UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PB&S CHEMICAL, INCORPORATED,

Petitioner,

v. No. 96-1971

NATIONAL LABOR RELATIONS BOARD,

Respondent.

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v. No. 96-2065

PB&S CHEMICAL, INCORPORATED,

Respondent.

On Petition for Review and Cross-application

for Enforcement of an Order

of the National Labor Relations Board.

(6-CA-27107, 6-CA-27265)

Argued: April 9, 1997

Decided: August 26, 1997

Before HAMILTON and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Petition denied and enforcement granted by unpublished opinion.

Senior Judge Phillips wrote the opinion, in which Judge Hamilton and

Judge Motz joined.

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COUNSEL

ARGUED: C. Laurence Woods, III, WESTFALL, TALBOTT &

WOODS, Louisville, Kentucky, for Petitioner. Sharon I. Block,

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

Respondent. ON BRIEF: Matthew R. Westfall, WESTFALL, TALBOTT & WOODS, Louisville, Kentucky, for Petitioner. Frederick L.

Feinstein, General Counsel, Linda Sher, Associate General Counsel,

Aileen A. Armstrong, Deputy Associate General Counsel, Linda

Dreeben, Supervisory Attorney, NATIONAL LABOR RELATIONS

BOARD, Washington, D.C., for Respondent.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PHILLIPS, Senior Circuit Judge:

PB&S Chemical Company, Inc. (PB&S) has petitioned for review

of a decision by the National Labor Relations Board (NLRB or

"Board") finding it in violation of the National Labor Relations Act

(NLRA) for terminating two employees for refusing to cross another

company's employees' picket line. The NLRB has cross-petitioned

for enforcement of a final Board order issued against PB&S. We find

no error in the Board's decision and therefore deny the petition for

review and grant enforcement of the Board's order.

I

PB&S is a chemicals distribution concern, purchasing bulk chemicals, repackaging and selling them to various customers including

large industrial enterprises. With headquarters in Henderson, Kentucky, PB&S operates branches in Pennsylvania and West Virginia,

including Proctor, West Virginia, where Charles Beaver and Kenneth

Seagrave were employed as truck drivers. Beaver had been working

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for PB&S since 1982; Seagrave was hired in 1986. Beaver and Seagrave were supervised in Proctor by Charles Duncan, who was the

branch manager, and Ed Ankrom, who was the plant manager and

dispatcher and reported to Duncan. PB&S's employees were not represented by any labor organization for collective bargaining purposes.

In November 1994, PB&S drivers began making deliveries to a

Union Camp Company facility in Dover, Ohio. On December 8,

1994, Beaver witnessed an altercation between two Union Camp

employees while he was delivering chemicals to the Dover plant. The

two employees were evidently arguing about a labor-related issue,

with one supporting the labor position and the other defending the

management position. A pro-union employee approached Beaver and

asked for his name and address so that he might serve as a witness.

Beaver refused to cooperate. One of the "union people" then gave

Beaver his name, address and phone number to contact him, but Beaver threw the information away. That month, Beaver and Seagrave

learned that a strike was imminent at the Union Camp facility. They

spoke with Duncan and told him they did not want to cross any picket

lines established by Union Camp employees. Seagrave told Duncan

that he "did not feel it was right that [he] be put in a position with the

employees at Union Camp, but [he] had nothing directly involved

with them and that [his] personal safety was involved in it." Beaver

had emphasized to Duncan several times in relation to the imminent

Union Camp strike, that "[he] felt that they were dangerous, that [his]

life could be harmed and that . . . [he] didn't believe in messing with

another man's job." Beaver had previously refused to cross another

picket line and had not been disciplined then, and Seagrave testified

that Duncan had told the employees that they would not have to cross

Union Camp's line in the event of a strike. Duncan testified that he

warned them that PB&S's policy was to continue to make deliveries

unless there was "a real threat of violence."

The events of December 19 serve as the origins for this dispute.

