* Pursuant to 5 TH C IR

. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED

July 26, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-60880

(Summary Calendar)

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus

SUPERIOR PROTECTION, INC.,

Respondent.

Petition for Enforcement of Order of

The National Labor Relations Board

(Nos. 16-CA-21399, 21495, and 10361)

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM: *

Petitioner National Labor Relations Board (“NLRB” or “Board”)

seeks enfor c ement of its order commanding Respondent Superior

Protection, Inc. (“Superior”), its officers, agents, successors and

assigns, to cease and desist (1) impliedly threatening employees in

writing with discharge or discipline for supporting United

Government Security Officers of America and its Local #229 or any

other union (collectively, “the Union”), (2) disciplining,1 90 NLRB 289 (1950).

2 283 NLRB 1173 (1987).

2 discharging or otherwise discriminating against any emplo yee for

supporting the Union, (3) dis ciplining, discharging or otherwise

discriminating against employees because they have given testimony

under the National Labor Relations Act (the “Act”). The Board also

seeks enforcement of its order commanding Superior to reinstate

fired employee Kelvin Trotter to his former position, to make him

whole for loss of earnings and other benefits pursuant to F.W.

Woolworth Co.

, 1 less any interi m earnings and plus interest as

compute d in N ew Horizons for the Retarded

, 2 to remove from its

files any reference to Trotter’s discipline and discharge, to make

various employment records availa ble to the Regional Director of

the N LRB, and to post at its Houston, Texas facility copies of a

notice appended to the order. Finally, the Board seeks enforcement

of its order instructing the Regional Director of the NLRB to open

and count Trotter’s contested ballot, serve a revised tally on the

parties, and issue the appropriate certificate. Superior resists

the enforcement of the orders or any portion or portions thereof.

We have caref ully considered the briefs of counsel for the

parties and the record of this case as supplemented, including the

extensive, highly detailed analysis of the Administrative Law Judge

(“ALJ”) of August 28, 2002, as modified September 25, 2002. As a

result, we conclude, under the applicable “su bstantial evidence”

standard of review, that the NLRB’s order is reasonable, supported

by such evidence, and must be enforced in full.3 29 U.S.C. § 158(a)(3).

3 I.

As the parties are fully conversant and familiar with their

respective burdens of proof and persuasion and with the standards

applicable to our review of cases und er § 8(a)(3) and (4) of the

Act, 3 we need not reiterate those standards here. It suffices that

when the Board charges an employer with unfair labor practices

under these subsections

—— discharging or otherwise discriminating

against an employee because he has given testimony under the Act or

discriminating by terminating employment to discourage membership

in a labor organization

—— the general counsel’s burden of

persuasio n is to demonstrate what protected activity of an

employee, if any, was a substantial motivating factor in an adverse

employment action taken by the employer against that employee. If

that burden is met, it becomes incumbent on the employer to

demonstrate that (1) it took the action complained of on the basis

of unprotected conduct, and (2) it would have taken the same action

in the absence of protected conduct. An employer’s proffered nondiscriminatory reason and a determination that the adverse

employment action would have been taken even in the absence of

protected activity are nevertheless trumped by a demonstration of

pretext. The overarching principle is that reasonable decision of

the NLRB must be affirmed if it is supported by substantial

evidence, even if we might have reached a contrary conclusion.

This is particularly true in cases, such as this, when the decision

of the NLRB is grounded in large part on credibility determinations4

of the ALJ who, after all, heard the testimony and observed the

demeanor of the witnesses for the opp osing parties —— here

including none other than the employer’s President, Jack Heard, and

the eventually terminated employee, Kelvin Trotter.

II.

The purportedly non-discriminatory reasons advanced by

Superior for the escalating series of adverse employment actions it

took against Trotter, culminating with his firing, ar e (1) lying

under oath during the initial hearing conducted by the ALJ and in

subsequent federal and state utterances, (2) disobeying a direct

command by a superior (here, Hear d, the employer’s President) to

report for work “on time” immediately following Trotter’s testimony

at the initial hearing, (3) insubordination in a confrontation with

a supervisor, Jose Castillo, and (4) possessing a “dirty” firearm

and a total number of cartridges in excess of the maximum allowed.

The ALJ concluded, and the NLRB agreed, based on widely divergent

positions and explanations advanced by the parties, that the

reasons given by Superior wer e pretextual, that the disciplinary

actions taken against Trotter were grounded in anti-union animus,

and that the adverse employment actions in question would not have

been taken but for that animus. As we agree, we touch only briefly

on Superior’s proffered non-discriminatory reasons for its actions.

First, Superior’s allegations that Trotter lied address almost

entirely statements he made at NLRB hearings and to the State

Unemployment authorities regarding his transfer by Superior from

Galveston to Houston well before commencement of the organizing5

efforts here at issue. Other than that, the allegations of

mendacity address Trotter’s reason for requesting time off on the

morning of the initial hearing. He told his immediate supervisor

that he needed to attend to a personal matter when, in fact, he was

responding to the subpoena for the initial hearing before the ALJ.

Superior’s c laim that Trotter lied about not having applied

for a transfer boils down to a quibble over whether he “applied” on

several occasions to be transferred from Galveston to Houston or

merely informally “requested,” or let his preference be known, that

he would like to be transferred to Houston. Not only was the issue

whether he had applied for a transfer wholly irrelevant to the

purpose of the hearing and Trotter’s testimony, Superior’s strident

efforts to classify Trotter’s responses a s lies under oath fail.

