                                                 Filed:   January 8, 2004

                        UNITED STATES COURT OF APPEALS

                            FOR THE FOURTH CIRCUIT


                               Nos. 02-2344(L)
                                (11-CA-17507)



National Labor Relations Board,

                                                                  Petitioner,

            versus


Transpersonnel, Incorporated,

                                                                  Respondent.



                                   O R D E R



     The court amends its opinion filed November 13, 2003, as

follows:

     On    page   20,    second   full   paragraph,   line   5   --   the   word

“opinion” is added between “majority’s” and “acknowledges.”

                                               For the Court - By Direction




                                               /s/ Patricia S. Connor
                                                        Clerk
                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


NATIONAL LABOR RELATIONS BOARD,       
                       Petitioner,
                 v.                            No. 02-2344
TRANSPERSONNEL, INCORPORATED,
                       Respondent.
                                      
TRANSPERSONNEL, INCORPORATED,         
                        Petitioner,
                 v.                            No. 02-2414
NATIONAL LABOR RELATIONS BOARD,
                      Respondent.
                                      
               On Application for Enforcement and
              Cross-Petition for Review of an Order
              of the National Labor Relations Board.
                          (11-CA-17507)

                         Argued: June 5, 2003

                      Decided: November 13, 2003

   Before WILKINSON, LUTTIG, and SHEDD, Circuit Judges.



Application for enforcement granted in part and denied in part, and
cross-petition for review granted in part and denied in part by pub-
lished opinion. Judge Shedd wrote the opinion. Judge Luttig wrote an
opinion concurring in part and dissenting in part. Judge Wilkinson
wrote a dissenting opinion.
2                   NLRB v. TRANSPERSONNEL, INC.
                             COUNSEL

ARGUED: Donald Christopher Lauderdale, HAYNSWORTH,
BALDWIN, JOHNSON & GREAVES, L.L.C., Greenville, South
Carolina, for Transpersonnel. Ruth Elizabeth Burdick, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board. ON
BRIEF: Arthur R. Rosenfeld, General Counsel, John E. Higgins, Jr.,
Deputy General Counsel, John H. Ferguson, Associate General Coun-
sel, Aileen A. Armstrong, Deputy Associate General Counsel, Marga-
ret A. Gaines, Supervisory Attorney, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for Board.


                              OPINION

SHEDD, Circuit Judge:

   This case is before the Court on the application for enforcement
filed by the National Labor Relations Board (the Board) and the
cross-petition for review filed by the employer, Transpersonnel, Inc.

   The Board determined that Transpersonnel violated § 8(a)(1), 29
U.S.C. § 158(a)(1), of the National Labor Relations Act (the NLRA
or the Act) by unlawfully soliciting nine of its employees to sign anti-
union statements. It also ruled that Transpersonnel violated § 8(a)(1)
and § 8(a)(5), 29 U.S.C. § 158(a)(5), of the Act by withdrawing rec-
ognition from the General Drivers, Warehousemen and Helpers,
Local 28, affiliated with International Brotherhood of Teamsters,
AFL-CIO (the Union).

   We conclude that substantial evidence supports a finding that
Transpersonnel unlawfully solicited only two — not nine — of its
employees. We also conclude that substantial evidence does not sup-
port the Board’s finding that Transpersonnel unlawfully withdrew
recognition of the Union. Therefore, we grant in part and deny in part
the Board’s application for enforcement, and we grant in part and
deny in part Transpersonnel’s cross-petition for review.
                     NLRB v. TRANSPERSONNEL, INC.                        3
                                    I.

   As found by the Board,1 Transpersonnel leases long-haul truck
drivers to, among other customers, the Kohler Company in Spartan-
burg, South Carolina. Starting in 1993, the Union was the bargaining
representative of the Transpersonnel employees at Kohler under a col-
lective bargaining agreement. That collective bargaining agreement
expired in September 1996. In February 1997, at least ten Transper-
sonnel employees working at Kohler commenced an economic strike.
Two employees, Raymond Wray and Grant Crow, did not strike. It
is undisputed that Wray did not support the Union.

   By April 1997, Transpersonnel began hiring replacement drivers.
It held an orientation meeting with the replacement drivers and Wray
on April 6 at the Holiday Inn in Spartanburg. During that meeting, the
employees circulated among themselves a piece of Holiday Inn statio-
nery with handwriting at the top that stated "No Union." All six of the
replacement drivers and Wray — a total of seven employees2 —
signed the document, which was later handed to a Transpersonnel
official during a break in the meeting.

   Over the next few weeks, Transpersonnel claims it obtained state-
ments from five other employees who indicated they did not want to
be represented by the Union. Combining these five statements with
the seven signatures obtained at the April 6 meeting, Transpersonnel
asserted that twelve employees in the unit did not want Union repre-
sentation. On May 9, Transpersonnel informed the Union that it had
"received objective evidence that [the Union] no longer represents a
majority of our employees." J.A. 291. Based on this information,
Transpersonnel withdrew recognition from the Union.
  1
     The ALJ made findings, rulings, and conclusions, and the Board
affirmed them. The Board also made findings, rulings, and conclusions
that were consistent with the ALJ’s in most respects. Where it is not rele-
vant whether the ALJ or the Board made a particular finding, ruling, or
conclusion, we indicate the Board made the determination.
   2
     There were actually eight drivers who attended the meeting and
signed the document. One of the drivers left Transpersonnel before it
withdrew recognition of the Union, so whether this eighth driver sup-
ported the Union is immaterial.
4                   NLRB v. TRANSPERSONNEL, INC.
   In August 1997, the Board’s General Counsel issued a complaint,
alleging that Transpersonnel unlawfully solicited an unspecified num-
ber of employees to sign anti-union statements and unlawfully with-
drew recognition of the Union. In May 1998, the ALJ decided that
Transpersonnel unlawfully solicited nine employees and unlawfully
withdrew recognition of the Union. The Board adopted the ALJ’s rec-
ommended order in September 2001.

