UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

No. 97-1414

D.C. MASON BUILDERS,

INCORPORATED,

Respondent.

On Application for Enforcement of an Order

of the National Labor Relations Board.

(6-CA-27284)

Argued: October 31, 1997

Decided: December 31, 1997

Before MURNAGHAN, WILKINS, and NIEMEYER,

Circuit Judges.

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Enforced by unpublished per curiam opinion.

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COUNSEL

ARGUED: Melvina Carrie Ford, LAW OFFICE OF MELVINA C.

FORD, Alexandria, Virginia, for Mason Builders. Fred Barry Jacob,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Board. ON BRIEF: Frederick L. Feinstein, General Counsel, Linda

Sher, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Peter Winkler, Supervisory Attorney,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Board.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

The National Labor Relations Board (the Board) petitions for

enforcement of an order the Board issued finding that D.C. Mason

Builders, Inc. (Mason) committed various unfair labor practices and

breached a collective bargaining agreement. See 29 U.S.C.A. § 160(e)

(West 1973). We enforce the order.

I.

In 1993, Mason, a masonry contractor, entered into a collective

bargaining agreement (the Agreement) with the International Union

of Bricklayers and Allied Craftsmen, Local Union Number 15, AFLCIO (the Union). Initially, Mason paid the wages and fringe benefits

specified therein and otherwise complied with the Agreement. In

November 1994, however, Leroy Hunter, Sr., the acting business

manager for the Union, approached Mason's president, Leslie Cummings, concerning the discharge of two union stewards. Cummings

stated that the stewards were discharged for incompetence. Hunter Sr.

responded that he would send Cummings a steward about whose competence Hunter Sr. had no doubt--his son, Leroy Hunter, Jr. Shortly

thereafter, Hunter Jr. began working for Mason on a courthouse project.

Approximately one month later, in December 1994, Hunter Jr. filed

a grievance alleging that Mason had violated the Agreement by

improperly stopping work on the courthouse project and by not paying the correct hourly wage. In response to Hunter Jr.'s grievance,

Cummings told him "that if [he] didn't want to be on [a Mason] job,

to get the [expletive] off; that he was tired of this [expletive] that [he]

and [his] dad were trying to pull on him." J.A. 149. In January 1995,

Hunter Jr. filed another grievance concerning two other wagepayment matters. Both the December and January grievances were

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submitted by Hunter Sr. to Cummings. When Hunter Sr. received no

response, the grievances were submitted to a joint committee

appointed pursuant to the Agreement to resolve grievances.1

Tensions between Cummings and Hunter Jr. can also be traced to

events arising out of a December 1994 inspection of the worksite by

a representative of the Occupational Safety and Health Administration

(OSHA) for safety violations. Hunter Jr., as a union steward, was

present for the inspection and afterward asked the OSHA representative if Mason was required to hold safety meetings. The representative replied that such meetings were not required, but that they might

be a mitigating factor if violations were found. The following morning, Cummings stated that he had been cited for violations and that

he knew Hunter Jr.'s statement to the representative about safety

meetings had resulted in an increase in Mason's fine. One week later,

Mason ceased work on the courthouse and laid off all of its employees. After a work stoppage of several weeks, Mason resumed work on

the courthouse project and recalled one of its bricklayers. Hunter Jr.

was not recalled, even though the Agreement provided that "[t]he

steward shall be the first bricklayer called back to work in the event

of any work stoppage of any type." J.A. 28.

In June 1995, the Board charged Mason with violations of

§ 8(a)(1), § 8(a)(3), and § 8(a)(5) of the National Labor Relations Act

(NLRA). See 29 U.S.C.A. § 158(a)(1), (3), (5) (West 1973 & Supp.

1997). Approximately one month later, the Pittsburgh Regional Office

of the Board received a handwritten, undated letter from Cummings

stating, "We wish to remind all parties concerned, we have never had

a [b]inding agreement with [the Union.] If the [Board] chooses to use

it[s] time to pursue this matter so be it." J.A. 69.

