UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1182



NATIONAL LABOR RELATIONS BOARD,

                                                         Petitioner,

           and


INTERNATIONAL BROTHERHOOD OF BOILERMAKERS,
IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND
HELPERS,

                                                         Intervenor,

           versus


KENTUCKY TENNESSEE CLAY COMPANY,

                                                         Respondent.



On Application for Enforcement of an Order of the National Labor
Relations Board. (11-CA-18925; 11-CA-18968)


Argued:   February 1, 2006                    Decided:   May 2, 2006


Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.


Application for enforcement granted by unpublished per curiam
opinion.


ARGUED: Raymond Lee Creasman, Jr., ELARBEE, THOMPSON, SAPP &
WILSON, L.L.P., Atlanta, Georgia, for Respondent. Jewel Lynn Fox,
NATIONAL LABOR RELATIONS BOARD, Office of the General Counsel,
Washington, D.C., for Petitioner.    Scott Louis Brown, BLAKE &
UHLIG, P.A., Kansas City, Kansas, for Intervenor.      ON BRIEF:
Stanford G. Wilson, Joshua H. Viau, ELARBEE, THOMPSON, SAPP &
WILSON, L.L.P., Atlanta, Georgia, for Respondent.      Arthur F.
Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General
Counsel, John H. Ferguson, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, Julie B. Broido,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Petitioner.    Michael J. Stapp, BLAKE & UHLIG, P.A.,
Kansas City, Kansas, for Intervenor.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
PER CURIAM:

       The    National   Labor     Relations         Board    (the   "Board")    seeks

enforcement of its Decision and Order against Kentucky-Tennessee

Clay Company (the "Company"), requiring the Company, inter alia, to

cease   and    desist    from    interfering         with    its   employees    in   the

exercise of the rights guaranteed by § 7 of the National Labor

Relations Act (the "Act"), see 29 U.S.C. § 157 (1998), and to offer

Patrick Scott ("Scott"), a terminated employee, immediate and full

reinstatement to his former position or a substantially equivalent

position.      The Board bases its Order on its findings that the

Company committed multiple violations of §§ 8(a)(1) and (3) of the

Act.     See 29 U.S.C. § 158 (1998).                  Because we conclude that,

viewing the record as a whole, substantial evidence supports the

Board's findings, we grant the application for enforcement.



                                             I.

       In     January    2000,         the       International       Brotherhood     of

Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers

(the "Union"), seeking to represent a bargaining unit of all full-

time and regular part-time production and maintenance employees at

the    Company's   kaolin       clay    mining      and     processing   facility     in

Langley, South Carolina, petitioned the Board for a representation

election.       Although the Union won, the Company challenged the




                                             3
result, and this court invalidated the election in 2002.        See NLRB

v. Kentucky Tenn. Clay Co., 

, 439 (4th Cir. 2002).1

     Independent of the Company's challenge to the representation

election, the General Counsel to the Board issued a consolidated

complaint in May 2001, alleging that the Company had violated

§§ 8(a)(1), (3) and (5) of the Act.      The case was heard before an

Administrative Law Judge ("ALJ"), who found that the Company had

committed the alleged violations. Both the Company and the General

Counsel filed exceptions to the ALJ's decision.         In light of this

court's decision invalidating the representation election, the

Board reversed the ALJ's findings that the Company had violated

§ 8(a)(5) by refusing to recognize and bargain with the union, and

by   unilaterally   changing   certain    terms   and    conditions   of

employment.2   The Board affirmed, however, the ALJ's findings that

the Company had violated § 8(a)(1) by threatening employees with

discharge if they went on strike, creating the impression of

surveillance among employees, threatening an employee with futility



     1
      The Company filed objections to the election with the Board.
Kentucky Tenn. Clay 

. The Board overruled the
objections and certified the Union as the collective bargaining
representative. 

response, the Company refused to
recognize and bargain with the Union, prompting the Board to order
the Company to do so and to apply for enforcement of that Order
with this court. 

Company's objections were
meritorious, this court set aside the Board's Order and denied
enforcement of it. 