                                  II.

   After a collective bargaining agreement expires, under the law
applicable to this case, an employer may not withdraw recognition of
a union unless the employer shows either that (1) the union did not
in fact enjoy majority support, or (2) the employer had a good-faith
doubt, founded on a sufficient objective basis, of the union’s majority
support. Pirelli Cable Corp. v. N.L.R.B., 141 F.3d 503, 520 (4th Cir.
1998). The Board concluded that Transpersonnel failed to make either
showing.

   In making this determination, the Board found that there were as
few as twenty-two employees in the Transpersonnel bargaining unit
on May 9 — ten strikers who supported the Union and twelve drivers
who did not strike.3 Of these twelve drivers who did not strike, the
Board decided that Transpersonnel improperly solicited anti-union
statements from nine — the six replacement drivers who signed the
"No Union" document during the April 6 meeting and three others
who provided statements in the weeks following the April 6 meeting:
Crow, Johnny Emerson, and Bradley Forkey. Therefore, although
Transpersonnel claimed that it could rely on all twelve of the anti-
union statements it received from the nonstriking employees, the
Board concluded that Transpersonnel could rely on the anti-union
declarations of only three of the twenty-two unit employees: Wray,
Dean Hefner, and Franklin Harris. Accordingly, the Board concluded
that Transpersonnel violated §§ 8(a)(1) and 8(a)(5) when it withdrew
recognition of the Union.
    3
   See infra at 17-18 for a discussion of how many employees were in
the Transpersonnel unit on May 9.
                    NLRB v. TRANSPERSONNEL, INC.                      5
                                  III.

   We must affirm the Board’s factual findings if they are "supported
by substantial evidence on the record considered as a whole." 29
U.S.C. § 160(e); Medeco Security Locks, Inc. v. N.L.R.B., 142 F.3d
733, 742 (4th Cir. 1998). Substantial evidence is "such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion." Consolidated Diesel Co. v. N.L.R.B., 263 F.3d 345, 351
(4th Cir. 2001) (internal quotation omitted). If substantial evidence
exists, we must uphold the Board’s decision "even though we might
have reached a different result had we heard the evidence in the first
instance." N.L.R.B. v. Daniel Construction Co., 731 F.2d 191, 193
(4th Cir. 1984).

                                  IV.

   The Board found that Transpersonnel violated § 8(a)(1) by improp-
erly soliciting nine employees to provide anti-union statements. These
nine are the six replacement drivers who attended the April 6 meeting,
plus Crow, Emerson, and Forkey.

   The test for a § 8(a)(1) violation is whether, "under all of the cir-
cumstances, the employer’s conduct may reasonably tend to coerce or
intimidate employees." N.L.R.B. v. Grand Canyon Mining Co., 116
F.3d 1039, 1044 (4th Cir. 1997) (internal quotation omitted). It does
not matter whether the particular conduct by the employer was actu-
ally coercive. Consolidated Diesel, 263 F.3d at 352. Instead, the rele-
vant inquiry is "whether the conduct in question had a reasonable
tendency in the totality of circumstances to intimidate." Equitable
Gas Co. v. N.L.R.B., 966 F.2d 861, 866 (4th Cir. 1992) (internal quo-
tation omitted). Whether particular conduct tends to coerce or intimi-
date is a question essentially left to the specialized experience of the
Board, and we must show respect for the Board’s findings. Consoli-
dated Diesel, 263 F.3d at 352. Nevertheless, a reviewing court is
empowered to set aside a Board’s decision when the court cannot
conscientiously find substantial evidence to support the Board’s deci-
sion, when viewing the record as a whole including the body of evi-
dence opposed to the Board’s view. Weirton Steel v. N.L.R.B., 689
F.2d 504, 507 (4th Cir. 1982).
6                   NLRB v. TRANSPERSONNEL, INC.
                        A. April 6 Meeting

   Transpersonnel scheduled an orientation meeting at the Spartan-
burg Holiday Inn for its newly hired replacement drivers. Wray, one
of the two drivers who refused to join the strike, also attended the
meeting. Thomas Husvar, Transpersonnel’s Regional Manager, led
the meeting.

   Husvar and Wray parked next to each other in the hotel parking lot
and walked to the meeting together. Wray said to Husvar: "Tom, I
don’t want union representation. I don’t think the people want union
representation. What do we have to do?" J.A. 147-48. Husvar
responded: "Those are very good questions. Why don’t you ask those
questions in the meeting . . . because I think everybody has the right
to know . . . what their rights are." J.A. 148.

   During the meeting, Wray repeated his question. In response, Hus-
var told the employees that they had the right to decide whether they
wanted Union representation, that Transpersonnel could not influence
their decision, and that if they did not want Union representation then
Transpersonnel would need some sort of documentation evidencing
their preference.

   While the meeting proceeded, the employees circulated a piece of
Holiday Inn stationery with the handwritten notation "No Union" at
the top. All of the six replacement drivers and Wray signed the docu-
ment. Husvar did not circulate the document, nor did he know that the
employees were circulating it. One of the employees handed the note
to another Transpersonnel manager during a break in the meeting and
the document was eventually given to Husvar when the meeting
resumed.

   After the "No Union" document was handed to Husvar, one of the
replacement drivers asked, "[W]hat do we do now?" J.A. 150. Husvar
told the group that Transpersonnel could not do anything about the
Union until a majority of the employees indicated that they did not
want Union representation. Husvar also assured the replacements that
they were permanent employees and that they would not lose their
jobs even if the strike ended.
                     NLRB v. TRANSPERSONNEL, INC.                        7
   The complaint filed by the Board’s General Counsel did not allege
any unlawful conduct arising out of the April 6 meeting. In his open-
ing statement to the ALJ, the General Counsel made no reference to
the April 6 meeting.4 Husvar is the only person who testified before
the ALJ about that meeting, and the ALJ credited his testimony. The
General Counsel did not attempt to elicit any testimony from any
other person who attended the meeting.

