                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 December 3, 2015
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 INTERNATIONAL UNION OF
 OPERATING ENGINEERS,
 LOCAL 627,

               Petitioner/Cross-
          Respondent,                             Nos. 14-9605 and 14-9613
                                                 (NLRB No. 17-CB-072671)
 v.                                                 (Petition for Review)

 NATIONAL LABOR RELATIONS
 BOARD,

                Respondent/Cross-
                Petitioner.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, GORSUCH, and McHUGH, Circuit
Judges.

      The International Union of Operating Engineers, Local 627 challenges an

order of the National Labor Relations Board finding it in violation of the National

Labor Relations Act sections 8(b)(1)(A) and (b)(2). See 29 U.S.C.

§ 158(b)(1)(A), (b)(2). We affirm.



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Stacy Loerwald was an oiler and member of the Union’s Oklahoma City

chapter. The Union removed Loerwald from its list of work-eligible employees.

After the Union denied her access to the list, prevented her from placing her name

back on the list, and refused to stamp her unemployment book, she filed unfair

labor practice charges. The Union responded that Loerwald had no right to

examine the list, that it had removed her name from the list in accordance with

standard procedure, and that she had never asked to be placed back on the list.

      The administrative law judge (ALJ) agreed with Loerwald that the Union

had violated the NLRA by (1) refusing to allow Loerwald to examine the list,

(2) removing Loerwald’s name from the list, (3) disallowing Loerwald’s re-

registration on the list, and (4) refusing to stamp Loerwald’s unemployment book.

In the end, the ALJ found the Union violated sections 8(b)(1)(A) and (b)(2) of the

NLRA when it arbitrarily and discriminatorily removed Loerwald from the out-of-

work list and denied her repeated requests to see it and be placed back on it.

      The Board adopted the findings and conclusions of the ALJ, as well as,

with slight modification, the ALJ’s order. We have carefully reviewed the record

and the Union’s contentions on appeal. Instead of challenging the sufficiency of

the evidence, the Union criticizes the ALJ’s interpretation of the evidence in the

record and the ALJ’s decision to credit one version of events over another. We

decline the invitation to usurp the role of the agency fact-finder. Instead, we

conclude the ALJ’s determinations are supported by substantial evidence.

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      We enforce an order “if the Board correctly applied the law and if its

findings are supported by substantial evidence in the record as a whole.” Glaziers

Local Union 558 v. NLRB, 787 F.2d 1406, 1411 (10th Cir. 1986). In reviewing

this case, we defer to the Board’s findings of fact as long as they are supported by

“more than a mere scintilla” of evidence. Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Substantial evidence review requires only “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” NLRB v. Velocity

Express, Inc., 434 F.3d 1198, 1201 (10th Cir. 2006) (quoting NLRB v. Interstate

Builders, Inc., 351 F.3d 1020, 1028 (10th Cir. 2003)). Moreover, “[c]redibility

determinations are particularly within the province of the hearing examiner and

the Board, and these are generally entitled to affirmance on review.” NLRB v.

Wilhow Corp., 666 F.2d 1294, 1299–300 (10th Cir. 1981).

      As a member of an exclusive hiring hall, Loerwald had the right to see the

out-of-work list. The record shows that on at least eight occasions, the Union

denied her requests. For example, on November 23, November 30, December 5,

and December 14, 2011, it is undisputed that Loerwald visited the hiring hall and

asked to see the list, yet her requests were denied each time. These repeated

denials violate section 8(b)(1)(A).

      Nor can the Union make a credible challenge to the ALJ’s applications of

law. The ALJ found that Loerwald’s rights were violated under the anti-

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retaliation principles set forth in Wright Line, Inc., 251 N.L.R.B. 1083 (1980),

enfd. on other grounds, 662 F.2d 899 (1st Cir. 1981). Under Wright Line, a union

violates the NLRA when it takes a harmful action against a member in retaliation

for the member’s exercise of a right protected by the NLRA. To successfully

allege discriminatory retaliation, an employee must show:

             (1) that the employee/union member engaged in protected
             activity; (2) the employer/union has knowledge of this act;
             (3) animus or hostility toward this activity was a
             motivating factor in the employer/union’s decision to take
             the adverse action in question against the employee/union
             member. If such a showing is made, the burden of
             persuasion shifts to the employer/union to show that it
             would have taken the same action even in the absence of
             the protected activity.

Ptr. App. at A-12 (citing NLRB v. Transp. Mgmt. Corp. 462 U.S. 393 (1983)).

      The ALJ properly applied this multi-factor test. Substantial evidence

supports the ALJ’s findings of fact and application of Wright Line demonstrating

that the Union violated sections 8(b)(1)(A) and (b)(2) of the NLRA by removing

Loerwald from the list and preventing her from re-registering. Loerwald had

engaged in protected activity both by filing an Equal Employment Opportunity

Commission charge and by openly criticizing the Union’s management. The

record shows that the Union had knowledge of these protected activities, and the

circumstantial evidence in the record shows that Loerwald suffered disparate

treatment, was not notified of the requirements for remaining on the list, and was

not permitted to re-register despite her obvious desire to do so. Because the

                                         -4-
Union did not show that it would have taken the same action in the absence of

Loerwald’s protected activity, it has not rebutted Loerwald’s prima facie showing

of discrimination under Wright Line.

      The factual findings above also adequately support the ALJ’s conclusion

that the Union breached its duty of fair representation under sections 8(b)(1)(A)

and (b)(2) by excluding Loerwald from the out-of-work list and preventing her

from replacing her name on the list, thereby preventing her from obtaining a job.

These violations also caused employers to discriminate in violation of section

8(a)(3) of the NLRA. See 29 U.S.C. § 158(a)(3).

      Finally, substantial evidence supports the finding that the Union violated

section 8(b)(1)(A) of the NLRA by arbitrarily and discriminatorily refusing to

stamp Loerwald’s unemployment book. The record shows that the Union’s

secretary would not stamp the book on January 10 and 17, 2012. As discussed

above, Loerwald should have remained on the out-of-work list. The Union

refused to stamp her book because she was not on the list. Therefore, these

refusals were a continuation of the Union’s breach of its duty of fair

representation.




                                        -5-
     The Union’s petition for review is DENIED. The Board’s cross-application

for enforcement is GRANTED.

                                   ENTERED FOR THE COURT

                                  Timothy M. Tymkovich
                                  Chief Judge




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