UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNION CARBIDE CORPORATION, 

Petitioner,

v.  No. 00-1956

NATIONAL LABOR RELATIONS BOARD,

Respondent. 

NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

v.  No. 00-2135

UNION CARBIDE CORPORATION,

Respondent. 

On Petition for Review and Cross-Application for

Enforcement of an Order of the

National Labor Relations Board.

(9-CA-36332)

Argued: September 25, 2001

Decided: December 14, 2001

Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.

Petition for review denied and cross-application for enforcement

granted by unpublished opinion. Judge Gregory wrote the opinion, in

which Judge Luttig and Judge Williams joined. 
COUNSEL

ARGUED: Roger Allen Wolfe, JACKSON & KELLY, P.L.L.C.,

Charleston, West Virginia, for Union Carbide. Joan Elizabeth Hoyte,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Board. ON BRIEF: Leonard R. Page, Acting General Counsel, John

H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General 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Unpublished opinions are not binding precedent in this circuit.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

GREGORY, Circuit Judge: 

Union Carbide Corporation ("the Company" or "Union Carbide")

challenges the National Labor Relation Board’s decision that it violated § 8(a)(1) of the National Labor Relations act by terminating a

newly-hired employee, Rex King, for engaging in concerted activity.

Upon the parties’ cross-petitions, we deny Union Carbide’s petition

for review and grant the Board’s cross-application for enforcement.

I.

King worked for Union Carbide from 1973 until 1994, when he

was laid off by the Company. Union Carbide re-hired King on June

29, 1998 as a mechanic in the maintenance department, representing

Union Carbide’s first hiring in more than 10 years at its Charleston,

West Virginia plant. 

On his first day back at Union Carbide, June 29, a Union Carbide

administrator explained to King the benefits to which he was entitled.

The administrator explained that he would not receive a vacation for

2 UNION CARBIDE CORP. v. NLRB
six months, but was entitled to holidays during his 120-day probationary period.1

On July 21, King learned that he had a "continuous service date"

of July 31, 1977. A continuous service date, or "CSD," is a date determined by Union Carbide that affects various employee benefits,

including an employee’s entitlement to retirement and vacation benefits. Additionally, the collective bargaining agreement ("the Agreement") in effect mandated that employees receive a paid CSD holiday

every year. J.A. 337, pp. 29-30, Article 11.1. Employees who worked

on their CSD would be paid at double-time-and-a-half. 

Upon learning on July 21 that his CSD was July 31, King initiated

several conversations to determine whether, as a new employee, he

could take July 31 as a CSD holiday. Because Union Carbide had not

hired anyone in almost 10 years, the issue was relatively new to the

Company and, apparently, not easily resolved. First, King asked Derrick Peaks about his entitlement to a CSD holiday. Although Mickey

Garnes, who was Union Carbide’s General Maintenance Supervisor,

was King’s supervisor, Peaks filled in for Garnes while Garnes took

vacation. Peaks did not know the answer to King’s question, so he

spoke with Carla Abshire of Union Carbide’s Human Resources

department. Abshire told Peaks that she would investigate the matter.

Second, once Garnes returned from vacation, King asked him

about King’s entitlement to a CSD holiday. Like Peaks, Garnes called

Abshire, who told Garnes that she already was investigating the matter. 

Third, King called Abshire several times before July 31 to discuss

the matter. She could not provide a definitive answer, stating that she

still was investigating the matter. Thus, without a definitive answer,

King worked on July 31. 

Fourth, on August 3, King asked Danny Lawrence whether he was

entitled to a CSD holiday. Lawrence was King’s new supervisor after

Union Carbide assigned King to a project in another area of the facil1According to the collective bargaining agreement in effect, all new

Union Carbide employees were placed on a 120-day probationary period.

UNION CARBIDE CORP. v. NLRB 3
ity. Like Garnes and Peaks, Lawrence called Abshire, who told Lawrence that she was investigating the matter. Additionally, Lawrence

told King to "lay off this. Everyone in the Plant knows about it. Don’t

make no more trouble until you get a hundred and twenty days in."

Finally, once Union Carbide transferred King back to Garnes on

August 17, King told Garnes that the CSD issue had "gotten blown

out of proportion" and that he wanted the matter to settle down.

Garnes replied that King’s frequent questioning caused the matter to

be blown out of proportion and that King should have just "let the

system work." When Garnes accused King of raising the CSD issue

with Lawrence immediately upon his transfer, despite knowing that

Garnes already asked Abshire to investigate the matter, King called

Lawrence a "fucking liar." 

