UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-1340

BARDON, INC., d/b/a Aggregate Industries,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent,

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP 

BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO, CLC,

 Intervenor.

No. 22-1421

NATIONAL LABOR RELATIONS BOARD,

 Petitioner,

INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP 

BUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO, CLC,

 Intervenor,

v.

BARDON, INC., d/b/a Aggregate Industries,

 Respondent.

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On Petition for Review and Cross-Application for Enforcement of an Order of the National 

Labor Relations Board. (05-CA-248026)

Argued: October 25, 2023 Decided: January 8, 2024

Before DIAZ, Chief Judge, THACKER, Circuit Judge, and Julie R. RUBIN, United States 

District Judge for the District of Maryland, sitting by designation. 

Petition for review denied and cross-application for enforcement granted by unpublished

per curiam opinion.

ARGUED: Terrence J. Miglio, BUTZEL LONG, PC, Ann Arbor, Michigan, for 

Petitioner/Cross-Respondent. Brady John Francisco-FitzMaurice, NATIONAL LABOR 

RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. ON BRIEF: 

Barbara E. Buchanan, Joseph E. Richotte, Blake C. Padget, BUTZEL LONG, P.C., Troy, 

Michigan, for Petitioner/Cross-Respondent. Usha Dheenan, Supervisory Attorney, 

Matheus Teixeira, Jennifer Abruzzo, General Counsel, Peter Sung Ohr, Deputy General 

Counsel, Ruth E. Burdick, Deputy Associate General Counsel, David Habenstreit, 

Assistant General Counsel, NATIONAL LABOR RELATIONS BOARD, Washington, 

D.C., for Respondent/Cross-Petitioner. Brandon E. Wood, BLAKE & UHLIG, P.A., 

Kansas City, Kansas, for Intervenor.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Bardon, Inc., a division of Lafarge Holcim U.S., d/b/a Aggregate Industries 

(“Petitioner”), petitions for review of a decision and order of the National Labor Relations 

Board (the “Board”) finding that Petitioner engaged in unfair labor practices, in violation 

of sections 8(a)(1) and (3) of the National Labor Relations Act (“NLRA”). The Board 

determined that Petitioner had coerced employees in the exercise of their right to engage 

in protected union activity and improperly terminated an employee in violation of sections

8(a)(1), (3) of the NLRA. 

Petitioner contends that the Board’s order is not supported by substantial evidence 

in the record, particularly where the anti-union statements at issue are too vague and 

inconsequential to amount to anti-union animus and the employee at issue was terminated 

as a result of a safety violation. Petitioner also avers that the Board exceeded its authority 

pursuant to section 10(c) of the NLRA when it ordered Petitioner to reinstate the 

wrongfully terminated employee. In turn, the Board asks this court to affirm its decision 

and order in full. 

Because substantial evidence in the record supports the Board’s decision and order, 

we deny the petition for review and grant enforcement of the Board’s order. 

I.

A. 

1.

Petitioner operates approximately 225 facilities in the United States, including a 

quarry facility in Millville, West Virginia (the “Millville Facility”) where it mines, crushes, 

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and sizes rock. The Millville Facility covers several acres and includes 30 conveyor belts. 

These conveyor belts are up to 300 feet in length, and the machinery that drives them is 

powerful enough to create a risk of serious, potentially fatal, injury. At the Millville 

Facility, Petitioner employs approximately 50 individuals, 37 of whom are hourly 

employees. 

This appeal involves Petitioner’s actions leading up and subsequent to a successful 

vote by the Millville Facility employees to be represented by the International Brotherhood 

of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL–CIO, CLC 

(the “Union”). 

Most pertinent to this case are the second shift Millville Facility employees, 

including Jose Molina (“Molina”), a maintenance mechanic who led the Union campaign. 

At the relevant time, Molina had been employed with Petitioner for 16 years. Second shift 

employees Moris Alberto (“Alberto”), a maintenance mechanic who had worked for 

Petitioner for four years, and Thomas Johns (“Johns”), an 18-year-old truck driver who 

was newly employed by Petitioner, also supported the Union, but not openly. The only 

supervisor on the second shift during the relevant time was Curtis Mills (“Mills”), who had 

held that position for 15 years. His son, C.W. Mills (“C.W.”), was the lead mechanic for 

the third shift. The highest ranking official at the Millville Facility was plant manager 

Andrew Wright (“Wright”), who began working for Petitioner in February 2019. 

2.

Prior to 2019, Petitioner’s hourly employees had unsuccessfully attempted to 

unionize the Millville Facility on multiple occasions. On June 5, 2019, the Union made 

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another attempt to represent the hourly employees at the Millville Facility. Molina led the 

Union campaign by distributing pro-union literature and union authorization cards to 

coworkers, collecting signed cards, and inviting coworkers to offsite Union meetings. 

In response to the petition to unionize, Pat Lane (“Lane”), the director of labor 

relations for Lafarge Holcim U.S., met with Millville Facility managers and supervisors to 

strategize about Petitioner’s response to the Union campaign. As a result, Petitioner began 

holding mandatory meetings for employees during each of the three work shifts to 

campaign against the Union. These mandatory meetings were led by plant manager 

Wright, regional operations manager James Bottom (“Bottom”), and regional human 

resources manager Terri Collins (“Collins”). 

