                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1204



NATIONAL LABOR RELATIONS BOARD,

                                                          Petitioner,

           versus


LEADING EDGE AVIATION SERVICES, INCORPORATED,

                                                          Respondent.



On Application for Enforcement of an Order of the National Labor
Relations Board. (11-CA-19783)


Argued:   October 26, 2006                 Decided:   January 9, 2007


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Petition granted by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Traxler and Judge Shedd concurred.


ARGUED: Melvin Hutson, Greenville, South Carolina, for Respondent.
Jeffrey Lawrence Horowitz, NATIONAL LABOR RELATIONS BOARD, Office
of the General Counsel, Washington, D.C., for Petitioner.       ON
BRIEF: Ronald Meisburg, General Counsel, John E. Higgins, Jr.,
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
David Habenstreit, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Office of the General Counsel, Washington, D.C., for
Petitioner.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

     The National Labor Relations Board (“NLRB” or “Board”) brings

this action to enforce a Board order against Leading Edge Aviation

Services (“Leading Edge”) for its refusal to hire based on prior

protected union activity and for retaliation against a participant

in an NLRB unfair labor practices proceeding.     Because substantial

evidence supports the Board’s conclusion that Leading Edge engaged

in unfair labor practices in violation of the National Labor

Relations Act (“the Act”), 29 U.S.C. § 158(a)(1), (3), and (4)

(2004), we affirm the ruling of the Board and grant the petition

for enforcement.



                                     I.

     From 1989 to 2001, Terry Host worked for Lockheed Martin

Aircraft Center (“Lockheed”) in Greenville, South Carolina.       He

spent the last six years of his tenure as a quality control

inspector (“QCI”).   In 1998 and 1999, Host served as the president

of a committee to organize a Lockheed local of the Aircraft

Mechanics Fraternal Association.     Host was active and well known

for his efforts; he wore his red union shirt at all times during

the drive and received mention in the Greenville newspaper. In the

summer of 1999, after the union drive failed, Host’s manager, Joe

Janas, disciplined Host for continuing to wear his union shirt and

threatened him with termination.          Host filed an unfair labor


                                 2
practices claim with the NLRB against Lockheed. Administrative Law

Judge (“ALJ”) William N. Cates found that Lockheed, through Janas,

had used unfair labor practices against Host.          The ALJ ordered

Lockheed to remove the warnings against Host from its files, to

notify Host that it had done so, and to post a notice of its

violations and its employees’ rights.          Two years later, Host

voluntarily resigned from Lockheed to take a position at General

Electric (“GE”), which offered better pay and benefits.

     Leading Edge has worked exclusively as a subcontractor for

Lockheed for fourteen years. Its facilities are entirely contained

within the Lockheed complex at the Donaldson Center in Greenville.

Leading Edge’s primary business is to strip and refurbish airplanes

and airplane fuel tanks.   It performs the bulk of this work on the

P-3, a four-engine turbo prop aircraft.

     In October 2002, Leading Edge decided to hire two new QCIs,

one to replace Harry Gaskin, the current QCI, who was receiving a

promotion, and one to work on a second shift the company was

starting to accommodate its increasing workload.         Because GE had

been laying off workers, Host sent his resume to Leading Edge on

October   31,   2002.   Craig   Arnold,   Leading   Edge’s   Director   of

Military Programs, immediately called Host and asked him to come to

the complex for an interview that day.          During the interview,

Arnold asked Host about his prior experience as a QCI on the P-3,

his comfort-level with completing paperwork and training employees,


                                   3
and his willingness to work on the second shift.              Host responded

positively to all of these questions and said that he would be

comfortable with the $18 hourly wage Leading Edge offered.1            Arnold

told Host that he would need to take a drug test and speak with the

current QCI, Gaskin.         After taking a tour of the facility and

recognizing several of his former Lockheed colleagues, including

Rich Parker, Host left Leading Edge with the impression that he

would be hired if he passed the drug test and spoke with Gaskin.

      Arnold made several notations at the top of Host’s application

sheet.      He wrote that Host was “Okay our second shift,” which, he

later explained, meant that he considered Host suitable for the

second-shift QCI position. He also noted that he should check with

Parker and Janas, managers at Lockheed who had known Host.                  J.A.

57, 60, 271.         Arnold testified that he checked with Parker and

Janas, and they told him that Host had been a “tough inspector” or

a “good inspector.”        J.A. 57-60.

