Clark & Wilkins Industries, Inc. ("Clark" or "Company"), petitions for review of a decision by the National Labor Relations Board ("NLRB" or "Board"), finding the company liable under the National Labor Relations Act, 29 U.S.C. Secs. 151 et seq. ("NLRA" or "Act") for discharging Phillip Greene and Cecil Chinfloo for engaging in union activity, in violation of Secs. 8(a)(1) and 8(a)(3) of the Act. We affirm the Board's decision and accompanying order.

Clark & Wilkins Industries, Inc. is a small general contracting firm located in New York City. The company consists of Jack Roth, its president, Walter Wardrop, its steel superintendent, two leadmen, including Uriel Brown and 15 crew members, including Phillip Greene and Cecil Chinfloo.

As steel superintendent, Wardrop is responsible for the fabrication of iron products in the company's shop. When the iron product is ready for installation, Wardrop takes a leadman to the installation site and tells him how the work is to be done. A complement of the company's crew is then assigned to work under the leadman at the jobsite. The leadman directs the work at the jobsite and is responsible for its proper completion. At the end of the day the leadman reports to Wardrop on both the progress made and problems encountered at the jobsite.

In the mornings, before heading out to jobsites, the crew members and the leadmen change into their work clothes in a locker room in the company's shop. In the evenings, they return to the locker room where they change back into their street clothes. On Fridays, the employees and the leadmen generally go to a bar together.

On January 30, 1985, Greene met with approximately eight of his fellow crew members in the company's locker room to discuss both the potential benefits of unionizing and the possibility of holding an election.2 Chinfloo attended the meeting. Although the crew members generally left work at 4:30 P.M., they did not leave the locker room that day until about 5:10 P.M. Wardrop was standing at the door as they filtered out.

On January 31, Greene, Chinfloo and two other employees were assigned to a work crew under leadman Brown. The crew was instructed to put up a fence at a site near Central Park. Greene, Chinfloo and one other crew member worked on one part of the fence while Brown and the other crew member worked on another part.

In the afternoon, Wardrop visited the jobsite and inspected the work in progress. Before leaving, he spoke privately with Brown. Subsequently, Brown criticized Greene's and Chinfloo's work. Greene got angry and told Brown that he was "tired of being used" and that he would "take steps ... to change that." J.A. 69. Brown replied that "any steps or anything you guys are going to do do not include me." Id.

After returning to the locker room at the end of the day, Brown and Greene argued about Brown's criticism at the jobsite. As Brown left the locker room, Wardrop asked him what was the matter. Brown explained what happened at the jobsite and said he had thought the matter was closed until Greene reopened it in the locker room. The next morning, February 1, Wardrop dismissed Greene.3B. Chinfloo's Discharge

Chinfloo worked at various company jobsites and also drove a company truck. Chinfloo had recently immigrated from the West Indies and thus was unfamiliar with the city. On approximately February 4, Wardrop asked Chinfloo to pick up some debris at a company jobsite. Chinfloo did not know how to get to the jobsite and consequently had to follow Wardrop to the spot.

On February 6, Antonio Schifano, a union representative, met with Jack Roth in Roth's office. Schifano told Roth that several of Clark's employees had signed union authorization cards and asked Roth to begin bargaining with the union. Roth told Schifano that he could not afford a union but Schifano nonetheless persuaded Roth to meet him the next day to discuss the matter further. Later that day, Wardrop dismissed Chinfloo.4 Subsequently, Roth cancelled his February 7 meeting with Schifano. Consequently, the union filed a petition for a representation proceeding with the Board on behalf of Clark's crew members.

On February 25, prior to the representation proceeding, the parties took part in a conference on the voting eligibility of Greene and Chinfloo. The company contended that Greene and Chinfloo were ineligible to vote because they had been discharged for cause. The union maintained that they had been unlawfully discharged and were thus eligible to vote. The Board then commenced a hearing on the status of Greene and Chinfloo, only to terminate it because the parties entered into an agreement allowing Greene and Chinfloo to vote subject to challenge. The election, in which Brown participated, was held on March 20, resulting in a 6-6 tie. The challenged ballots of Greene and Chinfloo were therefore determinative of the outcome of the election.