Jeff Means, the Maintenance Superintendent, fired King on August

28. Means testified that he fired King for two reasons: (1) the purportedly disruptive manner in which King pursued the CSD issue, and (2)

King’s attitude toward safety issues and overtime. As to the second

proffered reason, Union Carbide specifically points to three warnings

King received during his first two weeks of employment about his

failure to wear safety glasses when required. Additionally, King purportedly complained about Union Carbide’s overtime policy, stating

that he "might be stuck out there every night."2

Means also pointed to an earlier conversation King had with

Garnes as proof of King’s poor attitude. Before even beginning his

new job with Union Carbide, King complained to Garnes about the

Company’s purportedly low pay scale. When Garnes told King that

Union Carbide would not raise his pay scale, King complained that

Union Carbide was already "fucking" him. Garnes relayed this conversation to Means, who then sought to retract Union Carbide’s offer

of employment to King. Means changed his mind, though, upon the

advice of Union Carbide’s Human Resources department. 

In March 1999, Union Carbide decided that it should have allowed

King to take July 31, 1998 as a CSD holiday or paid him double-time2Nonetheless, King filled out overtime request forms. 

4 UNION CARBIDE CORP. v. NLRB
and-a-half for working that day. Thus, it sent him a check covering

the unpaid amount. 

Upon the institution of this action, an ALJ held that Union Carbide

committed an unfair labor practice by firing King. The Board adopted

the ALJ’s findings after receiving Union Carbide’s exceptions. The

Board rejected Union Carbide’s contentions that King was not engaging in concerted activity and that, even if he was, the manner in which

he engaged in that activity stripped him of the protections of the

National Labor Relations Act ("NLRA"). The Board applied for

enforcement of its order and Union Carbide petitioned for review. 

II.

A.

We must affirm the Board’s factual findings if they are "supported

by substantial evidence on the record considered as a whole." 29

U.S.C. § 160(e); see also Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d

733, 742 (4th Cir. 1998); Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d

65, 69-70 (4th Cir. 1996). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion." Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir.

1997) (internal quotation omitted). 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." Id. at

250 (internal quotation omitted). Moreover, we affirm the Board’s

interpretations of the NLRA if they are "rational and consistent" with

the NLRA. NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775,

787 (1990). 

B.

Section 7 (29 U.S.C. § 157) of the NLRA guarantees employees

"the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose

of collective bargaining or other mutual aid or protection." Section

8(a)(1) (29 U.S.C. § 158(a)(1)) makes it unlawful for an employer "to

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

UNION CARBIDE CORP. v. NLRB 5
rights guaranteed in section 7." An employer violates Section 8(a)(1)

if it terminates an employee for engaging in "concerted activity."

NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 833 n. 10 (1984);

NLRB v. Waco Insulation, Inc., 567 F.2d 596, 599-601 (4th Cir.

1977). 

To establish a prima facie case of unlawful termination based on

concerted activity, the NLRB General Counsel bears the burden of

proving by a preponderance of the evidence "(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." Medeco, 142 F.3d at 742. An

employer successfully may rebut the General Counsel’s prima facie

case with evidence that the employer "‘nonetheless would have taken

the same employment action for legitimate reasons.’" Id. (quoting

Ultrasystems Western Constructors, Inc. v. NLRB, 18 F.3d 251, 257

(4th Cir. 1994)). However, if the employer’s proffered legitimate reasons are "non-existent or pretextual," the employer’s defense will fail.

USF Red Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th Cir. 2000). 

It is important to note that the NLRA "does not require that an

employer cease its legitimate business practices or suspend its proper

disciplinary prerogatives." Consolidated Diesel Co. v. NLRB, 263

F.3d 345, 352 (4th Cir. 2001). Rather, "[w]e must balance the

employees’ protected right against any substantial and legitimate

business justification that the employer may give for the infringement." Id. (quoting Medeco, 142 F.3d at 745). "[I]t is only when the

interference with § 7 rights outweighs the business justification for

the employer’s action that § 8(a)(1) is violated." Id. While there is

some "leeway for impulsive behavior," an employee’s concerted

activity loses the NLRA’s protection if the conduct is "flagrant,"

Dries & Krump Co. v. NLRB, 544 F.2d 320, 329 (5th Cir. 1976), or

"so egregious that it exceed[s] the scope of whatever protection it

might otherwise have been entitled to under the Act." Caterpillar

Tractor Co., 276 NLRB 1323, 1326 (1985) ("concerted activity loses

its protection under the Act when actions are malicious, defamatory,

or insubordinate"). See also City Disposal, 465 U.S. at 837 ("The fact

that an activity is concerted, however, does not necessarily mean that

an employee can engage in the activity with impunity. An employee

may engage in concerted activity in such an abusive manner that he

6 UNION CARBIDE CORP. v. NLRB
loses the protection of § 7"). Thus, the employer’s interest "in operating his business in a particular manner" must be weighed against the

employee’s right to engage in concerted activity. NLRB v. Erie Resistor Corp., 373 U.S. 221, 227-29 (1963); NLRB v. Lester Brothers,

Inc., 337 F.2d 706, 708 (4th Cir. 1964). 