   In deciding that Husvar unlawfully solicited the replacement driv-
ers to sign the "No Union" document, the Board found that Husvar
failed to take a "neutral position" when asked by Wray in the parking
lot what Wray and the new employees could do to get rid of the
Union. J.A. 342. According to the Board, Husvar improperly directed
Wray, who was clearly biased against the Union, to ask his question
during the meeting in front of the other employees. Moreover, Husvar
failed to object when the employees circulated the "No Union" docu-
ment in his presence. The ALJ also found, without explanation, that
it was improper for Husvar to tell the replacements that they would
not lose their jobs even if the strike ended.5

  The Board’s finding of an unfair labor practice relating to the April
6 meeting is not supported by substantial evidence. Husvar’s conduct
during the April 6 meeting lacks all indicia of any tendency to intimi-
date or coerce.6 Wray, not Husvar, initiated the question of how the
   4
     It is clear that the General Counsel intended to focus on the alleged
solicitations of three employees. He called only three drivers to testify:
Forkey, Emerson, and Hefner. The General Counsel does not now argue
that Transpersonnel improperly solicited Hefner’s anti-union statement.
   5
     Although the Board affirmed the ALJ’s conclusions generally, the
Board made no mention of this particular conclusion. The Board’s
silence is understandable in light of the opinion by the District of Colum-
bia Circuit in Mathews Readymix, Inc. v. N.L.R.B., 165 F.3d 74, 79 (D.C.
Cir. 1999), which was issued after the ALJ’s decision but before the
Board’s order. The court in Mathews Readymix recognized that replace-
ment employees would naturally want to know how the conclusion of a
strike would affect their employment status.
   6
     The Board cites Boren Clay Products Co. v. N.L.R.B., 419 F.2d 385
(4th Cir. 1970), to support its contention that Husvar unlawfully solicited
the replacement drivers during the meeting. The Board’s reliance on
Boren Clay is misguided. In Boren Clay, the employer made "decidedly
coercive" statements to its employees and withdrew recognition even
though it knew the union enjoyed majority support. Id. at 385-86. No
such evidence exists in this case.
8                   NLRB v. TRANSPERSONNEL, INC.
employees could get rid of the Union. Wray told Husvar that other
replacement drivers shared his opposition to the Union. It was prudent
for Husvar, for the sake of uniformity and efficiency, to answer the
question in a group setting rather than individually.

   The Board determined that Husvar was not justified in relying on
Wray’s statement that other replacement drivers also wanted to get rid
of the Union, because Wray was obviously biased against the Union.
In support of this conclusion, the Board cited Allentown Mack Sales
and Service, Inc. v. N.L.R.B., 522 U.S. 359 (1998). The Board’s reli-
ance on Allentown is misplaced.7

   The employer in Allentown relied on two employees who repre-
sented that other employees did not support the union. One of the two
employees was a union steward. The Board determined that the
employer should not have relied on the information provided by the
steward. The Supreme Court disagreed, finding the information pro-
vided by the steward helped establish the employer’s good-faith doubt
about the majority status of the union. Id. at 370-71.

   The Board in this case distinguished the nonhostile union steward
in Allentown from Wray, the clearly biased employee. Based on this
distinction, the Board found it improper for Transpersonnel to rely on
Wray’s statement that others shared his interest in getting rid of the
Union. This conclusion, however, is belied by the Supreme Court’s
discussion of the second employee in Allentown.

   The second employee in Allentown was not a steward. He told the
employer that all of his fellow workers on the night shift did not want
the union. The Board also found the employer improperly relied on
this employee’s statement. The Supreme Court again disagreed, hold-
ing that "absent some reason for the employer to know that [the
employee] had no basis for his information, or that [the employee]
    7
   The Board asserts that Transpersonnel waived its claim that it should
be allowed to rely on Wray’s representation by not raising this argument
in its brief. We disagree. In its brief, Transpersonnel cited verbatim
Wray’s conversation with Husvar before the April 6 meeting. Moreover,
because the Board relied on Allentown in deciding the case, we must
determine whether its reliance was appropriate.
                   NLRB v. TRANSPERSONNEL, INC.                     9
was lying, reason demands that the statement be given considerable
weight." Id. at 370.

   Because there is no evidence in the record that Wray lied or lacked
a basis for his information, we find, consistent with the Supreme
Court’s decision in Allentown, that Husvar (and thus Transpersonnel)
properly relied on Wray’s assertion that other replacement drivers
also wanted to know how to get rid of the Union.

   Moreover, Husvar’s answer to Wray’s question during the meeting
correctly stated both the law and the facts. Husvar assured the
employees that each could decide for himself whether he wanted the
Union. Husvar further informed the employees that Transpersonnel
would need a document signed by them if they did not want to be rep-
resented by the Union.

   Husvar’s comments were not improper. It is not an unfair labor
practice for an employer to provide accurate information in response
to an employee’s question, as long as the answer is not accompanied
by any inducement or threat. Terminix-Int’l Co., 315 N.L.R.B. 1283,
1287-88 (1995); Lee Lumber and Building Material Corp., 306
N.L.R.B. 408 (1992). Husvar’s answer was accurate and free of any
inducement or threat.