Early that morning, Seagrave left Proctor to deliver chemicals to the

Union Camp facility. When he got within four blocks of the Dover

plant, at approximately 7:00 AM, a Union Camp employee called

Seagrave on his CB to tell him that a picket line had been set up and

to ask him not to cross it. Seagrave pulled into a nearby restaurant and

called Ankrom, telling him the strike was under way and that he

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would not cross the picket line. Ankrom asked him to remain in

Dover. When Duncan arrived at work soon thereafter, he called Union

Camp and was informed that trucks were entering and leaving freely.

A Union Camp official also called Seagrave to tell him that trucks

were entering and leaving the facility without incident, despite the

presence of the pickets. Seagrave steadfastly refused to make the

delivery, and called Duncan. Duncan told him that the Union Camp

officials would guarantee protection as he made his delivery, but Seagrave stated that he would not cross the picket line. In his subsequent

testimony Seagrave identified two reasons that he gave to Duncan that

day. First, while he might be protected while making the delivery,

"there was always the possibility of . . . going down the road ten or

fifteen miles and then a rock throw (sic) my windshield." JA 41. Also,

Seagrave explained that he would not make the delivery because "it

put [him] in a bad position with the employees up there." JA 41A.

Seagrave returned to Proctor without making the delivery.

That same morning, Beaver was preparing to make a trip from

Proctor to another PB&S facility in Nitro, West Virginia. Ankrom

told Beaver of Seagrave's refusal to cross the Union Camp picket

line, and Beaver responded that he thought that Duncan had declared

that he would tell the drivers of impending strikes at Union Camp

before they made their deliveries so as to avoid crossing the picket

lines. While Beaver was present, Ankrom also spoke to Duncan, who

said that he had spoken with PB&S's president and vice president and

that they had told Duncan that the deliveries must be made to Union

Camp, "or else." Duncan then turned to Beaver and asked whether he

knew where Union Camp's main gate was. Beaver responded that he

did, and Duncan stated, "So that's where you will be going in at." JA

47. Beaver said nothing at this time, but later testified that he understood Duncan's comment, in light of Beaver's previous refusals to

cross picket lines and conversations concerning Union Camp specifically, to be an ultimatum. Shortly after that brief discussion, Beaver

asked Ankrom whether he should clean his truck out that day or wait

until the next day to be fired. Ankrom did not respond, so Beaver

removed his belongings from his truck, turned in his keys and

demanded of Duncan that he be paid the money he had deposited in

his pension fund, observing that his relationship with PB&S had been

in effect terminated.

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When Seagrave returned to Proctor, he removed his belongings

from his truck and saw Duncan and Ankrom. Duncan's and Seagrave's accounts of that meeting varied widely. Duncan testified that

Seagrave was very angry, cursing Duncan and expressing fear of personal injury if he crossed the picket line. Seagrave testified that he

simply declared that he would not cross the picket line because it put

him "in a bad position with employees" and demanded to know

whether he was fired. Both agree that Duncan did terminate Seagrave,

though Duncan asserted it was because of his lack of cooperation in

resolving the situation and for his lack of respect in cursing him. Seagrave testified that Duncan fired him simply for failing to make the

delivery. Duncan's termination report form, completed that day, supports Seagrave's version in that it states that he was terminated for

"refus[ing] to make a delivery to a customer." JA 136.

Though Beaver had left the Proctor plant on the morning of

December 19, Ankrom called and asked him to return to discuss the

matter with Duncan. The three met that afternoon, and again the testimonial accounts of what then occurred vary. Duncan testified that he

asked Beaver to come back but that he would have to deliver chemicals to Union Camp, stating that it would be safe for him to do so.

Beaver refused, according to Duncan because he could not "risk being

hurt." JA 76. Beaver claims he reminded Duncan of his recent problems with the union at the Union Camp facility and that he had previously refused to cross a picket line the year before and had not been

disciplined. According to Beaver, Duncan responded that Beaver

should have been fired for that. JA 52. Beaver then asked what had

happened to Seagrave, and Duncan informed him that he had been

discharged. Beaver then stated that he considered himself terminated,

and Duncan retorted that Beaver instead had quit. Duncan's termination report stated that Beaver turned in his keys because he refused

to make the delivery to Union Camp and cross the picket line. JA 135.