      When the ALJ issued his decision, this court had not yet
invalidated the election.

                                  4
in selecting union representation and threatening an employee with

discipline for engaging in protected concerted activity, and that

it had violated § 8(a)(3) by reducing an employee's hours and,

later, discharging him.3

      The following findings of fact made by the ALJ and adopted by

the Board form the bases of the § 8(a)(1) and (3) violations found

by   the   Board.   Coley   Lamar   Wilson   and    Scott   worked   in   the

maintenance shop at the Langley facility.          Although they generally

worked on separate projects, they worked together when a particular

project required two men.    Wilson, who had been a supervisor in the

maintenance shop at one time, trained Scott.             Wilson described

Scott as a "proficient welder" and a "good worker" and requested




      3
      The ALJ based his findings that the Company had violated
§§ 8(a)(1) and (3), in part, on the Company's antiunion animus as
demonstrated by a § 8(a)(5) violation, namely, its refusal to
recognize and bargain with the Union. The Company argues that the
ALJ's finding of antiunion animus is too interwoven with that
reversed finding of a § 8(a)(5) violation to be severable.
Therefore, according to the Company, the § 8(a)(1) and (3)
violations must be reversed as well.
     We are unpersuaded by this argument. In making its findings,
the Board acknowledged this court's decision to set aside
certification of the Union.    Based on that decision, the Board
reversed the ALJ's finding that the Company had violated the Act by
refusing to recognize or bargain with the Union. The Board neither
adopted nor relied on that finding as evidence of antiunion animus
for the purpose of establishing violations of §§ 8(a)(1) and (3).
Nor do we.    In reviewing the Board's determination, we do not
consider the Company's refusal to recognize or bargain with the
Union at all. As discussed below, based on the record before us
and the Company's virtually exclusive reliance for its arguments on
the testimony of a single, discredited witness, we conclude that
substantial evidence exists to support the Board's findings.

                                    5
Scott's assistance on jobs that required two workers.                Murray

Penner supervised both Scott and Wilson.

     During   the    month   leading   up   to   the   March   15,    2000

representation election, Scott and Wilson wore pro-Union buttons

displaying the phrase "Vote Yes" every day.      Scott wore his button

on an outer garment, pinning it either on his jacket or shirt

pocket.   During that same time period, Penner met with Scott and

Wilson on a daily basis.         Myron Renew, an employee and the

subsequent Union president, observed Scott wearing the button on

one occasion when Penner approached. Penner came within three feet

of Scott and had a clear view of the button.      Scott also discussed

the Union with other employees and solicited authorization cards

for the Union.

     The day after the representation election, Penner approached

Renew and claimed that "there would be no union." J.A. 427.          Penner

further stated "[t]hat he would do everything possible to decertify

the union, and that there would be an appeal for an election [the

following] March."    

asked Wilson

how Wilson thought a union could help him.

     In April 2000, Penner interviewed Adelbert Quackenbush for a

position with the Company.     During the interview, Penner informed

Quackenbush that the Union had been voted in.          After Quackenbush

stated that he might not join the Union, Penner replied that he

"hoped [Quackenbush] wouldn't join the Union." J.A. 427.


                                   6
       In August 2000, Penner informed Scott that he intended to

reduce Scott's work hours to forty hours per week from fifty to

fifty-five hours per week.4   As justification for implementing the

reduction, Penner cited Scott's slow work pace.       Specifically,

Penner mentioned Scott's failure timely to complete work on an

earth-moving machine known as a scraper.     Penner also told Scott

"that he was going to ruin [Scott's] lifestyle.      And if [Scott]

didn't like what he was doing, [Scott] could find someplace else to

go." J.A. 427.    Scott testified that Penner had prolonged the work

on the scraper by requesting additional modifications, and that

Scott had rebuilt a dump truck and assisted Wilson during that same

time period.     Furthermore, Scott testified that he had performed

his work in the same manner prior to the Union campaign, and that

Penner had never criticized him for helping Wilson.