As the ALJ and Board observed, the question could easily have been

understood by Trotter as going to the matter of a formal, written

application for transfer (which h e never did) rather than to

informal, oral requests that he be considered for transfer.

As for the reason given by Trotter for requesting a few hours

of time off work on the morning of the hearing, there was at least

substantial evidence that “personal business” or “personal matters”

were expl anations frequently given by Trotter and other Superior

employees to

—— and deemed sufficient by

—— immediate supervisors.

Nothing indicates the neces sity for an employee, even a court

security officer, to go into great detail about the reasons for

wanting a few hours off, particularly when, as here, going into6

greater detail would risk adverse reaction to otherwise protected

activity.

Then there is the “charge” that Tro tter disobeyed Heard’s

direct order to report on time, which is particularly revealing of

Superior’s animus. Even though Trotter’s immediate superior,

Officer Johnson, confirmed that the only thing he had told Trotter

about reporting to work after tim e off on the morning of the

initial hearing was that Trotte r needed to report sufficiently

ahead of his (Johnson’s) 4:00 p.m. court date, Superior has

endeavored to manufacture a reporting time of noon and then to make

much over the time elapsed between Trotter’s departure from the

initial hearing to change into uniform and report for duty, which

he did by approximately 1:30 p.m. What came through loud and clear

to the ALJ

——then subsequently to the NLRB, and now to us —— is

that Trotter’s surprise appearance and pro-union testimony at the

initial hearing touched off an immediate reaction by Heard to

squelch Trotter’s anti-union activities and (likely) terminate his

employment. By telephone, Heard immediately set off a flurry of

activity following the adjournment of the hearing and well before

Trotter could possibly have made it back to his duty station, even

if he had not gone home to change into his uniform. By the time

Trotter reported, the Heard-initiated action had traveled directly

down the chain of command so that, when Trotter arrived, Johnson

referred him to Castillo, where the provocation discussed below

commenced. We agree with the ALJ and the NLRB that Heard’s

admonition to Trotter as he left the meeting not to be late for7

work

—— even if not the tension-breaking jest that Tr otter

perceived it to be —— cannot be elevated to the level of a direct

order of a remote superior to be at his duty station by 12:00 noon.

We also conclude that there is substantial evidence that the

confrontation between Trotter and Castillo following Trotter’s

reporting to work, which encounter admittedly escalated to

“heated,” was orchestrated from higher up, intentionally provoked

by Castillo, and eventually used by Superior as a pretext to mask

its ant i-union animus in taking the adverse employment actions

against Trotter. Castillo twice made Trotter cool his heels for

protracted periods while waiting to be seen. The ALJ determined,

based in large part on credi bility calls, that Castillo

deliberately goaded Trotter to th e point of heated words and

profanity, after intentionally irritating him by making him wait;

and that this was deliberate incitement. We cannot say that the

credibility calls, factual testimony, and reasonable inferences

drawn from substantial evidence do not support this conclusion of

the ALJ and the NLRB under the applicable standard of review.

The proffered weapons charge, i.e., that Trotter’s sidearm was

“dirty” when, on Castillo’s order, he turned it over, and that he

was in possession of an excess number of rounds for that weapon, is

neither consistent with nor violative of the prov ision of the

contract between Superior and the General Services Administration

(“GSA”) that Superior cites in support of its rule-violation charge

against Trotter. Even assuming that the cleanliness of the handgun

was not up to the expected level of “spit and polish,” such a8

first-time infraction would fall into the category of the most

minor of offenses, at most justifying an admonition to clean it and

keep it clean.

Turning to the question of the number of cartridges that

Trotter possessed, the applicable provision of the GSA contract or

Guard Manual cited by Superior states:

Each guard, entering on duty, including the uniform onsite shift supervisor(s) shal l be issued twelve (12)

rounds of 125 grain hollow point ammunition. Six (6)

rounds shall be used as a firearm load with six (6)

rounds carried in a cartridge case.

T his is the sole basis of Superior’s claim that Tro tter’s

possession of an excess six cartridges

—— 18 rather than 12

—— put

Superior in violation of its contract with the GSA. We agree with

the ALJ and the Board that, under no recognized method of

contractual interpretation can this language be construed to impose

a l imit on the maximum number of cartridges that a gu ard may

possess while on duty. To the contrary, the plain wording of the

provision is best construed as a minimum ammunition requi rement.

Regardless of the best interpretation , however, what the

insupportable charge against Trotter demonstrates beyond cavil is

that Superior was grasping at straws to manufacture charges against

Trotter a s pretexts for the real basis of his termination —— his

pro-union activity and Superior’s anti-union animus, which started

at the top with Heard and promptly proceeded all the way down the

chain of command. That is the conclusion of the NLRB based on the

findings of the ALJ; and we cannot say that this conclusi on is

unreasonable or lacking in support from substantial evidence.9 III.

In conclusion, for essentially the same reasons as those set

forth in the writings of the ALJ and the NLRB, we gra nt that

Board’s application for enforcement of the Order filed October 21,

2003, and we order same enforced in full.

ENFORCEMENT ORDERED.