In the wake of these incidents, the NLRB charged PB&S with

improperly terminating Beaver and Seagrave for engaging in activity

protected under § 7 of the National Labor Relations Act (NLRA), 29

U.S.C. § 157 (1994). Beaver, Seagrave, Duncan, and Ankrom testified at the ensuing hearing before an Administrative Law Judge

(ALJ). The ALJ expressly found more credible Seagrave's and Beaver's accounts of the events than Duncan's. JA 16, 19. On this basis,

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the ALJ then found that Seagrave and Beaver were terminated

because of their refusal to cross the Union Camp picket line. On the

assumption that, per the Board's position, such refusals are protected

activity under § 7 without regard to the refuser's motivation, the ALJ

concluded that PB&S had violated §§ 8(a)(3) and (1) of the NLRA,

29 U.S.C. §§ 158(a)(3) and (1) (1994), by terminating them for their

refusals. But, noting that some courts, including this court, consider

that motivation is relevant to whether a particular refusal is protected,

the ALJ as a measure of prudence addressed the evidence of motivation "in the event of review." JA 22. Doing so, the ALJ found that

"one of [their] concerns . . . was, clearly, their fear of being badly

injured" and that they indicated to PB&S management that this was

their "primary reason for refusing." But, the ALJ further found that

"both [employees] also wanted to avoid giving the appearance to

strikers of siding with management against the strikers" and "also

communicated this to . . . management, albeit less clearly." Id.

The NLRB, reviewing the ALJ's decision, essentially agreed with

the ALJ's critical findings of dual motivation, but reformulated them

to find "that both drivers were equally concerned with remaining neutral in the labor dispute and with their personal safety." JA 6. In support, the Board cited testimony in which both Beaver and Seagrave

stated that they told Duncan they did not want to be involved in the

Union Camp employees' dispute with management as indicating that

fear alone was not their reason. JA 5-6. On this basis, the NLRB concluded that Beaver and Seagrave were engaged in protected activity

within the meaning of § 7 of the NLRA. In so holding, the Board

expressly distinguished on its facts this case from NLRB v. Union

Carbide Corp., 440 F.2d 54 (4th Cir. 1971), in which this court had

held that an employee who refused to cross a picket line solely

because of fear for personal safety did not engage in protected activity

as defined by § 7.

These cross-petitions for review and enforcement followed.

II

On the issues joined in the petition and cross-petition, our decision

turns on the proper interpretation and application of our decision in

Union Carbide. In that case, we held that an employee's motivation

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for refusing to cross a picket line can determine whether it is "protected activity" under § 7.1 Specifically, we held that if fear alone is

the motivation, a refusal is not protected activity, id. at 56; that to be

protected, the refusal must have been done "as a matter of principle"

in support of other employees. Id. at 55.

Invoking these holdings, PB&S contends (1) that there was not

substantial evidence to support the Board's finding that the refusals

were motivated by anything but the employees' conceded fear of

physical injury, and (2) that, in any event, the other "equal" reason

found--a desire "to remain neutral"--is not one "of principle," hence

does not meet Union Carbide's test of protected activity.

We take these in turn.

A.

There is substantial evidence of the record that the employees had

and repeatedly identified "twin concerns of personal safety and noninvolvement" in explaining to Duncan why they refused to cross the

Union Camp picket line. JA 5. Seagrave testified that he had told

Duncan that crossing the line "put me in a bad position with the

employees and . . . I shouldn't be involved with what was going on

over there. That was between Union Camp and their employees." JA

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1 The NLRB argues that the Supreme Court implicitly overruled that

aspect of our Union Carbide decision in NLRB v. J. Weingarten, Inc.,

420 U.S. 251 (1975). There, in the context of determining whether an

employee "reasonably believes an investigation will result in disciplinary

action," the Court reaffirmed that "it would`reject any rule that requires

a probe of an employee's subjective motivations as involving an endless

and unreliable inquiry.'" 420 U.S. at 257 and 257 n.5 (quoting NLRB v.

