Carolina Holdings, Inc. v. National Labor Relations Board ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CAROLINA HOLDINGS, INCORPORATED, 
d/b/a Detroit Paneling Systems,
Incorporated,
Petitioner,
 No. 00-1548
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.

NATIONAL LABOR RELATIONS BOARD, 
Petitioner,
v.
CAROLINA HOLDINGS, INCORPORATED,  No. 00-1745
d/b/a Detroit Paneling Systems,
Incorporated,
Respondent.

On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
(7-CA-39842)
Argued: January 23, 2001
Decided: March 8, 2001
Before WILKINSON, Chief Judge, and WILKINS and
KING, Circuit Judges.
Enforcement granted by unpublished per curiam opinion.
2 CAROLINA HOLDINGS, INC. v. NLRB
COUNSEL
ARGUED: Barry Todd Meek, HUNTON & WILLIAMS, Richmond,
Virginia, for Carolina Holdings. Jeffrey Lawrence Horowitz,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. ON BRIEF: Gregory B. Robertson, HUNTON & WIL-
LIAMS, Richmond, Virginia, for Carolina Holdings. Leonard R.
Page, General Counsel, Aileen A. Armstrong, Deputy Associate Gen-
eral Counsel, Frederick C. Havard, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The National Labor Relations Board (the Board) found that Caro-
lina Holdings, Inc. violated the National Labor Relations Act (NLRA)
and ordered remedial measures. Carolina Holdings petitions for
review, contending that the record lacks substantial evidence to sup-
port the Board’s conclusions. The Board cross-petitions for enforce-
ment of its decision and order. We find that substantial evidence
supports the Board’s conclusions, and we therefore grant enforcement
of its decision and order.
I.
In 1997, the United Brotherhood of Carpenters and Joiners ("the
Carpenters Union") initiated an effort to unionize the workers at
Detroit Paneling Systems, Inc. (DPS), a subsidiary of Carolina Hold-
ings. DPS openly opposed this effort. While the unionization drive
was proceeding, DPS fired two employees who had expressed pro-
union views. The Board determined that these discharges were retalia-
CAROLINA HOLDINGS, INC. v. NLRB 3
tory, in violation of the NLRA. See 29 U.S.C.A. § 158(a)(3) (West
1998). Carolina Holdings challenges these findings, contending that
the employees in question were fired for legitimate reasons unrelated
to the unionization effort.
A. The Discharge of Edward Musser
Musser was a union "salt," an employee of the Carpenters Union
who accepted a position at DPS in order to promote the unionization
effort. It is undisputed that DPS did not learn that Musser was a union
salt until after his discharge. It is likewise undisputed that Musser was
an outstanding employee.
On May 15, shortly after Musser was hired by DPS, he attended
a company-wide meeting led by Richard Kramer, DPS’ vice president
for human resources. The two purposes of this gathering were to
inform employees about benefits offered by DPS and to discourage
them from supporting the union. During the meeting, Musser cor-
rected some of Kramer’s statements about benefits available through
the union.
After the meeting, Kramer introduced himself to Musser. Musser
testified that his plant manager, Timothy Oliver, later told him that his
comments "shook up" Kramer and that Kramer wanted to know if
Musser belonged to a union. J.A. 133. Oliver disputed Musser’s testi-
mony, averring that he told Musser that Kramer appreciated Musser’s
input, that another supervisor had praised Musser, and that the com-
pany planned to promote him. The administrative law judge (ALJ)
who heard this conflicting testimony found that Musser was more
credible than Oliver.
A few days after the May 15 meeting, Debbie Demick, a human
resources manager at DPS, confronted Musser about alleged false-
hoods in his job application. In particular, Demick disputed Musser’s
statement that his position with a previous employer ended in April
1997, pointing out that he had been on leave of absence from that
company since July 1996. Musser was sent home at the end of the
meeting and was told the next day that he was fired.
4 CAROLINA HOLDINGS, INC. v. NLRB
The Board adopted the ALJ’s finding that the concerns expressed
about Musser’s application were pretextual and that DPS actually
fired Musser because of his pro-union remarks. In support of this
finding, the Board noted that the timing of Demick’s inquiry was
suspicious and that Musser’s description of his relationship with his
prior employer was not technically false.
B. The Discharge of Cedrick Greenhill
Greenhill, the other employee at issue here, made pro-union com-
ments during an impromptu debate the day after the May 15 meeting.
Greenhill’s foreman, Casey Treadaway, was also involved in this
debate; the next working day, he caused Greenhill to be fired.
Shortly before lunchtime on the day Greenhill was fired, Trea-
daway told Greenhill to go home for the day, ostensibly because he
was working too slowly. In response, Greenhill left the manufacturing
area and went to the lunchroom to be with friends. While he was
there, Treadaway approached him and delivered a pink slip signed by
Oliver. Treadaway testified that Greenhill was chronically slow, that
he became belligerent when told to go home, and that he was ulti-
mately terminated for refusing to leave the plant. The ALJ determined
that Treadaway was not credible, however, and found (based on
Greenhill’s testimony) that Treadaway had praised Greenhill’s work
and that Greenhill’s "alleged insubordination consisted of no[ ] more
than sitting in the lunchroom after he was told to go home." Id. at 38.
The Board adopted the ALJ’s findings, with one exception not per-
tinent here. Based on these findings, the Board concluded that DPS
"seized upon a trivial offense to discriminate against a union activist
and ‘send a message’ to other employees who supported the Union."
Id. at 33.
C. Additional NLRA Violations
In addition to finding that DPS unlawfully discharged two employ-
ees, the ALJ determined that DPS supervisors twice violated the
NLRA by making threatening statements. See 29 U.S.C.A.
§ 158(a)(1) (West 1998). First, the ALJ found that Oliver unlawfully
CAROLINA HOLDINGS, INC. v. NLRB 5
questioned Musser after the May 15 meeting; as described above, Oli-
ver said that Kramer was perturbed by Musser’s comments and
wanted to know whether Musser was a union member. Second, the
ALJ found that Treadaway violated § 158(a)(1) during a profanity-
laced diatribe against unionism that included threats about how man-
agement would treat DPS workers if they joined the union. The Board
adopted both of these findings.*
II.
On review of an agency proceeding, we will uphold its factual
determinations and its applications of law to fact if the record con-
tains substantial evidence to support them. See Sam’s Club v. NLRB,
173 F.3d 233, 239 (4th Cir. 1999). Moreover, we must accept an
ALJ’s credibility determinations unless "exceptional circumstances"
are present. Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir.
1996) (internal quotation marks omitted). Having examined the
record and the parties’ briefs in light of these standards, and having
had the benefit of oral argument, we affirm the decision of the Board
and we grant the petition for enforcement of its decision and order.
ENFORCEMENT GRANTED
*Carolina Holdings asserted at oral argument that it was unclear
whether the Board adopted the finding regarding Oliver. We reject this
assertion, as it is refuted by both the opinion of the Board and its pro-
posed order. In particular, we note that this order (which we are enforc-
ing) prohibits Carolina Holdings from "[c]oercively interrogating any
employee about union support or union activities." J.A. 34.