1 District Judge of the Northern District of Mississippi, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 92-5175.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

ADCO ELECTRIC INCORPORATED, Respondent.

Nov. 17, 1993.

Application for Enforcement of an Order of the National Labor Relations Board.

Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and DAVIDSON, 1 District Judge.

DAVIDSON, District Judge:

This case is before the court on application of the National Labor Relations Board ("NLRB"

or "Board") for enforcement of its order against Adco Electric, Inc., ("Adco"). The NLRB's order

was issued on June 30, 1992. The Board's jurisdiction arises under section 10(a) of the Nat io nal

Labor Relations Act ("the Act"), which empowers the NLRB to prevent unfair labor practices. This

court's jurisdiction for the application of enforcement arises under section 10(e) of the Act, 29 U.S.C.

§ 160(e). Following oral argument in this cause, and a review of the record and briefs submitted by

the parties, we enter judgme n t enforcing the NLRB's order. Before examining the specific issues

which we are called upon to consider t o day, it is appropriate to present a little background

information which has brought us this far.

I. Background

Adco Electric is an electrical contractor based in Jackson, Mississippi. The company employs

both " i nside" (service electricians) and "outside" (construction) electricians. Adco's outside personnel

are under the direction of general superintendent, William Richard Buie, who reports directly to the

company president, Whit Adams. Job foremen are journeyman electricians that Adco retains on the

payroll in layoff preference to journeyman electricians (who are n ot foremen). Apprenti ce

electricians, or helpers, are the lowest in seniority. The layoff and retention policy helps explain thatfor the summer of 1990, the total outside construction workforce consisted of approximately twenty

people, with six to eight electricians classified as foremen.

Adco i s adamantly anti-union. The employee handbook clearly explains the company's

position on unionized shops:

5. A FEW WORDS ABOUT UNIONS

There is always a chance that in the future a labor union organizer will try to persuade some

of our employees to sign union authorization cards. For this reason, it is important that you

understand our position concerning unions.

To say it simply and clearly, although you have the legal right to join a labor union, you also

have t he legal right NOT to join a labor union. We prefer to work with our employees

info rmally, personally, and directly, r at her than through third party outsiders intervening

between us. We think you agree. So we will make every effort that is legally permissible to

retain our status as an ABC Merit Shop, NON-union contractor.

We have the ability, the desire, the expertise, and the personnel to solve our problems and

move forward by working together in the Merit Shop Way—without interference from union

outsiders. Based on these facts, we believe a labor union is unnecessary and unwanted here

at Adco Electric, Inc.

On July 24, 1990, Eric Muncy interview ed fo r an apprentice job with Mr. Buie.

Superintendent Buie noted on the job application that Muncy had worked for an Adco competitor,

Thompkins Electric, a union contractor. Buie asked Muncy what his feelings were about unions, and

Muncy responded that he did not "have anything for them or against them." Buie then asked Muncy

if he was a union member. Muncy responded that he was not, and he was hired at the conclusion of

the interview.

The next month, August 1990, the International Brotherhood of Electrical Workers, Local

480, began an active organizing campaign among Adco's employees. A union representative made

first contact with Raymond Langford, a foreman who had been with Adco for one year. Following

a few telephone calls and a meeting with the union representative, Langford spoke with other Adco

employees about the union benefits. A few days later, a group of Adco employees, including

Langford and Muncy, attended a meeting at the uni o n hall where the employees signed union

authorization cards. At a second meeting, attended by five or six employees, they agreed to start

wearing union caps and promotional badges beginning at break time the following day. The next day,

August 14th, the employees went forward with their plans, and Superintendent Buie noticed the unionpromotional campaign. Also on this same day, three union representatives hand delivered a letter to

Adco informing the company that t he union and Adco employees were engaging in organizing

activity. The letter also listed nine employees who "wished to be identified as members o f the

organizing commi

t t ee." The list included the names of Raymond Langford and Eric Muncy along

with LaFrance Smith, Jeffrey Calender, David Lewis, Eric Lott, John Newell, Orby Renfroe and Cory

Williams.

