which the company [could] properly operate" free
from agency interference. See 

.

Thus, in McGraw-Edison, the court required the Board to modify
its order that the employer cease and desist from"[o]rdering supervi-
sors to issue written warnings to employees suspected of engaging in

                    12
union activities," so as to include an exception "for good cause unre-
lated to union activity"; its order to cease and desist from
"[m]aintaining surveillance over employees suspected of engaging in
union activities," so as to include the same exception; its order to
cease and desist from "[i]ssuing permanent written warnings, contrary
to past plant practice, to union sympathizers when suspected of
engaging in union activities," so as to allow the company to "change
its practice[s] . . . upon proper notice and for reasons unrelated to
union activity"; its order to cease and desist from "[o]therwise threat-
ening union sympathizers with discharge for engaging in union activi-
ties," so as not to prevent the company from"threaten[ing]
[employees] with or actually discharg[ing] [them] for good cause
unrelated to union activity"; and, most significantly for purposes of
the case before us, its order to cease and desist from "[t]ightening up
enforcement of plant rules in order to discourage union activities
among its employees," so as to respect the company's right to
"tighten up" enforcement of plant rules "for reasons unrelated to
union activity." 

n.8.

In Gold Coast Restaurant, the court similarly directed the Board to
modify its order restraining the employer from "instituting a formal
written warning system because its employees engaged in activities
on behalf of the Union," so as only to prohibit the employer from
instituting such a warning system "in order to harass, intimidate or
retaliate against employees engaged in union activities", and its order
to cease and desist from "issuing written warnings to its employees
pursuant to the written warning system," so as only to prohibit the
employer from issuing such warnings "in order to harass, intimidate
or retaliate against employees engaged in union activities." 

, 267, 269.

In accord with these authorities, and for the reasons explained, we
likewise vacate the Board's remedial order in this case and remand
with directions to the Board to modify its order against Performance
Friction so as to permit the company to retain in effect its disciplinary
policy implemented on April 19, 1994, unless substantial evidence
develops that that policy is being enforced in a manner discriminatory
toward the Union or the company's pro-union employees. Addition-
ally, the Board's revised order should not require the company to re-
instate with backpay, Kyle Meyers, Bernard Young, Leslie Teague,

                     13
Michael Thompson, and Nedra Stewart, or any other employee except
those discussed in Part 

, until such time as it is proven that
their discharges were the consequence of their pro-Union affiliation
or sentiments.

The judgment of the Board is affirmed in part and reversed in part,
and the case is remanded with instructions to fashion a remedial order
consistent with this opinion and with the powers conferred upon the
Board.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

                    14