                                                                      [ PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________                      FILED
                                                             U.S. COURT OF
                                                                APPEALS
                              No. 99-15054                 ELEVENTH CIRCUIT
                        ________________________              JAN 30 2001
                                                            THOMAS K. KAHN
                                                                 CLERK
                        D. C. Docket No. 10-29531-CA

NATIONAL LABOR RELATIONS BOARD,

                                                       Petitioner,

                                    versus

LAMPI LLC,

                                                       Respondent.

                        ________________________

             Petition for Review of an Application for Enforcement
                      of the National Labor Relations Board
                          _________________________
                               (January 30, 2001)


Before DUBINA, FAY and COX, Circuit Judges.

PER CURIAM:
      We have for review a decision and order of the National Labor Relations Board

which found that Appellant Lampi, LLC engaged in an unfair labor practice in

violation of Sections 8(a)(1), (3) and (4) of the National Labor Relations Act, 29

U.S.C. § 158(a)(1), (3), and (4). The Board, with one panel member dissenting, found

that Lampi violated the Act by terminating an employee, Connie Neely, because of her

pro-union activities at Lampi’s Huntsville, Alabama plant and her prior testimony

before the Board. We have jurisdiction pursuant to 29 U.S.C. § 160(e). Because we

conclude that there was no substantial evidence supporting the Board’s finding that

Lampi violated the Act in firing Neely, we deny enforcement of the Board’s order.

                                    Background

      At its Huntsville plant, Lampi manufactures fluorescent light fixtures of various

sizes for the consumer market.       During all relevant times, Lampi employed

approximately 90 to 100 production and maintenance employees. Neely was hired in

October 1993 to assemble light fixtures. In the fall of 1994, the International

Brotherhood of Electrical Workers, AFL-CIO, Local 558 began a campaign to

organize Lampi’s workers. Neely was active in the unionization efforts. Lampi

management opposed the formation of a union at the plant and made remaining non-




                                          2
union a company goal.1 On the union election day in January 1995, Neely wore 12

or more “Vote Yes” buttons on her blouse. Neely’s supervisor, Virgie McKenzie, saw

Neely’s buttons and reacted by shaking her head as if she disapproved. Lampi’s

employees rejected the union by a vote of 37 to 30.

       The Union filed objections to the conduct of the election that were consolidated

with other unfair labor practice allegations, one of which involved Neely. An

administrative law judge (ALJ) held a hearing in March 1996. Neely testified at the

hearing that Lampi’s Operations Manager Morris Overbeck had interrogated her in

advance of the election. Neely also testified in support of the Union’s election

observer, Alice Sullivan Young, who had alleged that she was disciplined in



       1
                Lampi’s policy on unionization was made clear in its personnel handbook, which
provides in relevant part:
               This is a non-union plant.
               It is our desire to always remain non-union. Our goal is to maintain good
               working conditions, treat people fairly and run our business successfully.
               We feel that unions do not create jobs, increase plant effectiveness or
               produce products that satisfy customers. We feel that they have the
               opposite effect.
               Our main objection to Unions is that they reduce team work and harmony.
               Unions create a third party instead of allowing people to work together
               and directly with each other. Our customers prefer to buy products from a
               non-union plant as they have less fear of their supply being cut off due to a
               strike.
               Unions spend money to organize, thus they must recover their expenses by
               collecting from your pay check. Unions attempt to gain power by
               weakening rights and freedom of individual employees.
               It is much better to work together to assure individual growth, security and
               business success and strengthen individual rights and freedoms.
(R.2-2 at 13.)

                                              3
retaliation for her union activities.2 Neely has conceded that no supervisor spoke to

her about her testimony after the administrative hearing. In May 1996, the ALJ found

that Lampi had violated Section 8(a)(1) of the Act, which provides that it is an unfair

labor practice for an employer to “interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed” by the Act. 29 U.S.C. § 158(a)(1). The ALJ

recommended that a new election be held. There was no union activity at the plant

between the failed January 1995 election and Neely’s termination.

       Before 1996, Neely’s job performance record was generally good. She received

positive annual reviews from her supervisor McKenzie in October of 1994 and 1995.

Neely did, however, receive three warnings about her attendance and one warning

because of a safety violation in the period prior to 1996. Lampi closely monitored its

assembly employees’ efficiency, awarding bonuses to those who performed at or

above 100 percent efficiency. Prior to 1996, Neely’s efficiency numbers were

excellent, often exceeding 100 percent. However, Neely’s efficiency began to slide

early in 1996. Neely has admitted that McKenzie verbally counseled her in February

1996 to pick up her production numbers. McKenzie also began to informally counsel




       2
              The ALJ rejected the attack on the disciplinary warning issued to Young made by
General Counsel for the Board. Young had voluntarily left Lampi’s employ before the March
1996 hearing.