Three days later, on

August 17, 1990, Superintendent Buie fired Raymond Langford.

Langford's termination slip stated that he was fired "for solicitation." On August 27th, the union filed

an election petition with the NLRB seeking to represent all employees of Adco doing electrical work.

On October 31, 1990, the regional director issued a decision directing an election in a unit of Adco's

electricians and electrical apprentices. The unit excluded job foremen whom the regional director

found, as a group, to be supervisors under the Act. On March 22, 1991, the NLRB denied Adco's

request for review of the direction of election. However, no election has been held due to events

subsequent to the firing of Raymond Langford and pending charges of unfair labor practices at Adco.

During the week of September 10, 1990, Superintendent Buie informed Eric Lott, who was

filling in as job foreman, that his crew was need to work overtime on Saturday, September 15th. Buie

explained that Adco's client, McCarty Foods, would halt production on that day allowing electrical

work to be performed. Eric Lott passed this information on to Eric Muncy and Cory Williams.

However, both Muncy and Williams informed Lott that they had made weekend plans and could not

work on Saturday. On Friday, September 14th, Buie visited the job site to deliver paychecks. When

Buie asked Eric Lott if everyone would be working on Saturday, Lott related to Buie that Muncy and

Williams had other plans for the weekend. Buie then instructed Lott to tell Muncy and Williams to

"be here." The weekend passed, and neither Eric Muncy nor Cory Williams reported to the job on

Saturday. Additionally, Lott allowed Muncy and Williams to leave work on Friday between 3:00 and

3:30 p.m., although Lott logged on the time sheets that the crew left at the regular quitting time, 3:30

p.m. On Monday morning, Superintendent Buie fired Cory Williams and Eric Muncy. Williams was

told that he was fired for "cussing on the job," and Muncy's termination notice stated that he was fired2 Buie visited the job site at 3:05 p.m. on Friday and found no one there. On Monday, Buie

asked Muncy what time he had left work on Friday, and Muncy replied 3:30 p.m. for missing work on Saturday and for lying about when he left work on Friday. 2

Another "incident" occurred on November 15, 1990. While at the McCarty Foods job site,

Eric Lott had a conversation with Adco president, Whit Adams. Eric Lott suggested to Adams that

the company could procure bigger jobs if Adco went union. Adams responded that he did not want

to go union and that the best thing for Lott to do, if he wanted a union, was to quit his job and "go

union." During the same conversation, Lott brought up the issue of a pay raise. Adams responded

that he could not give a raise at that time "because of the cost of the union movement."

The original cha rges in this case were filed by the Local Union 480, on August 24, 1990,

September 24, 1990, September 26, 1990 and November 23, 1990 . On January 30, 1991, an

amended charge w as filed which incorporated some of the allegations contained in prior charges,

along with some addit io nal allegations. The complaints were as follows: (1.) alleged unlawful

interrogation of Eric Muncy by Superintendent Buie in the July 1990, job interview; (2.) alleged

unlawful termination of Raymond Langford on August 17, 1990; (3.) alleged unlawful termination

of probationary apprentice, Eric Muncy, on September 17, 1990; (4.) alleged promulgation and

enforcement of an unlawful rule prohibiting employees from discussing the union; and (5.) an alleged

unlawful statement by company president, Whit Adams, that he could not grant a raise because of the

union movement.

The case was heard by an Administrative Law Judge ("ALJ") in Jackson, Mississippi, on June

24 and 25, 1991. On October 4, 1991, the ALJ issued his decisio n in which he found against the

company on all issues, with the exception of the alleged promulgat io n and enforcement of a rule

prohibiting employees from discussing the union. The ALJ's o rder contained cease and desist

directives regarding; (1.) coercive interrogation of any employee or job applicant about union

support; (2.) threatening employees that pay raises were not possible because of union organizing

activity; and, (3.) discharging or otherwise discriminating against any employee for supporting Local

480 or any other union. With regard to former employees Langford and Muncy, Adco was orderedto reinstate both employees with back pay, witho ut lo ss of seniority, and with no adverse entry in

their personnel files. Adco filed timely objections with the NLRB. On June 30, 1992, the NLRB

issued its decision and order wherein it adopted the ALJ's order. Thereafter, the NLRB filed with

this court an application for enforcement of its June 30, 1992, order.