Managers also held one-on-one meetings with employees to discuss the Union 

petition. For instance, Bottom met individually with Molina, Alberto, and Johns for 

between 15 minutes and 1.5 hours each. Molina testified that Bottom asked him “about 

what kind of problems we [were] having at work” and why the employees “wanted the 

Union in.” J.A. 202.1

 Despite Bottom’s promises to address Molina’s concerns, Molina 

responded, “[E]very time . . . that a union tries to come in, [Petitioner] makes a bunch of 

promises, and nothing gets done.” Id. Alberto testified that when Bottom met with him, 

Bottom asked him how he intended to vote in the Union campaign, but Alberto did not 

divulge his vote. Johns testified that while he was working the night before the Union 

election, Bottom entered the vehicle he was operating and accompanied Johns for up to 1.5 

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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hours. During that time, Bottom asked Johns how he “felt about the Union” and whether 

he knew anybody in a union. J.A. 498–99. Johns also recounted that during this 

conversation, Bottom stated that the Union would take salary, vacation time, and retirement 

account funds from employees.

Wright also met separately with each of the hourly employees two or three times to 

campaign against the Union. During a meeting with Molina, Wright tried to persuade 

Molina there was no need for the Union if Molina would give him “a chance” to improve 

the Millville Facility. J.A. 83. Molina responded by complaining about Mills’ conduct as 

a supervisor. Molina told plant manager Wright that Mills showed unfair favoritism and 

required employees to perform tasks in an unsafe manner. After this conversation, and 

prior to the Union representation election, Wright told Mills about Molina’s criticism of 

him. During the Union campaign, Molina also expressed his complaints about Mills to 

human resources manager Collins.

Prior to the Union election, Mills told Molina, Alberto, and third shift employee 

Timothy Rutherford (“Rutherford”) that he knew that Molina and the second shift 

employees were the “troublemaker[s]” “carrying the train” for the Union. J.A. 597, 599. 

And in the week before the Union election, Mills told the employees that “he only had to 

be nice [to them] for one more week.” J.A. 385.

3.

On June 27, 2019, the Millville Facility held the Union representation election. The 

employees voted in favor of Union representation and, by the end of that day, Mills, 

Wright, and Lane were aware of the result. 

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The following day, June 28, Molina and Alberto were the maintenance mechanics 

working on the second shift. Johns was also on duty. Mills instructed Molina and Alberto 

to repair a conveyor belt that had gotten off track. With 20 years of experience between 

them, both Molina and Alberto were well accustomed to repairing belts at the Millville 

Facility. Per industry standards, if it is not possible to align the belt with “less involved 

approaches” such as “tapping the rollers along the length of the belt” or “turning the 

adjustment bolt . . . that drives the belt,” the mechanics must “remove [the] metal safety 

guards that screen the tail pulley assembly” in order to make the repair. J.A. 1701. These 

safety guards “create a cage around the mechanism” that prevents employees from placing 

their hands within the area where the moving parts can cause serious or fatal injury. Id.

When Molina and Alberto attempted to track the belt, their less invasive approaches 

were unsuccessful, so Molina informed Mills that the repair would take longer than 

expected and would require the employees to “get in the tail section.” Id. Although his 

shift had not started, C.W. approached the repair area where Molina and Alberto (as well 

as Johns who had come to offer assistance) were working. C.W. observed that the 

employees had removed the safety guards without “lock[ing] out” the belt. Id. 

Locking out (or LOTOTO) is part of Petitioner’s corporate-wide health and safety 

management policy. After turning off the power supply to the equipment being repaired, 

locking out requires an employee to: (1) lock out the power supply by placing a lock on 

the appropriate breaker in the breaker room to secure it in the “off” position; (2) tag out the 

lock by placing a tag on the lock that lists the employee’s name; and (3) try out the 

equipment to confirm it is de-energized by asking the plant operator to try running the 

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equipment. The policy identifies violations of Petitioner’s lockout protocol as being among

the more serious of two categories of misconduct and states that such a violation can “result 

in immediate disciplinary action up to, and including, separation of employment.” J.A. 

1305. 

Upon observing the lack of lockout procedure by Molina, Alberto, and Johns, C.W. 

called Mills to report that the three employees were working on the belt without locking it 

out. But instead of going straight to the repair area to address the situation, Mills went to 

the breaker room some distance away and took a photograph showing that the breaker for 

the conveyor belt was not locked out. Mills took the photograph at 9:04pm. Mills then 

drove to the area where the work was being performed, and at 9:08pm, Mills photographed 

the employees working on the belt without locking it out. After being approached by Mills, 

Molina and Alberto locked out the belt. Mills discussed the matter with C.W., who then 

contacted Wright by text message to inform him about the incident. Wright responded that 

Mills should “handle” it. J.A. 1702. Mills subsequently texted Wright and provided him 

with the photographs he had taken. Wright told Mills to “document everything.” Id. That 

day or the following day, Wright contacted his superior, regional operations manager 

Bottom, to discuss the lockout violation. 

4.

The following morning, June 29—two days after the Union representation vote—

Petitioner suspended Molina, Johns, Mills, and C.W., pending investigation into the 

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lockout violation.2

 Petitioner assembled a local team to investigate the June 28 alleged 

lockout violation. The investigation team included Wright, Collins, and Jeffrey Harmon 

(“Harmon”) (regional manager for health and safety). The local investigation team 

reported to a corporate review team (“CRT”) made up of Lane, Collins, and three other 

corporate officials (the director of safety for Lafarge Holcim U.S., the general manager for 

Petitioner’s mid-Atlantic region, and Petitioner’s in-house legal counsel). 

After conducting two rounds of interviews, the local investigation team 

recommended to the CRT that Molina, Alberto, and Johns all be terminated. The CRT 

agreed with that recommendation. Collins came to the Millville Facility on July 12 and 

notified Molina, Alberto, and Johns that they were terminated effective immediately. All 

three termination letters included the following language:

The Company has taken this action because you violated the 

Company Safety Standards for Machine Guarding and Lock 

Out – Tag Out – Try Out (LOTOTO) when you removed 

guards from the M25 Conveyor Belt and were attempting to 

perform repairs without first locking out the equipment 

properly; thus placing you and others at risk for serious injury 

or death. 