After conducting a hearing, an administrative law judge (ALJ)

found that Cummings' statement to Hunter Jr. following the filing of

the December grievance constituted coercion in violation of § 8(a)(1).

Additionally, the ALJ found that Mason's refusal to rehire Hunter Jr.

was motivated in part by Hunter Jr.'s union activity, that Mason failed

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1 The Board credited evidence that although Cummings was notified of

two hearings--one for each grievance--he failed to attend or send a representative to either hearing.

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to demonstrate that it would not have rehired Hunter Jr. were it not

for his union activity, and consequently that the failure to recall

Hunter Jr. constituted a violation of § 8(a)(3). Finally, the ALJ found

that Mason breached the Agreement by sending the letter to the Board

expressly repudiating the Agreement, refusing to respond to the grievances, failing to make appropriate fringe benefit contributions on

behalf of its employees, and refusing to recall Hunter Jr., and that

these breaches constituted a refusal to bargain collectively in violation

of § 8(a)(5). The Board adopted all of these findings.

In deciding whether the order of the Board should be enforced, we

review questions of law de novo; however, we are bound by the factual findings of the Board if they are supported by substantial evidence on the record as a whole. See 29 U.S.C.A. § 160(e); Industrial

Turnaround Corp. v. NLRB, 115 F.3d 248, 251 (4th Cir. 1997). "Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion" and consists of "more

than a scintilla but less than a preponderance." Vance v. NLRB, 71

F.3d 486, 489-90 (4th Cir. 1995) (per curiam) (internal quotation

marks omitted). Additionally, we must defer to a choice made by the

Board between two reasonable views of the evidence regardless of

whether we would reach the same conclusion on de novo review. See

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

II.

In opposing the petition for enforcement, Mason first argues that

the finding of the Board that Cummings threatened Hunter Jr. in violation of § 8(a)(3) is not supported by substantial evidence. We disagree.

Section 7 of the NLRA grants employees "the right to selforganization, to form, join, or assist labor organizations ... and to

engage in other concerted activities for the purpose of collective bargaining." 29 U.S.C.A. § 157 (West 1973). That guarantee is implemented by § 8 of the NLRA, which provides that it is an unfair labor

practice for an employer "to interfere with, restrain, or coerce

employees in the exercise of [their § 7] rights." 29 U.S.C.A.

§ 158(a)(1). An employer violates § 8(a)(1) when it threatens to discharge employees in retaliation for union activity. See, e.g., NLRB v.

Nueva Eng'g, Inc., 761 F.2d 961, 966 (4th Cir. 1985).

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When making a determination concerning the coercive effect of an

employer's statement, we must view the statement"in the context of

its labor relations setting." J.P. Stevens & Co. v. NLRB, 638 F.2d 676,

687 (4th Cir. 1980) (internal quotation marks omitted). "The test of

coerciveness is not whether the language or acts were coercive in

actual fact, but whether the conduct in question had a reasonable tendency in the totality of the circumstances to intimidate." StandardCoosa-Thatcher Carpet Yarn Div., Inc. v. NLRB, 691 F.2d 1133, 1137

(4th Cir. 1982) (internal quotation marks omitted). And, "[t]he coercive effect of an employer's speech ... is a question essentially for the

specialized experience of the" Board. J.P. Stevens & Co., 638 F.2d at

687 (internal quotation marks omitted).

We conclude that substantial evidence supports the finding of the

Board that Cummings' expletive-laden suggestion to Hunter Jr. that

he quit his job, made in direct response to Hunter Jr.'s filing of the

December grievance, had a reasonable tendency to intimidate.2 See

NLRB v. Intertherm, Inc., 596 F.2d 267, 275-76 (8th Cir. 1979) (holding that employer's statement to employee "that if [he] were unhappy

with the company, he should look for another job" was "essentially

a thinly-veiled threat to fire [the employee] for his union activities").

III.

Mason next contends that the finding of the Board that Mason discriminated against Hunter Jr. in violation of § 8(a)(1) and § 8(a)(3)3

by failing to recall him to work was not supported by substantial evidence. This argument has no merit.

