1District 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, ChiefJudge, 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 National

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

court'sjurisdiction for the application of enforcement arises undersection 10(e) ofthe 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 judgment enforcing the NLRB's order. Before examining the specific issues

which we are called upon to consider today, 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"inside" (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 not foremen). Apprentice

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

people, with six to eight electricians classified as foremen.

Adco is 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 the legal right NOT to join a labor union. We prefer to work with our employees

informally, personally, and directly, rather 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 byworking 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 interviewed for 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 union 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 promotionalbadges beginning at break time the following day. The next day,

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

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

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

organizing committee." The list included the names of Raymond Langford and Eric Muncy along

withLaFrance Smith,JeffreyCalender, David Lewis, Eric Lott,John Newell, OrbyRenfroe and Cory

Williams.

Three days later, on August 17, 1990, Superintendent Buie fired Raymond Langford.

Langford'stermination slip stated that he wasfired "forsolicitation." On August 27th, the union filed

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

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 ofRaymond 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 asjob 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 sheetsthat 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 wasfired for "cussing on the job," and Muncy'stermination notice stated that he wasfired
 

2Buie 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 charges 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 was filed which incorporated some of the allegations contained in prior charges,

along with some additional 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 unlawfulrule prohibiting employeesfromdiscussing the union; and (5.) an alleged

unlawfulstatement by company president, Whit Adams, that he could not grant a raise because ofthe

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 decision in which he found against the

company on all issues, with the exception of the alleged promulgation and enforcement of a rule

prohibiting employees from discussing the union. The ALJ's order 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 ordered
to reinstate both employees with back pay, without loss 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 the 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 evidence before the ALJ and the

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

unsuccessfullysought to present evidence that LocalUnion480's classificationas 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 competitor, 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 allow discovery or presentation of evidence regarding

LocalUnion 480's alleged conflict ofinterest withAdco byreason of a job targeting program?

II. Doessubstantial 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. Doessubstantialevidence exist to support the NLRB's determination that Eric Muncywas

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. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456,
 

3The record indicates that Board member John N. Raudabaugh dissented. Member

Raudabaugh would have accepted Adco's offer of proof. 

462 (1951); NLRB v. Cal-Maine Farms, Inc., 998 F.2d 1336, 1339 (5thCir.1993); NLRB v. Lancer

Corp., 759 F.2d 458, 460 (5th Cir.1985); NLRB 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." Universal 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

to justify, 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 on the credibility of the witnesses or reweigh the evidence." NLRB 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. NLRB v. Ryder/P.I.E. Nationwide, Inc., 810 F.2d 502, 507 (5th Cir.1987); Centre

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 LocalUnion

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

As noted above, Adco disputesthat 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, then 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 Board3concluded 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 hasreviewed Adco's argument and findsit 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 the other 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 able to 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.1968). The issue would arise only if the

unionwon a representation election and was certified to represent companyemployees, 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

(5thCir.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 on the employees'

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

often than not, the employer's motive is the critical question in such cases. NLRB v. Brown Food

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

Inc., 980 F.2d 1027, 1032 (5th Cir.1993); Marathon 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 to discharge an employee, the

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

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

F.2d 801, 804 (5thCir.1993); NLRB v. Mini-Togs, Inc., 980 F.2d 1027, 1033 (5thCir.1993); NLRB

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 officials 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. See 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 limited 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 determinations regarding supervisory status.

Monotech of Mississippi v. NLRB, 876 F.2d 514, 516 (5thCir.1989); NLRB 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, promote, discharge, assign, reward, or

discipline other employees, or resopnsibly to direct them, or t o adjust their grievances, or

effectively to recommend such action, ifin connection with the foregoing the exercise ofsuch

authority is not of a merely routine or clerical nature, but requires the use of independent

judgment.

In determining whether someone is a supervisor, job titles reveal very little, if anything. See
 

4Langford 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); NLRB v. Yuba Natural Resources, Inc., 824 F.2d 706, 709 (9th Cir.1987) (same).

Instead, the controlling factor is the authority that has been vested with 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 the record, the court finds substantial evidence supporting the NLRB's

finding that Langford'sstatus wasthat 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 objectivesin the electrical contracting business. These objectives included the

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

usually worked 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 apprenticesfromtime to time, illustrates nothing more

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

Savings Bank v. NLRB, 649 F.2d 50, 55 (1st Cir.1981). Likewise, the fact that Langford

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

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

employees. See 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 foreman to

supervisor status); NLRB v. Security Guard Serv., Inc., 384 F.2d 143, 148 (5thCir.1967) (authority

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

"recommended" apprentices for administrative action, it was Superintendent Buie who made and

executed the final decision in both instances.4 Contrary to Adco's assertions that Langford possessed
 

5

"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 fromone 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 concluded that

Langford'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 ninety 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 regional director in a separate

representation hearing that Adco's job foremen, as a group, were supervisors, is binding upon the

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

re-litigated in an unlawful discharge proceeding. Rock 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 the regional director. A single job classification may include both supervisory and

nonsupervisory employees. NLRB 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.
 

6Significant 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. Brookwood 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 Muncy was

discharged for union activity which is protected under the Act?

Perhaps 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 byAdco's anti-union animus. The ALJ and NLRB concluded that Muncy's discharge was,

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

inquiryislimited to whether there wassubstantial 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 articulated 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); Shattuck Denn Mining Corp. v.

NLRB, 362 F.2d 466, 470 (9thCir.1966). The record indicates at least two instances, involving Cory
 

7Eric 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). Delco-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 tendsto bolster'sthe Board'sfinding 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 itsfailure to grant a benefit. Hovey Electric, 302 NLRB No. 77, 1991

WL 163785 (Apr. 11, 1991); NLRB v. Cable Vision, Inc., 660 F.2d 1, 6-7 (1st Cir.1981); Gulf

States Mfg., Inc. v. NLRB, 598 F.2d 896, 900 (5th Cir.1979); NLRB 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 adoption of the

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

National Labor Relations Act. Accordingly, we enter judgment enforcing the order of the National
Labor Relations Board in Adco Electric Incorporated and International Brotherhood of Electrical

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