UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v. No. 98-1403

STARK ELECTRIC, INCORPORATED,

Respondent.

On Application for Enforcement of an Order

of the National Labor Relations Board.

(9-CA-33933)

Argued: October 26, 1998

Decided: November 30, 1998

Before ERVIN and HAMILTON, Circuit Judges, and

ANDERSON, United States District Judge for the

District of South Carolina, sitting by designation.

_________________________________________________________________

Enforcement granted in part and denied in part by unpublished per

curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Preston Langdon Pugh, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. James William

St Clair, ST CLAIR & LEVINE, Huntington, West Virginia, for

Respondent. ON BRIEF: Frederick L. Feinstein, Acting General

Counsel, Linda Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Peter Winkler, Supervi-
sory Attorney, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for Petitioner.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The National Labor Relations Board (the Board) petitions for

enforcement of its order finding that Stark Electric, Inc. (Stark Electric) committed violations of §§ 8(a)(1) and (a)(3) of the National

Labor Relations Act (NLRA). See 29 U.S.C.§§ 158(a)(1) and (a)(3).

For the reasons stated below, we grant the Board's petition in part and

deny it in part.

I

Stark Electric is an electrical contractor that performs work primarily at commercial sites in and near Huntington, West Virginia. Stark

Electric's principal shareholder and field supervisor is Bill Stark, who

is in his early eighties. Stark Electric's president and office manager

is Karen Stark, Bill Stark's daughter.

At the beginning of 1996, Stark Electric had only two electricians,

Mike Hickman and Anthony Napier. By the end of January 1996,

Stark Electric had five electricians, Hickman, Napier, Terry Quintrell,

Jim Downs, and Mark Childers. Except for Napier, these five worked

continuously for Stark Electric at least through the end of July 1996.

Napier last worked for Stark Electric on April 5, 1996.

In mid-March 1996, Stark Electric began installing wiring and

electrical fixtures at a Lone Star Steakhouse in the Huntington area.

In mid-April 1996, Stark Electric began doing similar work at an

Applebee's Restaurant located in the Huntington area. These projects

 2
caused Stark Electric to hire additional electricians. On April 1, 1996,

Stark hired Michael Mayo, who had worked for Stark Electric on and

off since 1992. Between April 9 and May 3, 1996, Stark Electric hired

Michael Price, Tim Stidham, Joseph Gregory, Joel Stidham, Joseph

Rose, and Dwayne Pennington.

For reasons not disclosed in the record, Joel Stidham and Joseph

Gregory left Stark Electric shortly after they were hired. In response,

Stark Electric hired Eric Wilburn on May 7.

After work on May 14, 1996, Price and Pennington met with Sherman Nicholas, the organizing coordinator for the International Brotherhood of Electrical Workers, Local 317, AFL-CIO (the Union), in a

parking lot adjacent to the Applebee's Restaurant project. Price and

Pennington signed cards authorizing the Union to represent them.

Soon after leaving Price and Pennington, Nicholas wrote the following letter to Bill Stark:

The purpose of this letter is to make you aware that this

office is assisting a group of your employees who wish to

organize and join the International Brotherhood of Electrical

Workers.

At no time will we attempt to disrupt your work nor will we

engage in any activities not protected under the National

Labor Relations Act.

Also, I would like to invite you to meet us to discuss the

benefits of being a Union contractor. If you would like to

talk to us concerning either of these matters, you can contact

myself or [our] Business Manager, William Taylor, at the

above address and phone number.

Nicholas' letter was received by Karen Stark on May 16, 1996. On

that day, Eric Wilburn signed an authorization card at the Union hall.

He also encouraged other employees to join the Union. Sometime in

May 1996, Michael Mayo signed an authorization card. Neither Price,

Pennington, Wilburn, nor Mayo informed Stark Electric that they had

 3
signed authorization cards. Also, there is no evidence in the record

that Stark Electric knew which employees had signed authorization

cards or were otherwise sympathetic to the Union.

On May 17, 1996, Joseph Rose worked his last day for Stark Electric. On May 24, 1996, Tim Stidham worked his last day for Stark

Electric. On that same day, Bill Stark approached Eric Wilburn and

told him that he was discharged.

In late May and early June 1996, two electricians had a short stint

with Stark Electric. John Sharkey worked 27-1/2 hours during the

week of May 19-25, 1996. Jim Shope worked twenty-four hours from

May 23-25, 1996, and eight hours on June 1, 1996.