Before a hearing on the challenged ballots was held, the union filed the unfair labor practice charges at issue in this case, alleging that Greene and Chinfloo were unlawfully discharged. On July 9, the Board issued an order consolidating the hearing on the challenged ballots with the unfair labor practice hearing.

D. The Hearing Before the ALJ and the Board's Decision

At the hearing before Judge Morio, Clark contended that Greene was fired for insubordination and Chinfloo for incompetence. Judge Morio disagreed, finding the company liable under Secs. 8(a)(1) and 8(a)(3) of the Act because the union had shown, as required by Wright Line, A Division of Wright Line, Inc., 251 N.L.R.B. 1083 (1980), enforced, NLRB v. Wright Line, 662 F.2d 899 (1st Cir.1981), cert. denied, NLRB v. Wright Line, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982), that Greene's and Chinfloo's union activity were a motivating factor in Clark's decision to discharge them and Clark had failed to show that it would have discharged them notwithstanding their union activities.5 In support of her decision, Judge Morio first found that the company, through leadman Brown, knew of Greene's and Chinfloo's union activity. The ALJ imputed Brown's knowledge to the company because she found Brown to be a company supervisor as defined by Sec. 2(11) of the Act.6

Judge Morio also found that the timing of Greene's and Chinfloo's respective dismissals indicated that they were discharged for engaging in union activity. Finally, Judge Morio found evidence of Clark's hostility toward unions, indicating that the company was inclined to dismiss employees for engaging in union activity.

In a brief opinion, the Board affirmed the ALJ's "rulings, findings and conclusions." J.A. 45.7

Clark argues that in finding for Greene and Chinfloo, the Board erred in both its factual and legal conclusions.

On factual grounds, Clark argues that the record lacks substantial evidence to support the Board's finding that the company dismissed Greene and Chinfloo for engaging in union activity. But even if there were substantial evidence to that effect, the company contends that the record shows Clark had legitimate reasons for firing Greene and Chinfloo.

On legal grounds, Clark argues that its due process rights were violated because the union's complaint did not allege that Brown is a supervisor within the meaning of Sec. 2(11) of the Act and thus the company did not have notice that Brown's status was in issue. While Clark recognizes that this alleged defect in the union's complaint would have been harmless had Brown's employment status been fully and fairly litigated before Judge Morio, it asserts that it was not. Clark also contends that the union was precluded from relitigating the status of Brown because the union's complaint did not allege that Brown is a supervisor and for purposes of the representation proceeding, the union and the company had stipulated Brown to be an eligible voter8 and therefore by definition not a supervisor.

We will address each contention in turn.

In evaluating the Board's factual findings, a reviewing court may not disturb the Board's conclusions where they are supported by substantial evidence on the record as a whole. 29 U.S.C. Sec. 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951). Under this standard, so long as the Board's findings are reasonable, they may not be displaced on review even if the court might have reached a different result had the matter been before it de novo. NLRB v. United Insurance Co., 390 U.S. 254, 260, 88 S. Ct. 988, 991, 19 L. Ed. 2d 1083 (1968). Notwithstanding Clark's assertion to the contrary, the Board's determination that Chinfloo and Greene were discharged for engaging in union activity was clearly reasonable.

The Board found company knowledge of Greene's and Chinfloo's union activity by imputing leadman Brown's knowledge to the company. It justified this imputation by concluding that Brown is a supervisor within the meaning of Sec. 2(11) of the Act.9

The Board's finding that Brown knew of Greene's union activity was based primarily on an eminently reasonable inference it made from the exchange that took place between Brown and Greene at the worksite after Brown criticized Greene's work. Brown's comment--"any steps or anything you guys are going to do do not include me"--clearly indicates that he understood Greene's remark--taking "steps"--to refer to his union activities. J.A. 69. If this were not the case, Brown would not have addressed his response to "you guys," since Greene protested Brown's criticism in the first-person singular: "I'm tired of being used" and "steps I would make to change that." Id. (emphasis added).