   The ALJ also found that Husvar’s comment to the employees that
they were permanent replacements and would keep their jobs even if
the strike ended was coercive. We hold that this response by Husvar
clearly was not coercive as a matter of law. Before the April 6 meet-
ing, several employees asked the company about their status as
replacement drivers. These replacement employees would naturally
want to know whether they would be able to keep their jobs if the
strikers came back to work. See Mathews Readymix, Inc. v. N.L.R.B.,
165 F.3d 74, 79 (D.C. Cir. 1999) (explaining that the Board may not
ignore evidence that replacements might want the employer to with-
draw recognition of the union to ensure keeping their jobs). Because
several replacement employees had already asked the company about
their status as replacement drivers and because it was likely that all
of them would share the same concern, it was appropriate for Husvar
to address this issue during the meeting.
10                  NLRB v. TRANSPERSONNEL, INC.
   Moreover, what Husvar told the new employees during the meeting
about keeping their jobs is, of course, an entirely accurate statement
of the law. If a strike is an economic strike (as it was at Transperson-
nel), the employer need not terminate replacement workers when
strikers seek to return to work; rather, the employer need only place
its strikers on a preferential rehiring list and call them back when an
opening becomes available. Pirelli Cable Corp. v. N.L.R.B., 141 F.3d
503, 516 (4th Cir. 1998). Any effect this comment might have on the
new employees’ decision whether to join the Union is a consequence
of the law rather than improper coercion or intimidation by the
employer. Id. (finding a letter from the employer to its employees not
threatening or coercive, because the letter merely stated the potential
effect on the employment status of strikers if a strike ensued and
replacements were hired); Lee Lumber, 306 N.L.R.B. at 410
("Otherwise lawful statements do not become unlawful, however,
merely because they have the effect (intended or otherwise) of caus-
ing employees to abandon their support for a union.").

   Last, the Board determined that Husvar improperly influenced the
replacement drivers by not objecting to the circulation of the "No
Union" document. Husvar testified that he did not know the employ-
ees were circulating the "No Union" document. The Board credited
this testimony. Nevertheless, the Board criticized Husvar for permit-
ting the employees to circulate the document in his presence. The
Board’s conclusion is not supported by substantial evidence. Husvar
could not object to the circulation of the document if he was unaware
that the drivers were circulating it.8
  8
   The ALJ relied on the Board’s decision in Mathews Readymix, Inc.,
324 N.L.R.B. 1005, 1011, n. 16 (1997), to support its conclusion that
Husvar improperly influenced the six replacement drivers who signed the
"No Union" petition during the April 6 meeting. In that case, company
officials (like Husvar) were present in a meeting where employees signed
a decertification petition during a break. The company officials were not
aware that the petition was being circulated. The Board in Mathews
Readymix found that the company unlawfully withdrew recognition of
the union.
  The District of Columbia Circuit reversed the Board’s decision and
found no unfair labor practice relating to the meeting in question.
Mathews Readymix, Inc. v. N.L.R.B., 165 F.3d 74 (D.C. Cir. 1999).
                     NLRB v. TRANSPERSONNEL, INC.                        11
   For all of the above reasons, we find that the Board’s conclusion
that Transpersonnel unlawfully solicited the six employees to sign the
"No Union" document is not supported by substantial evidence.
Transpersonnel’s conduct did not have a reasonable tendency in the
totality of the circumstances to coerce or intimidate. Thus, Transper-
sonnel was entitled to rely on these six anti-union statements obtained
during the April 6 meeting in deciding whether to withdraw recogni-
tion of the Union. Therefore, when these six statements are combined
with the three undisputed statements, Transpersonnel properly relied
on these nine anti-union statements.

                            B. Grant Crow

   Crow, like Wray, worked for Transpersonnel before the strike.
During the two years prior to the strike, he was pressured by the
Union workers to join the Union but adamantly refused. He also
refused to go on strike and crossed the picket line for two weeks but
later asked Transpersonnel not to assign him to the Kohler account
because he felt threatened by the strikers. Transpersonnel accommo-
dated his request. Husvar was aware of Crow’s nonsupport of the
Union.

   Crow periodically telephoned Husvar to find out the status of the
strike, and after the strike quieted down, Husvar encouraged Crow to
return to work at Kohler. In one such call by Crow to Husvar soon
after the April 6 meeting, Husvar told Crow that the replacement
workers had signed a document expressing that they did not want
Union representation and that the number of those who did not want
Union representation was growing. Crow responded: "You know how
I feel about that. If there’s anything I can do, I’ll do it." J.A. 172. Hus-
var replied that if Crow wanted to express his position about the
Union, he should send Husvar a letter. Crow asked Husvar to send
him sample language of what to say in the letter, but Husvar told
Crow to put it in his own words. Crow, however, again requested that
Husvar send him sample language. Husvar sent Crow a sample letter
in the mail. A few days later, Crow returned a letter to Husvar that
stated, "I Grant L. Crow do not want the Teamsters to represent me
when I drive at the Kohler Company." J.A. 313. Crow did not follow
the sample language Husvar provided.
12                  NLRB v. TRANSPERSONNEL, INC.
   The Board erred by finding that Husvar’s conduct would tend to
intimidate or coerce. The undisputed testimony established that Crow
initiated the telephone call and that Husvar accurately informed Crow
of the status of the strike. It is further undisputed that Crow volun-
teered to take action to show his support for the anti-union employees.
Crow specifically asked Husvar to send him sample language. Merely
providing accurate information upon request of the employee, even
for sample language, does not constitute conduct that would tend to
coerce or intimidate. Bridgestone/Firestone, Inc., 2001 WL 1076111
(N.L.R.B. 2001) (deciding that the employer provided only lawful,
ministerial aid to its employee by drafting petition disavowing the
union); Ernst Home Centers, Inc., 308 N.L.R.B. 848 (1992). Because
Transpersonnel did not unlawfully solicit Crow’s statement, Transper-
sonnel was entitled to rely on Crow’s disavowal of the Union. Thus,
Crow’s statement raises to ten the number of anti-union statements
upon which Transpersonnel could properly rely.

                         C. Johnny Emerson

   The ALJ heard testimony from Emerson, Husvar, and Joanne Hurt,
Transpersonnel’s operations manager, regarding whether Transper-
sonnel improperly solicited Emerson. Although there was substantial
variance in the testimony, especially as to the timing of the events, all
the testimony was consistent in one respect: Emerson did not want
union representation.

  Husvar and Hurt testified that they received an unsolicited anti-
union statement from Emerson before May 9. Emerson, on the other
hand, testified that Hurt asked him later in May to send a statement,
which he did. The ALJ credited the testimony of Emerson over
Hurt’s.

