NLRB v. Dynatron/Bondo Corporation

NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.

DYNATRON/BONDO CORPORATION, Respondent.

Nos. 98-8257, 98-8418.
United States Court of Appeals,

Eleventh Circuit.
May 25, 1999.

Applications for Enforcement of Orders of the National Labor Relations Board (Georgia Case).

Before COX, BIRCH and HULL, Circuit Judges.
PER CURIAM:

The National Labor Relations Board seeks to enforce two decisions and orders against

Dynatron/Bondo Corporation. Dynatron, for its part, challenges those orders. We enforce in part and deny

enforcement in part.
I. Background

In yet another chapter in a long battle between Dynatron and its employees, the newly certified Union

of Needletrades Industrial and Textile Employees accused Dynatron of engaging in several unfair labor
practices. The practices still at issue1 here fall into two categories: impermissible unilateral changes to

working conditions, see 29 U.S.C. § 158(a)(5); Litton Financial Printing Div. v. N.L.R.B., 501 U.S. 190, 198,

111 S.Ct. 2215, 2221, 115 L.Ed.2d 177 (1991), and discrimination against pro-union employees, see 29

U.S.C. § 158(a)(3).

The unilateral changes charged (and still at issue here) were: (1) ceasing of regular merit raises; (2)

raising employee contributions to group health insurance premiums; (3) banning smoking in Dynatron's
entire plant; (4) establishing a rule requiring an employee to timely arrive at his work station, in addition to

punching in on time; (5) assigning employees numbered parking spaces; (6) requiring employees to use and

carry ID cards; (7) promulgating new disciplinary rules for material handlers; and (8) fixing compensation
for plant shutdowns due to hurricanes. The two alleged discharges in violation of NLRA § 8(a)(3) were of

Floyd Robin Davis, ostensibly fired for taking four green pens to use in his work without authorization, and

1
The original charges included some other alleged unfair labor practices (such as Dynatron's unilateral
elimination of "safety bingo"), but no one challenges the result below on those practices.
Lee Carter, assertedly fired for using abusive and profane language to a member of management and for

insubordination.
The administrative law judge ruled against Dynatron in every respect in the complaints based on these

charges. He found that Dynatron, by unilaterally altering the working conditions described above, had
refused to bargain in good faith. He further found that Davis and Carter had been fired for their vocal support

of the union. Dynatron appealed to the N.L.R.B., which substantially agreed with the ALJ and ordered

appropriate relief. Dynatron now seeks to have this court deny enforcement of the N.L.R.B.'s orders.2
Dynatron has not argued that the Board's rules are unreasonable in any respect. Rather, some of its

challenges rest on the assertion that the record before the Board does not support the Board's findings of fact.
These findings are conclusive "if supported by substantial evidence on the record considered as a whole."

29 U.S.C. § 160(e), (f). "Put differently, we must decide whether on this record it would have been possible

for a reasonable jury to reach the Board's conclusion." Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522

U.S. 359, 118 S.Ct. 818, 823, 139 L.Ed.2d 797 (1998). Other challenges rest on the Board's application of
N.L.R.B. rules to the facts. As in the case of construction of the Act, we defer to the Board's application of

its rules if the application is reasonable. See Evans Servs., Inc. v. N.L.R.B., 810 F.2d 1089, 1092 (11th

Cir.1987).
II. Discussion

1. Merit increases.
The Board concluded that Dynatron had engaged in an unfair labor practice under 29 U.S.C. §

158(a)(5) by unilaterally ceasing to grant merit pay increases after May 1993. Dynatron does not dispute that

discontinuing merit pay increases would be an unfair labor practice, nor does it dispute that it discontinued

the increases. Dynatron argues, rather, that as a matter of fact regular merit pay increases were never a
condition of employment, since even before May 1993 such increases were awarded only at Dynatron's whim.

Dynatron's argument on this point rests on the testimony of its management and on profiles of a few
employees' wage history.