J.A. 1703. Johns’ termination letter also explained that Johns’ termination was additionally 

based on the conclusion that Johns “provided false information during an investigation into 

2 Petitioner did not initially suspend Alberto. But when Alberto’s role in the repair 

later came to light, he was also suspended pending the investigation. 

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the matter, which violates both our incident reporting protocols and our major work rules 

for honesty.”3

 Id.

B.

Acting on an unfair labor practice charge filed by the Union, the Board’s General 

Counsel filed a complaint (the “Complaint”) alleging that Petitioner violated sections 

8(a)(1) and (3) of the NLRA by threatening and interrogating employees, creating the 

impression that employees’ Union activities were under surveillance, and discharging 

Molina in order to discourage Union membership.4

 An employer violates section 8(a)(1) 

of the NLRA if “under all of the circumstances, the employer’s conduct . . . reasonably 

tend[s] to coerce or intimidate employees” in the exercise of their protected rights. NLRB 

v. Grand Canyon Mining Co., 116 F.3d 1039, 1044 (4th Cir. 1997). “Section 8(a)(3) makes 

it an unfair labor practice for an employer to discriminate ‘in regard to hire or tenure of 

employment to encourage or discourage membership in any labor organization.’” Salem 

Leasing Corp. v. NLRB, 774 F.2d 85, 87 (4th Cir. 1985) (per curiam) (quoting 29 U.S.C. 

§ 158(a)(3)). 

3 After hearing his testimony, the ALJ determined that Johns had, during an 

interview with the local investigation team, falsely stated that he had not helped with the 

June 28 repair. In a later interview, and again under oath during trial, Johns admitted that 

he initially made false statements to Petitioner regarding his role in the repair. 

4 Although the Complaint also alleged that Petitioner discharged Alberto and Johns 

in violation of NLRA section 8(a)(3), those allegations have been resolved by a partial 

settlement agreement and are not at issue in this appeal. 

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In January 2021, the parties appeared before the ALJ for an evidentiary hearing on 

the merits. C.W. was called by Petitioner as a witness. Prior to the hearing, C.W. twice 

met with Lane and Petitioner’s trial attorneys to prepare C.W.’s testimony. During the 

initial meeting, C.W. was asked about “sides” of the Union campaign, “[l]ike who they 

thought like was Union sides or like Company sides or . . . who associate [sic] with who.” 

J.A. 779–80. During the second meeting, he was asked, “just pretty much like who I 

thought was [on] what side.” J.A. 782–83. At trial, C.W. testified that he did not recall 

Petitioner’s attorneys telling him he was not required to participate in the meetings or 

reassuring him that Petitioner would not retaliate against him if he decided not to 

participate. As a result, the Board’s General Counsel amended the Complaint to allege 

that, in preparation for trial, Petitioner improperly interrogated employees about Union 

memberships, activities, and sympathies. 

Following the evidentiary hearing, the ALJ held that Petitioner violated sections

8(a)(1) and (3) of the NLRA. The ALJ determined that Petitioner violated section 8(a)(1) 

when Mills told the second shift employees the “office” knew they were the 

“troublemaker[s]” behind the Union campaign and that Mills “only had to be nice [to them] 

for one more week.” J.A. 1710–12. The ALJ found the testimonies of Molina, Alberto, 

and Rutherford credible as their recollection of Mills’ statements was “clear, certain, and 

generally corroborative of one another.” J.A. 1698 Specifically, the ALJ found that despite 

the employees’ stake in the litigation, their testimony regarding Mills’ menacing statements 

about the Union petition and election were more compelling than Mills’ “exaggerated” and 

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inconsistent denials of the same. Id. The ALJ concluded Mills’ statements amounted to 

anti-union animus. 

The ALJ also held that Petitioner violated section 8(a)(1) by improperly 

interrogating employees about Union affiliations on at least two occasions. First, the ALJ 

concluded that Bottom’s one-on-one meeting with Johns in his truck during his work shift 

prior to the Union election constituted a coercive interrogation considering the difference 

in authority between Bottom, as regional manager, and Johns, a new hourly employee who 

was only 18 years old and working his first job at the time of the interview. The ALJ noted

additional support for the coerciveness of the interview, including: (1) the fact that Johns 

could not leave the conversation as Bottom had conducted the interview while riding in the

vehicle Johns was operating at work; (2) the length of the interview, which lasted as long 

as 1.5 hours; and (3) that Bottom failed to provide Johns any assurance that the questions 

were benign and he would not be retaliated against by Petitioner. And the ALJ held that 

Petitioner violated section 8(a)(1) when it questioned C.W. about the “Union sides” at the 

Millville Facility. J.A. 1709. 

Regarding Molina’s lockout violation, the ALJ held that Petitioner violated 

section 8(a)(3) by terminating Molina because he engaged in pro-Union activities. The 

ALJ found prima facie evidence that Molina’s termination was motivated by anti-union 

animus. The ALJ pointed out that the timing of Molina’s termination, which began with 

his suspension two days after the Union vote, provided strong evidence of animus. The 

ALJ also relied on Mills’ statements that the second shift employees were the 

“troublemaker[s]” behind the Union campaign and that he only had to be nice for one more 

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week solidified that Molina’s termination, which began with Mills’ report of the lockout 

violation, violated the NLRA. 

The ALJ then found that Petitioner failed to show that absent any anti-union animus, 

it would have terminated Molina anyway. The ALJ reasoned that Petitioner subjected 

Molina to disparate treatment by using its lockout policy as grounds for his termination 

when it had not previously terminated any employee at the Millville Facility for a lockout 

violation. Based on the evidence, the ALJ concluded, “prior to the Molina incident, 

[Petitioner] did not discipline employees at the Millville [F]acility for failing to lock out 

equipment before removing guards” despite the official lockout policy. J.A. 1705. In 

contrast, the record revealed that prior to the Union election supervisors actually 

encouraged employees to skip lockout protocols because they were under pressure to 

increase production. 