Price and Pennington's last day at Stark Electric was May 27,

1996. Bill Stark told Pennington, who was on the Applebee's Restaurant project that day, that he was not happy with his work. Karen

Stark told Price that Stark Electric had no more work for him.

The record reflects that the number of hours worked by electricians

at Stark Electric decreased markedly after May 25, 1996. The following is a summary of the hours for which Stark Electric's electricians

were paid for the weeks ending May 4 through June 9:

Week ending May 4 Regular hours: 353.5

 Overtime hours: 51.0

Week ending May 11 Regular hours: 406.5

 Overtime hours: 0 

Week ending May 18 Regular hours: 402.5

 Overtime hours: 40.5

Week ending May 25 Regular hours: 431.0

 Overtime hours: 31.0

Week ending June 1 Regular hours: 263.5

 Overtime hours: 23.0

 4
Week ending June 9 Regular hours: 230.0

 Overtime hours: 1.5

The hours worked at the Lone Star Steakhouse and Applebee's

Restaurant projects also declined in late May and early June. For the

weeks ending May 25, June 1, June 9, and June 15, 1996, the electricians worked 390, 191, 86-1/2, and ninety-eight hours, respectively.

For the week ending June 15, the electricians only worked two hours

at the Lone Star Steakhouse project.

Two days after Price and Pennington were discharged, a new

employee, Kevin Scaggs, started working for Stark Electric. After discharging Price and Pennington and hiring Scaggs, Stark Electric had

six full-time electricians working for it. These were the four employees who had been with Stark Electric since January, (Hickman, Quintrell, Downs, and Childers), Mayo, who had worked for Stark Electric

in prior years, and Scaggs. On June 10, 1996, Terry Hunley began

working for Stark Electric. Hunley worked on several projects

through July 10, 1996.

Before the ALJ, the Board also introduced evidence concerning

Stark Electric's attempts at defeating unionization. For example, during Dwayne Pennington's pre-employment interview, Bill Stark asked

him if he was "one of those Union bastards?" On a couple of occasions after Pennington started working, Bill Stark asked him if he had

seen Nicholas on the job site. One day, Stark said he had to go to

another site because "that SOB Union organizer" was there. When

Stark returned, he said he just missed Nicholas, but said he would like

to get his hands on him.

Eric Wilburn also heard Bill Stark make derogatory comments

about the Union. Bill Stark said members of the Union were lazy, that

the Union protected the lazy, and that he would not have any members of the Union working for him.

Michael Price heard Bill Stark say on one occasion that the "Union

SOBs" had called the fire marshal and, as a result, Bill Stark had to

send all the employees at the Lone Star Steakhouse project home. On

another occasion, Price heard Bill Stark say that if he caught the

 5
"Union SOBs" at the Lone Star Steakhouse project, he would run

them off.

On June 3, 1996, the Union initiated this case by filing unfair labor

practice charges with the Board. The Board's General Counsel issued

a complaint on October 2, 1996. The ALJ held a hearing on February

5, 1997, and issued a decision on April 27, 1997. The ALJ found that

Stark Electric committed several violations of the NLRA. Specifically, the ALJ found that: (1) Stark Electric violated § 8(a)(1) of the

NLRA by making comments designed to defeat unionization; and (2)

Stark Electric violated § 8(a)(3) of the NLRA when it discharged Wilburn, Pennington, and Price because of their union activity. The

ALJ's order requires Stark Electric to cease and desist from the unfair

labor practices found and from otherwise interfering with, restraining,

or coercing employees in the exercise of their rights guaranteed by the

NLRA. The ALJ's order directs Stark Electric to offer reinstatement

and back pay to Wilburn, Price, and Pennington. The ALJ's order also

requires Stark Electric to expunge any record of its discriminatory

intent from its files, to notify the employees that this has been done,

and to post a remedial notice.

On November 7, 1997, the Board affirmed in all material respects

the ALJ's findings, conclusions, and remedial order. The Board now

petitions this court for enforcement of its order.

II

The Board possessed subject matter jurisdiction below pursuant to

29 U.S.C. § 160(a). The Board's decision and order of November 7,

1997, constitutes a final order under the NLRA, and thus we possess

appellate jurisdiction pursuant to 29 U.S.C. §§ 160(e) and (f).

The Board's decision is to be upheld if its factual findings are supported by substantial evidence on the record. See 29 U.S.C. § 160(e).

This is so "even though we might have reached a different result had

we heard the evidence in the first instance." NLRB v. General Wood

Preserving Co., 905 F.2d 803, 810 (4th Cir. 1990). "Substantial evidence has been held to mean `such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.'" Id. (quoting

 6
NLRB v. Aquabrom, Div. of Great Lakes Chem. Corp. , 855 F.2d

1174, 1178 (6th Cir. 1988)).