       In December 2000, Penner held a meeting with Quackenbush, who

had become a Union member by that time, and three truck drivers who

opposed the Union.    Penner related a story to Quackenbush about a

facility in Georgia where the employees had voted for the Union and

had netted only an eight cent increase in pay from the subsequent

negotiations.    Penner further stated that if the employees went on

strike, he "would fire all the strikers and just rehire."      J.A.

428.



       4
      By this time, the Company's objections to the representation
election were pending before the NLRB.

                                  7
     Also in December 2000, a truck driver, believed by Quackenbush

to oppose the Union, overheard Quackenbush and Wilson discussing

changes that they thought the Union would bring to the facility.

Shortly thereafter, Penner told Quackenbush that he had heard that

Quackenbush was trying to change the way Penner was doing things in

the facility, and that he did not like Quackenbush's interference.

Quackenbush admitted to discussing the Union with Wilson but denied

trying to change the way things were being done.    He told Penner

that he knew the source of Penner's information, referring to the

truck driver who had overheard his conversation.    Penner did not

confirm the source of the information.

     In January 2001, Renew sent the Company a document listing the

officers of the Union.   That document listed Scott as a trustee of

the Union's board.   Renew also caused a copy of the document to be

posted on a bulletin board at the facility.

     On Thursday, January 11, 2001, Penner assigned Scott to assist

an outside contractor working at the facility to service some of

the Company's fire extinguishers.    Penner told Scott to complete

the project and then report back to him.

     When the contractor failed to finish the project on Thursday,

Scott reported to work at 7:00 a.m. on Friday and continued to

assist even though he was not scheduled to work that day.   At 8:00

a.m., Wilson informed Scott that Penner was looking for him, and

Scott reported to Penner's office.       Penner questioned Scott's


                                 8
presence on a day that he was not scheduled to work.                            Scott

explained that he was working on the fire extinguishers and offered

to go home.     Penner instructed him to do so after finishing what he

was doing.      Scott understood this instruction to mean that he

should complete those fire extinguishers that he had started but

not to start any others.      Scott also informed Renew that Penner was

sending   him    home   and   did    not      want   him   to    finish   the   fire

extinguisher project.

     Scott reported to work at his normal time the following

Monday, January 15, 2001, and worked until Penner approached him at

approximately 4:45 p.m.        Penner inquired as to why Scott had not

told the contractor that he intended to leave before completing the

fire extinguisher project the previous Friday.                  Scott replied that

informing     the   contractor      was    Penner's    responsibility.          This

discussion led to an exchange about the Union.                  Scott told Penner

that there was a union, and that Penner had to do as the Union

said.   Penner replied, "you do not have a Union.                 You don't have a

contract and you have no rights."             J.A. 428.    Both Quackenbush and

Wilson overheard Penner's comment.              Penner told Scott to come to

his office.     Wilson came along at Scott's request.              Once inside the

office, Penner instructed Scott to clock out and go home.                       Upon

arriving at his home, Scott telephoned Renew to say that something

was happening and asked Renew to meet him in the shop the next day.




                                          9
       Renew met Scott at the shop the morning of Tuesday, January

16, 2001.        When David Forrester, the plant manager arrived, he

informed Renew that Renew could be in trouble for having spent work

time waiting.       Renew told Forrester that he was present in his

capacity as a grievance representative on behalf of Scott.

       Scott was called to meet with Penner and Forrester, and he was

permitted to bring one witness; he chose Renew.                      After a brief

exchange, Scott was instructed to go home and to return at 1:00

p.m.    Scott returned at 1:00 p.m. and, with Renew present on his

behalf,    met     with   Penner    and    Forrester      in    Penner's     office.

Forrester informed Scott that he was terminated.                     The Company's

human resources director had prepared a list of Scott's alleged

offenses, which Forrester read aloud.               Forrester refused Renew's

request for a copy of the list.

       The Union subsequently filed charges against the Company that

resulted    in    the   complaint   being       issued   by    the   Board   General

Counsel.    Adjudication of that complaint led to the Decision and

Order that the Board now seeks to enforce, and that the Company

opposes.