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2 Mason argues that the Board erred in finding that Cummings did not

deny making the statement. The record reflects, however, that although

Cummings generally denied threatening his employees, he did not specifically deny making the statement in question, which he may not have

considered to be a threat. In any event, because the Board credited

Hunter Jr.'s allegation that Cummings made the statement, the record

supports the finding by the Board that the statement was made.

3 Subsection 8(a)(3) provides, in pertinent part, that "[i]t 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.A. § 158(a)(3).

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An employer commits an unfair labor practice when it discharges

or fails to recall an employee because of the employee's union activities. See NLRB v. Low Kit Mining Co., 3 F.3d 720, 727 (4th Cir.

1993). If the Board finds that the failure to recall the employee was

"motivated by anti-union considerations," the failure to recall is

unlawful unless the employer proves that it would not have recalled

the employee even absent the anti-union considerations. Id. at 728

(internal quotation marks omitted). Motive is a question of fact, and

the Board may rely on circumstantial as well as direct evidence to

find that discriminatory motive has been established. See id.

Here, the record establishes that Mason previously discharged two

union stewards, threatened Hunter Jr., and refused to attempt to

resolve Hunter Jr.'s union grievances. This evidence alone is more

than sufficient to support the inference by the Board that Mason's

failure to recall Hunter Jr. "was based in part on ... [his] union activity." J.A. 211. Because Mason did not offer credible evidence that

Hunter Jr. would not have been recalled even absent the discriminatory motivation,4 substantial evidence in the record supports the rejection by the Board of this contention, and the finding of discrimination

must be affirmed.

IV.

Mason also argues that the finding of the Board that Mason

breached the Agreement in violation of § 8(a)(1) and § 8(a)(5) was

not supported by substantial evidence. We disagree.

All four grounds offered by the Board for the conclusion that

Mason breached the Agreement are supported by substantial evidence

in the record. First, the Board reasonably found that the letter that

Cummings sent to the Board denying the existence of a binding

agreement constituted a repudiation of the Agreement.5 Second, the

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4 Cummings testified that he recalled the other employee because he

believed he had a right to do so under the Agreement. The Board correctly found, however, that Cummings' interpretation of the Agreement

was unreasonable. Although it is not explicitly stated in the order, we

assume the Board further reasoned that Cummings would have given the

Agreement its correct interpretation were it not for his anti-union animus.

5 Mason did not argue before the Board, nor does it now contend, that

it possessed a right to repudiate the Agreement. Rather, it claimed only

that as a factual matter, it did not repudiate the Agreement.

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finding of the Board that Mason violated the Agreement by failing to

make fringe benefit contributions in 1995 was supported by Hunter

Sr.'s credited testimony to that effect. Third, the finding of the Board

that Mason violated the Agreement by failing to participate in the

grievance process6 is supported by undisputed evidence that Mason

failed to send a representative to either of two hearings of which it

had notice regarding employee grievances. Finally, the finding of the

Board that Mason breached the Agreement by failing to recall Hunter

Jr. is supported by the explicit language of the contract and by undisputed testimony that Cummings recalled another employee to the

courthouse project instead of recalling Hunter Jr.

V.

Mason finally contends that the remedies assessed by the Board are

too broad. Because Mason failed to raise this issue before the Board,

however, we lack jurisdiction to consider it absent"extraordinary circumstances." 29 U.S.C.A. § 160(e); Woelke & Romero Framing, Inc.

v. NLRB, 456 U.S. 645, 665-66 (1982). Because Mason does not

argue that any such circumstances exist, we do not address this argument.

VI.

For the foregoing reasons, the order of the Board is enforced.

ENFORCED

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6 Section 8(d) provides that collective bargaining includes meeting in

good faith at reasonable times to resolve questions that arise under the

labor agreement. See 29 U.S.C.A. § 158(d) (West Supp. 1997); see also

United Steelworkers v. Warrior & Gulf Navigation Co. , 363 U.S. 574,

581 (1960) (explaining that "[t]he grievance procedure is ... a part of the

continuous collective bargaining process").

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