The ALJ found that James Osborne (“Osborne”), a plant operator, credibly testified 

that before Molina’s firing, “if a supervisor caught you with no lock on, he’d just tell you 

to go put a lock on and it was over with. That’s between you and the supervisor. . . . [T]here 

wasn’t nothing done about it.” J.A. 417–18. As a plant operator, Osborne was one of the 

employees who would try out the machines after they were locked out to make sure they 

were de-energized. Osborne testified that historically locking out was not a “zerotolerance” policy at the Millville Facility. J.A. 418. In further support of Petitioner’s lack 

of enforcement of its lockout policy, Osborne testified that another violation occurred three 

weeks after Molina’s incident, but when Osborne reported this incident to C.W., C.W. was 

“unconcerned.” J.A. 1707. In that instance, it took Osborne reporting the violation to a 

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supervisor for the LOTOTO policy to be enforced. Based on this evidence, the ALJ held 

that Petitioner fired Molina because of his Union activities. 

Petitioner appealed the ALJ’s findings to the Board. The Board adopted the findings 

and concluded that Petitioner violated section 8(a)(1) of the NLRA by intimidating the 

second shift employees prior to the Union representation vote by making threats of 

retaliation and holding coercive interrogations. The Board further found that Petitioner 

violated section 8(a)(3) by terminating Molina for concerted activity and rejected 

Petitioner’s defense that it would have fired Molina anyway because he violated lockout.

Regarding Molina’s termination specifically, the Board concluded that the General 

Counsel proved Molina was engaged in protected Union activity and that Petitioner’s 

decision to terminate him was motivated by anti-union animus. The Board accepted the 

ALJ’s findings that the following facts supported a finding of anti-union animus: Mills’ 

threatening statements prior to the Union election, Molina’s firing coming close in time 

following the successful Union election, and the enforcement of the LOTOTO policy 

against Molina when it had not previously been grounds for termination at the Millville 

Facility. The Board further held that Petitioner failed to meet its burden to prove that it 

would have discharged Molina regardless of his Union activities. Based on these 

violations, the Board ordered that Petitioner reinstate Molina and provide backpay for any 

loss of earnings and other benefits. 

Petitioner petitioned this court for review of the Board’s decision and order. And 

the Board cross-petitioned for full enforcement of its order. 

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II.

Our review of the Board’s order “is limited, as we must uphold the [Board’s] 

findings of facts if they are supported by substantial evidence, considering the record as a 

whole.” Tecnocap, LLC v. NLRB, 1 F.4th 304, 312 (4th Cir. 2021) (internal quotation 

marks omitted). “Substantial evidence” means “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Grand Canyon Mining, 116 F.3d 

at 1044. It is “more than a scintilla of evidence, but less than a preponderance.” Sinai 

Hosp. of Balt., Inc. v. NLRB, 33 F.4th 715, 722 (4th Cir. 2022). “Under this standard, we 

can’t displace the [Board’s] choice between two fairly conflicting views of the evidence.” 

S.C. State Ports Auth. v. NLRB, 75 F.4th 368, 378 (4th Cir. 2023). 

We will also uphold the Board’s legal interpretations of the NLRA if they are 

“rational and consistent with the Act,” even if the Board’s reading is not “the best way to 

read the statute.” Id. 

“Reviewing courts owe deference to factual findings, assessing them only to 

determine whether they are supported by substantial evidence.” Eldeco, Inc. v. NLRB, 132 

F.3d 1007, 1011 (4th Cir. 1997). “In conducting our review, we consider the entire record 

before us, including the ALJ’s recommendation” and any contrary evidence. Blackburn v. 

Martin, 982 F.2d 125, 128 (4th Cir. 1992) (citing Universal Camera Corp. v. NLRB, 340 

U.S. 477, 488 (1951)). When factual findings “rest upon credibility determinations,” we 

accept them absent “exceptional circumstances.” Eldeco, 132 F.3d at 1011 (“Exceptional 

circumstances include cases where a credibility determination is unreasonable, contradicts 

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other findings of fact, or is based on an inadequate reason or no reason at all.” (internal 

quotation marks omitted)).

III.

A.

The Board held that Petitioner violated section 8(a)(1) of the NLRA on four 

grounds: (1) threatening reprisal for protected activity; (2) creating a coercive impression 

of surveillance; (3) interrogating employees regarding their Union support; and 

(4) improperly questioning C.W. during trial preparation. We address each violation in 

turn. 

1.

Petitioner argues Mills’ statements leading up to the Union representation vote were 

too vague and ambiguous to amount to a violation of section 8(a)(1), but we conclude the 

Board properly held that Mills made threats of reprisal. 

An employer violates § 8(a)(1) by threatening reprisals against employees for 

exercising rights guaranteed under section 157 of the NLRA. Equitable Gas Co. v. NLRB, 

966 F.2d 861, 866 (4th Cir. 1992). This test is objective—“It makes no difference whether 

the language or acts were coercive in actual fact,” nor “does it matter whether the employer 

acted with anti-union animus.” Consol. Diesel Co. v NLRB, 263 F.3d 345, 352 (4th Cir. 

2001) (internal quotation marks omitted). “Rather, the salient inquiry is whether the 

conduct may reasonably tend to coerce or intimidate employees.” Alton H. Piester, LLC 

v. NLRB, 591 F.3d 332, 336 (4th Cir. 2010) (internal quotation marks omitted). Because 

“[d]eterminations concerning tendency to coerce are essentially for the specialized 

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experience of the Board,” we “grant considerable deference to the Board’s decisions on 

such matters.” Id. (internal quotation marks omitted). 