   The balancing of the credibility of witnesses is at the heart of the
fact-finding process, and it is normally not the role of reviewing
courts to second-guess a fact-finder’s determinations about who was
the more truthful witness. Fieldcrest Cannon, Inc. v. N.L.R.B., 97
F.3d 65, 71 (4th Cir. 1996). Thus, absent extraordinary circumstances,
we will not disturb an ALJ’s credibility determinations. Sam’s Club
v. N.L.R.B., 173 F.3d 233, 240 (4th Cir. 1999). We decline to disturb
the ALJ’s credibility determinations, which were adopted by the
                    NLRB v. TRANSPERSONNEL, INC.                     13
Board, regarding the testimony provided by Emerson, Husvar, and
Hurt, and we enforce the Board’s finding that Transpersonnel violated
§ 8(a)(1) by soliciting a statement from Emerson.9

   We note, however, that, under the circumstances, this solicitation
"can hardly be considered a grave violation of 8(a)(1)." See N.L.R.B.
v. Nu-Southern Dyeing & Finishing, Inc., 444 F.2d 11, 16 (4th Cir.
1971). The request for a statement was very brief and certainly
restrained. Emerson testified that Hurt said

      something to the effect of what my feelings were about a
      union and working for a union. She didn’t tell me one way
      or another. She just said, "Whatever your feelings are, put
      it down in a note and send it to me."

J.A. 79. Thus, Hurt’s solicitation was "no more than a technical viola-
tion of 8(a)(1)." Id. at 16.

   We further note that, even though Transpersonnel violated
§ 8(a)(1) by soliciting a statement from Emerson, that ruling does not
necessarily mean that Transpersonnel could not rely on Emerson’s
dissatisfaction with union representation in deciding whether to with-
draw recognition of the Union on May 9. A finding that an employer
engages in conduct that has a reasonable tendency to coerce or intimi-
date does not necessarily mean that the employer may not rely on a
decertification petition subsequently signed by an employee. See Nu-
Southern Dyeing, 444 F.2d at 16. Employers may "avoid a bargaining
order by showing that the unfair labor practices did not significantly
contribute to such a loss of majority or to the factors upon which a
doubt of such a majority is based." Id.

   We need not, however, decide whether the solicitation of Emerson
significantly contributed to the Union’s loss of majority status or to
Transpersonnel’s good-faith doubt as to the Union’s majority status.
Another, more evident basis in the record establishes that the solicita-
  9
   We also conclude that substantial evidence supports the Board’s find-
ing that Transpersonnel violated § 8(a)(1) by interrogating Emerson. We
note, however, that the interrogation occurred after May 9 and did not
affect Transpersonnel’s withdrawal of Union recognition.
14                  NLRB v. TRANSPERSONNEL, INC.
tion of Emerson could not have influenced Transpersonnel’s decision
to withdraw recognition of the Union on May 9. The only fair reading
of the testimony credited by the ALJ reveals that the solicitation of
Emerson occurred after May 9.10 Accordingly, even if Emerson’s
statement obtained after May 9 was improperly solicited, Transper-
sonnel clearly did not rely on it when it decided to withdraw recogni-
tion of the Union on May 9.11

                        D. Bradford Forkey

   According to Forkey, Hurt interviewed him in early April. She
informed Forkey that there was a strike in progress, and she asked
him whether he minded working under that circumstance. Forkey said
"no." J.A. 36. Hurt told him that as long as everything checked out
on his application he could show up for work on April 13.

   As directed, Forkey showed up for work on April 13. As he was
stowing his luggage in the truck, his driving partner told him that he
needed to see Husvar about signing a document. Husvar was at the
terminal that morning in his car, so Forkey walked over to speak with
him. Husvar told Forkey that he wanted him to sign a statement
"about not belonging to the union. Or, wanting the union representa-
tion." J.A. 38. Forkey took a piece of paper out of his notebook, wrote
a note indicating that he did not want Union representation, and
handed it to Husvar.

   Forkey did not know whether signing the document was a require-
ment of his starting work. He wrote the note because he needed to go
to work. Forkey wrote the note of his own free will.
  10
      The ALJ found only that the solicitation occurred sometime "in May
1997." J.A. 339. According to Emerson, whose testimony the ALJ cred-
ited, the facts, even when viewed most unfavorably to Transpersonnel,
show that Emerson applied for the job on April 15 and started two weeks
later, which would have been April 29. Hurt did not request Emerson’s
statement until at least two weeks after he started work, which would
have been no earlier than May 13, and at any rate after May 9.
   11
      For the discussion of whether Transpersonnel could validly rely on
Emerson’s opposition to the Union, see infra at 18-19.
                     NLRB v. TRANSPERSONNEL, INC.                       15
   The Board credited Forkey’s testimony. Nevertheless, the Board
concluded, contrary to Forkey’s testimony, that "Husvar asked Brad-
ford Forkey to sign a paper about not wanting Union representation."
J.A. 338. This conclusion, which is the primary conclusion underlying
the Board’s finding as to the Forkey solicitation, is clearly not sup-
ported by substantial evidence. Husvar did not ask Forkey for a note
saying that he did not want Union representation. Instead, Husvar
merely asked Forkey for a statement indicating whether or not he
wanted the Union.

   Despite this errant finding, we have reviewed the record and find
support for the Board’s ultimate conclusion that Husvar unlawfully
solicited Forkey.12 Even though Forkey testified that he signed the
statement of his own free will, we affirm the Board’s decision that
Husvar’s conduct, under the totality of the circumstances, had a rea-
sonable tendency to intimidate or coerce.

                                    E.

   In summary, the Board concluded that Transpersonnel unlawfully
solicited a total of nine employees: the six replacement drivers at the
April 6 meeting, Crow, Emerson, and Forkey. We find, however, that
there is substantial evidence to support a finding of unlawful solicita-
tion as to only Emerson and Forkey. Accordingly, of these particular
nine employees, we find that Transpersonnel properly relied on the
anti-union statements provided by seven: the six obtained during the
April 6 meeting and Crow’s. Combining these seven with the three
undisputed statements, Transpersonnel properly relied on ten anti-
union statements. In section V, we discuss whether Transpersonnel
could rely on the disavowals of the Union by Emerson or Forkey in
deciding whether to withdraw recognition of the Union.

