United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________

No. 04-2439

________________

National Labor Relations Board,

Petitioner,

v.

Rockline Industries, Inc.,

Respondent.

*

*

*

*

*

*

*

*

*

Petition for Enforcement of a 

Final Order of The National 

Labor Relations Board.

 [PUBLISHED]

________________

Submitted: February 18, 2005

 Filed: June 21, 2005 (corrected 6/24/05)

________________

Before WOLLMAN, HANSEN, and BENTON, Circuit Judges. 

________________

HANSEN, Circuit Judge.

The National Labor Relations Board (Board) petitions for enforcement of an

order it entered finding that Rockline Industries, Inc. (Rockline) engaged in unfair

labor practices and ordering Rockline to reinstate David Kennan, an employee that

Rockline had suspended and then discharged in violation of § 8(a)(3) of the National

Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(3) (2000). We grant the petition

and enforce the order. 
1

The Board did not include this disciplinary action in its charges of unfair labor

practices against Rockline. 

-2-

I.

Rockline Industries employs approximately 650 employees at its manufacturing

facility in Springdale, Arkansas. In May 2002, the United Food and Commercial

Workers Union, Local 2008 (Union) began an organizational campaign at Rockline’s

facility. David Kennan had begun working at Rockline in 1997 and was employed

as a maintenance worker. Kennan became a member of the union organizing

committee in June 2002 and participated in the organizing drive by attending union

meetings, passing out union literature, and soliciting union membership. 

Rockline promulgates an employee handbook that contains rules governing

employee discipline and sets out a progressive discipline policy consisting of a verbal

warning, an initial written warning, a final written warning (which may include

suspension), and final termination. (J.A. at 316.) In June 2002, Kennan received a

written warning for interrupting the work of a co-worker for ten minutes to discuss

union-related activities.1

 Prior to this time, Kennan had received one verbal warning

for not performing his job duties during his five years of employment. On August 27,

2002, Kennan was not scheduled to work. Instead, he distributed pro-union literature

in the parking lot of Rockline. During work two days later, Kennan stopped a

warehouse employee, Bonnie Bunch, who was operating a forklift, and told her that

“those fliers they [Rockline] are handing out are illegal.” The evidence is disputed

as to the length of the conversation, but Bunch told Kennan that she did not know

anything about it and drove off. Bunch did not report the incident, but her supervisor

later asked her to prepare a statement about the incident. 

The following day, Kennan greeted another employee, Duane Stevens, on the

plant floor, and Stevens responded by saying something about “that union crap.”
-3-

Kennan told Stevens that he could not discuss union issues during work time, but

would be glad to discuss it with him during break time. Stevens responded that he

would rather discuss it “in the parking lot,” and the two exchanged a few more words.

Kennan reported to his administrator, Catherine Jones, that Stevens had threatened

him and asked to see Human Resources Director Sam Wilson about it. Kennan was

called to Wilson’s office later that day, where Jones and Kennan’s supervisor, Linda

Riley, were present. Kennan voiced his complaint to Wilson about Stevens, stating

that he felt threatened by Stevens’ words. Wilson agreed to investigate, but told

Kennan not to expect much since it was a “he said/she said” kind of situation.

Stevens later denied that he intended to threaten Kennan, though he thought Kennan

might have misunderstood what he had said as a threat. Stevens was not disciplined

in relation to the incident.

After Kennan discussed the Stevens incident with Wilson, and as part of the

same conversation, Wilson told Kennan that he had a couple of things to discuss with

him. Wilson first brought up Kennan’s distribution of papers in the parking lot on

August 27. Wilson told Kennan that if he came to the premises on his day off, he

needed to get a visitor’s badge. Wilson presented Kennan with a written “Employee

Warning Record” and asked Kennan to sign it. The warning detailed his actions in

distributing the papers, not mentioning that the papers were pro-union literature, and

stated that Kennan’s presence in the parking lot presented a security issue. The

warning directed Kennan to obtain a visitor’s pass if he came to Rockline on a day

when he was not scheduled to work, and it informed Kennan that he needed

permission to go to areas of the plant other than human resources on such visits. The

warning stated that Kennan “will be terminated if [he] violates this direction.”

Rockline has never insisted on such requirements from any of its other employees.