                                          II.

       We note at the outset the level of deference due the Board's

Decision. We must affirm rational Board interpretations of the Act

if they are consistent with the Act.               Consolidated Diesel Co. v.


                                          10
NLRB, 

, 352 (4th Cir. 2001).              Likewise, we must affirm

the Board's findings of fact if, considering the record as a whole,

substantial evidence supports them.                29 U.S.C. § 160(e) (1998);

NLRB v. Air Contact Transp. Inc., 

, 210 (4th Cir.

2005).   For mixed questions of law and fact, this same substantial

evidence      standard    applies     so     long    as   the       Board's   legal

interpretations are valid.           

such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.         If such evidence exists, we must uphold the

Board's decision even though we might have reached a different

result had we heard the evidence in the first instance."                        

omitted)(citations omitted).                    When the

Board's findings of fact rest upon the ALJ's determinations of

witness credibility, this court will defer to those determinations

absent exceptional circumstances.              WXGI, Inc. v. NLRB, 

, 842 (4th Cir. 2001). "Exceptional circumstances include those

instances     when    a   credibility      determination       is    unreasonable,

contradicts other findings of fact, or is based on an inadequate

reason   or    no    reason   at   all."     

omitted).

     With these principles in mind, we turn to the specific § 8(a)

violations found by the Board.




                                        11
                                A.

     The Board found that the Company violated § 8(a)(1), which

makes it "an unfair labor practice for an employer . . . to

interfere with, restrain, or coerce employees in the exercise of

the rights guaranteed in section 7."5      29 U.S.C. § 158(a)(1)

(1998).   Specifically, the Board found the following § 8(a)(1)

violations: (1) Penner's statement to Quackenbush and the three

truck drivers threatened them with discharge if they went on

strike; (2) Penner's statement to Quackenbush that he had heard

that Quackenbush was trying to change the way things were done at

the facility created the impression of surveillance among the

employees; (3) Penner's statement to Scott to the effect that Scott

had no union, no contract and no rights threatened futility in

selecting union representation; and (4) Forrester's statement to

Renew that he could be in trouble for having spent work time

waiting for Forrester on January 16, 2001, threatened discipline

for engaging in protected concerted activity.6


     5
      Section   7    guarantees    employees    "the    right    to
self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection . . . ."
29 U.S.C. § 157 (1998).
     6
      The Company argues that none of these statements violated
§ 8(a)(1) because, it contends, none of them were motivated by
antiunion animus. This averment does not support its denial of the
violations because "[u]nlike violations of § 8(a)(3), an employer's
antiunion motivation is not a required element of § 8(a)(1)."
Medeco Sec. Locks v. NLRB, 

, 747 (4th Cir. 1998).

                                12
     In assessing whether a § 8(a)(1) violation has occurred, we

focus not on whether the employer's conduct was actually coercive

but on whether, under the totality of the circumstances, that

conduct    reasonably   may   have   tended   to   coerce   or   intimidate

employees.   Medeco Sec. Locks v. NLRB, 

, 745 (4th Cir.

1998). Because of the Board's specialized experience in this area,

we grant its assessment of whether conduct reasonably tends to

coerce or intimidate employees considerable deference.           

Company's arguments regarding each of the

violations found by the Board in turn.



                                     1.

     With respect to Penner's statements to Quackenbush regarding

firing strikers, the Company disputes Quackenbush's version of the

events.    Quackenbush stated that Penner informed him and others

during a meeting that if employees went on strike, he "would fire

all the strikers and just rehire."            J.A. 428.      According to

Penner's testimony, during a safety meeting held on the shop floor,

he responded to a specific question regarding what would happen in

the event of a strike as follows: "[W]e as a Company have an

obligation to our customers to meet their needs, and if it actually

came down to that, that we would be obligated to replace workers if

needed."    J.A. 186.




                                     13
      In finding that Penner threatened to fire the employees if

they went on strike, the ALJ credited the testimony of Quackenbush

over that of Penner.           This he was permitted to do, and because the

record reveals no "exceptional circumstances" that would lead us to

disturb that credibility determination, we must defer to his

decision.

