* Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-60054

(Summary Calendar)

FERGUSON-WILLIAMS, INC., 

Petitioner/Cross-Respondent, 

versus

NATIONAL LABOR RELATIONS 

BOARD, 

Respondent/Cross-Petitioner. 

Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board

(16-CA-17123(1-2))

September 11, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. 

PER CURIAM:*

Petitioner/Cross-Respondent Ferguson-Williams, Inc. (Employer)

asks us to reverse the decision and Order of Respondent/CrossPetitioner National Labor Relations Board (NLRB or the Board)

adverse to Employer and to render a judgment as a matter of law in
2

favor of Employer. Conversely, the NLRB asks us to deny Employer’s

Petition for Review and order enforcement of the NLRB’s Order in

full. 

I

BACKGROUND

Employer is a non-union Base Operations Support contractor for

the United States Naval Station at Ingleside, Texas, which Local

Union 278 of the International Brotherhood of Electrical Workers,

AFL-CIO (the Union), unsuccessfully sought to organize in a

campaign culminating in a January 1995 election won by Employer.

The Union filed numerous charges of unfair labor practices alleged

to have been committed by Employer during the pre-election

organizing campaign and following the election as well. After the

Board’s General Counsel issued formal complaints on three of the

charges, an Administrative Law Judge (ALJ) held a hearing on the

consolidated charges and, in a detailed opinion addressing numerous

incidents, conversations, communications, and encounters —— the

facts of which were, in most instances, hotly disputed —— ruled in

favor of the General Counsel and against Employer on many but not

all issues. The vast majority of the rulings by the ALJ were the

result of carefully and thus unassailably crafted credibility calls

on conflicting testimony, in essentially every one of which the ALJ

credited the Union’s witnesses and declined to credit Employer’s

principal witness. 

The ALJ concluded that Employer violated § 8(a)(1) and (3) of
3

the National Labor Relations Act (Act), which violations

constituted unfair labor practices affecting commerce within the

meaning of § 2(6) and (7) of the Act. As the remedy for those

violations, the ALJ recommended that the Board order that Employer

generally cease and desist from such practices and from otherwise

interfering with, restraining, or coercing its employees in the

exercise of the rights guaranteed to them under § 7 of the Act, and

also ordered specific remedial action, including, without

limitation, reinstatement of discriminatorily discharged employees,

expungement from its records of references to unlawful terminations

of those employees, preservation of various specified records and

making them available to the Board, and posting a specified notice

at Employer’s Ingleside, Texas, facility (Appendix to the ALJ’s

proposed order, as published with the Board’s Order). 

A three member panel of the NLRB reviewed and adopted the

recommended Order of the ALJ. Employer timely sought review and

reversal thereof and the Board timely opposed Employer and sought

enforcement of the Board’s Order. 

II

DISCUSSION

We have carefully reviewed the aforesaid decision and proposed

order of the ALJ and the decision and Order of the Board affirming

and adopting the ALJ’s recommended order, and we have also reviewed

and analyzed the facts and legal arguments of the parties as

related by their able counsel in briefs filed herein. We are
4

convinced by our review that we must deny the Petition for Review

filed by Employer and render judgment enforcing the Board’s Order.

As noted by the Board, its findings that Employer violated the Act

by giving the impression to the employees that their union

activities were under surveillance by Employer, and by implementing

increased scrutiny of one of the pro-union employee’s work due to

her organizing activities, remain essentially unrefuted by

Employer. Additionally, the Board’s findings that Employer

violated § 8(a)(1) of the Act by disseminating coercive statements

and engaging in coercive actions in response to the Union’s efforts

to organize Employer is supported by substantial evidence.

Specifically, the testimony credited by the ALJ makes clear that

Employer’s project manager impermissibly interrogated employees

regarding organizing activities, union sympathies, and identities

of those employees who were sympathetic with the Union or were

engaged in leadership roles of the organizing effort. Likewise,

the Board’s findings that Employer violated § 8(a)(3) and (1) of

the Act by firing three named employees in retaliation for

activities in support of the union is supported by substantial

evidence, as is the pretextual nature of the justification

proffered by Employer.

 III

CONCLUSION

When we review the facts found by the ALJ and adopted by the

Board under the substantial evidence standard, we are constrained
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to affirm the findings and approve the Order of the Board based

thereon. In sum, there is substantial evidence supporting the

facts properly characterized as violations of § 8(a)(1) and (3),

thereby constituting unfair labor practices under the Act and thus

mandating that we reject Employer’s Petition for Review and grant

the Board’s cross-application for enforcement of its Order in all

respects. 

SO ORDERED.