                                              4
Neely about her falling efficiency, speaking to Neely anywhere from 15 to 20 times

about the issue from May to July 1996.

       In June 1996, Lampi instituted a new policy that required assembly workers to

maintain a 90 percent efficiency level to avoid discipline. In order to temper the

harshness of the new rule, Lampi established June as a grace month during which an

80 percent efficiency rating would suffice. Neely’s efficiency rating for June was 87

percent. But she began to have more serious problems in July. On July 18, 1996,

Neely received two warnings, one for attendance problems and one for affixing

incorrect Universal Product Codes (UPCs) on two lamps. Operations Manager

Overbeck testified that Lampi considered the mislabeling of the lamps to be a serious

infraction.3 Neely’s efficiency numbers were also down sharply in July, to just under

69 percent.

       In early August 1996, Overbeck reviewed the July efficiency numbers of the

assembly workers. He marked three employees for discharge: Ginger Laudermilk

(47.88 percent), Belinda Lowe (83.15 percent), and Neely (68.95 percent). Overbeck

then met with McKenzie to discuss Neely’s performance. McKenzie informed

Overbeck that she could determine no reason for Neely’s drop in efficiency and that



       3
               In fact, another employee, Belinda Lowe, was suspended for making a similar
mistake with a larger number of lamps.

                                              5
Neely did not seem concerned about the problem. They also noted Neely’s prior

attendance warnings and the warning garnered for the UPC label mistake and

concluded that the proper course was to terminate Neely’s employment. Overbeck

and McKenzie then discussed the issue with Lampi President Heike Holderer, who

also agreed that Neely should be terminated because of her poor overall work

performance.

      On August 5, 1996, Neely was called into McKenzie’s office. McKenzie and

another supervisor, John Hoffman, were present. McKenzie informed Neely that she

was terminated, effective immediately. Neely asked to retrieve her toolbox. Hoffman

informed Neely that she would not be able to return to the work area, but he would

retrieve her tools. When Hoffman left the room, McKenzie asked Neely whether she

had spoken to “Alice” lately. Neely understood McKenzie to be referring to Alice

Sullivan Young, the former union election observer, and responded in the negative.

McKenzie then told Neely that she was sorry about the firing but reminded Neely that

she had been warned that something was going to happen. Neely interpreted this last

remark to refer to a February meeting in which McKenzie had informed Neely and

others that they would need to increase their production or go work elsewhere.

      Within a few days of Neely’s firing, she and former co-worker Belinda Lowe

were featured on a segment of a local television station’s news broadcast. Neely and


                                         6
Lowe said that they were fired because of their involvement with the Union. Neely

informed the reporter that Lampi management had told her that she was a “great

employee” and then “the next thing you know” terminated her. Lampi President

Holderer was also interviewed on the program, saying that Lampi did not “particularly

like unions” and was “against them.”4

       The Union filed a charge with the Board on August 16, 1996, alleging that

Lampi had improperly terminated Neely in violation of Section 8(a)(1), (3), and (4).5

The General Counsel filed his complaint in March 1997. Hearings before an ALJ

were held in May and July of 1997. In February 1998, the ALJ filed his report,

finding that Lampi had violated the Act by firing Neely because of her union activities

and prior Board testimony. The ALJ recommended that Neely be offered full

reinstatement and paid her lost earnings. On November 30, 1998, the Board, with one

member dissenting, adopted the ALJ’s recommendations and ordered Lampi to

reinstate Neely and make her whole for her lost earnings.


       4
         The report did note that Lampi’s position was that Neely and Lowe were fired after
they had been written up numerous times for violating company policy and their terminations
had nothing to do with their union support.
       5
          Section 8(a)(3) makes it 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. § 158(a)(3). Section 8(a)(4)
provides that it is an unfair labor practice to “discharge or otherwise discriminate against an
employee because he has filed charges or given testimony” regarding alleged unfair labor
practices. 29 U.S.C. § 158(a)(4).

                                                7
8
                                   Issue on Appeal

      The single issue on appeal is whether substantial evidence supports the Board’s

finding that Lampi terminated Neely because of her support of the Union, in violation

of Sections 8(a)(1), (3) and (4) of the Act.

                                  Standard of Review

      We treat the Board’s factual findings as conclusive if “supported by substantial

evidence on the record considered as a whole . . . .” 29 U.S.C. § 160(e). Substantial

evidence is “‘such evidence as a reasonable mind might accept as adequate to support

a conclusion.’” BE & K Construction Co. v. NLRB, 133 F.3d 1372, 1375 (11th Cir.

1997) (quoting Florida Steel Corp. v. NLRB, 587 F.2d 735, 745 (5th Cir. 1979)).