  12
    Although substantial evidence exists, it is very slim evidence at best.
Like the violation involving Emerson, the Forkey violation also can
hardly be considered a serious violation even under the circumstances
credited by the Board.
16                  NLRB v. TRANSPERSONNEL, INC.
                                  V.

                                  A.

  The Board decided that Transpersonnel unlawfully withdrew rec-
ognition of the Union on May 9. We disagree.

   Section 8(a)(5) of the Act makes it unlawful for an employer to
refuse to bargain with its employees’ certified union while the collec-
tive bargaining agreement is in effect. Pirelli Cable, 141 F.3d at 520.
A union is usually entitled to a conclusive presumption of support by
a majority of unit employees during the term of the collective bar-
gaining agreement. See Auciello Iron Works, Inc. v. N.L.R.B., 517
U.S. 781, 785 (1996).

   After the collective bargaining agreement expires, however, the
union enjoys only a rebuttable presumption of majority status. Id. at
786. Based on Board precedent in force when Transpersonnel with-
drew recognition, to rebut this presumption, an employer must show
either that (1) the union did not in fact enjoy majority support, or (2)
the employer had a good-faith doubt, founded on a sufficient objec-
tive basis, of the union’s majority support. N.L.R.B. v. Curtin Mathe-
son Scientific, Inc., 494 U.S. 775, 778 (1990).

   To make the first showing, a petition signed by at least half of the
bargaining unit’s members indicating they do not wish to be repre-
sented by the union ordinarily constitutes sufficient objective evi-
dence to rebut the union’s presumed majority status. N.L.R.B. v. D &
D Enters., Inc., 125 F.3d 200, 209 (4th Cir. 1997). An employer may,
however, rely on forms of proof other than a petition, so long as that
other evidence objectively demonstrates a free and voluntary choice
on the part of an employee to withdraw his support of the labor orga-
nization. See Master Slack Corp., 271 N.L.R.B. 78 (1984).

   As for the second showing, a good-faith doubt is a genuine, reason-
able uncertainty about whether the union enjoys the continuing sup-
port of a majority of unit employees. Allentown Mack Sales & Serv.,
Inc. v. N.L.R.B., 522 U.S. 359, 367 (1998). Under the law applicable
to this case, an employer may withdraw recognition of a union even
                    NLRB v. TRANSPERSONNEL, INC.                      17
if the union continues to enjoy majority status, if the employer has a
genuine, good-faith doubt whether the union continues to enjoy
majority status. See Levitz Furniture Co., 2001 WL 314139 at *7
(N.L.R.B. 2001); Celanese Corp., 95 N.L.R.B. 664 (1951), overruled
in part by Levitz Furniture at *17. The employer bears the burden of
proving loss of majority status or good-faith doubt. Virginia Concrete
Co. v. N.L.R.B., 75 F.3d 974, 980 (4th Cir. 1996). Determining
whether an employer has presented sufficient evidence regarding the
loss of majority status or good faith-doubt is a question of fact for the
Board, subject to limited review. Id. at 980. A reviewing court, never-
theless, must search the entire record for substantial evidence and in
doing so must consider whatever in the record supports the Board’s
findings and also whatever fairly detracts from those findings. Pirelli
Cable, 141 F.3d at 514.

                                   B.

                                   1.

   We first decide whether the Board’s conclusion that Transperson-
nel failed to establish that the Union "in fact" lacked the support of
a majority of the unit employees on May 9 is supported by substantial
evidence. The unit employees at Transpersonnel on May 9 included
the twelve employees who crossed the picket line — the six replace-
ment drivers who attended the April 6 meeting (Crow, Emerson, and
Forkey) and the three undisputed Union opponents (Wray, Hefner,
and Harris) — plus the strikers. See Virginia Concrete, 75 F.3d at 981
(ruling that an economic striker retains the status of employee entitled
to vote within twelve months of a strike unless certain contingencies
occur before the election).

   The Board represents on appeal that there were ten employees who
actively engaged in the strike. Board Brief, pp. 4-5, 43-45, 48.13 After
reviewing the record as a whole, we conclude that there were ten
  13
   The ten strikers identified by the Board are: Merl Davidson, Vernon
Payden, James Prater, Bobby Rice, Gary Scott, Frank Sellars, Jimmy
Snyder, Bernard Swenson, Clyde Whitaker, and William Wilkins. J.A.
333, n. 8; Board Brief, pp. 4-5.
18                  NLRB v. TRANSPERSONNEL, INC.
                    14
strikers on May 9. Thus, the unit included a total of twenty-two
employees: ten strikers and twelve nonstrikers.15

   We presume that the ten strikers supported the Union on May 9.
As for the twelve nonstrikers, it is undisputed that Transpersonnel
received valid written disavowals of the Union from three employees:
Wray, Hefner, and Harris. We have also concluded, contrary to the
Board, that the "No Union" expressions by the six replacement drivers
on April 6 were valid and the statement from Crow was properly
obtained. Thus, of these twenty employees, ten supported the Union
and ten did not. The only two employees unaccounted for in the total
of twenty-two unit employees are Emerson and Forkey.