2
The N.L.R.B. asks this court to enforce those portions of its orders that Dynatron has not challenged,
particularly those relating to the Board's finding that Dynatron engaged in improper surveillance of union
leafleting and fired employees Pepper, Bennett, and Moss in retaliation for union activity. The N.L.R.B.
is of course due enforcement of the parts of its orders relating to these findings, and we summarily
enforce them. See 29 U.S.C. § 160(e), (f); Northport Health Servs., Inc. v. N.L.R.B., 961 F.2d 1547,
1551 n. 3 (11th Cir.1992).
 While one certainly could reasonably agree with Dynatron, we conclude that the Board's finding of

a past policy is based on substantial evidence. It was undisputed that employees underwent merit reviews
during the relevant period. The coversheet of performance reviews prescribed a three-step process. The

second step was to "DECIDE ON RECOMMENDED INCREASE, IF ANY." (E.g., 98-8257 R.2-Gen'l

Counsel Ex. 140 at 1.) The third step was to "REVIEW PROPOSED EVALUATION AND INCREASE

WITH PERSONNEL MANAGER." (E.g., id.) According to a summary of merit pay increases from the late

1980s through 1993 (whose accuracy is not controverted), a majority of employees received annual merit pay
increases in each year. Over the period summarized, almost all employees hired before 1992 received at least

one merit pay increase on a service anniversary. All this evidence suggests that Dynatron did have a practice
of frequently awarding merit increases on anniversary dates, and it distinguishes this case from those in which

the practice of awarding merit pay increases was totally capricious and not based on periodic evaluation. See,

e.g., Ithaca Journal-News, Inc., 259 N.L.R.B. 394, 395 (1981).

The Board was entitled, moreover, to give little weight to the testimony of Dynatron management.

The plant manager's testimony, for instance, was inconsistent with his own testimony and the human
resources manager's: when first asked of the merit review and pay raise process, the plant manager testified
that "[g]enerally there was a three[-]month review, a six[-]month review, and an annual review. Basically,

we give an increase really at any one of those times or any combination of those times." (98-8257 Tr. at 342.)

Later, however, he testified that "[p]eople received increases indiscriminately at anytime [sic ]." (Id. at 344.)

And the human resources manager testified that raises were given "haphazardly" and were "all over the

place." (Id. at 429-30.) The cherry-picked examples of six employees whose merit pay increases did not

follow the policy, moreover, are only weakly persuasive for the usual reasons that cherry-picked examples
are not; exceptions may disprove a firm rule, but they do not undermine evidence of a broad and general
policy.

Considering the record "as a whole," 29 U.S.C. § 160(e), (f), we conclude that substantial evidence

supported the Board's finding, and we enforce the portion of its order concerning the merit pay increases.

2. Health Insurance Premiums.
The Board ruled that Dynatron engaged in an unfair labor practice in violation of 29 U.S.C. §

158(a)(5) by unilaterally increasing employee contributions to health insurance premiums following a

unilateral decision to select a more expensive insurance carrier. Dynatron does not dispute that if it had no
fixed policy of passing on premium costs, increasing the employee contribution would have to be negotiated

with the union. See N.L.R.B. v. Allis-Chalmers Corp., 601 F.2d 870, 875-76 (5th Cir.1979). Rather,

Dynatron argues that it had a fixed policy.

Substantial evidence supports the Board's conclusion to the contrary. No one disputes that Dynatron

made two revisions to the employee contribution before union certification: Dynatron lowered the employee
contribution once (from 18% to 13% for individuals) and raised it once (from 13% to 15%). Against this

evidence of apparently random fluctuation, Dynatron offered no evidence (at least that it points to in its brief)

that these changes resulted from anything but pure whim. We therefore accept the Board's finding that
Dynatron had no policy concerning employee contributions before 1991 and enforce the pertinent parts of

the Board's order.

3. Smoking Policy.
The Board found that Dynatron had unilaterally banned smoking on its premises without negotiation,

in violation of 29 U.S.C. § 158(a)(5). Dynatron's first argument is that it sought to negotiate, but the union
refused to negotiate in good faith. This argument may have merit; certainly the union representative's
breathtaking rudeness at the July 27, 1993 bargaining session over smoking policy could persuade a casual

reader that the union bargained in bad faith.3 But we cannot tell that Dynatron made this argument before
the Board. Dynatron's memorandum to the Board is not included in the record, and Dynatron excepted only

to "the ALJ's conclusion that Respondent violated the Act when it implemented a ban on smoking ...; on the
grounds that such conclusion is unsupported by the evidence in the record and contrary to law." (98-8257
R.4 at 615 ¶ 25.) The Board represents that the argument in support of this objection did not include an

assertion that the union bargained in bad faith. Dynatron does not deny this representation, and we therefore

conclude that we lack jurisdiction to consider Dynatron's argument. See Woelke & Romero Framing, Inc.

v. N.L.R.B., 456 U.S. 645, 665-66, 102 S.Ct. 2071, 2083, 72 L.Ed.2d 398 (1982).