Gissel Packing Co., 395 U.S. 575, 608 (1969)). Though other circuits

since have held that an employee's motivation not to cross a picket line

is irrelevant to the refusal's status as "protected activity" see NLRB v.

Mike Yurosek & Son, Inc., 53 F.3d 261, 266 (9th Cir. 1995); Dreis &

Krump Mfg. Co., Inc. v. NLRB, 544 F.2d 320, 328 n.10 (7th Cir. 1976),

we do not believe that Weingarten's rejection of motivational inquiry in

the quite different context there involved so clearly undercuts Union

Carbide's continued authority on that point in this circuit that we must

consider it overruled to that extent.

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35. On the morning of December 19, when Seagrave told Duncan he

would not cross the line after Duncan told him it was safe to do so,

Seagrave said that he still "didn't feel right about it." JA 38. After

Duncan tried to convince Seagrave that it was safe to make the delivery once Seagrave had returned to Proctor, Seagrave maintained that

he would not cross the line not only because he thought it was unsafe

but because it "put [him] in a bad position with the employees up

there." JA 41A. Similarly, Beaver had made clear that he would not

cross another picket line in 1993, without mentioning his personal

safety, and had told Duncan several times before the Union Camp episode that he would not cross picket lines because"[he] didn't believe

in messing with another man's job." JA 55. Admittedly, Beaver also

had told Duncan about the December 8 incident at Union Camp and

that he was concerned about retaliatory acts by union members there,

and that he believed crossing picket lines to be dangerous. JA 54-55.

Nevertheless, the record is replete with evidence that supports the

Board's determination that both Beaver and Seagrave were substantially motivated by a desire to remain neutral in the Union Camp

strike in their resolution not to cross the picket line.

Our conclusion on this point is not swayed by PB&S's contention

that we must review this dual motive finding of the Board with "special scrutiny" because it conflicts with the ALJ's opinion. See

Weather Shield Mfg., Inc. v. NLRB, 890 F.2d 52, 57 (7th Cir. 1989).

Universal Camera long ago made clear that "the `substantial evidence' standard is not modified in any way when the Board and its

examiner disagree." Universal Camera Corp. v. NLRB, 340 U.S. 474,

496 (1951). Courts properly have recognized that Board decisions

might be viewed with more suspicion when they ignore the credibility

determinations of ALJs who, unlike the Board, are able to observe

witnesses. Universal Camera, 340 U.S. at 496-97; Blackburn v.

Martin, 982 F.2d 125, 128 (4th Cir. 1992); Weather Shield, 890 F.2d

at 57. Here, however, the Board explicitly adopted the ALJ's credibility determinations as to the critical historical facts, and simply drew

a slightly different inference than did the ALJ as to the nature of the

dual motivation which both agreed drove the employees' conduct.

B.

PB&S's alternative contention is that even if the Board's finding

that an equal reason for the employees' conduct was a desire to "re-

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main neutral" in the Union Camp labor dispute is upheld, that reason

does not suffice under Union Carbide to make their refusal to cross

the picket line protected activity. Union Carbide, says PB&S, requires

that to be protected activity, such a refusal must be motivated by a

principled purpose to give aid to the striking picketers, and "remaining neutral" is not action "in principle."

The NLRB has two responses. First, that this contention, not having been raised before the Board, may not be raised for the first time

in this court on a petition for review. Second, that, on the merits, it

fails; an employee's refusal to cross other workers' picket line out of

a desire to remain neutral is necessarily action"on principle" since it

necessarily benefits the picketers over management.