There are four issues into which th e court's attention is invited which are implicit in the

NLRB's application for enforcement. The first issue relates to a failed offer of proof and quash of

a subpoena duces tecum wherein Adco attempted to introduce evidenc e before the ALJ and the

NLRB with regard to a job targeting program sponsored by Loca l 480. Simply put, Adco

unsuccessfully sought to present evidence that Local Union 480's classification as a labor organization

was erroneous and that Local 480 more appropriately should be regarded as an Adco competitor due

to its alleged subsidization of employee wages for union shop contractors in direct competition with

Adco. As an Adco competito r, the company sought a ruling that Local 480 was ineligible to

represent Adco employees. The remaining issues before the court pertain to the requisite review of

the NLRB's findings that Adco violated section 8(a)(1) and 8(a)(3) of the Act with regard to

employees Langford and Muncy, and the company's position on a wage increase. As such, the issues

for review are as follows:

I. Did the NLRB err in refusing to a l low discovery or presentation of evidence regarding

Local Union 480's alleged conflict of interest with Adco by reason of a job targeting program?

II. Does substantial evidence exist to support the NLRB's conclusion that Raymond Langford

was not a supervisor and thus protected from retaliatory discharge under the Act?

III. Does substantial evidence exist to support the NLRB's determination that Eric Muncy was discharged for union activity which is protected under the Act?

IV. Does substantial evidence exist to support the NLRB's conclusion that Adco attributed

the lack of a wage increase to the ongoing union organizing activities?

Before addressing each issue, we note our standard of review in such cases which is familiar

and well settled.

II. Standard of Review

The court reviews the factual determinations of the NLRB under the "substantial evidence"

standard. U

niversal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456,3 The record indicates that Board member John N. Raudabaugh dissented. Member

Raudabaugh would have accepted Adco's offer of proof. 462 (1951); N

LRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1339 (5th Cir.1993); N LRB v. Lancer

Corp., 759 F.2d 458, 460 (5th Cir.1985); N LRB v. Gulf States United Tel. Co., 694 F.2d 92, 95 (5th

Cir.1982). In Universal Camera Corp., the Supreme Court defined substantial evidence as "more

than a scintilla. It means such relevant evidence as a reasonable mind would accept as adequate to

support a conclusion." U

niversal Camera Corp., 340 U.S. at 477, 71 S.Ct. at 459, 95 L.Ed. at 462;

Cal-Maine Farms, Inc., 998 F.2d at 1339. Stated differently, substantial evidence must be sufficient

t o just ify, if the trial went to a jury, a refusal to direct a verdict when the conclusion sought to be

drawn is one of fact for the jury. Id.

In determining whether the factual findings of the NLRB are warranted, the reviewing court

does not "pass o n t he credibility of the witnesses or reweigh the evidence." N LRB v. Cal-Maine

Farms, Inc., 998 F.2d 1336, 1339 (5th Cir.1993) (quoting Helena Laboratories Corp. v. NLRB, 557

F.2d 1183, 1187 (5th Cir.1977)). Instead, great deference is afforded the NLRB as to its credibility

findings. N

LRB v. Ryder/P.I.E. Nationw ide, Inc., 810 F.2d 502, 507 (5th Cir.1987); C entre

Property Management v. NLRB, 807 F.2d 1264, 1268 (5th Cir.1987); NLRB v. Florida Medical

Center, Inc., 576 F.2d 666, 671 (5th Cir.1978).

III. Analysis

I. Did the NLRB err in refusing to allow discovery or presentation of evidence regarding Local Union

480's alleged conflict of interest with Adco by reason of a job targeting program?