      The Company argues that such "exceptional circumstances" do

exist because the ALJ credited Quackenbush's testimony over that of

Penner without explanation.              This is incorrect.          The ALJ had

already stated that it did not find Penner to be a credible

witness.    J.A. 427.

      The Company complains that the ALJ based his credibility

determination on a single incident, Penner's testimony that he

could not specifically recall seeing Scott wearing a "Vote Yes"

button prior to the representation election, and argues that the

ALJ   should      have    "engage[d]     in    individualized     determinations

regarding credibility as to each distinct issue." Respondent's Br.

at 16. The Company misstates Penner's testimony, misrepresents the

ALJ's    findings    and       misapprehends   the   concept    of   credibility.

Penner did not testify that he "could not specifically recall"

seeing    Scott    wear    a    "Vote   Yes"   button,   as    suggested   by   the

Company's brief.          Rather, Penner testified that although he saw

some employees wearing "Vote Yes" buttons, Scott never wore such a

button.     J.A. 185, 224.         Moreover, in finding that Penner lacked


                                          14
credibility as a witness, the ALJ cited more than his belief that

Penner was not truthful with respect to that issue; he also noted

that Penner appeared to be "reaching" in an attempt to portray

Scott as a poor employee.    J.A. 427.   Credibility is a witness-

specific, not an issue-specific, characteristic. We can discern no

reason why the ALJ should be required to ignore his perception that

Penner had been untruthful at other points in his testimony in

assessing Penner's veracity with respect to the events involving

Quackenbush.

     Finally, the Company contends that the statement made by

Penner was not unlawful.    Citing Grinnell Fire Prot. Sys. Co. v.

NLRB, 

, 201 (4th Cir. 2000), the Company argues that it

is legal to inform employees of an intention to hire permanent

replacements in the event of a strike.     Thus, according to the

Company, Penner's statement could not be considered coercive.7

     Although the Company's characterization is correct as far as

it goes, the extent to which it is incomplete is made manifest by

the very case on which it purports to rely.      In Grinnell, the

employer sent a letter to its employees informing them that it was

implementing its final contract offer, and that in the event of a



     7
      An employer's coercive action affects protected rights
whenever it can have a deterrent effect on a protected activity
such as a strike or refusal to work to protest wages or working
conditions. See Medeco Sec. 

. "This is true
even if an employee has yet to exercise the right protected by the
Act." 

would hire permanent replacement workers.                

      The ALJ found, and this court agreed, that, because the

strike was for unfair labor practices, Grinnell's letter was

coercive because it implied that the employees could be replaced

for engaging in protected activity.           

"Grinnell's letter was threatening because it did not specify that

Grinnell could hire permanent replacements only in the event of an

'economic' strike."8       

here, we must affirm the Board's finding that

Penner's      statement   was   unlawful   because,   like   the   letter   in

Grinnell, it implied that the strikers could lose their jobs on a

permanent basis without qualification.           The statement failed to

distinguish, as it must, between an "economic" strike, in which an

employer can hire permanent replacements, and an "unfair labor

practice" strike, in which the employees retain the right to

reinstatement.



                                      2.

        The Company next argues that, even accepting Quackenbush's

version of the incident wherein Penner stated that he had heard

Quackenbush was trying to change the way Penner was doing things in


        8
      Strike activity initiated in whole or in part in response to
an employer's unfair labor practice constitutes an unfair labor
practice strike. Pirelli Cable Corp. v. NLRB, 

, 515
(4th Cir. 1998). Strike activity not initiated in response to an
unfair labor practice constitutes an economic strike. 

    as   true,   Penner's      statement           did    not    create    an

impression of surveillance.            It contends that the ALJ's findings

establish that Penner's information was not acquired through a

campaign    of    union   surveillance        but    from     a    truck       driver    who

overheard Quackenbush's conversation.