After giving Kennan the written warning, Wilson also gave Kennan a written

suspension notice premised on Kennan’s actions the prior day in stopping a

warehouse employee (Bunch) from performing her work to discuss non-work-related

issues. The notice did not identify Bunch by name, and Wilson did not ask Kennan
-4-

for his version of the events. Again, the notice did not mention whether the nonwork-related discussion was related to the union.

Following his suspension, Kennan returned to work on September 6. He

carried a small tape recorder in his shirt pocket, which two co-employees saw and

reported to Kennan’s supervisor, Riley, and to Continuous Improvement Coordinator

Pattie Whisenhunt. From the adjacent patio, Riley and Whisenhunt observed Kennan

in the break room for approximately 15 minutes acting, in their minds, suspiciously.

Kennan was not on break at the time, and although his job duties included emptying

waste baskets in the break room, it did not appear that he was doing any work. After

Kennan left the break room, Whisenhunt told two employees who had been in the

break room that Kennan had a tape recorder and appeared to have been taping their

conversation. The two employees complained to Jones and Wilson about the tape

recorder, asking whether state law allowed Kennan to record their conversations

without their knowledge. Neither Riley nor Whisenhunt (both supervisors) informed

Wilson of their suspicion that Kennan had a tape recorder or confronted Kennan

about it. 

Later that afternoon, Kennan was called to Wilson’s office and asked about the

tape recorder. He admitted having one but denied taping any conversations. Wilson

informed Kennan that he was being terminated for bringing the tape recorder to work

and for being disruptive. Kennan’s termination notice (which was already prepared

when Kennan arrived in Wilson’s office) stated: “TAPE RECORDER IN PLANTCAUSING EMPLOYEE PROBLEMS.” Wilson later testified at the administrative

hearing that Kennan was also terminated because he kept other employees from doing

their jobs, including twice earlier that day, and because Kennan was not doing his job.

Neither of these reasons was expressed to Kennan at the time of his termination or

stated on the termination notice.
2

The complaint also alleged that Wilson violated § 8(a)(1) of the NLRA by

engaging in illegal surveillance of a union meeting. Following the hearing, the Board

adopted the ALJ’s recommendation that the surveillance charge be dismissed; thus,

that charge is not at issue on appeal. 

-5-

The Union filed charges against Rockline with the Board, and the Board filed

a complaint against Rockline on February 28, 2003. The complaint alleged that

Rockline violated § 8(a)(3) of the NLRA by warning, suspending, and discharging

Kennan.2

 An Administrative Law Judge (ALJ) held a hearing in September 2003 and

recommended to the Board that, based on the evidence and the witnesses’ credibility,

Rockline had violated the NLRA when it warned, suspended, and terminated Kennan.

The Board adopted the ALJ’s recommended order, with modification. The Board

now petitions this court for enforcement of its final order. See 29 U.S.C. § 160(e)

(2000). Rockline challenges the order related to Kennan’s suspension and

termination, but does not dispute that the warning given to Kennan for distributing

union literature in the parking lot on his off-duty time violated the NLRA. The Board

is therefore entitled to summary enforcement of that part of its order. We turn to the

contested findings.

II.

 

We will enforce the Board’s order as long as the Board correctly applied the

law, and its findings are supported by substantial evidence, even if we might have

reached a different decision on de novo review. N.L.R.B. v. La-Z-Boy Midwest, a

Div. of La-Z-Boy Inc., 390 F.3d 1054, 1058 (8th Cir. 2004); King Soopers, Inc. v.

N.L.R.B., 254 F.3d 738, 742 (8th Cir. 2001). Substantial evidence is such evidence

that a reasonable mind would find adequate to support the Board’s conclusion. La-ZBoy, 390 F.3d at 1058. Although we give great deference to the fact finder’s

credibility assessments, these, too, must be supported by substantial evidence. Id.
-6-

Under § 8(a)(3) of the NLRA, an employer commits an unfair labor practice

when, “by discrimination in regard to . . . any term or condition of employment [it]

encourage[s] or discourage[s] membership in any labor organization.” 29 U.S.C. §

158(a)(3). This section makes it an unfair labor practice for an employer to discipline

an “employee in order to discourage [him] from engaging in union activities.” SCA

Tissue N. Am. LLC v. N.L.R.B., 371 F.3d 983, 988 (7th Cir. 2004). To support a

violation of § 8(a)(3) based on employee discipline, the General Counsel of the Board

“must make a prima facie showing that protected conduct was a ‘motivating factor’

in the employer’s decision to discipline the employee.” La-Z-Boy, 390 F.3d at 1057

(describing the NLRB’s burden-shifting analysis of Wright Line, 251 N.L.R.B. 1083

(1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982)).