Substantial evidence supports the conclusion that Petitioner’s employees would 

have reasonably understood Mills’ statements that they were “troublemaker[s]” and he 

“only had [to] be nice for one more week” as threats of unspecified reprisal. J.A. 1712. 

When considering the parties’ conflicting perspectives of Mills’ comments, the ALJ 

reasoned that these statements, “standing alone, communicate[] that the employer 

considers them undesirable employees because they exercised their statutorily protected 

rights.” Id. (citing Corliss Resources, Inc., 362 NLRB 195, 195–96 (2015) (concluding 

that “backstabbers” statement amounted to threat of reprisal)). We agree. 

Mills’ statement that he “only had [to] be nice for one more week” implied future 

retribution against the employees. J.A. 1712. When examining the evidence, the ALJ 

emphasized, “A reasonable employee would see this remark as a threat especially since, 

immediately after the election, Curtis Mills instigated the investigation that led to 

‘troublemaker’ Molina being terminated after 16 years of virtually unblemished 

performance as an employee.” Id. Again, we agree.5

5 Petitioner argues that Rutherford’s testimony that Mills called Molina a 

troublemaker in the fall of 2018 does not support the complaint’s accusation that this 

occurred in “[a]bout June 2019,” J.A. 1224. Petitioner mischaracterizes Rutherford’s 

testimony. Rutherford testified that “[i]t may have been both,” and said in his affidavit that

the statements occurred “[o]ver the months from 2018 leading up to the election.” J.A. 

358. Petitioner does not point to any authority to show why such testimony does not fit 

into the complaint’s accusation.

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Additionally, Petitioner challenges the ALJ’s conclusion that the employees’ 

accounts of the events leading up to the Union vote were more credible than those of Mills 

and Bottom. The ALJ is uniquely situated to make credibility determinations, Eldeco, 132 

F.3d at 1011, and the ALJ’s determination in this regard is accorded substantial deference, 

absent exceptional circumstances. Sam’s Club v. NLRB, 173 F.3d 233, 240 (4th Cir. 1999) 

(“Exceptional circumstances include those instances when a credibility determination is 

unreasonable, contradicts other findings of fact, or is based on an inadequate reason or no 

reason at all.” (internal quotation marks omitted)). The ALJ closely considered each 

witness’s testimony and detailed why the employees were more credible than Petitioner’s 

witnesses. For instance, the employees generally corroborated each other’s testimony of 

Mills’ anti-union statements. Moreover, the ALJ did not blindly accept the employees’ 

testimony but instead disregarded their testimony where it was vague or inconsistent with 

the record. And to the extent that Petitioner points to inconsistencies in the record to 

undermine the ALJ’s credibility findings, it fails to make out exceptional circumstances

warranting reversal. Thus, the ALJ’s credibility findings are reasonable based on the 

record before us. 

2.

The Board’s conclusion that Petitioner violated section 8(a)(1) by creating a 

coercive impression of surveillance is likewise supported by substantial evidence. 

An “employer’s observation of union activities can be reasonably construed as 

excessive or coercive surveillance [where] it unreasonably chill[s] the exercise of the[] 

employees’ Section 7 rights.” Intertape Polymer Corp. v. NLRB, 801 F.3d 224, 235 (4th 

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Cir. 2015) (quoting NLRB v. Southern Md. Hosp. Ctr., 916 F.2d 932, 938 (4th Cir. 1990) 

(per curiam)). The question is whether the statements have a reasonable tendency to 

intimidate. Id. 

Here, Mills created the impression that employees’ Union activities were being 

monitored when he told them that the “office” knew the second shift employees were the 

“troublemaker[s]” behind the Union campaign. J.A. 1698. It would be reasonable for the 

second shift employees to conclude that their Union activities had been under surveillance 

“since they were holding their union meetings off-site and a number of the [second] shift 

employees to whom the remarks were made had been circumspect about revealing their 

views.” J.A. 1711. 

3.

The Board also appropriately held that Petitioner improperly interrogated 

employees about their Union affiliations prior to the successful Union election. But 

Petitioner argues that the ALJ improperly applied a subjective standard, which was in turn 

adopted by the Board, when analyzing whether Petitioner’s interrogation of employees 

regarding their Union support violated section 8(a)(1). 

“Interrogation violates § 8(a)(1) only if it tends to coerce.” Standard-CoosaThatcher Carpet Yarn, Inc. v. NLRB, 691 F.2d 1133, 1139 (4th Cir. 1982). In determining 

the coerciveness of questioning or interrogation of employees about their Union 

sentiments, we consider the totality of the circumstances, “including the history of 

employer hostility to the union, the nature of information sought, the identity of the 

questioner, and the place and method of questioning.” Intertape Polymer, 801 F.3d at 231 

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(internal quotation marks omitted). We also consider whether the questioner “explained 

the purpose of [the] question” or provided “any assurances against retaliation,” and 

“whether the employee was reluctant to discuss unionization.” Id. (citations omitted). The

standard is objective, see PPG Indus., Inc., 351 NLRB 1049, 1053 (2007). With respect 

to Bottom’s interview of Johns, Johns was a new, young hourly employee being questioned 

by Bottom, a regional level official. Johns testified that while he was operating a loader 

vehicle the night before the election, Bottom entered the vehicle and accompanied Johns 

for up to 1.5 hours. Johns testified that Bottom asked him how he “felt about the Union.” 

J.A. 1699. The ALJ, and therefore the Board, did not err by considering whether an 

employee of Johns’ level would feel coerced by a high-level official like Bottom in this 

circumstance. Stoody Co., 320 NLRB 18, 18 (1995) (“The questioning of an employee 

about his union sentiments by a high level supervisor in his office immediately after a 

confrontation which led to discipline, with no proper reason or assurances given concerning 

the questioning, reasonably tends to restrain, coerce, or interfere with statutory rights.”).

