                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 03-2420



TKC, a joint venture,

                                                          Petitioner,

           versus


NATIONAL LABOR RELATIONS BOARD,

                                                          Respondent.



                             No. 03-2522



NATIONAL LABOR RELATIONS BOARD,

                                                          Petitioner,

           versus


TKC, a joint venture,

                                                          Respondent.



On Petition for Review and Cross-application for Enforcement of an
Order of the National Labor Relations Board. (5-CA-30504; 5-CA-
30554).


Argued:   October 26, 2004                 Decided:   January 6, 2005
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Enforced by unpublished per curiam opinion.


ARGUED: Abram William VanderMeer, Jr., PENDER &      COWARD, P.C.,
Virginia Beach, Virginia, for TKC. David A. Seid, Office of the
General Counsel, NATIONAL LABOR RELATIONS BOARD, Washington, D.C.,
for the Board. ON BRIEF: Arthur F. Rosenfeld, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, Meredith L. Jason, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

     The National Labor Relations Board (“the Board”) found that

TKC, a joint venture of several construction companies, was in

violation    of   the   National   Labor    Relations    Act.         Among    other

violations, the Board found that TKC coercively interrogated an

employee    about   his   union    status   and   then   fired    him    for    his

activities in support of that union.         Because there is substantial

evidence in the record to support the Board’s findings, we enforce

its order.



                                      I.

     TKC was the general contractor responsible for installing the

foundations of the Woodrow Wilson Bridge which spans the Potomac

River between Maryland and Virginia.            At the peak of the project,

TKC employed approximately 150 people.            One of those employees was

Marcus Lumpkin, a crane operator, who was hired on January 11, 2002

after responding to an ad he saw on the Internet.                 Lumpkin says

that when he was hired, the company recruiter told him that the job

would last five or six years.

     Shortly      after   Lumpkin     started      working      for     TKC,    the

International Union of Operating Engineers (“the Union”) began an

organizing campaign.       As part of their effort, Union organizers

handed out literature at the entrance to the job site.                   In early

February, Lumpkin spoke with Union representatives and agreed to


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occasionally pass out handbills before work.     He placed a union

sticker on his hard hat and one on his car bumper.

     On February 7, 2002, Lumpkin had a conversation with John

Mayer, a TKC area manager, about Lumpkin’s intentions to join the

Union.   According to Lumpkin, Mayer asked him if he was a member of

the Union.    When Lumpkin responded that he hoped to be, Mayer

rudely asked -- with profanity -- why anyone would want to do such

a thing.   Mayer does not recall this conversation.

     One week later, on February 14, 2002, Mayer laid off Lumpkin,

explaining that he was no longer needed.    TKC claims that Lumpkin

was fired because the company had recently dismantled a crane, and

thus had more crane operators than it needed.      However, Lumpkin

testified that immediately after he was fired, Mayer again asked

him if he had joined the Union.   After hearing that Lumpkin had not

yet done so, Mayer apparently replied, “Well tell them to get you

a job,” and walked away.   Mayer denies having said this.

     Lumpkin further testified that on the following day, February

15, he went to Mayer to ask about a discrepancy in his paycheck.

According to Lumpkin, Mayer asked if any of his “boys” had found

Lumpkin a job yet.    When Lumpkin said no, Mayer replied, “Well,

tell them to stay the hell away from my gate.”   Mayer again denies

these allegations.

     Upset over Lumpkin’s layoff, the Union distributed petitions

protesting TKC’s decision to fire him. To spotlight its complaints


                                  4
over TKC’s labor practices, the Union organized a strike and a

picket line outside the project’s entrance gates on April 18, 2002.

Two crane operators -- Daniel McVicker and William Cunningham --

participated in the protest and did not report to work that day.

TKC issued written warnings to Cunningham and McVicker for their

unexcused absences.

      Following these events, the Union filed charges with the NLRB,

accusing TKC of committing unfair labor practices.                  A two-day

hearing on the issue was held before an Administrative Law Judge

from April 28-29, 2003.     On October 17, 2003, the Board adopted the

ALJ’s findings and determined that TKC had violated the National

Labor Relations Act in three separate ways. First, the Board found

that TKC violated § 8(a)(1) of the Act by coercively interrogating

Lumpkin on February 7.       Second, it found TKC to have violated

§ 8(a)(3) and (a)(1) of the Act by laying off Lumpkin because of

his   activities   in   support   of    the   Union   and   by   impermissibly

implying as much to him.       And finally, the Board found that the

company violated § 8(a)(1) of the Act by issuing disciplinary

warnings to McVicker and Cunningham for engaging in protected

activity.   TKC now appeals.



                                       II.

      The Board’s findings of fact are conclusive “if supported by

substantial evidence on the record considered as a whole.”                 29


                                        5
U.S.C § 160(e) (2000).   See also Universal Camera Corp. v. NLRB,

340 U.S. 474, 487-88 (1951).   In short, we must decide “whether on

this record it would have been possible for a reasonable jury to

reach the Board’s conclusions.” Allentown Mack Sales & Serv. Inc.,

v. NLRB, 522 U.S. 359, 366 (1998).    The same deferential standard

of review applies to the Board’s determinations of mixed questions

of law and fact. Sam’s Club v. NLRB, 173 F.3d 233, 239 (4th Cir.

1999).

     Such deference is particularly appropriate when reviewing

determinations of credibility.       Because “the balancing of the

credibility of witnesses is at the heart of the fact-finding

process, . . . it is normally not the role of reviewing courts to

second-guess a fact-finder’s determinations about who was the more

truthful witness.” NLRB v. Transpersonnel, Inc., 349 F.3d 175, 184

(4th Cir. 2003).    Thus, “absent exceptional circumstances, the

ALJ’s credibility findings when adopted by the Board are to be

accepted by the reviewing court.”     NLRB v. Air Prods. & Chems.,

Inc., 717 F.2d 141, 145 (4th Cir. 1983) (internal quotation and

punctuation omitted).

     In this case, an ALJ heard testimony from all witnesses, and

authored a thorough opinion defending his conclusions.        This

opinion was subsequently adopted by the Board.    TKC, 340 N.L.R.B.

102 (2003).   As to the February 7, 2004 encounter between Lumpkin

and Mayer, the ALJ found Lumpkin’s “demeanor” and “detailed”


                                 6
testimony to be more believable than Mayer’s denial.   For similar

reasons, the ALJ credited Lumpkin’s version of events on February

14, 2002, the day he was fired, finding him to be a “more credible

witness than Mayer.”     Thus, in light of the hostile encounters

between Lumpkin and Mayer and in accordance with the test outlined

in Wright Line, 251 N.L.R.B. 1083 (1980), the ALJ rejected TKC’s

claim that it fired Lumpkin simply because the company had no work

for him to do.

     The ALJ also considered the claim that Lumpkin’s co-workers,

McVicker and Cunningham, were improperly punished after they missed

work to protest Lumpkin’s dismissal.    The ALJ was persuaded that

these two employees were in fact disciplined for engaging in

protected activity.    Applying, as we must, a deferential standard

of review to this conclusion, we find no error in the ALJ’s

application of Supreme Court precedent to the facts of this case.

See NLRB v. Washington Aluminum Co., 370 U.S. 9, 16-17 (1962)

(governing permissible discipline of employees after a concerted

work stoppage with no prior notice).



                                III.

     We have reviewed the record, briefs, and applicable case law

on this matter, and we have had the benefit of oral argument.   Our

careful review persuades us that the Board’s decision is based upon




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substantial evidence and is without reversible error. Accordingly,

the Board’s October 17, 2003 order shall be

                                                       ENFORCED.




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