          The next day, November 1, Arnold telephoned Host to tell him

that he was bringing in two men to fill the QCI jobs.           He reassured

Host that he was the third choice.            Host testified that he was

confused about this change, so he called the three references he

had   listed    on   his   resume—Ken    Crowe,   Ken   Buffington,   and    Don




      1
      Host had worked with the P-3 while at Lockheed and had
received favorable reviews and several awards for his inspection
work.

                                         4
Gary—and discovered that no one from Leading Edge had contacted

them.

     Host testified that on November 4 or 5, having heard nothing

from Leading Edge, he called Arnold again to ask why he had not

been hired.   Arnold initially told him that he was still the third

choice.   Host then confronted Arnold and asked him if he had spoken

to Parker.    Arnold replied that he had but that the conversation

had no bearing on his hiring decision.   Host described the rest of

the conversation as follows:

     And at that point I just told him frankly, I said, “Let’s
     cut the B.S. . . . You know you can be honest with me
     about what was said. . . . I went from being hired—or,
     excuse me, to all I need to do is tak[e] a drug test one
     day, then I’m the third choice, and, you know, I’d like
     the truth.” And he said that whatever Rich and him had
     talked about, once again, had no bearing on it, but Rich
     had told him that I was a good worker but I’d had some
     trouble in the past.

J.A. 94-95.     Host testified that he told Arnold he had left

Lockheed voluntarily but he had “been involved in a Union related

matter and Lockheed was found guilty on five of the six charges

that they went to Court on against me.”     J.A. 95.   According to

Host, Arnold then told him that he would not be hiring Host at that

time or at any time in the future.    Arnold denied before the ALJ

that Parker or Janas had mentioned any of Host’s trouble with

Lockheed, but he admitted that “days later” some of the other

Lockheed workers told him Host “had some trouble” there. J.A. 158-




                                  5
59.   Arnold maintained, however, that he did not learn of Host’s

NLRB claim against Lockheed until two weeks before the trial.

      Arnold testified that he decided not to hire Host for the

first shift QCI position because Host lacked the interpersonal

skills   necessary   for   a   QCI   who    had     to   communicate   with   the

customer,   i.e.,     Lockheed.            Arnold    emphasized    that       “the

communications skills are important in being able to tell the

customer he’s wrong.”      J.A. 143.       The job, he testified, “requires

the ability to be able to communicate verbally and in written form

carefully and accurately.”       J.A. 144.        Arnold testified that Host

failed as a candidate in these areas:

      I had some concerns over his communication skills. His
      verbal communication skills were relatively good. His
      written communication skills possibly seemed lacking, but
      I wasn’t sure. However, in general, his inter-personal
      skills I felt as though he would be better suited for the
      second shift; there would be less requirement for him to
      interface with the Lockheed mid-level, senior level
      management; and that his technical skills could be used
      to the best of their advantage.

J.A. 149.   Arnold admitted on cross-examination that he had not

asked Host for a writing sample, nor had he seen any of Host’s

writing or discussed his writing ability with anyone.                  Finally,

Arnold testified that although he felt Host was qualified for the

second-shift QCI position, the position never materialized because

Lockheed sent Leading Edge fewer airplanes, eliminating the need

for a second shift.




                                       6
     After Host’s interview with Arnold, Jeffrey Meyer, another GE

employee and former QCI at Lockheed, sent his resume to Leading

Edge.    Meyer had spoken with Host about the QCI openings, and Host

seemed confident in his own prospects.         Meyer interviewed with

Arnold during the first week of November.      Arnold told Meyer that

they were implementing a second shift and wanted a QCI for that

shift and a replacement QCI for the first shift.        Arnold and Meyer

discussed the requirements of the job and the starting salary, and

Gaskin gave Meyer a tour of the facility.        Meyer testified that

Arnold told him that Leading Edge “was getting ready to spool up

[the second shift] that week, and that if he got the job, he would

be training under Gaskin on the first shift until he was ready to

handle the second shift by himself.”      J.A. 43-44.    On November 6,

Arnold called Meyer and offered him a QCI position.         Meyer asked

for a day to consider the offer.       During that day, Meyer received

another job offer from the Greenville Airport.       Deciding to take

the airport job, Meyer called Arnold to express his regrets and

refuse the job offer.     Arnold asked Meyer if he could recommend

anyone else for the job, and Meyer named Carlos Hoyos and Randy

Herman.