      It is well established that a single conversation can violate

§ 8(a)(1) as long as that conversation gives an employee the

impression       that   the   employer    has       conducted           surveillance      of

protected activities.         NLRB v. Grand Canyon Mining Co., 

, 1045 (4th Cir. 1997). "The employer's statement[s] need only

contain sufficiently specific information to convey the impression

that the employer or its agents has conducted union surveillance."

Quackenbush and Wilson engaged in a private

conversation about potential changes associated with the Union's

presence.    Penner's comments suggested that he was aware of the

specific details of that conversation. The fact that the source of

Penner's    knowledge     may    have    been       another       employee      does     not

eliminate    the    impression    of    Company       surveillance          carried      out

indirectly through other employees acting on the Company's behalf.

Given the considerable deference due the Board's assessment of

whether conduct reasonably tends to coerce or intimidate employees,

we affirm its finding on these facts.




                                         17
                                3.

     The Company further disputes the sequence of events in the

ALJ's findings of fact with respect to the conversation during

which Penner told Scott "you do not have a Union.   You don't have

a contract and you have no rights."   As the Company would have it,

when Scott told Penner that Penner had to do as the Union said,

Penner's reply was to the effect that the presence of the Union

would not alter Penner's position or responsibilities.     At that

point, Scott, claiming that he had a right to a witness, demanded

that Quackenbush witness the conversation. Only then, according to

the Company, did Penner tell Scott that Scott had no union, no

contract and no rights.   The Company argues, in other words, that

Penner's statement was merely intended to inform Scott that, given

the invalidity of the Union's election, Scott had no right to a

witness.

     Even if we were to accept the Company's post-hoc version of

the events, there is nothing in the record to suggest that Scott

should have understood the meaning the Company now attributes to

Penner's statements.   The relevant question for the Board was not

whether Penner was technically correct in asserting that Scott had

no union, but whether, under the totality of the circumstances the

statement reasonably may have tended to coerce or intimidate Scott.

See Medeco Sec. 

.    The Board found that it




                                18
did, and the Company proffers no compelling reason for us not to

defer to this finding.9



                                    4.

      The Company argues that Forrester's statement that Renew could

be in trouble for having spent work time waiting for Forrester was

lawful because there was no validly elected union at the facility.

Again, the Company contends that the ALJ's finding of a § 8(a)(1)

violation was based on the erroneous assumption that the Union had

won   the   election.   According   to   the   Company,   Renew   was   not

threatened for engaging in a protected activity because the lack of

a validly elected Union necessarily meant the lack of a grievance

procedure or the right to grievance representatives.




      9
      The Company also seems to argue that Penner did not make the
statement attributed to him. It complains that the ALJ failed to
explain why he disregarded Penner's denial that he threatened
futility, relying instead on the testimony of Scott, Quackenbush
and Wilson. It further points out that both Quackenbush and Wilson
admitted that they did not hear the entire conversation, and that
Quackenbush's testimony conflicted with that of Wilson.
     This argument as well founders on the shoals of Penner's
credibility.    The ALJ could and did reasonably rely on the
testimony of Scott, as corroborated by Quackenbush and Wilson. It
does not matter that the two did not hear the entire conversation;
they generally consistently corroborated Scott's account of the
relevant portion. Moreover, the Company points to nothing in the
record to suggest that Penner denied making the statement in
question. In fact, Penner was never asked about the statement. He
merely denied that he threatened futility. The Company posits no
exceptional circumstances that would justify disregarding the ALJ's
credibility determination in this regard.

                                    19
     Substantial evidence supports the Board's conclusion that

Forrester's statement violated § 8(a)(1).            As explained in Part

II.A.3., the Board's finding of a § 8(a)(1) violation was not based

on the assumption that the Union had won the election.                In any

event, the status of the Union at the time of Forrester's statement

was irrelevant because the Act protects an employee's right to

engage in "concerted activities," not "union activities."             "[T]he

'concerted activities' protected by the [A]ct are not limited to

cases    where   the   employees   are    acting   through   unions   or   are

otherwise formally organized.            It is sufficient that they are

acting together for mutual aid or protection." Joanna Cotton Mills

Co. v. NLRB, 

, 752 (4th Cir. 1949).