As noted above, Adco disputes that Local 480 can be classified as a labor organization in this

case. Adco asserts that since Local 480 allegedly subsidizes the wages of unionized Adco

competitors, t hen the local union is more of a competitor, making it ineligible to represent Adco's

employees. To this end, Adco sought a subpoena duces tecum from the ALJ to obtain the union's

records and an offer of proof on this issue, but the ALJ and a majority of the Board 3 concluded that

such proof would be irrelevant. In the reasoning of the ALJ, such proof was irrelevant since the

complaint alleged unlawful discrimination suffered as a result of protected concerted activity—not

a refusal to bargain claim.[E]ven if Respondent's competitor contention were true it would not render the organizing

activities of the employees unprotected.

The court has reviewed Adco's argument and finds it unpersuasive, although somewhat novel.

The ALJ's assessment was correct. With the posture of the case sub judice, no union certification

issues are implicated by the discharges of Langford, Muncy, and th e ot her allegations of the

complaint. It would require a giant leap to accept Adco's contention that the discharges of Langford

and Muncy were unprotected, defensible actions because of the union's alleged competitor/conflict

of interest prevented it from acting as a labor organization. There is no authority to support Adco's

asserted defense.

In certain situations, an employer may be abl e t o defeat a bargaining obligation with the

employees' chosen representative on the basis that the representative has a disqualifying conflict of

interest. See NLRB v. Walker County Medical Center, Inc., 722 F.2d 1535, 1541 (11th Cir.1984);

NLRB v. David Buttrick Co., 399 F.2d 505, 507 (1st Cir.196 8 ). The issue would arise only if the

union won a representation election and was certified to represent company employees, and a conflict

of interest dispute then arose between the bargaining agent and the employer. See Potter v. Castle

Const. Co., 355 F.2d 212, 216 n. 8 (5th Cir.1966); Hendrix Mfg. Co. v. NLRB, 321 F.2d 100, 106

(5th Cir.1963). However, employee rights to self organization are not affected by the possibility that

the union representative of choice might ultimately be disqualified to bargain o n the employees'

behalf. N

LRB v. White Superior Div., White Motor Corp., 404 F.2d 1100, 1103 (6th Cir. 1968).

Consequently, the court finds no merit to this claim and moves forward to the remaining questions

which challenge the substantial evidence findings of the ALJ and Board.

II. Does substantial evidence exist to support the NLRB's conclusion that Raymond Langford was not a supervisor and thus protected from retaliatory discharge under the Act?

Section 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), makes it an unlawful labor practice for an

employer to discriminate "in regard to hire or tenure of employment or any term or con dition of

employment to encourage or discourage membership in any labor organization." It is elementary that

an employer violates section 8(a )(3) and (1) of the Act by discharging employees because of their

union activity. N

LRB v. Transportation Management Corp., 462 U.S. 393, 397-98, 103 S.Ct. 2469,2472-73, 76 L.Ed.2d 667 (1983); N LRB v. Delta Gas, Inc., 840 F.2d 309, 311 (5th Cir.1988). More

often than not, the employer's motive is the critical que st ion in such cases. N LRB v. Brown Food

Stores, 380 U.S. 278, 286-87, 85 S.Ct. 980, 985-86, 13 L.Ed.2d 839 (1965); N LRB v. Mini-Togs,

Inc., 980 F.2d 1027, 1032 (5th Cir.1993); M arathon LeTourneau Co., Longview Div. v. NLRB, 699

F.2d 248, 252 (5th Cir.1983). Where it is shown via direct or circumstantial evidence that anti-union

considerations were a "motivating factor" in an employer's decision t o discharge an employee, the

employer has violated the Act. N LRB v. Transportation Mgt. Corp., 462 U.S. 393, 397, 401-03, 103

S.Ct. 2469, 2472, 2474-75, 76 L.Ed.2d 667 (1983); E lectronic Data Systems Corp. v. NLRB, 985

