                                            Filed:   June 27, 2001

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                          Nos. 00-2272(L)
                       (11-CA-17354, et al.)



Mid-Mountain Foods, Incorporated,

                                                           Petitioner,

          versus


National Labor Relations Board,

                                                           Respondent.



                             O R D E R



     The court amends its opinion filed June 15, 2001, as follows:

     On page 2, second full paragraph of text, line 3 -- a comma is

inserted between “Mid-Mountain” and “jointly.”

     On page 5, first full paragraph, line 3 -- the word “the”

between “that” and “Mid-Mountain’s” is deleted.

                                         For the Court - By Direction




                                         /s/ Patricia S. Connor
                                                  Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MID-MOUNTAIN FOODS,
INCORPORATED,
Petitioner,
                                                               No. 00-2272
v.

NATIONAL LABOR RELATIONS BOARD,
Respondent.

NATIONAL LABOR RELATIONS BOARD,
Petitioner,

v.
                                                               No. 00-2458
MID-MOUNTAIN FOODS,
INCORPORATED,
Respondent.

On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations Board.
(11-CA-17354, 11-CA-17379, 11-CA-17398, 11-CA-17414,
11-CA-17479, 11-CA-17496-2)

Argued: May 8, 2001

Decided: June 15, 2001

Before WILKINSON, Chief Judge, and WILKINS and LUTTIG,
Circuit Judges.

_________________________________________________________________

Petition for review denied and cross-application for enforcement
granted by unpublished opinion. Judge Luttig wrote the opinion, in
which Chief Judge Wilkinson and Judge Wilkins joined.
COUNSEL

ARGUED: Ronald I. Tisch, LITTLER MENDELSON, P.C., Wash-
ington, D.C., for Mid-Mountain. Anna Leigh Francis, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board. ON
BRIEF: Jason M. Branciforte, LITTLER MENDELSON, P.C.,
Washington, D.C.; Mark M. Lawson, Eric W. Reecher, Regina W.
Calabro, ELLIOTT, LAWSON & POMRENKE, P.C., Bristol, Vir-
ginia, for Mid-Mountain. Leonard R. Page, Acting General Counsel,
John H. Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, Fred L. Cornnell, Supervisory
Attorney, NATIONAL LABOR RELATIONS BOARD, Washington,
D.C., for Board.

_________________________________________________________________

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

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

The National Labor Relations Board (the "Board") held that Mid-
Mountain Foods, Inc. ("Mid-Mountain") committed multiple viola-
tions of the National Labor Relations Act ("NLRA") in taking disci-
plinary action against seven employees. For the reasons that follow,
we deny Mid-Mountain's petition for review and grant the Board's
cross-application for enforcement.

I.

The United Food and Commercial Workers International Union,
Local 400; the International Brotherhood of Teamsters; and John
Widener, an employee of Mid-Mountain, jointly filed a complaint
against Mid-Mountain alleging multiple violations of the NLRA.
After a full hearing, the administrative law judge ("ALJ") found that

                  2
Mid-Mountain violated the NLRA in taking disciplinary action
against several employees. J.A. 463-80.

After the parties filed objections to the ALJ's findings, the Board
adopted the ALJ's opinion with only minor modifications. The Board
ordered that Mid-Mountain "offer immediate and full reinstatement"
to three discharged employees, John Widener, Randall Perdue, and
Ronnie Brooks. J.A. 460. It further ordered that any references to the
unlawful disciplinary action against Widener, Perdue, Brooks, Daniel
Hounshell, Steve Warner, Coy Wolfe, or Larry Nunley be removed
from Mid-Mountain's files within 14 days from the date of the order.
J.A. 460.

Mid-Mountain petitions for review of the Board's decision and
order, arguing that the Board's decision was not supported by sub-
stantial evidence that Mid-Mountain violated the NLRA with respect
to each of the seven employees. J.A. 481. The Board has filed a cross-
application for enforcement of its order. J.A. 483-84.

II.