III.

The Board held that (1) King engaged in concerted activity by

inquiring into whether he was entitled to a CSD holiday; (2) Union

Carbide knew that the CSD holiday was covered by the Agreement;

and (3) King’s concerted activity was a substantial or motivating reason in Union Carbide’s decision to terminate him. On appeal, Union

Carbide challenges these findings on two grounds: (1) that King did

not engage in concerted activity, and (2) that, even if King engaged

in concerted activity, King’s conduct in pursuing the activity was so

egregious that it took him outside the scope of § 7. We reject both

arguments. 

A.

In support of its first argument, Union Carbide argues that King

merely asked about his CSD in general, rather than about his entitlement to a CSD holiday. This difference is critical, according to Union

Carbide, because a CSD is established by corporate policy, not by the

Agreement. Thus, any inquiries relating to the CSD could not be considered concerted activity. In support, CSD points to Article 15.1(C)

of the Agreement, which defines a CSD as "Company service time

utilized for benefits purposes as defined by [Union Carbide] Corporate Policy[.]" J.A. 337, page 42, Article 15.1(C). 

However, the task of determining whether an activity is concerted

and protected lies with the Board in the first instance because the task

"implicated [the Board’]s expertise in labor relations." City Disposal,

465 U.S. at 829. Thus, we give considerable deference to the Board’s

finding that an employee engaged in such activity. Id.; NLRB v. Local

Union No. 103 Int’l Ass’n of Iron Workers, 434 U.S. 335, 350 (1978).

Substantial evidence exists to support the Board’s conclusion that

King did more than merely inquire about his CSD in general; King’s

queries focused on whether he was entitled to a CSD holiday on July

UNION CARBIDE CORP. v. NLRB 7
31. King’s inquiries to Peaks, Garnes, and Lawrence all centered on

that point. 

Moreover, there can be no dispute that the Agreement, rather than

Union Carbide corporate policy, provided King with the entitlement

to a CSD holiday. Article 11.1 of the Agreement states that "[t]he following are recognized holidays: . . . Company Service Date." J.A.

337, page 30, Article 11.1(A). Accordingly, substantial evidence supports the Board’s decision that King’s conduct constituted concerted

activity. 

B.

Next, Union Carbide claims that the manner in which King pursued

his concerted activity places him outside the scope of § 7. Union Carbide explains that, 

[d]uring the course of events, King requested [that] no fewer

than three managers check into his CSD. Furthermore, he

himself called Carla Abshire, . . . three or four different

times to check on his CSD. Indeed, when all was said and

done, there were three Human Resources Liaisons and one

division head involved in the issue of King’s CSD. King

simply refused to cease agitating and let the system work.

Moreover, King twice lied about who he had approached

about the CSD issue and even called a supervisor a "fucking

liar." King had been repeatedly counseled by management

that he needed to pursue the CSD issue through the proper

channels, so as to avoid unnecessary disruption to productivity, yet he persisted in disregarding that instruction. 

Appellant’s Br. at 27 (internal citations omitted). 

As explained above, an employee can lose the protections of § 7 if

the manner in which he engages in concerted activity is flagrant, egregious, or abusive. The Board held that King’s conduct did not rise to

that level because "there is no question in this case . . . that Mr. King

performed his job in a very satisfactory if not an outstanding manner"

and King’s language was "not language sufficient to remove him or

his conduct from the protections of the Act."

8 UNION CARBIDE CORP. v. NLRB
Neither King’s conduct nor choice of language rises to the level of

being flagrant, egregious, or abusive. King reportedly used foul language only once while in the employ of Union Carbide. While King’s

choice of words on that occasion may have been poor, "an employee’s use of obscenity [is] protected where it constituted a spontaneous

outburst during the heat of a formal grievance proceeding or contract

negotiations, or was provoked by an employer’s unfair labor practice." Caterpillar, 276 NLRB at 1326. King’s offensive remark

occurred during a conversation with Garnes about his CSD holiday.

See also NLRB v. Waco Insulation, Inc., 567 F.2d 596 (4th Cir. 1977).

Additionally, King’s repeated attempts to determine whether he was

entitled to a CSD holiday were not so flagrant or egregious as to leave

him unprotected. King merely pursued, albeit aggressively, his right

to a CSD holiday at a time during which Union Carbide failed to provide him with a determinative answer. 

IV.

For the foregoing reasons, we deny Union Carbide’s petition for

review and grant the Board’s cross-application for enforcement of its

order. 

PETITION FOR REVIEW DENIED, AND CROSSAPPLICATION FOR ENFORCEMENT GRANTED

UNION CARBIDE CORP. v. NLRB 9