While we give proper deference to orders of the Board, “this court will not simply act

as its enforcement arm.” Id.

                               Contentions of the Parties

      Lampi contends that there was no substantial evidence before the Board that

anti-union animus was a motivating factor in Neely’s termination. Lampi also argues

that the record clearly indicates that it had ample legitimate business reasons to

discharge Neely and would have done so absent her union activities and prior Board

testimony. The General Counsel contends that the record amply supports the Board’s

position.


                                           9
                                    Discussion

      There are three phases of proof present in a case where an employee has

allegedly been discharged because of his or her union activities. First, the General

Counsel must demonstrate by a preponderance of the evidence that the employee’s

protected activity was a motivating factor in the employment decision. See NLRB v.

McClain of Georgia, 138 F.3d 1418, 1424 (11th Cir. 1998). This showing will

establish a Section 8(a)(3) violation unless the employer demonstrates that it would

have terminated the employee regardless of the protected activity. See id. The

General Counsel may then present proof that the proffered reasons for the termination

were pretextual, either by showing that the reasons did not exist or were not relied

upon in the decision. See id.

      Our analysis must begin with whether there was substantial evidence before the

Board to support a finding that Lampi’s decision to terminate Neely was at least

partially motivated by her union involvement. The evidence of anti-union animus

relied on by the Board was: (1) Lampi had attempted to improperly influence the

January 1995 union election; (2) Neely had testified against Lampi in the

administrative hearing held in March 1996; (3) the decision finding that Lampi

violated Section 8(a)(1) was handed down just 11 weeks before Neely’s termination;

(4) Lampi management posted a note on its bulletin board informing employees that


                                         10
it planned on appealing the ruling; (5) Lampi President Holderer had told the

television reporter investigating Neely’s claims that Lampi management “did not

particularly like unions” and was “against them”; and (6) McKenzie asked Neely if

she had seen “Alice” lately on the day Neely was fired.

      We conclude that the evidence before the Board was not sufficient to support

its finding that Neely’s firing was motivated by her protected activity. As an initial

matter, the Board violated the express language of the Act in relying on Holderer’s

statement to the television reporter and Lampi’s announcement that it planned to

appeal the prior ruling to support a finding of animus. Section 8(c) of the Act

expressly prohibits the use of an employer’s lawful communication of its opinion of

unions or unionization as “evidence of an unfair labor practice” as long as the

expression of opinion is not coercive, does not contain threats of reprisal or force, or

does not promise benefits. 29 U.S.C. § 158(c). Neither Holderer’s statement nor the

posted announcement was coercive or made threats or promises. The Board was

therefore not free to infer anti-union animus from Holderer’s statement that Lampi

was “against” unions or the announcement that Lampi would appeal the ALJ’s ruling




                                          11
on the allegations stemming from the election. See BE&K Construction Co., 133 F.3d

at 1376.6

       Cobbling together a finding that Neely’s termination was motivated by her

union activities required the Board to impermissibly lay inference upon inference.

First, the Board inferred, without any evidence in the record, that Lampi management

carried a grudge against Neely stemming from the events leading up to the January

1995 election.       This, of course, ignores the fact that Neely received positive

employment reviews in the year following the election. The lingering animus against

Neely was further inflamed, in the Board’s view, by Neely’s testimony at the

administrative hearing held to resolve issues surrounding the election. Again, there

was no evidence that Lampi management retaliated or even mentioned her testimony

after the hearing.

       The final link in this flimsy causal chain is McKenzie’s question about whether

Neely had seen “Alice” lately. The ALJ undertook an extensive analysis of the

meaning of McKenzie’s question, identifying three potential interpretations. The first

potential interpretation formulated by the ALJ was that the question meant that “‘[t]op

management nailed you for supporting the Union, and especially for testifying against


       6
              The same would hold for the policy on unionization included in Lampi’s
employee handbook, which the Board apparently did not rely upon in concluding that anti-union
animus triggered the firing.

                                             12
them’” in the administrative hearing.             (R.3 at 699.)     The second potential

interpretation recognized by the ALJ was that McKenzie was informing Neely that

“‘[y]es, you supported the Union and testified against us, and I get a kick out of this

opportunity to rub your nose in the fact that a big union supporter like you is being

fired, but regardless of all that, you would have been fired today anyhow because of

your poor efficiency in July.’” (Id.) The third and final potential interpretation

posited by the ALJ was that the question meant “‘I saw Alice at the mall last week and

she asked about you. Have you talked with her lately?’” (Id.) The ALJ and later, the

Board, concluded the most logical interpretation of McKenzie’s question had to be the

first. The ostensibly simple question of whether Neely had seen “Alice” lately was

therefore, in the ALJ and Board’s view, a furtive attempt to let Neely know that “top

management,” not McKenzie, was responsible for deciding to discharge Neely and

that decision was driven by Neely’s support for the Union and prior Board testimony.7

We conclude, as did the dissenting Board member, that this interpretation of

McKenzie’s question was both unfounded and speculative.