F.2d 801, 804 (5th Cir.1993); N LRB v. Mini-Togs, Inc., 980 F.2d 1027, 1033 (5th Cir.1993); N LRB

v. Delta Gas, Inc., 840 F.2d 309, 311 (5th Cir.1988). In the case at bar, Adco discharged Raymond

Langford three days after company o fficials observed him wearing union insignia, and the letter from

Local Union 480 named Langford as a member of the organizing committee. Adco concedes that

it fired Langford for union solicitation, an unlawful reason under the Act. However, "supervisors"

are not entitled to protecti on under the Act. S ee 29 U.S.C. § 152(3) (1973). To this end, Adco

argues that the ALJ and Board erred in finding that Langford was unlawfully discharged since, as a

job foreman, Langford was a "supervisor" and not a covered "employee" under the Act.

Here, the court's review is limit ed to whether there is substantial evidence in the record

supporting the conclusion that Langford was not a statutory supervisor. Furthermore, this court has

"repeatedly declined" to merely second guess Board determinat io ns regarding supervisory status.

Monotech of Mississippi v. NLRB, 876 F.2d 514, 516 (5th Cir.1989); N LRB v. KDFW-TV, Inc., 790

F.2d 1273, 1276 (5th Cir.1986); NLRB v. Deaton, Inc., 502 F.2d 1221, 1228 (5th Cir.1974), cert.

denied

, 422 U.S. 1047, 95 S.Ct. 2665, 45 L.Ed.2d 700 (1975). With that backdrop in mind, a

"statutory supervisor" is defined at 29 U.S.C. § 152(11).

The term "supervisor' means any individual having authority, in the interest of the

employer, to hire, transfer, suspend, lay off, recall, prom ote, dis c harge, assign, reward, or discipline other employees, or resopnsibly to direct them, or t o adjust their grievances, or

effectively to recommend such action, if in connection with the foregoing the exercise of such

authority is not of a merely routine or clerical nature, but requi res t he use of independent

judgment.

In determining whether someone is a supervisor, job titles reveal very little, if anything. S ee4 Langford once sent an apprentice employee back to the office for reassignment, by Buie, to

another job. On a second occasion, Langford experienced "personality" problems and difficulties

with an apprentice for not following his instructions. The record indicates that Buie terminated

the apprentice upon receiving information from Langford that the apprentice was insubordinate

and a poor worker. NLRB v. Dickerson-Chapman, Inc., 964 F.2d 493, 497 (5th Cir.1992) (actual duties, not job titles,

determine status); N

LRB v. Yuba Natural Resources, Inc., 824 F.2d 706, 709 (9th Cir.1987) (same).

Instead, the controlling factor is the authority that has been veste d wit h the employee, whether

expressly or by implication. NLRB v. St. Mary's Home, Inc., 690 F.2d 1062, 1066 (4th Cir.1982);

Mid-Continent Refrigerated Serv. Co., 228 N.L.R.B. 917, 920 (1977).

Upon review of th e record, the court finds substantial evidence supporting the NLRB's

finding that Langford's status was that of a skilled craftsman guiding less experienced employees, and

not that of a statutory supervisor. Langford spent ninety percent of his time working with his tools

alongside co-workers. He was an experienced electrician who was dispatched and relied upon to

carry forward Adco's objectives in the electrical contracting business. These objectives included the

actual work of construction wiring, not administrative functions. The record reflects that Langford

usually wo rked with only one apprentice and that he followed job blueprints and progress reports

which dictated what work should be done and when. The fact that Langford, as a twenty-six year

veteran electrician, guided and instructed new apprentices from time to time, illustrates nothing more

than continuity in the workplace. This does not elevate him to supervisory status. S ee Fall River

Savings Bank v. NLRB, 649 F.2d 50, 55 (1st Cir.1 9 81). Likewise, the fact that Langford

recommended someone for hire and brought problems with apprentice employees to the attenti on of