Dynatron's remaining contention is that the risk of a fire or explosion justified its unilateral ban of

smoking on its premises. The Board does not deny that an emergency safety threat would excuse unilateral

action, see Smith Co. of Calif., Inc., 200 N.L.R.B. 772, 780 (1972), but it argues that the Board's finding that

3
Among other things, Harris Raynor, the union representative, complained to the company's counsel
on unrelated matters, refused not to smoke during the session, continually engaged in ad hominem attacks
on the company's counsel, repeatedly threatened legal action, and changed the subject away from
smoking policy.
no emergency exists rests on substantial evidence. We agree. While Dynatron offered evidence that certain

volatile chemicals are trucked into the plant past the former smoking area, and that these trucks sometimes
leak, there was no evidence that Dynatron or any similar manufacturer has ever had a problem or taken any

corrective action until 1993. This lack of an antismoking policy or a history of fires may not justify a finding

that there is no risk, but it is substantial enough evidence to support the Board's finding that smoking in the

areas where the employees were permitted to smoke before 1993 did not create an emergency. In any event,
the Board has tailored its order to permit Dynatron to ban smoking wherever it can show that smoking would

be a hazard.
Because the Board's finding is supported by substantial evidence, we enforce the portion of its order

relating to the smoking ban.

4. New Tardiness Rule and Discharge of Lamar Shelton.
The Board concluded that the company had unilaterally created a new rule, which resulted in Lamar
Shelton's discharge, that arriving less than 15 minutes late to one's work station is a disciplinary infraction

distinct from the existing infraction of arriving more than 15 minutes late to work. Dynatron has not
contested these findings. Rather, the company argues that the union was on notice of the new rule more than

six months before it filed a charge of unfair labor practices, and that the charge was thus untimely under 29
U.S.C. § 160(b). The Board rejected this argument. It concluded that the union could not have known that
a new work rule was in effect until Lamar Shelton was fired because the company denied that a new work

rule had been put into effect. Alternatively, the Board held that other, timely charges adequately
encompassed this charge. The Board's application of the 10(b) period of limitations to this evidence is

unreasonable, as is its conclusion that the other charges encompassed this one.
In the spring of 1994, the company began issuing "disciplinary actions" to employees for "late arrival

to work area." (98-8418 R.2-Resp't's Ex. 5 at 2-42.) As many as twelve of these were issued before

September 19, 1994; one of the disciplined employees was Lamar Shelton, who received two such notices.
These disciplinary actions were produced to the union, and in a meeting on September 19, 1994, the union

representative broached the issue:

HR [Harris Raynor, Union Representative]: ... Okay. Second thing I would like to know is has the
company instituted any new disciplinary measures? Specifically, a number of warnings have been
received lately for lateness that I haven't received before.
WL [Walter Lambeth, Dynatron's counsel]: Maybe they haven't been late before.

HR: These notices are not simply for lateness—specifically reporting late to their work station. My
 assumption is the company means its employees punched in on time but were not at the appropriate
work space on time. It's impossible to tell if it happened during the day or if it is just in the AM.
WL: If you will ask about specific employees, ...

HR: When someone was tardy before, the notice listed the dates they were late and whatever level
of discipline they were at. These notices use terminology I've never seen before on any other
warning.

WL: There has been no change in company Disciplinary Policy, I can tell you that. If you are late
coming to work or late arriving at your work station, that is simply late. It is a violation of company
rules.

HR: You so stated without any discussion with the committee members on your company
committee?
WL: We have discussed this.

HR: When have you discussed it?

WL: None of your business. I have discussed this with my client numerous times—the subject of
employees arriving late for work.
HR: Where in the handbook is it that this is an offense seeing as how you have discussed this. I
brought some of the warnings with me—late arrival in work station: John Riggins, Catherine
Graddy, John Usher, Chris Sherman, Gene Bennett, Lamar Shelton, Sonza Burley—all occurred in
August. Was no one late prior to August 15th? Are you creating a new policy?
WL: Maybe they never came late before. I don't know. Occasionally that happens. I'm just looking
through the book. I am not total [sic ] conversant with the company rules. Page 26, # 7 has to do
with tardiness.
HR: We consider this to be a new work rule.
ER [Earnestine Riggins]: There are temps walking through all the time.