Further, in weighing Bottom’s testimony against that of the employees, the ALJ 

detailed why Bottom’s version strained credibility. The ALJ noted, “[W]hile [Bottom 

denied] that he asked employees how they were going to vote, [he] also stated that 75 

percent of the employees he talked to . . . volunteered that they would vote against 

unionizing.” J.A. 1699. The ALJ found it “improbable . . . that so high a percentage of 

employees would reveal their voting intentions to Bottom without even being asked.” Id. 

In fact, “attempts to conceal union support weigh in favor of finding an interrogation 

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unlawful.” Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1182 (2011). Further, there was 

no corroboration of Bottom’s account of the interviews. 

Again, on review, the ALJ’s credibility determinations are reasonable, and there are 

no “extraordinary circumstances” that support disturbing them. Eldeco, 132 F.3d at 1011.

4.

Finally, Petitioner argues that the Board lacked substantial evidence to find that 

Petitioner improperly interrogated C.W. during trial preparation. Again, the record 

supports the Board’s finding that Petitioner failed to provide the requisite safeguards while 

interviewing employees in preparation for trial, in violation of NLRA section 8(a)(1). 

Especially in the pretrial context, “a significant risk of coerciveness arises when an 

employer questions employees about a union without informing them that they may, with 

impunity, decline to respond.” Standard-Coosa-Thatcher Carpet Yarn, 691 F.2d at 1141. 

To mitigate this risk, the Board has “established specific safeguards designed to minimize 

the coercive impact of such employer interrogation.” Johnnie’s Poultry Co., 146 NLRB 

770, 775 (1964), enf’t denied, 344 F.2d 617 (8th Cir. 1965). The employer:

must communicate to the employee the purpose of the 

questioning, assure him that no reprisal will take place, and 

obtain his participation on a voluntary basis; the questioning 

must occur in a context free from employer hostility to union 

organization and must not be itself coercive in nature; and the 

questions must not exceed the necessities of the legitimate 

purpose by prying into other union matters, eliciting 

information concerning an employee’s subjective state of 

mind, or otherwise interfering with the statutory rights of 

employees.

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Id. “Compliance with the Johnnie’s Poultry safeguards is the minimum required to dispel 

the potential for coercion . . . .” Standard-Coosa-Thatcher Carpet Yarn, 691 F.2d at 1141 

(internal quotation marks omitted). 

The record supports that Petitioner exceeded “the necessities of the legitimate 

purpose” of its interview of C.W. “by prying into other union matters” in violation of 

section 8(a)(1). Johnnie’s Poultry, 146 NLRB at 775. Specifically, during trial, when 

asked whether Petitioner’s counsel asked C.W. “anything about what other employees 

might have been involved in the Union campaign,” J.A. 779, C.W. testified that he was 

asked, among other questions, “who [the employees] thought . . . was Union sides or like

Company sides . . . who associated with who I guess.” J.A. 774. After hearing the parties’ 

evidence and testimony, the ALJ determined that the record was vague and underdeveloped 

as to whether Petitioner provided C.W. any of the required assurances at the time it 

questioned him. 

Petitioner argues that an understanding of the general Union support of employees 

at the Millville Facility was relevant for trial preparation because the Complaint was not 

limited to only the three LOTOTO violating employees. And Petitioner argues that at 

minimum, knowledge of the Union affiliations of the terminated employees was relevant 

because whether its supervisors knew of the employees’ Union activity at the time of the 

discrimination (for instance, when Molina was terminated) can support or negate a finding 

that Petitioner acted with anti-union animus. In other words, if no relevant supervisor knew 

of the protected activity, then Petitioner could argue it could not have acted with animus. 

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Nevertheless, the Board agreed with the ALJ that Petitioner’s counsel exceeded the 

necessities of questioning by prying into the Union sympathy of employees other than the 

three employees who had been terminated. We do as well. Even if we were to accept that 

counsel intended to question C.W. about only the three terminated employees, the record 

supports that Petitioner crossed the line by asking C.W. questions about Union support and 

affiliation in general. These questions were not relevant to trial, especially where 

employees were reluctant to disclose their Union sympathies. 

B.

1.

We now turn to the Board’s holding that Petitioner violated section 8(a)(3) of the 

NLRA. Petitioner contends that the Board incorrectly held that the General Counsel 

proved a prima facie case of discriminatory discharge in violation of section 8(a)(3). 

Petitioner reasons that the Board improperly imputed a supervisor’s anti-union animus to 

the CRT, the neutral decisionmaker, and without this animus, Petitioner argues no prima 

facie showing was made. 

Section 8(a)(3) prohibits an employer from discriminating “in regard to hire or 

tenure” to discourage membership in a labor organization. 29 U.S.C. § 158(a)(3). To 

succeed on an unlawful termination claim, the General Counsel must prove “(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 

decision.” FPC Holdings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995). On appeal, 

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Petitioner challenges the Board’s finding on prong three—that Petitioner’s decision to 

terminate Molina was motivated by anti-union animus. 

To address whether an employer acted with a discriminatory motive, we apply what 

is commonly referred to as the Wright Line test. Id. (citing Wright Line, 251 NLRB 1083 

(1980)). “The Wright Line test was designed to account for the fact that employers rarely 

admit that they took adverse action against employees with the unlawful intent to 

discriminate.” NLRB v. Air Contact Transp. Inc., 403 F.3d 206, 215 (4th Cir. 2005). To 

begin, “the NLRB General Counsel must prove by a preponderance of the evidence that 

anti-union animus was a substantial or motivating factor in the discharge.” Dorsey 

Trailers, Inc. v. NLRB, 233 F.3d 831, 839 (4th Cir. 2000). Once established, “[t]he 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.” NLRB v. CWI of Md., Inc., 

127 F.3d 319, 330 (4th Cir. 1997).

Regarding findings of animus, this court will “not engage in a de novo consideration 

of the record, but instead defer to the Board’s conclusion that particular conduct 

demonstrates antiunion animus unless the Board exercises the power conferred on it in an

arbitrary and unreasonable manner.” Tecnocap, 1 F.4th at 324 (internal quotation marks 

omitted). Both direct and circumstantial evidence can support a finding of anti-union 

animus. FPC Holdings, 64 F.3d at 942. 