We agree with the NLRB that PB&S is precluded from raising this

issue for the first time on their petition for review in this court. Section 10(e) of the NLRA, which defines the jurisdiction of courts of

appeals in review of Board decisions, provides:

No objection that has not been urged before the Board, its

member, agent, or agency, shall be considered by the court,

unless the failure or neglect to urge such objection shall be

excused because of extraordinary circumstances.

29 U.S.C. § 160(e)(1994).

This provision acts as a jurisdictional limitation on our review

powers that can only be avoided by the showing of extraordinary circumstances for the procedural default. Woelke & Romero Framing,

Inc. v. NLRB, 456 U.S. 645, 666 (1982); see also NLRB v. Daniel

Constr. Co., 731 F.2d 191, 198 (4th Cir. 1984). PB&S claims excuse

here because, it contends, the finding of "remaining neutral" as a

motivation only occurred in the Board's decision, so that PB&S had

no fair opportunity to urge its objection to this as a legal ground,

either before the Board or earlier in the adjudicatory process. We

reject this on two grounds. Most directly, because it was possible,

even if this finding did first appear in the Board's decision, for objection to have been made by a motion for reconsideration by the Board.

See International Ladies' Garment Workers' Union v. Quality Mfg.

Co., 420 U.S. 276, 281 n.3 (1975). Secondarily, because we doubt, in

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any event, the accuracy of the suggestion that, for purposes of evoking a legal objection, this finding of an added motive to that of fear

only first appeared in the Board's decision. Though the ALJ had

noted his understanding that under the NLRB's legal position the

question of motivation--any motivation--was irrelevant to whether

a refusal to cross a picket line was protected activity, he nevertheless

had made express findings of the motivation he attributed to these

employees. It was--though in language that did not employ the "remain neutral" term used by the Board--essentially the same dual

motivation. To repeat, as the ALJ put it: "One of[their] concerns . . .

was, clearly . . . their fear of being badly injured" but, he added, "both

. . . also wanted to avoid giving the appearance to strikers of siding

with management against the strikers." JA 22. Before the Board,

PB&S did not contend that this additional motive was not one which,

under Union Carbide, could not properly be considered one "of principle," but only that there was not substantial evidence to support it,

there being only supportable evidence of fear. The Board's finding

essentially simply transmuted, though concededly with more precision, the ALJ's finding of a motive of desiring to"avoid giving the

appearance . . . of siding with management" into one of wanting to

"remain neutral."

We agree with the NLRB that under § 10(e), PB&S's failure at any

point in the agency adjudicatory process to raise this purely legal

issue, precludes our consideration of it.2 

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2 In view of this disposition, we need not address the NLRB's alternative contention that, within Union Carbide (assuming its continued vitality) acting out of a desire to "remain neutral" in other workers' labor

disputes with management, is indeed action "on principle." Though we

do not consider it an inflexible rule, we are generally wary of resting

decision on alternative procedural default and merits grounds. We

believe it appropriate, however, to observe that were the defaulted objection here one of error so manifest that positive injustice would result

from failing to consider it, we might well be disposed to excuse the

default as, for that reason, one involving "extraordinary circumstances"

under § 10(e). It suffices here to say that the Board's "remain-neutral"

holding is surely not of that nature. The maintenance of employee neutrality as to other issues in labor disputes has been found in those other

contexts to be "protected activity" under§ 7. See NLRB v. Harrison Steel

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III

We therefore deny PB&S's petition for review and grant enforcement of the Board's order.

SO ORDERED

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Castings Co., 728 F.2d 831, 835 n.6 (7th Cir. 1984) (holding that a discharge "designed to coerce employees into taking either a pro-union or

anti-union stand" violated the NLRA); Texaco, Inc. v. NLRB, 700 F.2d

1039, 1043 (5th Cir. 1983) (observing that "[t]he NLRA clearly gives

workers the right to express an opinion or to remain silent regarding

strikes and other valid union activity"). We can reserve for another day

when it is properly presented, the "remain-neutral-as-act-of-principle"

issue sought belatedly to be raised by PB&S.

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