The Sixth Circuit describes the prima facie case as containing the following elements:

“(1) the employee was engaged in protected activity; (2) . . . the employer knew of the

employee’s protected activity; and (3) . . . the employer acted as it did on the basis of

anti-union animus.” FiveCAP, Inc. v. N.L.R.B., 294 F.3d 768, 777 (6th Cir. 2002).

The burden then shifts to the employer to put forward a legitimate reason for the

discipline and to establish that it would have taken the same disciplinary action

notwithstanding the employee’s protected conduct. La-Z-Boy, 390 F.3d at 1057; Hall

v. N.L.R.B., 941 F.2d 684, 688 (8th Cir. 1991). 

The Board found that Rockline’s discipline of Kennan violated the NLRA on

three separate occasions: the August 30 written warning for distributing “papers” in

the parking lot on August 27; the August 30 three-day suspension for interrupting

Bunch’s work on August 29; and the September 6 termination related to bringing a

tape recorder to work and causing employee problems on September 6. As noted

above, Rockline does not dispute that the written warning for distributing papers in

the parking lot violated the NLRA by discouraging union activity. 

The ALJ noted that few of his findings depended on contradictions in the

testimony, but discredited Bunch’s hearing testimony that her encounter with Kennan
-7-

lasted five to eight minutes to the extent that her testimony contradicted her more

contemporaneous written statement, which the ALJ construed as describing an

incident that could not have lasted more than fifteen seconds. His “chief credibility

determinations” included rejection of Rockline’s justifications for its actions in light

of its establishment of a rule affecting only Kennan, its disparate treatment of Kennan

compared to other employees, and its change in position between the initial reasons

stated in the termination notice and the reasons given at the hearing. In adopting the

ALJ’s recommended order, the Board found no reason to reverse the ALJ’s credibility

findings. (Appellant’s Add., Order at 1 n.2.) It did, however, limit its finding of

pretext regarding the three-day suspension solely to evidence of disparate treatment,

specifically that Kennan was disciplined for interrupting Bunch’s work, while

Stevens was not disciplined for interrupting Kennan’s work. (Id. n.3.) 

Rockline does not dispute that Kennan was generally engaged in protected

activity related to his involvement in the union organizing committee or that it was

aware of his activities. Rockline focuses on the third element of the prima facie case

and argues that there is no evidence that there was a causal connection between

Kennan’s protected activity and his disciplinary suspension and termination, neither

of which related to incidents involving Kennan’s participation in protected activity.

Rockline also argues that the Board erroneously found that Rockline’s justifications

for its disciplinary actions were pretextual.

 

“[G]eneral hostility toward the union does not itself supply the element of

unlawful motive.” GSX Corp. of Mo. v. N.L.R.B., 918 F.2d 1351, 1357 (8th Cir.

1990). Although Rockline openly opposed the Union, other than its dealings with

Kennan, there is no evidence that it ever threatened or intimidated employees for

engaging in union activity. Rockline distributed information to its employees

encouraging them to weigh the pros and cons of unionization, though it warned the

employees not to discuss union issues during work time. Evidence of Rockline’s

union animus is fairly weak as compared to other cases finding union animus. See
-8-

id. (finding sufficient evidence of hostility from statements that management was

tired of dealing with the current union’s frivolous complaints and preferred a different

union, noting that such evidence was relatively mild compared to then recent cases,

including York Prods., Inc. v. N.L.R.B., 881 F.2d 542, 543 (8th Cir.1989) (employer

threatened over 50 times to close the plant if a union was organized); DeQueen Gen.

Hosp. v. N.L.R.B., 744 F.2d 612, 615 (8th Cir. 1984) (administrator told supervisors

to get rid of union employees if the opportunity arose); Ballou Brick Co. v. N.L.R.B.,

798 F.2d 339, 345 (8th Cir. 1986) (employer threatened employees); N.L.R.B. v.

Quick Find Co., 698 F.2d 355, 357 (8th Cir. 1983) (employer fired all but two

employees in the proposed bargaining unit after the union sought recognition)). 