2.

Here, substantial evidence in the record supports the Board’s finding of anti-union 

animus. First, we agree with the Board’s conclusion that the timing of Molina’s 

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termination provides powerful evidence in support of anti-union animus. NLRB v. Frigid 

Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991) (upholding anti-union animus based on 

“the bare timing of [the employee’s] discharge”). Molina led the employees’ efforts to 

unionize. And Petitioner knew it. Molina distributed union authorization cards and 

literature, collected many of the signed cards, and served as one of two designated Union 

election observers—a fact that Molina shared directly with Mills, Wright, and Lane. Prior 

to the Union campaign, Molina had a nearly spotless disciplinary record at the Millville 

Facility. For his entire 16 year career, Molina had received only one infraction, and it was 

unrelated to safety or performance. And yet, two days after Molina led a successful Union 

vote, Petitioner suspended and ultimately terminated him due to an alleged safety 

infraction. 

Mills’ statements in violation of section 8(a)(1) also amount to substantial evidence 

of anti-union animus. The Board properly found evidence of anti-union hostility in Mills’ 

statements made one week before the election that “the office” knew Molina was the 

“troublemaker” behind the Union campaign, and that Mills “only had to be nice for one 

more week.” J.A. 1891–92. 

3.

Petitioner argues that the Board erred when it imputed Mills’ anti-union animus onto 

the CRT as the neutral decisionmaker that terminated Molina. This argument fails 

inasmuch as Mills’ efforts to report the employees for the LOTOTO violation, right after 

the successful Union vote, was the impetus for the CRT proceedings that led to Molina’s 

termination. And substantial evidence supports that, prior to the incident with Molina in 

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which Petitioner used the LOTOTO violation as grounds for termination, Petitioner had 

not disciplined employees at the Millville Facility for failing to lock out equipment before 

removing the guards. Babcock & Wilcox Co. v. NLRB, 683 F.2d 858, 859–60 (4th Cir. 

1982) (“Disparity of treatment may be evidence that a company intentionally discriminated 

against an employee because of his union views.”). 

Anti-union animus can be imputed to a neutral decisionmaker where a supervisor, 

having exhibited anti-union animus, “significantly contributed to the accomplishment of 

the discharge.” NLRB v. Neuhoff Bros. Packers, Inc., 375 F.2d 372, 374 (5th Cir. 1967) 

(concluding employer acted with anti-union animus where the neutral decisionmaker’s 

discharge decision was made immediately after a supervisor who had previously threatened 

to fire anyone who signed a Union card recommended termination, and then that supervisor 

informed the employee of the discharge). Anti-union animus can also be imputed where 

“the person effecting the discharge was shown to have had an adequate awareness of [the 

employee’s] union loyalties and activities.” Id. at 374–75. That is precisely what happened 

here.

First, not only were members of the CRT familiar with Molina’s Union support, 

they were intimately involved in Petitioner’s campaign against the Union. The CRT 

consisted of Lane and Collins, as well as Petitioner’s legal counsel, the manager for its

mid-Atlantic region, and its health and safety director. Prior to the investigation, after 

learning of possible support for unionization at the Millville Facility, Lane and Collins 

along with Wright met with the Millville Facility employees to urge them to vote against 

the Union. During those meetings, Molina was “the only employee who stated that he 

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would vote in favor of the Union.” J.A. 1699 n.6. Molina also expressed his concerns 

about Mills’ conduct as a supervisor to both Wright and Collins. And on the eve of the 

election, Molina told Lane and Wright separately that he would serve as the Union’s 

election observer for the vote. Wright and Collins later assisted with the local investigation 

and recommended to the CRT that Molina be terminated. 

Wright, Collins, and Lane’s knowledge of Molina’s Union activity distinguishes 

these facts from those cases where we have declined to impute knowledge to the 

decisionmaker. See Gestamp S.C., LLC v. NLRB, 769 F.3d 254, 263 (4th Cir. 2014) 

(reversing assignment of knowledge where ALJ did not and could not “have made such a 

finding on the record before him”); Firestone Tire & Rubber Co. v. NLRB, 539 F.2d 1335, 

1337–39 (4th Cir. 1976) (reversing Board animus finding where company official who 

made the decision to discharge had zero knowledge that employee was involved in union); 

Delchamps, Inc. v. NLRB, 585 F.2d 91, 95 (5th Cir. 1978) (reversing Board animus finding 

where the supervisor solely responsible for termination had no knowledge of protected 

activity). It does not spare Petitioner that the CRT did not know that prior to Molina’s 

termination lockout violations were going unpunished at the Millville Facility. It is enough 

to impute anti-union animus onto the CRT where Mills, who the Board found exhibited 

anti-union animus, significantly contributed to the accomplishment of Molina’s discharge. 

Because substantial evidence supports anti-union animus and the Board did not act 

arbitrarily when it imputed that animus onto the CRT, we affirm the Board’s holding that 

Petitioner’s decision to terminate Molina was motivated by anti-union animus. 

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4.

We turn next to whether Petitioner established its affirmative defense that, absent 

any protected activity, Petitioner would have taken the same adverse action against Molina. 

The Board rejected this defense, which Petitioner argues was in error.

Petitioner argues that it would have terminated Molina absent his protected activity. 

Petitioner points to the fact that the CRT has “terminated every employee known to have 

committed a LOTOTO violation corporate-wide for the previous 8 years––all 37 of them.” 