     Although the Company characterizes Forrester's statement as a

"reminder," it does not dispute the ALJ's finding that Forrester

told Renew that Renew could be in trouble for having spent work

time waiting for Forrester to arrive.              Moreover, based on the

testimony of both Forrester and Renew, Forrester made the statement

in response to Renew's assertion that he was there to represent

Scott.    J.A. 133, 286.    Under those circumstances, the evidence is

adequate to support the Board's conclusion that the statement was

a threat of discipline for engaging in a concerted activity.




                                     20
                                 B.

     In addition to the § 8(a)(1) violations, the Board found that,

by reducing Scott's work hours and discharging him, the Company had

violated § 8(a)(3), which makes it "an unfair labor practice for an

employer . . . by discrimination 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.

§ 158(a)(3) (1998).   In doing so, the Board employed the following

two-step, burden-shifting analysis proposed in NLRB v. Wright Line,

Inc., 

(1st Cir. 1981), and approved by the Supreme

Court in NLRB v. Transportation Mgmt. Corp., 

, 394

(1983):   First, the General Counsel bears the burden of making a

prima facie case that antiunion animus motivated the employer's

adverse employment action by showing "(1) that the employee was

engaged in protected activity, (2) that the employer was aware of

the activity, and (3) that the activity was a substantial or

motivating reason for the employer's action."   FPC Holdings, Inc.

v. NLRB, 

, 942 (4th Cir. 1995).    Then, if the General

Counsel successfully makes a prima facie case, the employer may

present the affirmative defense that it would have taken the same

action even in the absence of the employee's engagement in the

protected activity.   

not dispute that Scott engaged in protected

activity but argues that the General Counsel failed to show the


                                 21
second and third prongs of the prima facie case, namely, that the

Company was aware of Scott's activity, and that Scott's activity

was a substantial or motivating reason for its actions.     It also

argues that, even assuming that the General Counsel had made a

prima facie case, it proved that its actions were for legitimate

business reasons.   We consider each of these arguments in turn.



                                1.

     With respect to the Company's awareness of Scott's activities,

it claims that there was no evidence that Penner saw Scott wearing

a "Vote Yes" button or knew what the button meant, and that Renew's

allegation that he sent the Company a document naming Scott as a

trustee of the Union was unsupported.

     Again, the question of whether Penner saw the "Vote Yes"

button is one of credibility.    As we have set forth in detail,

given the contradictions between the testimony of Penner, on the

one hand, and that of Scott, Wilson and Renew, on the other, the

ALJ made a facially legitimate credibility determination.   On this

record, we find no "exceptional circumstances" that would compel us

to reject the ALJ's decision to credit the testimony of Scott,

Wilson and Renew over that of Penner.

     The Company's suggestion that Penner did not know what the

"Vote Yes" button meant is also without merit.    The buttons were

worn in the weeks leading up to a closely contested union election


                                22
in a facility that had no union at that time.       Penner conceded that

he saw some employees wearing the buttons and specifically noted

that "Myron Renew wore his proudly."         J.A. 224.        Substantial

relevant evidence exists in the record to support the conclusion

that Penner saw Scott wearing the "Vote Yes" button and knew that

the button was intended to support selection of the Union as the

representative of the employees.

     Whether Renew sent the Company a document naming Scott as a

trustee of the Union and caused that document to be posted on a

Company bulletin board is also a question of witness credibility.

The Board General Counsel introduced into evidence a document dated

January 5, 2001 that identified the Union officers, including

Scott.   Renew testified that he had sent a copy of the document to

Forrester on that date, and that another member of the Union had

posted the document on the Company bulletin board.                 Forrester

denied ever having seen the document.       The ALJ credited Renew's

testimony.   Again, we find no "exceptional circumstances" that

compel us to reject that decision.