Nevertheless, sufficient evidence exists in the record as a whole to support the

Board’s finding that Rockline was motivated by union animus when it suspended and

then terminated Kennan. We have previously considered such factors as: an

employer admitting to recent discriminatory conduct, see Golden Eagle Spotting Co.

v. Brewery Drivers and Helpers, Local Union 133, 93 F.3d 468, 471 (8th Cir. 1996)

(noting that employer’s uncontested NLRA violations lent support to the Board’s

other findings); an employer treating its union and anti-union employees disparately,

see Berbiglia, Inc. v. N.L.R.B., 602 F.2d 839, 844 (8th Cir. 1979) (“[T]he convincing

evidence of disparate treatment of union and anti-union employees furnishes the

keystone for the arch of the Board’s case.”); and an employer changing the

justifications for its disciplinary actions, see Hall, 941 F.2d at 688 (“[F]alse or

shifting reasons support a finding of illegal motivation.”). All of these factors are

present in this case and support the Board’s finding of discriminatory motive. 

A. Three-Day Suspension

Kennan was clearly involved in protected activity when he distributed union

literature during his off-work time, and Rockline does not dispute that it violated the

NLRA by disciplining him for it. Rockline tried to hide its true motives for that
-9-

discipline by stating first security, and then safety, as its legitimate reasons for issuing

the warning to Kennan. However, the Board found that Rockline singled out Kennan

for disparate treatment when it issued the warning requiring Kennan to get a visitor’s

pass and prohibiting him from entering the premises on an off-duty day, even though

other employees’ friends and spouses often did so. See Hall, 941 F.2d at 688

(“[F]alse or shifting reasons support a finding of illegal motivation.”). This is

important background information regarding Rockline’s motives toward Kennan, as

it occurred just two days prior to the incident resulting in Kennan’s suspension. See

id. (“The timing of an adverse employment decision is given great weight in unlawful

discharge cases as an indication of anti-union motive.”); cf. Sioux Quality Packers,

Div. of Armour & Co. v. N.L.R.B., 581 F.2d 153, 157 (8th Cir. 1978) (finding that

a discriminatory discharge in October did not support the Board’s conclusion that a

discharge seven months later was likewise discriminatory, absent other evidence). 

Rockline’s articulated reason for suspending Kennan for three days was that

he had interrupted another employee’s work for non-work-related purposes. The

Board found this stated reason to be pretextual because Kennan was treated

differently than Stevens, who had interrupted Kennan during work hours to express

his anti-union views but was not disciplined. “It is often reasonable for the Board to

infer animus from unequal treatment of similarly situated employees.” La-Z-Boy, 390

F.3d at 1061. Kennan was disciplined for disrupting Bunch’s work even though

Bunch never complained to anyone; rather, Bunch’s supervisor sought her out and

asked her to make a statement concerning the incident. Even then, Bunch did not

allege that Kennan disrupted her work. Kennan was not given an opportunity to

respond but was summarily suspended the following day. In fact, the suspension

notice was already prepared when Kennan was called to Wilson’s office to discuss

the incident. In contrast, when Kennan reported Stevens’ comments to Wilson,

Wilson’s initial response to Kennan was not to expect much. Stevens was then given

an opportunity to respond to the allegations and was not disciplined for the incident.
-10-

The parties dispute the length of Kennan’s conversation with Bunch. If it

lasted the five to ten minutes urged by Rockline, the length of the conversation could

legitimately support Kennan’s discipline and distinguish it from the lack of discipline

to Stevens. Two considerations counsel against finding this timing dispute sufficient

to overturn the Board’s findings of disparate treatment. First, the Board accepted the

ALJ’s credibility findings, which included discrediting Bunch’s testimony that the

conversation lasted five to eight minutes. Great deference is given to a fact finder’s

credibility assessments, see JHP & Assocs., LLC v. N.L.R.B., 360 F.3d 904, 910-11