Pet’r Opening Br. at 50. Petitioner further avers that the CRT lacked any knowledge that 

prior to the termination of Molina LOTOTO violations at the Millville Facility had not 

been reported or punished. This argument fails where, prior to the Union vote, Mills had 

not reported a single Millville Facility employee to the CRT for a LOTOTO violation. 

Once Molina led the successful Union campaign, Mills—who had exhibited anti-union 

animus—capitalized on the first opportunity to report Molina for a safety violation. Under 

these circumstances, the Board appropriately imputed Mills’ animus onto the CRT where, 

absent Molina’s Union support, Mills would not have reported the LOTOTO violation that 

led to Molina’s termination.

As stated in Boston Mutual Life Insurance, Co. v. NLRB, simply because “the 

grounds given by the company, under company policy, could have constituted a sufficient 

basis for dismissal . . . does not show that those grounds did lead to dismissal in this 

instance.” 692 F.2d 169, 171 (1st Cir. 1982) (emphasis in original). The question more 

appropriately is: would the stated grounds “have led to [the employee’s] dismissal in the 

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absence of his protected conduct”? Id. Here, based on the evidence presented to the ALJ, 

the answer is no. 

Substantial evidence supports the Board’s conclusion that Mills would not have 

reported Molina for the LOTOTO violation absent Molina’s Union support. Despite 

Petitioner’s formal policy, Petitioner’s actual practice at the Millville Facility was to 

tolerate LOTOTO violations. Indeed, Petitioner could not “establish a single instance, 

when, prior to discharging Molina, [Petitioner] had ever disciplined a Millville employee 

in any way for violating lockout procedures.” J.A. 1706 (emphasis in original). And there 

is evidence that even when lockout violation reports were made, the Millville Facility 

supervisors did not take any disciplinary action. Osborne testified that just three weeks 

after the Molina incident, Osborne reported another LOTOTO incident to C.W., but in this 

instance, C.W. was unconcerned about the violation. See J.A. 410–11. In fact, it was not 

until Osborne went over C.W.’s head to a supervisor that there was punishment for this 

lockout violation. When considering Osborne’s testimony, the ALJ concluded that had 

Osborne not escalated the most recent violation after Molina’s to a supervisor, “the 

contractor’s lockout violation would have gone unpunished.” Id. Petitioner fails to show 

that absent Molina’s Union affiliation, he would have been reported to the CRT for a 

LOTOTO violation. Without Mills’ report, Molina would not have been terminated for his 

alleged safety violation when the record shows that this policy had never before been 

grounds for termination at the Millville Facility. 

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For these reasons, we affirm the Board’s holding that Petitioner’s reason for 

terminating Molina was pretextual. Therefore, the Board properly held that Petitioner 

violated NLRA section 8(a)(3) when it terminated Molina based on his Union support. 

C.

Petitioner argues that even if the Board properly found that it violated NLRA 

section 8(a)(3) by terminating Molina, the Board exceeded its authority when it ordered 

Petitioner to offer Molina reinstatement and backpay. But the law is clear, and it is to the 

contrary. 

Once an unfair labor practice has been found, section 10(c) of the NLRA grants the 

Board the authority to issue an order requiring the violator to “cease and desist from such 

unfair labor practice, and to take . . . affirmative action including reinstatement of 

employees with or without backpay.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898 (1984) 

(quoting 29 U.S.C. § 160(c)). The Supreme Court has read section 10(c) to “vest[] in the 

Board the primary responsibility and broad discretion to devise remedies that effectuate 

the policies of the [NLRA], subject only to limited judicial review.” Id. at 898–99. “The 

Board’s chosen remedy in a backpay case must be enforced unless it is arbitrary, 

capricious, or manifestly contrary to the statute.” NLRB v. Pepsi Cola Bottling Co. of 

Fayettville, Inc., 258 F.3d 305, 310 (4th Cir. 2001) (internal quotation marks omitted). We 

are nevertheless “obligated to scrutinize the whole record, taking into account whatever 

fairly detracts from the evidence relied upon by the [Board].” Id. (internal quotation marks 

omitted). 

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Section 10(c) only precludes the Board from ordering reinstatement and backpay as 

remedies where an employer can prove that its actions would have been the same 

“regardless of [its] forbidden motivation.” NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 

401 (1983), abrogated on other grounds by Director, Off. of Workers’ Comp. Programs v. 

Greenwich Collieries, 512 U.S. 267 (1994). There is no indication “that [section 10(c)] 

was designed to curtail the Board’s power in fashioning remedies when the loss of 

employment stems directly from an unfair labor practice.” Fibreboard Paper Prods. Corp. 

v. NLRB, 379 U.S. 203, 217 (1964). 

For the same reasons discussed above in the analysis of Petitioner’s affirmative 

defense, Petitioner cannot claim it would have removed Molina absent its “forbidden 

motivation.” Transp. Mgmt., 462 U.S. at 401. The causal link between Molina and his 

termination was his protected activity and not his LOTOTO violation as demonstrated by 

the timing of his discharge in relation to the Union election, the disparate enforcement of 

the lockout policy against Molina, and the anti-union statements made by Mills. Therefore, 

section 10(c) does not bar reinstatement or backpay. Cooper Tire & Rubber Co. v. NLRB, 

866 F.3d 885, 893 (8th Cir. 2017) (“Since [employee] was discharged for a ‘prohibited 

reason,’ [employer] did not fire [employee] ‘for cause’ under Section 10(c).”). 

IV.

For the foregoing reasons, we deny the petition for review and grant the Board’s 

cross-application for enforcement of its order in its entirety. 

PETITION FOR REVIEW DENIED;

CROSS-APPLICATION FOR ENFORCEMENT GRANTED

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