The Board also inferred from this exchange that Brown knew of Chinfloo's union activities because Chinfloo was on Brown's work crew that day. While we find this inference less well-founded--there was a third member of the work crew who was not subsequently fired--it was reasonable for the Board to conclude as it did. The evidence discussed below regarding the timing of Chinfloo's dismissal supports the Board's finding with regard to Chinfloo.10

The Board reasonably concluded that "[Clark's] asserted justification for Greene's discharge was trumped up from events occurring the very morning after his activity in support of the union--events which even Brown made clear he considered trivial, and which the ALJ found to be pretextual. Chinfloo's discharge occurred only hours after the respondent was confronted by the union with a demand for recognition." J.A. 47-48.11

Clark attempts to explain away these coincidences in timing primarily by attacking the credibility of the union's witnesses. In finding for the union, however, Judge Morio addressed the credibility issue and "under the law of [the D.C. Circuit], it is clear that Board-approved credibility determinations of an ALJ are entitled to be upheld unless they are 'hopelessly incredible or self-contradictory.' " Teamsters v. NLRB, 863 F.2d 946, 953 (D.C.Cir.1988), cert. denied, A.G. Boone Co. v. NLRB, --- U.S. ----, 109 S. Ct. 2063, 104 L. Ed. 2d 628 (1989).12B. Issues of Law

The company asserts that its due process rights were violated because the union's complaint did not allege Brown to be a supervisor and because Brown's employee status was not fully and fairly litigated before the ALJ. We agree with the Board that Brown's status was fully and fairly litigated before Judge Morio. J.A. 46 n. 2. We will first discuss the alleged deficiency in the union's complaint.

It is clear that the union's complaint was sufficient as measured by the Board's regulation governing the sufficiency of complaints. 29 C.F.R. Sec. 102.15 requires a union to name in its complaint only those agents "by whom" a party is alleged to have committed unfair labor practices.13 The union never contended that Brown committed any unfair labor practices. Rather, Brown was merely the conduit through whom the company's principals, Roth and Wardrop, learned of Greene's and Chinfloo's union activity. It was Roth and Wardrop who fired Greene and Chinfloo, thus it was Roth and Wardrop "by whom" the unfair labor practices at issue were committed. The union named both Roth and Wardrop in its complaint. J.A. 4. Moreover, Brown's employee status was fully and fairly litigated at the hearing and thus Clark had adequate notice that Brown's status was in issue.

As the Board points out, NLRB Brief at 12, not only was the issue of Brown's status litigated at the hearing, it was raised by the company. The company put both Brown and Wardrop on the stand in an effort to counter assertions by Greene that Brown had no authority over him. J.A. 70, 77, 78. The company's aim was to prove that since Greene was responsible to Brown, Greene's defiance of Brown both at the worksite and in the locker room constituted insubordination and was the reason for Greene's dismissal. The company's strategy backfired, however, as Brown's, J.A. 139-44, and Wardrop's, J.A. 158, testimony indicated that Brown is a supervisor.14

On its cross-examination of Brown, J.A. 188-91, and Wardrop, J.A. 165-71, 173-74, 182, the union took advantage of this opening, eliciting considerable testimony to support the conclusion that Brown is a supervisor.15 Clark could have recalled Brown and Wardrop to rebut the evidence adduced by the union on cross-examination, but as it concedes, it did not take advantage of that opportunity. Clark & Wilkins Brief at 14.

Clark's contention that it did not recall its witnesses because "throughout the hearing General Counsel took the position that Brown was not even a leadman" is without merit. Id.

First, the record does not support this characterization of General Counsel's position. Second, and more important, given the nature of the allegations made by the union, Clark should have known that Brown's status might be litigated. By definition, to prevail on Secs. 8(a)(1) and 8(a)(3) charges, a petitioner must prove company knowledge of union activity. The ebb and flow of examination and cross-examination would have made it clear to anyone familiar with Secs. 8(a)(1) and 8(a)(3) actions that Brown's status was up for grabs.