WL: We haven't created any new work rules.
HR: Okay.

(98-8418 R.2-Gen'l Counsel's Ex. 50 at 2-3.) Following this meeting, the company continued to issue

disciplinary actions for late arrival to work area or work station. These precipitated a second broaching of
the subject on September 11, 1995:
HR: ... [I]s attendance separate from or part of the other discipline procedures.

WL: It is a separate program for most purposes. You have to get four attendance violations over the
allowed time. That is a rolling date. You can concurrently have some other offences under the
regular disciplinary rules of conduct and as long as you didn't hit the stated last offense, you would
not be discharged. We do not combine these. What you may be referring to is if you do not get to
your work station and report to work in a timely manner at start or after break. You are tardy under
attendance policy if you are 15 minutes or more late punching in. Under the disciplinary policy we
have had problems in the past. Somebody will punch in and disappear. Occasionally someone will
get a disciplinary warning for not being at his work station. That is a violation of the plant rules,
and that is written up under the disciplinary rules if they do not appear at the work station when they
are supposed to.
 HR: So not appearing at your work station in a reasonable period of time is a disciplinary matter and
not under the attendance policy?
WL: Right.

HR: Okay.

(98-8418 R.2-Gen'l Counsel's Ex. 24 at 3-4 (emphasis added).) This exchange was followed by a dialogue

between Lambeth and Shelton, the employee ultimately discharged for reporting late to his work station.
Shelton complained that the new rule resulted in discipline simply when one supervisor in the chain of

command did not know the employee's whereabouts, even though another supervisor knew. After this

dialogue, Raynor observed that "[y]ou haven't written people up for being late to their work station for a long

time before this." (Id. at 5.) No charge was filed until June of the following year, after Shelton was fired for

repeatedly arriving late to his work station.
The Board and the company agree on the statement of the Board's rule of when the § 10(b) clock

starts to tick:
[T]he 10(b) period does not begin to run until the charging party receives clear and unequivocal
notice—either actual or constructive—of the acts that constitute the alleged unfair labor practice, i.e.,
until the aggrieved party knows or should know that his statutory rights have been violated. As a
corollary—and a fortiori—when a party deliberately misrepresents or conceals from another the
operative facts concerning its actions so that the other party is unable, even through the exercise of
due diligence, to discover those facts, the 10(b) period does not begin to run until the deceived party
obtains the relevant facts.

John Morrell & Co., 304 N.L.R.B. 896, 899 (1991) (emphasis added). By permitting the clock to run on

constructive notice, and by requiring due diligence to uncover unfair practices, the rule makes clear that the
clock can start to tick even if the union does not receive a letter from the company explicitly notifying the

union of an unfair labor practice. See Local 25, Int'l Bhd. of Elec. Workers, 321 N.L.R.B. 498 (1996)

(employee who heard of unfair labor practice in idle chat with fellow union members was sufficiently on

notice for time to run, even though she thought the information was just a "rumor"). When the unfair practice

has in fact occurred (and not just been threatened), see Leach Corp. v. N.L.R.B., 54 F.3d 802, 807

(D.C.Cir.1995), and the union has the facts necessary to determine that it has occurred, then the time begins

to run.
The clock had begun to tick here. The alleged unfair labor practice had occurred as soon as

Dynatron began sanctioning workers for an action—showing up late to one's post—that had not been

punishable before. The company did not hide these new punishments; the disciplinary actions were turned
over to the union. And as Raynor's remarks at the September 19, 1994 meeting show, the union's fine nose
for unfair practices had not failed it: Raynor unequivocally accused the company of having created a new

work rule. If this were not enough, a year later Lambeth told Raynor in no uncertain terms that it was a
violation of company rules to show up late to your work area.

All the company did not tell the union is that this rule was new. Indeed, the company denied that the

rule was new. The Board relied on this denial to find a species of fraudulent concealment. We are not

persuaded. The Board's own rule, as stated in Morrell, quoted above, permits tolling for fraudulent

concealment of "operative facts" only. Whether or not a rule is an impermissible unilateral change is not an