   As for Emerson, based on the testimony credited by the Board, we
find that Transpersonnel’s improper solicitation of Emerson occurred
after May 9.16 We conclude, however, that Transpersonnel had, before
May 9, other objective and reliable evidence that Emerson did not
  14
     The exact number of strikers on May 9 is disputed by the parties. In
the proceedings below, Transpersonnel asserted that there were nine
strikers and twelve nonstrikers for a total of twenty-one unit members.
The Union argued twelve strikers and twelve nonstrikers for a total of
twenty-four unit members. The ALJ decided that there were at least
eleven strikers. The ALJ declined to include the twelfth possible striker
urged by the Union, Jerry McDaniel, because the "record evidence was
not fully developed but it appears [McDaniel] was off work due to a dis-
ability, which prevented him from returning to work." J.A. 341.
   In its order, the Board assumed ten strikers for a total of at least
twenty-two unit members. In reaching this number, the Board assumed
that McDaniel was not a striking employee based on the ALJ’s finding.
The Board further assumed that Earl Dople was not a striking employee
because there was insufficient evidence in the record to determine his
employment status.
   15
      Even though the Board represents that there were only ten strikers,
it indicates that there were twenty-three unit members. Board’s Brief, pp.
9, 43. To get to twenty-three, however, either McDaniel or Dople must
be included. The Board does not urge any basis in the record, and we
find no basis, to conclude that either McDaniel or Dople should be
included as strikers. Thus, we find that the record supports a finding of
only ten strikers and only twenty-two unit members on May 9.
   16
      See ante at 14, n. 10.
                    NLRB v. TRANSPERSONNEL, INC.                       19
support the Union. Hefner, Emerson’s driving partner for many years,
specifically told Transpersonnel before May 9 that he wanted nothing
to do with union representation and neither did Emerson. The Board
found that Transpersonnel was justified in relying on this statement
by Hefner as evidence that Emerson was dissatisfied with union rep-
resentation. J.A. 343.

   We find that the Board erred in deciding that Transpersonnel failed
to meet its burden of showing that the Union had in fact lost the sup-
port of a majority of the unit members on May 9. Including Emerson,
at least eleven of the twenty-two unit members at Transpersonnel did
not support the Union. Therefore, the Union did not in fact enjoy
majority status on May 9, and Transpersonnel did not violate
§§ 8(a)(1) and 8(a)(5) by withdrawing recognition of the Union.17

                                    2.

   We next address Transpersonnel’s alternative argument that it had
a good-faith doubt whether the Union enjoyed majority status. We
find, as an additional ground supporting our judgment, that the
Board’s decision that Transpersonnel failed to establish its good-faith
reasonable uncertainty that the Union did not enjoy majority support
on May 9 is not supported by substantial evidence.

   The ten valid written statements of nonsupport of the Union — six
from the April 6 meeting, plus Crow, Wray, Hefner, and Harris —
and the oral representation by Hefner about Emerson’s dissatisfaction
with union representation create a good-faith doubt that the Union
lacked majority support. At a minimum, Transpersonnel had a reason-
  17
    Because we conclude that Transpersonnel may rely on Emerson’s
disavowal and it has thereby met its burden of establishing that the Union
did not in fact enjoy majority support on May 9, we need not address
whether Transpersonnel could also rely on Forkey’s anti-union state-
ment. See Pirelli Cable, 141 F.3d at 520-21 (outlining four factors to
determine whether a decertification petition has been tainted by an
employer’s unfair labor practices); Mathews Readymix, 165 F.3d at 133
(holding that uncontested coercive interrogation of replacement employ-
ees did not taint the employees’ signatures on the decertification peti-
tion).
20                   NLRB v. TRANSPERSONNEL, INC.
able uncertainty whether these eleven of twenty-two employees sup-
ported the Union. See Allentown Mack Sales, 522 U.S. at 371-72
(holding that the employer established its good-faith doubt of union’s
majority status based on oral statements by fewer than half of the unit
members).18

                                    VI.

     For the forgoing reasons, we

                         GRANT IN PART AND DENY IN PART
              THE BOARD’S APPLICATION FOR ENFORCEMENT,
                     AND GRANT IN PART AND DENY IN PART
                       TRANSPERSONNEL’S CROSS-PETITION
                                            FOR REVIEW.

LUTTIG, Circuit Judge, concurring in part and dissenting in part:

   I concur in the opinion for the court, with the exception of Part
IV.D. From that part of the court’s opinion, I dissent. Although the
ALJ credited Forkey’s testimony over Husvar’s, Forkey’s own testi-
mony does not support the Board’s adopted finding that he was ille-
gally solicited — as the majority’s opinion acknowledges. As the majority
explains, the ALJ’s "primary conclusion" supporting the illegal solici-
tation finding as to Forkey — i.e., that Husvar asked Forkey for a
  18
    We note that the good-faith defense is no longer available to an
employer. In 2001, after the ALJ decided this case in 1998, the Board
reversed its longstanding precedent by deciding that an employer may no
longer withdraw recognition of a union based on a good-faith doubt. It
ruled that an employer may prevail only by establishing that the union
does not actually enjoy majority support. Levitz Furniture Co., 2001 WL
314139 at * 11, 17 (N.L.R.B. 2001). The Board reasoned that it was
inconsistent with the Act to allow an employer to withdraw recognition
of a union based on a good-faith doubt even when the union in fact is
supported by a majority of the unit employees. The Board’s concern in
Levitz is not implicated in this case, since we also find that the Union did
not in fact enjoy majority support on May 9. Moreover, the Board gave
its new rule in Levitz only prospective effect, so the good-faith doubt
defense would still be available to Transpersonnel in this proceeding,
even if it could not show that the Union in fact lacked majority support.
                    NLRB v. TRANSPERSONNEL, INC.                     21
statement saying that he did not want union representation — is
directly contradicted by Forkey’s own testimony. Forkey testified that
Husvar sought him out "merely [to] ask[ ] [him] for a statement indi-
cating whether or not he wanted the Union," ante at 15 (emphasis
added), and then Husvar accepted the note Forkey wrote him in
response to his request. J.A. 38. Indeed, on the basis of this testimony
by Forkey himself, the majority rejects as "clearly not supported by
substantial evidence" the ALJ’s conclusion that Husvar asked Forkey
to sign a paper that he did not want union representation.

   Notwithstanding Forkey’s own testimony that he was merely asked
for a statement as to whether or not he supported the union (which the
majority accepts), and without offering any other evidence in support
of its conclusion that Forkey reasonably would have been intimidated
or coerced, the majority finds that substantial evidence supports the
Board’s judgment that Transpersonnel unlawfully solicited Forkey.