"This court enforces Board orders whenever substantial evidence
exists to support the Board's factual findings." USF Red Star, Inc. v.
NLRB, 230 F.3d 102, 106 (4th Cir. 2000). In holding that Mid-
Mountain violated sections 8(a)(1),1 8(a)(3),2 and 8(a)(4)3 of the
                                    1        2            3
NLRA, the ALJ applied the standard in Wright Line Inc., 251
N.L.R.B. 1083, 1980 WL 12312 (1980), enforced , 662 F.2d 899 (1st
Cir. 1981), "for resolving discrimination cases which turn on the
_________________________________________________________________

1 "It shall be an unfair labor practice for an employer . . . to interfere
with, restrain, or coerce employees in the exercise of the rights guaran-
teed in section 157 of this title." 29 U.S.C. § 158(a)(1).

2 "It shall be an unfair labor practice for an employer . . . by discrimina-
tion 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).

3 "It shall be an unfair labor practice for an employer . . . to discharge
or otherwise discriminate against an employee because he has filed
charges or given testimony under this subchapter." 29 U.S.C.
§ 159(a)(4).

                   3
employer's motivation," NLRB v. CWI of Maryland, Inc., 127 F.3d
319, 330 (4th Cir. 1997). As we have previously stated, an employer's
motivation is a question of fact "`which the expertise of the Board is
peculiarly suited to determine.'" Medeco Security Locks, Inc. v.
NLRB, 142 F.3d 733, 742 (4th Cir. 1998) (quoting FPC Holdings,
Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995)).

Under the Wright Line test, the NLRB General Counsel first bears
the burden of establishing a prima facie case of discrimination, which
requires that three elements be proven by a preponderance of the evi-
dence: "(1) that the employee was engaged in protected activity, (2)
that the employer was aware of the activity, and (3) that the activity
was a substantial or motivating reason for the employer's action." Id.
An employer may still escape liability even though a prima face case
has been established if it can prove -- as an affirmative defense --
that it "`nonetheless would have taken the same employment action
for legitimate reasons.'" Id. (quoting Ultrasystems Western Construc-
tors, Inc. v. NLRB, 18 F.3d 251, 257 (4th Cir. 1994)). If the Board
believes, however, that the legitimate reasons proffered by the
employer are "non-existent or pretextual," then the employer's
defense fails. USF Red Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th
Cir. 2000).

A.

The Board held that Mid-Mountain violated sections 8(a)(1) and
8(a)(3) of the NLRA when it suspended and subsequently discharged
John Widener, a truck driver for the company. The ALJ found that the
company's undisputed knowledge that Widener was a Teamsters sup-
porter combined with the fact that Widener's suspension and dis-
charge occurred just days after supervisors threatened both the union
and Widener, established a prima facie case of discrimination. J.A.
136 (describing statements by the Human Resources Director of Mid-
Mountain that "there would never be a Union" at the company and
that union representation was "no good for the people."); J.A. 35
(recounting statements by Widener's supervisor that one of Widener's
co-workers should tell Widener that "his days were numbered" and
that the company was "going to weed out the trouble makers.").

Mid-Mountain argued that it discharged Widener for the legitimate,
non-discriminatory reason that Widener failed to report an accident

                  4
involving his assigned truck, as required by company policy. The ALJ
rejected Mid-Mountain's proffered reason as pretextual, finding that
there was credible testimony in the record that Mid-Mountain knew
that the damage to the truck was not "new," and that the company's
practice was that only "new" damage had to be reported. J.A. 467 &
n.6. The ALJ further found pretext from the company's failure to dis-
cipline any other employees for the damage, despite its knowledge
that the damage was present when other employees drove the truck
prior to Widener. J.A. 467-68. Finally, the ALJ concluded that one of
Widener's supervisors exaggerated the damage to the truck in order
to manufacture a reason for Widener's discharge. J.A. 468.

B.