But even if Clark remained blissfully ignorant of whose knowledge was being litigated, the General Counsel was not required to announce at the hearing that the primary evidence it intended to adduce to prove company knowledge was the fact that Brown is a supervisor. Clark has not cited any cases holding that a party before the Board must tell its opponent what evidence it plans to use to prove its theory of liability.16

Finally Clark asserts that the Board gave an incomplete statement of the law when it affirmed Judge Morio's reconsideration of Brown's employment status.17 According to Clark, the law precluded both the ALJ and the Board from reconsidering Brown's status because "whe[n] an individual is found to be an employee in a representation proceeding, the question of his status may be relitigated in an unfair labor practice proceeding only where there is a specific allegation in the complaint that the employee is a supervisor and is alleged to have committed unfair labor practices." Clark & Wilkins Brief at 28-29 (emphasis added).18 This proposition merits little dis cussion, as two of the cases Clark cites in support undermine its argument and the third is unhelpful.

For example, it cites Reeves Bros., 277 N.L.R.B. 1568, 1573 n. 3 (1986), where the ALJ found that because as here, the unfair labor practice proceeding contained issues "unrelated to issues in the representation case, the status of the leadman is the proper subject of relitigation."

Clark also cites Herb Kohn Electric Co. v. NLRB, 272 N.L.R.B. 815 n. 5 (1984), which reads in relevant part: "It is well established that, even where an individual has been found in a representation proceeding to be an employee, the question of his or her status may be litigated in a subsequent unfair labor practice proceeding, particularly where, as here, there is a specific allegation that the individual is a supervisor.... Hedison Manufacturing Co., 249 N.L.R.B. 791 (1980)." (Emphasis added). In other words, according to the NLRB, while an allegation of supervisory status is helpful, it is by no means necessary.

Finally, Clark cites Hedison Manufacturing Co., 249 N.L.R.B. 791 (1980). In that case, the Board found it unnecessary to make a determination of the status of the employee in issue. And while the Board did say, in dictum, that the Board's rules prohibit relitigation of the employee's status "especially since general counsel's request for a bargaining order raises essentially the issue of the scope and composition of the appropriate unit which would not be relitigated in a Sec. 8(a)(5) case...." Hedison at 800 (emphasis added), it erred in using the word "especially"; the word it should have chosen was "only."

Indeed, subsequent Board decisions such as Reeves and Herb Kohn have recognized, as shown, that relitigation of an employee's status is not precluded in Secs. 8(a)(1) and 8(a)(3) proceedings, where the issue being relitigated is "unrelated" to the prior representation proceeding. In fact, the Board's decision in this case explicitly holds that Secs. 8(a)(1) and 8(a)(3) proceedings are "unrelated" to representation proceedings. In so holding, it cited this court's opinion in Amalgamated Clothing Workers of America v. NLRB, 365 F.2d 898, 904-05 (D.C.Cir.1966), where the court made the same point. See also NLRB v. Hydro Conduit Co., 813 F.2d 1002, 1003 (9th Cir.1987) ("The circuit courts that have addressed the issue have concluded that Sec. 102.67(f) does not prevent relitigation in a subsequent Secs. 8(a)(1) or 8(a)(3) unfair labor proceeding of issues that were or could have been raised in a representation proceeding.").19

Substantial evidence on the record as a whole supports the Board's finding that Clark unlawfully discharged Greene and Chinfloo for engaging in union activity, in violation of Secs. 8(a)(1) and 8(a)(3) of the Act. The record also shows that Brown's supervisory status was fully and fairly litigated before Judge Morio. Finally, the Board was correct in concluding that Judge Morio was not precluded from revisiting Brown's employment status, notwithstanding the fact that Brown voted in the prior representation proceeding. Herb Kohn Electric Co. v. NLRB, 272 N.L.R.B. 815 (1984). We therefore affirm the Board's decision and accompanying order.20 Consequently, the petition for review is

Denied.