(8th Cir. 2004) (citing Golden Eagle Spotting Co., 93 F.3d at 471 (“We will not

overturn Board findings that are based on credibility determinations unless those

findings shock the conscience.”)), and Bunch’s vague statement given to her

supervisor provides record support for the ALJ’s decision to discredit Bunch’s

hearing testimony. Further, regardless of the length of the conversation, Rockline

still treated Kennan disparately in its investigation of the incident as compared to its

investigation of the discussion between Kennan and Stevens. Kennan was not asked

his version of the events concerning the Bunch conversation. Instead, he was called

to Wilson’s office and summarily given the suspension notice. Even then, he was not

informed of the specific incident supporting the allegations of interrupting a coemployee’s work stated in the suspension notice. By contrast, Kennan’s complaint

about Stevens was virtually ignored, with Wilson responding that Kennan should not

expect much. Stevens was later asked for his version of events and ultimately was

not disciplined for the incident. Notably, the incident was documented in Kennan’s

personnel file but not in Stevens’ file. 

Finally, Wilson gave Kennan the written disciplinary notice for distributing

papers, which concededly violated § 8(a)(3), on the same day as the suspension

notice. Given the temporal proximity of the violative disciplinary action to the action

at issue, the failure of Rockline to investigate, and its refusal to allow Kennan to

respond to the allegations, there is sufficient evidence in the record to support the
-11-

Board’s findings that Rockline’s stated reason for suspending Kennan was pretextual

and that Rockline violated § 8(a)(3) when it suspended Kennan for three days. 

B. Termination

Kennan carried a tape recorder in his pocket on the day that he returned to work

following his suspension. Co-employees who saw the tape recorder reported to two

supervisors that Kennan was carrying it. Rather than confronting Kennan about the

tape recorder or informing the Human Resources Director, the supervisors told other

employees in the break room that it appeared that Kennan was trying to record their

conversations. Later that day Kennan was called to Wilson’s office, where Wilson

informed him that his employment was being terminated because he had a tape

recorder and was being disruptive. Again, there was no investigation and Kennan

was not allowed to respond to the allegations prior to his termination. The written

termination notice stated that Kennan’s termination was based on “TAPE

RECORDER IN PLANT–CAUSING EMPLOYEE PROBLEMS.” At the hearing,

Wilson testified that Kennan was terminated for the additional reasons that he was

keeping other employees from doing their jobs and he was not doing his own job.

However, Rockline failed to articulate these reasons to Kennan at the time of his

termination. Further, Rockline had no policy regarding tape recorders on the

premises. In fact, another employee, Edward Reygadas, brought a tape recorder to

work less than a year prior to this incident. He was confronted about the tape

recorder and told not to bring it to work but was not disciplined. Rockline’s different

responses to these incidents suggest disparate treatment, and thus union animus. 

Rockline claims that the Reygadas incident was distinguishable because

Reygadas did not have prior written warnings under Rockline’s progressive discipline

policy. Rockline misses the point. Kennan was not treated disparately because he

was terminated and Reygadas was not. The disparate treatment comes from being

disciplined at all for something not covered by Rockline’s employment policies and
-12-

from the lack of investigation or confrontation. Further, Kennan was terminated the

first day back from a suspension that the Board found to be discriminatory, and a

week after Rockline discriminatorily disciplined Kennan for distributing union

literature. Like the policy created specifically for Kennan regarding his presence on

Rockline property on his days off, Rockline again created a policy specific to Kennan.

Given the shifting justifications offered by Rockline for terminating Kennan, his

disparate treatment relative to Reygadas, and the close timing to Kennan’s

distribution of union literature and Rockline’s ensuing discriminatory discipline, the

Board’s findings are supported by substantial evidence in light of the record as a

whole. See Hall, 941 F.2d at 688 (shifting justifications and the timing of discipline

relative to protected activity support finding that union animus motivated employer’s

actions).

III.

Engaging in protected activity does not shield employees from legitimate

disciplinary action by their employer. Employers still control their workforce even

if their employees are (or seek to be) represented by a union. Protected activity is just

that however–protected–and employers cannot single out employees who engage in

such activities for adverse or disparate treatment. Having disciplined an employee

who has engaged in protected activity, it is not enough that an employer put forth a

nondiscriminatory justification for discipline. It must be the justification. See SCA

Tissue N. Am., 371 F.3d at 991-92 (“SCA’s asserted justification for its termination

decision . . . appears to have furnished the excuse rather than the reason for the

discharge.” (internal marks omitted)). While we find this to be a close case, given our

limited review, we enforce the Board’s order, as it is supported by substantial

evidence in the record as a whole. 

_____________________________