III

Stark Electric contends that substantial evidence does not support

the Board's decision holding that it violated § 8(a)(1) of the NLRA

when Bill Stark made comments designed to defeat unionization. We

disagree.

Under § 8(a)(1) of the NLRA, it is an unfair labor practice for an

employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in" § 7 of the NLRA. 29 U.S.C.

§ 158(a)(1). Section 7 guarantees employees, among other things, the

right to "self-organization, to form, join or assist labor organizations."

Id. If a right guaranteed by § 7 is implicated, a § 8(a)(1) violation is

established if, "under all the circumstances, the employer's conduct

may reasonably tend to coerce or intimidate employees." NLRB v.

Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th Cir. 1997). The

employer's language or acts need not be "`coercive in actual fact.'"

Equitable Gas Co. v. NLRB, 966 F.2d 861, 866 (4th Cir. 1992).

Rather, we must determine "whether the conduct in question had a

reasonable tendency in the totality of circumstances to intimidate." Id.

The question of "[w]hether particular conduct is coercive is a `question essentially for the specialized experience of the NLRB,'" Grand

Canyon, 116 F.3d at 1044.

Our § 8(a)(1) inquiry does not end here. We must also balance "the

employee's protected right against any substantial and legitimate

business justification that the employer may give for the infringement." Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 745 (4th Cir.

1998). "[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." Textile Workers Union of America v. Darlington Mfg. Co.,

380 U.S. 263, 269 (1965); see also Eastex, Inc. v. NLRB, 437 U.S.

556, 570-74 (1978) (balancing interests). This determination is also

squarely within the specialized expertise of the Board. See Medeco

Sec. Locks, Inc., 142 F.3d at 745. "[I]t is the primary responsibility

of the Board and not the courts to strike the proper balance between

the asserted business justifications and the invasion of employee

 7
rights in light of the Act and its policy." Jeannette Corp. v. NLRB,

532 F.2d 916, 918 (3d Cir. 1976) (citation and internal quotation

marks omitted). We must affirm the Board's balancing if it is rational

and consistent with the NLRA. See Beth Israel Hosp. v. NLRB, 437

U.S. 483, 501 (1978); Medeco Sec. Locks, Inc. , 142 F.3d at 745.

Accordingly, "an independent violation of § 8(a)(1) exists when (1)

an employer's action can be reasonably viewed as tending to interfere

with, coerce, or deter (2) the exercise of protected activity, and (3) the

employer fails to justify the action with a substantial and legitimate

business reason that outweighs the employee's § 7 rights." Medeco

Sec. Locks, Inc., 142 F.3d at 745.

In their totality, the statements made by Bill Stark set forth in Part

I of this opinion, supra 5-6, had a reasonable tendency to intimidate

employees from attempting to organize. Accordingly, the first two

prongs of a § 8(a)(1) violation are met. Cf. Equitable Gas Co. v.

NLRB, 966 F.2d 861, 867 (4th Cir. 1992) (employer's references to

union "hassles," his allusion to arming the bunnies and "letting them

shoot," and his claim that Equitable would increase automation and

the use of outside contractors if the union did not cooperate were

implied threats of reprisal for union activities); NLRB v. Nueva Eng'g,

Inc., 761 F.2d 961, 966 (4th Cir. 1985) (substantial evidence supported finding by the Board that employer's foreman coercively interrogated employee regarding employee's union sympathies where

employer's opposition to union was clear, foreman had authority to

hire and fire as he saw fit and there was no evidence that the foreman

explained purpose of such questioning or gave employee any assurances against retaliation); NLRB v. McCormick Concrete Co., 371

F.2d 149, 152 (4th Cir. 1967) (holding that statement that "a union

would do employees no good" can be unlawfully coercive). Because

Stark Electric offered no business justification for the statements at

issue, the third prong of a § 8(a)(1) violation is met. Accordingly, we

will enforce the decision of the Board finding that Stark Electric violated § 8(a)(1) of the NLRA when Bill Stark made comments

designed to defeat unionization.

IV

We next turn to consider whether we should enforce that portion

of the Board's order finding Stark Electric guilty of violating

 8
§ 8(a)(3) of the NLRA. See 29 U.S.C.§ 158(a)(3). Discriminatory

discharge is an unfair labor practice under § 8(a)(3) of the NLRA, 29

U.S.C. § 158(a)(3).* However, an employer's actions violate this section only if they are motivated by anti-union animus. See Goldtex,

Inc. v. NLRB, 14 F.3d 1008, 1011 (4th Cir. 1994). In FPC Holdings,

Inc. v. NLRB, 64 F.3d 935 (4th Cir. 1995), we set forth the standard

to be applied in § 8(a)(3) cases:

The Board has established a formula for determining when

an allegedly discriminatory discharge violates the[Act].