       Even when viewed in a generous light, the evidence relied on by the Board

simply does not meet the substantial evidence standard. The combination of Lampi’s



       7
       We note in passing that there was no evidence presented that Neely interpreted
McKenzie’s question in a manner similar to the ALJ.

                                             13
prior anti-union behavior, the timing of Neely’s termination and McKenzie’s question

about “Alice” could not be deemed substantial evidence that Neely was fired because

of her union activity and prior Board testimony. Because the evidence before the

Board was insufficient to link Neely’s protected activity with her termination, we

decline to enforce the Board’s order.

      Even if we assume arguendo that the General Counsel presented a prima facie

case that Neely was fired in violation of the Act, there was insufficient evidence

presented to support the Board’s finding that Lampi’s proffered reasons for

terminating Neely were pretextual. To the contrary, the record supports Lampi’s

contention that it terminated Neely for cause. The record clearly shows that Neely’s

performance declined precipitously in the period prior to her termination. McKenzie

verbally counseled Neely 15 to 20 times about her poor performance in the period of

May through July. McKenzie testified that Neely simply did not seem to care about

her falling efficiency numbers. Neely was also disciplined twice in June 1996 for

excessive absenteeism and a failure to place the correct UPC on several lamps.

Neely’s efficiency numbers for June were 87 percent, below the 90 percent standard




                                        14
set by Lampi.8 Her July numbers were significantly worse, falling below 69 percent.

Lampi terminated Neely in August because of her overall poor work performance.

       The Board found that Lampi’s proffered reasons for Neely’s termination were

pretextual because: (1) Lampi’s employee handbook did not provide that a failure to

meet the 90 percent efficiency standard would automatically result in termination; (2)

other employees who failed to meet the 90 percent standard in July were not

terminated; and (3) the disciplinary warning issued to Neely for her UPC error did not

inform Neely that she would be terminated for another “severe offense.” As with the

evidence supporting the Board’s finding of anti-union animus, we conclude that the

evidence before the Board was insufficient to support its finding of pretext. The

record is clear that Lampi was greatly concerned about efficiency numbers and

disciplined those employees who failed to meet the 90 percent standard. In fact,

Lampi fired two other employees, Lowe and Laudermilk, in August 1996 for, inter

alia, failing to meet production levels. That the employee handbook did not provide

that termination was automatic for failing to meet the standard does not alter the fact

that Lampi was justified in terminating an employee whose efficiency numbers were




       8
         Neely’s performance in the months previous had been similarly borderline. After
starting 1996 with a strong 124 percent efficiency number in January, Neely’s efficiency rating
was 88 percent in February, 95 percent in March, 89 percent in April, and 91 percent in May.

                                               15
unsatisfactory.9      The Board suggests that Neely was unfairly singled out because

three other employees who failed to meet the 90 percent standard in July were given

written warnings instead of being fired. However, there is nothing in the record to

suggest that these three employees had either been verbally counseled 15 to 20 times

about poor efficiency in the preceding months or had shown an utter lack of concern

about their falling production numbers, as Neely had.                  Therefore, these three

employees are not appropriate comparators for Neely.

       The record also does not support the Board’s conclusion that because Lampi

failed to warn Neely that she could be terminated for the next “severe” offense

following her UPC mistake, it did not consider Neely’s poor performance to be

worthy of termination. Neely acknowledged during the administrative hearing that

McKenzie had informed her that a failure to keep up her efficiency numbers could

lead to termination. Moreover, McKenzie verbally counseled Neely many times that

she needed to increase her production numbers and found that Neely seemed not to

care about her falling efficiency. The record therefore supports Lampi’s contention

that it was concerned about Neely’s performance. Moreover, the record is clear that


       9
               Lampi fired Neely pursuant to Policy 2.2.9 of the employee handbook, which
provides, in part that: “[a]n employee can be disciplined for carelessness, unsatisfactory work, or
neglect of duty.” (R.2-2 at 4.) It further provides that punishments may include anything from
verbal counseling to termination. The handbook does not, however, require that a set number of
warnings or other punishments be imposed before terminating an employee under Policy 2.2.9.

                                                16
Neely was made aware of the potential consequences of her poor performance several

months in advance of her termination. Accordingly, we conclude that there was

insufficient evidence in the record to support the Board’s finding that Lampi would

not have terminated Neely absent her union activities or prior Board testimony.

                                   Conclusion

      Because the Board’s factual findings were not supported by substantial

evidence in the record as a whole, we deny enforcement of the Board’s order.

      ENFORCEMENT DENIED.




                                        17