"operative fact" but a legal conclusion drawn from historical facts. When Lambeth told Raynor that the rule

was not new, Lambeth was simply denying liability. (In any event, Raynor was not persuaded.) Lambeth
and the company hid no operative facts—such as who was being disciplined for this infraction, or what the

employee manual said. As far as the record shows, all the information that was available to the company was

available to the union.
Any reasonable application of the Board's own construction of 10(b) would yield the conclusion that
the six-month clock started to tick no later than September 11, 1995. The charge accusing the company of

firing Lamar Shelton under a unilaterally changed work rule was filed on June 26, 1996. More than six
months had passed since it was obvious to the union that a new rule was in place. The charge was
time-barred.
In the alternative, the Board held that the company was put on timely notice of the charge by separate
charges of unfair labor practices filed on January 18, 1996. Those charges, which are also at issue in this

consolidated application for enforcement, accused the company of creating a new disciplinary procedure for
material handlers, unilaterally changing parking policy, and unilaterally fixing compensation policy for

involuntary plant shutdowns. Under the Board's interpretation of § 10(b), which no one challenges, timely

charge allegations can permit pursuit of untimely ones if the "untimely allegations are of the same class as

violations alleged in the timely charge" and the timely allegations "arise from the same factual situation or

sequence of events as the allegations in the pending timely charge." Redd-I, Inc., 290 N.L.R.B. 1115, 1118

(1988). According to the Board in this case, because the timely allegations involved a unilateral refusal to

bargain and the same conduct ("changing employee terms and conditions of employment," (98-8418 R.3 at
666)), the timely allegations support pursuit of the untimely ones.

This application of the Board's rule is unreasonable because it completely ignores the Board's
enunciation of the rule. The rule requires the untimely charge to "arise from the same factual situation."

Redd-I, Inc., 290 N.L.R.B. at 1118. The Board overlooked the fact that the new tardiness rule had nothing

to do with material handling standards, parking, or compensation. The Board in effect rewrote its own rule
for this case alone to read that a timely charge can carry an untimely one if they "arise from a similar kind

of conduct" rather than "the same factual situation, id." The Supreme Court recently reminded the Board that

even agency "adjudication is subject to the requirement of reasoned decisionmaking.... It is hard to imagine

a more violent breach of that requirement than applying a rule of primary conduct ... which is in fact different

from the rule or standard formally announced." Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S.

359, 118 S.Ct. 818, 827, 139 L.Ed.2d 797 (1998). The Board did not follow that precept here.
Because the charge for this unfair labor practice was time-barred, we deny enforcement of that part

of the Board's order relating to it.

5. Security Measures: Employee Parking Spaces and ID Cards.
The Board concluded that Dynatron had impermissibly unilaterally altered working conditions by
replacing first-come, first-served employee parking with assigned spaces. Dynatron does not challenge this

finding. It argues, rather, that assigning parking spaces is so trivial a change in working conditions that it falls
below the duty to bargain. The company has support from an N.L.R.B. decision for this proposition: the
Board has adopted an ALJ opinion holding that moving employee parking spaces is not "material" enough

to warrant negotiation. See Wisconsin Steel Indus., Inc., 318 N.L.R.B. 212, 241 (1995). Perhaps because of

this, the Board does not defend its order to permit the employees to park freely. We accordingly deny

enforcement.
The Board also ordered the company to cease disciplining employees for failing to bring ID badges

to work. Dynatron challenges this order on the ground that the ID card policy was consistent with past

practice. Again, the Board does not defend this part of its order. We thus deny enforcement.

6. Memo to Material Handlers.
The Board also agreed with the ALJ's conclusion that Dynatron had unilaterally implemented a new

rule by issuing a memorandum to material handlers informing them that certain errors were subject to

discipline, and the Board accordingly ordered the company to rescind the rule. The company challenges this
part of the order on the grounds that the memorandum was simply a restatement of past policy, and that it was

in any event trivial because the record does not show that anyone was ever disciplined under it. The Board
must agree, because it does not defend this part of its order. We accordingly deny enforcement.

7. Power Outages Compensation Policy.
The Board adopted the ALJ's conclusion that Dynatron had unilaterally implemented a compensation

policy for involuntary plant shutdowns when the company undertook to pay employees according to a certain

scheme in the aftermath of Hurricane Opal in October 1995. Dynatron objects to this conclusion, arguing

that it followed the same compensation policy the last time it was forced to send hourly employees home,
during an ice storm in February 1988. In 1988, when the storm impeded many employees from reaching the

plant, employees who did show up for work were turned away and paid four hours' wages. After Opal, when
the company again turned employees away (this time because of a power outage), the company again paid

the employees four hours' wages. We agree that there is not substantial evidence to support the Board's

conclusion that the company's post-Opal policy was new.
The Board's evidence boils down to a quotation removed from its record context and an irrelevant
distinction. The first is that the plant manager, according to the Board, admitted at the evidentiary hearing

that "there was no policy." The plant manager did use those words, but it is plain from the remainder of the
same answer that he was stating that even if he did not label it a policy, the decision on compensation was

made exclusively by reference to precedent:
Q At the time you made the decision as to how employees would be compensated for reporting to work
on October 5th and 6th, did you explain to Mr. Tomkowicz that in the past, in 1988, a certain policy
had been followed?