        In his testimony before the ALJ, Arnold denied that he had

offered Meyer a position as a QCI.         Arnold stated that it was

Leading Edge’s policy to make job offers in writing.              Meyer

admitted on cross-examination that he never received a written job


                                   7
offer from Leading Edge, but Leading Edge offered no evidence

beyond Arnold’s testimony that it only extended job offers in

writing.

     Arnold admitted in his testimony that Leading Edge started a

second shift in November 2002.             He also admitted that he hired

Hoyos as a QCI between November 14 and 18.           He said that he hired

Hoyos above Host because Hoyos had excellent communication skills,

seemed “very receptive to change,” and “had a very professional

demeanor and presentation about him.”           J.A. 154-55.

     Host filed an unfair labor practices charge against Leading

Edge on December 12, 2002.      He accused Leading Edge of violating 29

U.S.C. §§ 158(a)(1), (3), and (4) by refusing to hire him because

of his past union activity and NLRB action against Lockheed.                On

May 22, 2003, ALJ Margaret G. Brakebusch found that Leading Edge

had violated the Act by refusing to hire Host for a QCI position.

Basing her decision on the Wright Line test, she stated that the

NLRB had carried its burden on the prima facie case and that

Leading    Edge   had   not   proven   that     it   had    legitimate,   non-

discriminatory reasons for refusing to hire Host.

     The ALJ credited the testimony of Meyer and Host but did not

believe Arnold’s stated reasons for his refusal to hire Host.              She

found Arnold’s justification that Host lacked good written and

verbal communication skills to be pretextual.              She discredited his

testimony about his conversations with the Lockheed managers:


                                       8
     I find it incredible that Janas simply verified Host’s
     employment and described Host as a good inspector without
     mentioning Host’s Union or protected activities. It is
     implausible that Janas would have failed to mention that
     Host filed a charge against Lockheed and testified
     against the company in the unfair labor practice
     proceeding. As a result of Host’s testimony, Judge Cates
     found Janas’s actions violative of the Act. . . .

      [I]t would be naive to assume that a Lockheed manager
     named in the judge’s decision would have a casual
     response to any inquiry about Host.

J.A. 300.    The ALJ also did not believe that Arnold had not known

about the Lockheed case until just before his own hearing.

     The    ALJ   concluded    that   Leading   Edge   had   a   second   shift

position available (because they had offered it to Meyer), that

Host was qualified for the position, and that Leading Edge’s

reasons for not hiring Host gave rise to an inference of animus and

discriminatory motive.         She ordered Leading Edge to cease and

desist from its unfair labor practices and to post the required

notice informing its employees of its wrongs and their rights. She

also ordered Leading Edge to offer Host a job and pay his lost

wages and benefits.

     On September 29, 2005, the Board affirmed in large part Judge

Brakebusch’s ruling.          The Board agreed that Leading Edge had

violated the Act by refusing to hire Host for the second-shift QCI

position and that Leading Edge’s reason for refusing to hire Host

was pretextual.       The Board pointed out that Leading Edge had

started a second shift in November and that it was hiring for the

QCI position when it considered Host and offered the job to Meyer.

                                       9
Concluding that Leading Edge had thus not rebutted the NLRB’s prima

facie case, the Board upheld the remedies the ALJ had ordered.

      The NLRB brings this action before us for enforcement of the

Board’s order.



                                              II.

      We   will   enforce    an   NLRB    order       under   the   National      Labor

Relations Act if “substantial evidence on the record considered as

a whole” supports the ALJ’s factual findings and if she applied the

law to the facts in a manner both “reasonable and consistent with

the act.”    29 U.S.C. § 160(e); Grinnell Fire Protection Sys. Co. v.

NLRB, 236 F.3d 187, 195 (4th Cir. 2000).                Substantial evidence is

“such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Consol. Diesel Co. v. NLRB, 263

F.3d 345, 351 (4th Cir. 2001) (citations and quotation marks

omitted).      We    must   “accord      due    deference     to    the   reasonable

inferences that the Board draws from the evidence.”                    Grinnell, 236

F.3d at 195.        If substantial evidence exists to support an NLRB

decision, then 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.”        Consol. Diesel, 263 F.3d at 351.