The Board held that Mid-Mountain violated sections 8(a)(1) and
8(a)(3) of the NLRA when it terminated Randall Perdue, also a truck
driver for the company. The ALJ found that Mid-Mountain's
knowledge that Perdue was an active Teamsters supporter, who
served on an in-house organizing committee and distributed Team-
sters Literature to his co-workers, coupled with the company's threats
directed at Widener and the union, which occurred just two weeks
prior to Perdue's discharge, were sufficient to establish a prima facie
case. J.A. 468-69; see also W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871
(6th Cir. 1995) ("Discriminatory motivation may reasonably be
inferred from a variety of factors, such as the company's expressed
hostility towards unionization combined with knowledge of the
employees' union activities . . . .").

Mid-Mountain claimed that it discharged Perdue because he falsi-
fied a trip report by improperly claiming 30 minutes of overtime work
(as a result of traffic delays) after a regular delivery run to a store in
Sevierville, Tennessee. J.A. 470. The ALJ credited Perdue's and
another employee's testimony that they encountered traffic on their
way to the Sevierville store, as well as Perdue's testimony indicating
that the times on his trip report were, in fact, accurate. J.A. 470. In
contrast, the ALJ did not find the conflicting testimony of Perdue's
supervisors, who followed him on his delivery run that day, credible,
based on their "demeanor" and "the full record." J.A. 469. Thus, the

                  5
ALJ concluded that the reason proffered by Mid-Mountain was pretex-
tual.4
     4

C.

The Board held that Mid-Mountain violated sections 8(a)(1) and
8(a)(3) of the NLRA when it terminated Ronnie Brooks, an aisle fork-
lift operator. Again, the ALJ found that a prima facie case had been
established by the suspicious timing of the personnel action --
namely, that the termination occurred only seven days after the com-
pany learned that Brooks had signed a union authorization card. J.A.
473.

Mid-Mountain responded that it discharged Brooks because he
exceeded the maximum allowable disability leave of 183 days, and
because his forklift job had been eliminated. The ALJ determined that
Mid-Mountain's proffered reasons were pretextual, finding that
Brooks asked for only a small amount of additional leave -- only 13
days -- and that, though the company invited him to submit a request
for additional leave, it then arbitrarily refused to grant the request.
J.A. 459, 473. In reviewing the ALJ's decision, the Board added that
Mid-Mountain failed to explain why it "invited Brooks to submit a
request for an extension in the first place, knowing that the request
would be summarily denied," and why it did not act on Brooks'
extension request until after the 183-day disability period had expired,
"thus depriving Brooks of an opportunity to seek clearance to return
to work before the time had expired." J.A. 459.

Accordingly, the Board ultimately concluded that "[g]iven the tim-
ing of the discharge, the inconsistency between inviting a request for
an extension and then firing Brooks when he made one, and the fail-
ure to show a pattern of rejecting similar limited-duration extension
requests in the past, we find that [Mid-Mountain] failed to prove its
_________________________________________________________________

4 Furthermore, the ALJ found it persuasive both with regard to the
prima facie case and to pretext that the company did not even discipline
another driver, a non-union supporter who followed a similar route as
Perdue that day, for claiming almost three hours of overtime, while the
company took the extraordinary measure of terminating Perdue, who
claimed only 30 minutes of overtime. J.A. 469.

                  6
defense" and therefore that it "unlawfully discharged Brooks in retali-
ation for his union activity." J.A. 459.

D.

The Board held that Mid-Mountain also violated sections 8(a)(1)
and 8(a)(3) of the NLRA when it issued a verbal warning to Daniel
Hounshell, a forklift operator for the company. The ALJ found that
the General Counsel had proven a prima facie case because the com-
pany knew that Hounshell was an active supporter of the union, and
the warning was issued just shortly after he appeared on the television
news wearing a "vote yes" t-shirt at a union meeting. J.A. 473-74.

Mid-Mountain responded that it issued the warning because Houn-
shell failed to follow directions to speak with Jeff Mahoney, his team
leader, prior to leaving on a day that he was assigned to work over-
time. The ALJ rejected the company's explanation as pretextual, find-
ing that Hounshell was treated differently than similarly situated
employees since "[o]ther employees also failed to check with
Mahoney" but were not disciplined at all. J.A. 475.

E.