     Finally,   the   documented   events   leading     up    to     Scott's

discharge,   including   the   exchange   between    Penner    and     Scott

regarding the Union, Scott's request to have Renew represent him at

the meeting with Penner, and Renew's interaction with Forrester,

all belie the Company's assertion regarding Penner's lack of

awareness of Scott's union involvement.        To the contrary, this


                                   23
evidence supports the Board's finding that the Company was aware of

Scott's engagement in a protected activity.

     Substantial evidence also supports the Board's finding that

Scott's engagement in a protected activity was a motivating reason

for the reduction in Scott's work hours and his discharge in

violation of § 8(a)(3).

     "Motive may be demonstrated by circumstantial as well as

direct evidence and is a factual issue which the expertise of the

Board is peculiarly suited to determine." FPC 

(internal quotation marks omitted) (citations omitted).           Here,

the ALJ cited the § 8(a)(1) violations as evidence of the Company's

antiunion animus.        Such violations may indeed be evidence of

antiunion animus, even where the subject of the § 8(a)(3) violation

is not the same individual as the subject of the § 8(a)(1)

violation.    NLRB v. Grand Canyon Mining Co., 

, 1048

(4th Cir. 1997).      The timing of an adverse employee action can also

support a finding of antiunion animus. 

Scott the day after he and Penner had a heated discussion about the

Union.   And finally, Penner's statements and actions involving

Renew, Wilson and Quackenbush, set forth above, also evince an

antiunion    animus    supporting   the   Board's   finding   that   Scott's

engagement in a protected activity was a motivating reason for his

reduction in hours and ultimate discharge.




                                     24
                                        2.

      Once   the   General    Counsel    makes    a   prima   facie   case   that

antiunion animus motivated the employer's decision to take the

adverse employment action, the employer may present the affirmative

defense that it would have taken the same employment action even

absent antiunion animus.        Medeco Sec. 

.            If

the Board finds, however, that the employer's stated reason for

taking the employment action is pretextual, "we must affirm the

Board if substantial evidence supports this factual determination."

alleges a litany of performance problems as

the basis for the reduction in Scott's hours and his eventual

discharge.    Specifically, it alleges that Penner reduced Scott's

hours because Scott failed to complete his work, including the work

on the scraper, in a timely manner.              The company also identifies

four documented performance problems and testimony regarding other

performance and disciplinary issues as support for its position

that Scott's discharge was for legitimate reasons.

      Substantial evidence supports the Board's finding that the

Company's stated reasons for reducing Scott's hours and discharging

him were pretextual.         The ALJ credited Scott's testimony that he

had performed his work in the same manner both before and after the

Union campaign, but was only penalized for his performance after the

campaign.    In doing so, the ALJ noted the lack of documentation to


                                        25
substantiate Penner's testimony concerning the deficiencies in

Scott's performance on the scraper job.           The ALJ also credited the

testimony of Wilson, a former supervisor at the facility, that

Scott was a good worker.            Finally, the ALJ noted that Penner's

threat that he was going to ruin Scott's lifestyle by reducing his

hours was "consistent with a broader agenda than merely correcting

an employee for working too slow."             J.A. 429.      This evidence is

sufficient to support the Board's conclusion that antiunion animus

motivated Penner's decision to reduce Scott's hours.

      The same evidence also supports the Board's finding of a

violation with respect to Scott's discharge.                     Moreover, that

discharge occurred in the wake of both a heated discussion about

the Union between Penner and Scott, during which Penner told Scott

that he had no union, no contract and no rights, and Forrester's

threatening statement to Renew concerning potentially being in

trouble    for   waiting    to    represent    Scott.      According    to   even

Forrester's testimony, Scott was subsequently discharged without

being asked for an explanation of his side of the incident that led

to   the   discharge,      in    apparent    violation   of   Company     policy.

Finally, the four documented performance problems referred to by

the Company occurred over a twenty-month period, with the last

documented   incident      occurring    approximately      six   months   before

Scott's discharge.      On this record, we are constrained to uphold

the Board's Decision.


                                        26
                             III.

    For the foregoing reasons, we grant the Board's application

for enforcement.

                            APPLICATION FOR ENFORCEMENT GRANTED




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