      In determining whether substantial evidence exists, we defer

to   the    credibility     findings      of    the    ALJ    unless      faced   with

“extraordinary circumstances.”            NLRB v. Transpersonnel, Inc., 349


                                         10
F.3d 175, 184 (4th Cir. 2003).        The ALJ is in the best position to

judge the credibility of the witnesses who appear before her: “The

balancing     of   witnesses’   testimony       is    at   the    heart     of   the

factfinding process, and it is normally not the role of the

reviewing court to second-guess a fact-finder’s determinations

about who appeared more ‘truthful’ or ‘credible.’”                    Fieldcrest

Cannon,     Inc.   v.   NLRB,   97    F.3d      65,   71   (4th    Cir.      1996).

Extraordinary      circumstances     sufficient       to   overturn    an    ALJ’s

credibility    determination    exist      in    “those    instances      when   ‘a

credibility     determination    is    unreasonable,        contradicts      other

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

at all.’ ”    Sam’s Club v. NLRB, 173 F.3d 233, 240 (4th Cir. 1999)

(quoting NLRB v. CWI of Md., Inc., 127 F.3d 319, 326 (4th Cir.

1997)).



                                        III.

     The National Labor Relations Act protects employees who seek

to form unions or participate in union activities.                 Section 8 of

the Act protects the union rights of employees by making it an

unfair labor practice for an employer:

            (1) to interfere with, restrain, or coerce
            employees in the exercise of the rights
            guaranteed in section 157 of this title; . . .

            (3) 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 . . . ;

                                      11
           (4) to discharge or otherwise discriminate
           against an employee because he has filed
           charges   or given  testimony under   this
           subchapter.

29 U.S.C. § 158 (2004).   The NLRB has enforcement jurisdiction for

these sections of the Act.   29 U.S.C. § 160.

      To succeed on a refusal to hire claim under Section 8,2 the

applicant must prove that the employer refused to hire him or her

“for the purpose of discouraging union activity.”   Ultrasystems W.

Constructors, Inc. v. NLRB, 18 F.3d 251, 256 (4th Cir. 1994).    The

NLRB, on behalf of the applicant, must show:

      (1) that the employer is covered by the Act;
      (2) that the employer at the time of the purportedly
      illegal conduct was hiring or had concrete plans to hire
      employees;
      (3) that anti-union animus contributed to the decision
      not to consider, interview, or hire an applicant; and
      (4) that the applicant was a bona fide applicant.

Id.   The employer’s motive for refusing to hire the applicant is

the key element in these cases.

      Because proving discriminatory motivation is a difficult task,

the Supreme Court has approved a burden-shifting proof process

known as the Wright Line test for mixed-motive cases.   See NLRB v.

Transp. Mgmt. Corp, 462 U.S. 393, 403 (1993) (approving the burden-

shifting scheme of Wright Line, 251 N.R.L.B. 1083 (1980)). To make

a prima facie case of discriminatory refusal to hire, the NLRB must



      2
      Proving that an employer violated Section 8(a)(3) also proves
a derivative violation of Section 8(a)(1). Metropolitan Edison Co.
v. NLRB, 460 U.S. 693, 698 n.4 (1983).

                                  12
prove by a preponderance of the evidence “that a discriminatory

motive was a substantial motivating factor” in the employer’s

refusal to hire the applicant.      RCG (USA) Mineral Sands, Inc. v.

NLRB, 281 F.3d 442. 448 (4th Cir. 2002) (citing CWI, 127 F.3d at

331)).    The   burden   then   shifts   to   the   employer   “to    prove

affirmatively that the same action would have been taken even in

absence of the [applicant’s] union activity.”            Id. (citing FPC

Holdings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995)).           The ALJ

should scrutinize the reasons given by the employer, and “[i]f the

[judge] believes the employer’s stated lawful reasons are non-

existent or pretextual, the defense fails.”         USF Red Star, Inc. v.

NLRB, 230 F.3d 102, 106 (4th Cir. 2000).

     In considering whether the employer violated Section 8(a)(4)

of the Act, the ALJ should also use the Wright Line test to

determine whether the employer’s decision not to hire was based in

part on the applicant’s having filed unfair labor practice charges

in the past.



                                     IV.

     The Board determined that Leading Edge’s decision not to hire

Terry Host was substantially motivated by animus against his union

activities at Lockheed.    Neither party disputes that Leading Edge

is an employer covered under the Act, and Leading Edge has conceded




                                   13
that Terry Host was qualified for the QCI position.3         With these

elements met, we now examine whether substantial evidence supports

the conclusions that Leading Edge had a position available when it

denied Host the job and that anti-union animus motivated its

decision not to hire Host.