Buie is nothing more t han what Adco, or any other employer, would expect from experienced

employees. S ee George C. Foss Co. v. NLRB, 752 F.2d 1407, 1411 (9th Cir.1985) (prudent

employers seek advice of foremen in evaluating employees; this does not elevate fo reman to

supervisor status); N

LRB v. Security Guard Serv., Inc., 384 F.2d 143, 148 (5th Cir.1967) (authority

to make recommendations does not sho w supervisory status). On two occasions when Langford

"recommended" apprentices for administrative action, it was Superintendent B u ie who made and

executed the final decision in both instances. 4 Contrary to Adco's assertions that Langford possessed5 "Alleged" supervisors who are never informed that they possess supervisory status are

rank-and-file employees. NLRB v. KDFW-TV, Inc., 790 F.2d 1273, 1278 (5th Cir.1986). "traditional" supervisory authority, Langford was never informed by Rick Buie or Whit Adams that

he possessed the authority to approve absences, grant time off, determine work hours or set staffing

levels. 5 On rare occasions when Langford required employees to work overtime, he was following

company policy and Buie's instructions that overtime should be used to complete a job rather than

incurring travel expenses to complete the work on a subsequent day. Additionally, the performance

of some clerical duties pertaining to time sheets, daily logs, and ordering materials do not demand

supervisory status. These are routine functions which do not implicate the need for independent

judgment from one vested with supervisory authority. We also note that Langford had attended only

one "shop/foreman" meeting during the year he was with Adco. This meeting was either preceded

or followed by a meeting of all Adco employees; and, the Board appropriatel y concl uded that

Lang fo rd's attendance at only one such meeting indicated an absence, if anything, of supervisory

authority. However, the court perceives that the most compelling illustration of Langford's actual

duties is that n inet y percent of the time he was engaged in manual labor in the business of

construction wiring. Apparently, the uncontradicted evidence is that such "other duties" accounted

for only ten percent of his time.

Finally, the court is unpersuaded that the finding of the regiona l director i n a separate

repre sent at io n hearing that Adco's job foremen, as a group, were supervisors, is binding upon the

ALJ, the Bo ard, and this court. Employment status at issue in a prior representation case may be

re-litigated in an unlawful discharge proceeding. R ock Hill Tel. Co. v. NLRB, 605 F.2d 139, 143 (4th

Cir.1979); Serv-U-Stores, Inc., 234 NLRB 1143, 1144 (1978). Langford had already been

discharged by Adco at the time of the representation hearing; therefore, his status was not in issue

before t he regional director. A single job classification may include both supervisory and

nonsupervisory employees. N LRB v. Dickerson-Chapman, Inc., 964 F.2d 493, 497 (5th Cir.1992).

The fact that other employees with the same title, "foreman," were deemed "supervisors" does not

compel a finding that Langford was simply because he shares a job title with them.6 Significant indicators for the Board in discerning employer motive are anti-union bias, open

hostility to organized labor, and the timing of certain events. Electronic Data Systems Corp. v.

NLRB, 985 F.2d 801, 805 (5th Cir.1993); NLRB v. Brookw ood Furniture, 701 F.2d 452, 466

(5th Cir.1983); NLRB v. Dan River Mills, 274 F.2d 381, 384 (5th Cir.1960). III. Does substantial evidence exist to support the NLRB's determination that Eric M uncy was discharged for union activity which is protected under the Act?

Pe rhaps t he most basic right expressed in the Act is the right to join or form a labor

organization. 29 U.S.C. § 157 (1973). Section 8(a)(1) of the Act, codified at 29 U.S.C. § 158(a)(1),

makes it unlawful for an employer to interfere with, restrain or coerce employees in the exercise of

their rights guaranteed in section 157. Therefore, Eric Muncy's discharge was an illegal act if it was

motivated by Adco's anti-union animus. The ALJ and NLRB concluded that Muncy's discharge was,

in fact, mot ivat ed by Adco's anti-union disposition. As explained above, as a reviewing court our

inquiry is limit

ed to whether there was substantial evidence in the record to support the determination.

When Eric Muncy interviewed for the job, Muncy was asked about his thoughts regarding

labor unions. Muncy was informed that unions were disliked at Adco and would not be tolerated.