   If we are prepared to affirm the Board’s conclusion, we should at
least be prepared to recite the evidence on the basis of which we ren-
der that disposition, even if (or especially if) that evidence is "very
slim evidence at best," ante at 15 n.12. When the substantiality of evi-
dence supporting a conclusion is challenged, mere conclusory state-
ments that substantial evidence exists give rise to a legitimate
inference that no such evidence exists in fact.

   Because the majority rejects as "clearly not supported by substan-
tial evidence" the ALJ’s finding that Husvar asked Forkey to sign a
paper that he did not want union representation; because it offers no
evidence beyond this rejected conclusion in support of the Board’s
judgment that Husvar’s conduct had a reasonable tendency to intimi-
date or coerce Forkey in the exercise of his section 7 rights; and
because I am aware of no such evidence, I dissent from Part IV.D of
the court’s opinion.

WILKINSON, Circuit Judge, dissenting:

  Many of Transpersonnel’s drivers lawfully went out on an eco-
nomic strike. Transpersonnel hired replacement workers and promptly
used statements made by these replacement workers to decertify the
union. The question before us today is not what we might have done
22                  NLRB v. TRANSPERSONNEL, INC.
if faced with this case in the first instance. Rather, our review is lim-
ited to whether the Board took a permissible view of the evidence in
finding that the company unlawfully solicited anti-union statements
from its replacement employees. With all respect for my good col-
leagues, I think that the Board did.

   The question of whether or not a company’s actions would tend to
coerce an average employee is one at the heart of the Board’s exper-
tise. An employer’s conduct must be examined "in the context of its
labor relations setting." J.P. Stevens & Co. v. NLRB, 638 F.2d 676,
687 (4th Cir. 1980) (citations omitted). In other words, a company’s
conduct must be judged by how a worker, who is economically
dependent on an employer, would understand the company’s actions.

   In this regard, the Board’s findings of fact must be sustained, even
if a reviewing court "might have reached a different result had [it]
heard the evidence in the first place." NLRB v. Nueva Eng’g, Inc., 761
F.2d 961, 965 (4th Cir. 1985) (citations omitted). Deference to the
Board’s findings of fact is particularly appropriate where credibility
determinations are at issue, and "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. and Chems.,
Inc., 717 F.2d 141, 145 (4th Cir. 1983) (alterations in original) (cita-
tions omitted). Rather than according the appropriate deference to the
ALJ who heard the testimony and then credited one set of inferences
over another, the majority reconstructs the dynamics of the April 6
meeting in order to draw its own conclusions. In so doing, it has over-
stepped its bounds as a reviewing court.

   The ALJ found that the conduct of Husvar and Burrell at the April
6 meeting had the tendency to coerce six replacement employees in
the exercise of their rights, and the Board adopted this finding. The
majority contends that this finding lacks support in the record because
it concludes that the company was doing no more than giving out
accurate information and acting in a neutral fashion. However, there
is substantial evidence to support the Board’s view that Husvar’s con-
duct created an atmosphere in which the drivers would feel pressured
to sign the "no union" petition.

  The meeting was attended by a small group consisting mostly of
newly-hired striker replacements. This gathering was their first offi-
                    NLRB v. TRANSPERSONNEL, INC.                      23
cial meeting with the company. One of the purposes of the meeting
was to discuss their employment status as replacements. The only
non-replacement driver present was Raymond Wray, who began the
session by asking, at Husvar’s behest, what could be done to get rid
of the union. Husvar responded by telling the drivers that the com-
pany would need some written proof of the employees’ anti union
sentiments in order to oust the union. It was hardly unreasonable for
the Board to find that under the totality of the circumstances, Hus-
var’s statement would tend to make the replacement employees feel
that the company was trying to elicit anti-union statements from them.
These newly-hired workers, replacement drivers whose standing with
the company was bound to be of concern to them, would understand-
ably want to please their employer. Because of the small number of
employees at the meeting, the company would likely become aware
of each and every individual who chose not to sign a "no union" note.
Thus an employee who did not wish to sign the petition might none-
theless have done so rather than risk the boss’s displeasure and be
branded a union sympathizer right at the start of his employment.

   Moreover, Husvar could simply have answered Wray’s question
when it was first asked rather than having him hold it until the meet-
ing when all the workers would be present. The company defends this
action as one of administrative efficiency, contending that Husvar was
merely saving himself the trouble of repeating the information again
at the meeting. But this assumes that at least some of the replacement
workers had also independently decided that they wanted to decertify
the union. Husvar had no indication of this except for Wray’s state-
ment "I don’t want union representation. I don’t think the people want
union representation." Husvar did not know whether or not Wray had
spoken to most, or even any, of the replacement workers before Hus-
var decided that all of the drivers needed to hear information on how
to get rid of the union. While it is not a necessary inference that Hus-
var was trying to pressure these drivers in the exercise of their rights,
it is certainly a permissible one. The Board’s finding that Husvar’s
actions would tend to coerce newly-hired workers to sign a "no
union" note at a small initial meeting presided over by the employer’s
chosen representatives is not without support in the record.

  The right to self-organization is the fundamental guarantee of the
National Labor Relations Act. See 29 U.S.C. § 157 (2000). To that
24                  NLRB v. TRANSPERSONNEL, INC.
end, employers are forbidden to "interfere with, restrain, or coerce
employees in the exercise of [their] rights." 29 U.S.C. § 158(a)(1).
The Act makes clear that companies are to maintain neutrality
towards the union, taking no actions which might encourage or dis-
courage employees’ union activities. The Board found that Transper-
sonnel did not abide by these rules when dealing with its employees.
We may not have come to the same conclusion if we were viewing
this case in the first instance, but the Board’s finding had support in
the record and therefore should be sustained. Because I would uphold
the Board’s findings with respect to the April 6 meeting, I have no
reason to reach the other alleged violations of the Act. I would thus
enforce the Board’s order and deny the cross-petition for review.