                                       A.

     Leading Edge claims that it did not violate the Act because

the company never started its second shift and therefore never had

a second-shift QCI position to offer to Host.     In support of this

argument, Leading Edge states that it experienced a slow down in

work that prevented the implementation of its second shift, that it

never made Meyer an official offer for the second-shift position,

and that it hired Hoyos for the first-shift position.        During the

hearing before the ALJ, Leading Edge offered documents to show that

Lockheed had indeed sent them fewer airplanes to refurbish from

January through July 2003 and that it had to reduce its workforce

from fifty-six employees to thirty-four employees between February

and April 2003.

     Despite   Leading   Edge’s   arguments,   substantial     evidence

supports the ALJ and Board’s conclusions that at the time it was


     3
      Arnold testified that Host “had good experience as an
inspector; was very strong in technical skills, in other words the
physical inspection part of the job.”     J.A. 146.   According to
Arnold, Host’s “experience level was—appeared to be well rounded,
and—but as far as his application goes, I felt as though he was a
good, strong candidate.” Id. Arnold also said, “I felt he was a
qualified candidate for our second shift operation.” J.A. 147.

                                  14
considering Host for a position, Leading Edge had a position on the

second shift available.     Arnold testified that he was looking for

two or three QCIs and that he had started the second shift by

hiring new people and moving some first-shift employees in November

2002.   The ALJ found Meyer’s testimony that Arnold had offered him

a   second-shift    position   to   be   credible,     and   there   are    no

extraordinary circumstances to warrant overturning that credibility

determination.     Leading Edge offered no other evidence in support

of Arnold’s statement that the company only made written offers of

employment.    That Leading Edge’s work slowed in 2003 does not

undermine the fact that it had an open QCI position in November

2002.

                                         B.

     Substantial evidence also supports the conclusions of both the

ALJ and the Board that Leading Edge’s claim that it had no second-

shift   position   was   pretextual.      Arnold,    Leading   Edge’s      only

witness, claimed that he did not have a second-shift position for

Host but testified that he had started the second shift and was

looking to hire two or three QCIs.            Arnold claimed that he never

made an offer to Meyer because that offer would have been in

writing, but he produced no documentary evidence that Leading Edge

exclusively made written job offers.           He claimed that he checked

Host’s references, but he only talked with Lockheed managers Parker

and Janas, one of whom had been found liable in Host’s NLRB action


                                    15
against Lockheed.       Arnold stated that he did not know of Host’s

troubles with Lockheed, but he testified that he had heard workers

speaking about those very troubles.             He claimed that Host lacked

written communication skills, but he neither saw nor asked about

Host’s writing.       Given these inconsistencies in Leading Edge’s

case,   we   find   sufficient    evidence      to   support    the    finding    of

pretext, inference of animus, and consequent violation of 29 U.S.C.

§ 158(a)(1) and (3).



                                           V.

     The Board also concluded that Leading Edge retaliated against

Host for his participation in the NLRB proceeding against his

former employer. Substantial evidence supports the ruling in favor

of Host’s retaliation claim under Section 8(a)(4).                     Finding no

evidence     of   extraordinary    circumstances      that     would   warrant     a

reversal, we defer to the ALJ’s credibility determinations.                      The

ALJ determined that Arnold was less than credible when he testified

about his lack of knowledge about Host’s participation in an unfair

labor practices proceeding against Lockheed.              She stated that it

was hard to believe that a person in his position would not have

been informed of Host’s activities and that neither Parker nor

Janas mentioned them to him when he inquired about Host.                   Arnold

testified that he had heard from other workers that Host had been

in trouble at Lockheed.           Arnold’s testimony about his lack of


                                      16
knowledge stands in stark contrast to Host’s testimony about their

November 4 phone call.      It also contradicts his own testimony that

he had heard of Host’s troubles at Lockheed.          In light of the ALJ’s

credibility findings, we affirm the Board’s determination that

Leading Edge violated Section 8(a)(4).



                                         VI.

     Substantial evidence in the record as a whole supports the

Board’s conclusion that Leading Edge did not hire Terry Host

because   of   and   in   retaliation   for    his   prior   protected   union

activity.      We therefore grant the NLRB’s application and order

enforcement of the Board’s order.



                                                             PETITION GRANTED




                                    17