First, the General Counsel must make out a prima facie case

that the employer's decision to lay off an employee was

motivated by anti-union animus. The burden then shifts to

the employer to prove affirmatively that the same action

would have been taken even in the absence of the employee's union activity. To make out a prima facie case, the

General Counsel must show (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. Motive

may be demonstrated by circumstantial as well as direct evidence and is a factual issue which the expertise of the Board

is peculiarly suited to determine.

Id. at 942 (citations and internal quotation marks omitted).

The issue in this case, then, is whether substantial evidence on the

whole record can sustain the Board's finding that the discharges of

Price, Pennington, and Wilburn were partly or wholly motivated by

the purpose of discouraging union activities at Stark Electric. See

NLRB v. Instrument Corp. of America, 714 F.2d 324, 328 (4th Cir.

1983). Although the Board's determination of motive will not be

overturned if it is reasonable, "mere speculation as to the [employer's]

real motives registers no weight on the substantial evidence scale." Id.

_________________________________________________________________

*Section 8(a)(3) of the NLRA provides in pertinent part: "It shall be

an unfair labor practice for an employer . . . by discrimination in regard

to hire or tenure of employment or any term or condition of employment

to encourage or discourage membership in any labor organization . . . ."

29 U.S.C. § 158(a)(3).

 9
(citations and internal quotation marks omitted). Of course, Stark

Electric can attempt to rebut the prima facie case once established by

presenting a valid business justification. See Goldtex, Inc., 14 F.3d at

1013.

In this case, the Board failed to establish what we have described

as § 8(a)(3)'s "most basic element," namely, that the employer was

aware of the employees' protected activities. Id. at 1011. While it is

true that Stark Electric was aware that the Union was "assisting a

group of employees" in organizing, there is no evidence that Stark

Electric had knowledge of which employees formed that "group," and

hence Stark Electric could not have known that Pennington, Price,

and Wilburn were engaged in protected activities.

We recognize that a company can violate § 8(a)(3) by discharging

employees who are not union sympathizers in an effort to send an

anti-union message or to otherwise discourage union membership.

See Medeco Sec. Locks, Inc., 142 F.3d at 744. However, the Board

must present some evidence that the discharges were motivated by

anti-union animus. Id. In this case, the Board did present evidence

that Bill Stark did not like unions and did not want union members

working for him. However, General Counsel never proved that the

discharges at issue were designed to discourage union activities.

Rather, the record reflects that the discharges of Price, Pennington,

and Wilburn were necessitated by available work, i.e., economic circumstances. Between May 25 and June 1, 1996, work performed by

Stark Electric's electricians declined from 462 to 286 hours. The two

major projects, the Lone Star Steakhouse project and the Applebee's

Restaurant project, were nearing completion. On these projects,

between May 25 and June 1, 1996, the hours worked by the electricians decreased from 390 hours to 191 hours. Faced with the nearing

completion of two major projects, discharges were inevitable.

Because the discharges were necessitated by economic circumstances, the fact that the discharges of Price, Pennington, and Wilburn

occurred at a time when: (1) the electricians were attempting to organize; and (2) Bill Stark made certain comments designed to defeat

unionization, does not automatically infect all the discharges. Further,

the hiring of Scaggs shortly after the discharges does not help the

Board's cause. Before we can enforce the Board's order, substantial

 10
evidence must exist that the discharges were for the purpose of discouraging union activity. Goldtex, Inc., 14 F.3d at 1012. Such evidence is absent in this case, and therefore, we must deny enforcement

of this portion of the Board's order. To hold otherwise, companies

such as Stark Electric "would lose the flexibility to control the size

of their work force when adverse economic conditions required a

reduction in personnel." Id.

Because there is no evidence in the record suggesting that Stark

Electric knew of Price, Pennington, and Wilburn's union activities or

that the discharges were designed to send an anti-union message, the

Board's decision that Price, Pennington, and Wilburn were discharged

because of their union activity in violation of§ 8(a)(3) of the NLRA

is not supported by substantial evidence.

V

For the reasons stated herein, the Board's petition for enforcement

is granted in part and denied in part.

ENFORCEMENT GRANTED IN PART AND DENIED IN PART 

 11