In addition to Eric Muncy, Adco acknowledges that it terminated Raymond Langford for his union

support; and, Whit Adams stated to Eric Lott that if he [Lott] wanted a union, he should quit and

"go union." 6 Within weeks after Eric Muncy was hired, the company became aware of Muncy's union

support. Muncy was named as a member of the organizing committee in a letter delivered from Local

480, and he openly wore a union badge and cap with the union insignia.

Adco's art iculated reason for discharging Muncy was that he failed to work overtime on

Saturday, September 15th. However, Muncy informed the job foreman that he would not be able to

work on Saturday, and he was never informed by anyone that he would be fired, or disciplined, if he

did not report to work. As evidence of pretext, the record reflects that the Board considered the fact

that Adco had not discharged other employees who failed or refused to work overtime. Evidence

which tends to suggest that the stated reasons are pretext is relevant in determining if an unlawful

motive can be inferred. Property Resources Corp. v. NLRB, 863 F.2d 964, 967 (D.C.Cir.1988);

NLRB v. Dillon Stores, Inc., 643 F.2d 687, 693 (10th Cir.1981); S hattuck Denn Mining Corp. v.

NLRB, 362 F.2d 466, 470 (9th Cir.1966). The record indicates at least two instances, involving Cory7 Eric Lott testified that he was verbally admonished for missing a Saturday work day. Cory

Williams testified that he had missed two Saturday work days, and the only response from the

company was, "we missed you Saturday, we could have used you." Williams and Eric Lott, when Adco did not fire employees for failing to report for overtime duties. 7

Such disparate treatment is evidence of discrimination under section 8( a)(3). D elco-Remy Div.,

General Motors Corp. v. NLRB, 596 F.2d 1295, 1305 (5th Cir.1979); NLRB v. Broyhill Co., 514

F.2d 655, 657-660 (8th Cir.1975). Additionally, the Board reasonably discredited the claim that

Adco released Muncy, in part, for allegedly lying about the hours he worked on Friday, September

14th. Following the chronology of events on Monday, September 17th, Rick Buie questioned Eric

Muncy about his Friday hours after he had fired him for missing work on Saturday. If anything, this

after-the-fact justification tends to bolster's the Board's finding that the stated reason was pretextual.

IV. Does substantial evidence exist to support the NLRB's conclusion that Adco attributed the lack

of a wage increase to the ongoing union organizing activities?

Finally, the court observes that Eric Lott testified at the hearing before the ALJ that he had

a conversation with Adco President, Whit Adams, while out on a job site. Lott's testimony was that

Adams stated he was unable to give a pay raise because of the cost of the union movement. While

Adams apparently had a different recollection of the conversation, the ALJ and Board were justified

in crediting Lott's version of the conversation, particularly since Lott had executed an affidavit less

than one week after the conversation with Adams. Lott's affidavit was consistent with his testimony

at the hearing. Suffice it to say that an employer violates section 8(a)(1) of the Act by attributing an

organized labor movement for its failure to grant a benefit. H ovey Electric, 302 NLRB No. 77, 1991

WL 163785 (Apr. 11, 1991); N LRB v. Cable Vision, Inc., 660 F .2d 1, 6-7 (1st Ci r.1981); G ulf

States Mfg., Inc. v. NLRB, 598 F.2d 896, 900 (5th Cir.1979); N LRB v . Longhorn Transfer Serv.

Inc., 346 F.2d 1003, 1005-1006 (5th Cir.1965).

IV. Conclusion

In summary, we find sufficient evidence in the record to support the NLRB's adopti on of the

ALJ's Opinion and Order concluding that Adco Electric violated 29 U.S.C. § 158(a)(1) and (3) of the

National Labor Relations Act. Accordingly, we enter judgment enforcing the order of the NationalLabor Relations Board in Adco Electric Incorporated and Internatio nal Brotherhood of El ectri cal

Workers, Local Union No. 480, AFL-CIO, No. 15-CA-11329-4.