The Board held that Mid-Mountain violated sections 8(a)(1),
8(a)(3), and 8(a)(4) of the NLRA when it issued a written warning to
Coy Wolfe, a forklift driver for the company. The ALJ determined
that a prima facie case had been established because Wolfe submitted
a statement in support of Hounshell only 11 days prior to receiving
his own warning, and because the "action against Wolfe occurred dur-
ing a period of time when [Mid-Mountain] was very active in unfair
labor practice activity." J.A. 478. In addition, the ALJ observed that
Tony Lewis, Wolfe's supervisor, "told Wolfe that he should not take
the warning personally and that he had not seen Wolfe at any time
when Wolfe was not working," indicating that the decision to disci-
pline him may have been motivated not by Wolfe's alleged poor work
performance but by union animus. J.A. 478.

Mid-Mountain responded that it issued the warning for the legiti-
mate, non-discriminatory reason that Wolfe failed to properly restock

                  7
his assigned area. The ALJ rejected the company's proffered reason
as pretextual, crediting the testimony of Wolfe's co-worker that there
was not an unusually large number of "outs" during the days in ques-
tion. J.A. 478. In finding pretext, the ALJ also relied heavily on the
company's inability to explain why it failed to discipline employees
for a similar restocking problem that occurred six months earlier. J.A.
478.

F.

The Board held that Mid-Mountain violated sections 8(a)(1) and
8(a)(3) of the NLRA when it issued a written warning to Larry Nun-
ley, a forklift operator for the company. The ALJ found that the Gen-
eral Counsel had established a prima facie case by adducing evidence
that Nunley received his warning only two weeks after serving as a
representative for the Teamsters during a Board hearing. J.A. 475.
And the evidence further revealed that Nunley's warning came on the
heels of several other unlawful actions during the same period,
including the company's discharge of Brooks and the written warning
issued to Wolfe.

Mid-Mountain claimed that it issued the written warning to Nunley
because he misloaded pallets of merchandise, causing the products to
be delivered to the wrong store. The ALJ concluded that the compa-
ny's reason was pretextual, however, because the record established
that Mid-Mountain "was not consistent in its practice of disciplining
employees for misshipments," in that some employees were not disci-
plined at all for their infractions and others received only verbal warn-
ings. J.A. 476. As the ALJ noted, one "habitual violator" received
only a verbal warning for his numerous misshipments, while Nunley,
a first-time violator, received the more serious punishment of a writ-
ten warning. J.A. 476. Indeed, as the Board concluded in addressing
the ALJ's findings regarding Nunley, Mid-Mountain "concede[d] that
it ha[d] not invariably issued written warnings for similar infractions,"
thus undermining its proffered reason for disciplining Nunley in the
manner that it did. J.A. 460 (emphasis in original).

G.

The Board held that Mid-Mountain violated sections 8(a)(1),
8(a)(3), and 8(a)(4) of the NLRA when it issued a verbal unexcused

                   8
absence to Steve Warner, an order selector for the company. In find-
ing that a prima facie case had been established, the ALJ found it sig-
nificant that the unexcused absence was issued on the same day that
Warner was scheduled to testify at a Board hearing. J.A. 477.

Mid-Mountain argued that it issued the verbal unexcused absence
because Warner failed to call into work at the correct time to inform
his supervisor that he would be absent for the day, as required by the
employee handbook. The ALJ rejected the company's reason as pre-
textual, finding that Warner did call "within the 30-minute timeframe
specified" in the employee handbook. J.A. 477. However, an operator
placed him on hold for approximately ten minutes, causing him to
actually speak with a supervisor more than 30 minutes after the start
of his shift though he placed the call within the requisite time win-
dow. J.A. 477.

III.

After reviewing the parties' briefs and the applicable law, and hav-
ing had the benefit of oral argument, we are convinced that the Board
reached the correct result and that its decision is supported by sub-
stantial evidence. See Mid-Mountain Foods, Inc., 332 NLRB No. 20
(Sept. 21, 2000). Accordingly, we deny Mid-Mountain's petition for
review and grant the Board's cross-application for enforcement.

It is so ordered

                   9