A Well, first of all, there was no policy. It was the decision on my part, but Fred Tomkowicz did
approach me and ask me how are we going to handle this and that's when I told him that in the past,
here's what we have done. And, we followed the same guidelines and then I see that he drew up this
letter to inform somebody.
(98-8418 R.1 at 274.) This interpretation of this testimony is confirmed by earlier testimony from the plant

manager, as well:

Q Okay. Now, in October of 1995 did you did [sic, prob. "tell"] Fred Tomkowicz in the manner in
which to compensate those employees.

A Yes. Fred came to me and wanted to know how do we want to handle this[,] and I told him that I'd
gone through this before and here's how we handled it in the past. And the people on the first day
of Hurricane Opal [when employees were asked to stay all day, without working], we paid them
because they were basically there their full shift. The second day, because we turned them away right
away, we paid them for four hours, strictly because it was the same thing we did in '88. We paid
them what I call a given, that first four hour segment of their shift, so we paid them for four hours
and sent the people home.

Q Okay. Now was this an established policy at any time or—

A I wouldn't say it was an established policy. It was a decision I had to make in my position.
Q Okay. And you made that decision based on what you had done once before in 1988?

A What I had done in the past, that is correct.
(98-8418 R.1 at 249-50.) The context of the "no policy" statement shows that whether or not the plant

manager considered his compensation decision to be under a "policy" (whatever that word may mean to him)

the compensation decision was exclusively motivated by a wish to repeat what had been done before

unionization—that is, not to change the rules. And Dynatron in fact compensated its employees exactly as
they were the last time the company had to send employees home when they showed up to work their shift.

The Board tried to get around these facts by saying that Opal was completely different from the 1988
ice storm. Again, the Board used the plant manager's testimony, this time his statement that there was a

difference in the two cases because the plant was operational during the ice storm. This distinction, however,

does not matter. Whatever the reason (other employees could not get to work in the ice storm; the plant had
no power after Opal), in each case the result to the employee was the same: she showed up on time, ready
to work, and was sent home. And in 1988 and 1995, the Board does not dispute, the employees in this

situation were treated the same.
The Board's finding that the 1995 compensation was unprecedented thus did not rest on substantial

evidence. The Board does not argue as a legal matter that the decision based on past practice was an unfair
labor practice in any event. We therefore deny enforcement of the relevant parts of the Board's order.

8. Firings of Floyd Robin Davis and Lee Carter.
The Board concluded that the company had fired Davis and Carter for their union activities. The
company argues that there was not substantial evidence to support the Board's finding that antiunion animus

was a "motivating factor" in Davis's and Carter's terminations. N.L.R.B. v. Transportation Mgmt. Corp., 462

U.S. 393, 401, 103 S.Ct. 2469, 2474, 76 L.Ed.2d 667 (1983). Having reviewed the record, we conclude that

the Board's finding is supported by substantial evidence in Davis's case, and the order relating to Davis is

enforced without further discussion. Carter's termination, however, is a closer question and requires
discussion.

We conclude that the Board's evidence is substantial enough to support its finding, if only barely.

Carter, a maintenance worker on the night shift, never formally belonged to the negotiating committee, but
he was a vocal supporter of the union and beginning in 1994 wore union T-shirts to work. Carter's feelings

were known to management; Carter once refused a request to work overtime by showing the supervisor his

union card. Nor was Carter short of complaints about his job. He complained through the union that his job
description and pay were inconsistent with his actual job, and he refused on occasion to do certain work

because it was beneath him.
The matter came to a head on September 14, 1995, when Carter received conflicting orders from two

supervisors. In Carter's version of the story, which the ALJ credited over conflicting versions, one supervisor

told Carter to disassemble one machine as quickly as possible. Another supervisor (who may or may not have

had authority; the chain of command over Carter was unclear) then informed Carter that a pump he had
repaired the day before was leaking, and the second supervisor asked Carter to fix the leak. Carter declined

to do so immediately, citing the earlier assignment. As he walked back to the first assignment, Carter pointed
at debris on the floor and asked the second supervisor if he would like Carter to pick up the debris and added

"I'm getting tired of kissing asses around here like that.... [I]t's time somebody kisses my ass...." (98-8418

R.1 at 161.) (The second supervisor, Jerry Talent, testified that Carter in fact refused to pick up the debris,
using foul language, and then pursued Talent to tell him "[K]iss my fucking ass." (98-8418 R.1 at 327.))
Talent and Carter proceeded to the assistant plant manager's office, where the human resources manager was

also present. They suspended Carter on the spot and fired him four days later for use of profane language and
insubordination.

There was evidence that this treatment was harsher than that reserved for other employees who had
committed similar offenses. Eric Clemmons received only a written warning after responding "belligerently"
(although not with profanity) to a page, even though Clemmons had been belligerent on prior occasions. (98-

8418 R.2-Gen'l Counsel's Ex. 16.) A. Craig was suspended three days, and warned that the next offense
would result in termination, when he refused to carry out a direct request from his supervisor. (98-8418 R.2-

Gen'l Counsel's Ex. 17.) M. Dickerson got only a "verbal" warning (presumably oral) after he kicked a drum
across a room when the supervisor asked Dickerson not to sit on the drum. (98-8418 R.2-Gen'l Counsel's Ex.

75.) The company issued Fred Fort a written warning when he became "beligerent [sic ]" on being confronted

with late arrival to his work station. (98-8418 R.2-Gen'l Counsel's Ex. 76.) While none of these infractions
quite rises to the level of Carter's, they do suggest that the company used progressive discipline in other cases,

and thus that its termination of Carter may have been motivated by Carter's recent union activities.

We acknowledge that there is evidence tending to contradict the Board's finding. For instance,
Carter's employment history may be different from those in which progressive discipline was applied.

Carter's work history was mixed; while the company evaluations praised his performance, they also called
him "disruptive"4 and "argumentative"5 and periodically noted a fractious attitude: In 1992, the evaluation
complained that Carter "sometimes becomes involved in altercations with other employees that could be
avoided," (98-8418 R.2-Gen'l Counsel's Ex. 21 at 2); in 1993, the evaluation observed "an unwillingness to

do what is asked of him & a rebellious attitude," (98-8418 R.2-Gen'l Counsel's Ex. 18 at 2); in March 1994,

the evaluation noted that "at times [Carter] lets his personal emotions & feelings get in the way of his job

performance," (98-8418 R.2-Gen'l Counsel's Ex. 19 at 2); and in September 1994, the evaluation again noted

that "many times Lee allows his emotions & personal feelings interfere [sic ] with his job performance," (98-

8418 R.2-Gen'l Counsel's Ex. 20 at 2).

But this evidence, taken as a whole, can support at least two inferences: first, the Board's inference
that Carter's union activities were the last straw and thus the motivating factor in Carter's termination, or

second, that Carter's union activism was inseparable from his poor attitude as an employee, which is a

legitimate ground for firing. The Board chose the first inference, and because it has substantial record support
we must accept it. We accordingly enforce those portions of the Board's order relating to Carter.
III. Conclusion

For the foregoing reasons, the Board's order of July 16, 1997 is enforced in its entirety. The Board's
order of September 30, 1997, is enforced except for the following parts: (1)(a)(1), (1)(a)(2), (1)(a)(3),
(1)(a)(5), (1)(b), (2)(a) (to the extent it orders reinstatement of Lamar Shelton), (2)(b) (to the extent it requires
the company to make Lamar Shelton whole), (2)(c) (to the extent it requires purging Lamar Shelton's
personnel file), (2)(d) (to the extent it requires bargaining on the terms and conditions of employment

excluded from enforcement in (1)(a)), (2)(e) (to the extent it requires rescinding the rules excluded from
enforcement in (1)(a)), and (2)(g)-(k) (although the Board may require dissemination of a notice that is

redacted to remove all references to the unenforced parts of its order).

ORDER ENFORCED IN PART AND DENIED ENFORCEMENT IN PART.

4
(98-8418 R.2-Gen'l Counsel's Ex. 20 at 3.)
5
(98-8418 R.2-Gen'l Counsel's Ex. 18 at 3.)