                              PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                             No. 11-2362


GESTAMP SOUTH CAROLINA, L.L.C.,

               Petitioner,

          v.

NATIONAL LABOR RELATIONS BOARD,

               Respondent.



                             No. 12-1041


NATIONAL LABOR RELATIONS BOARD,

               Petitioner,

          v.

GESTAMP SOUTH CAROLINA, L.L.C.,

               Respondent.



     On Remand from the Supreme Court of the United States.
                      (S. Ct. No. 13-1103)


               Decided on Remand:   October 8, 2014


Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. Bryan
HARWELL, United States District Judge for the District of South
Carolina, sitting by designation.
Petition for review granted    in part and denied in part; cross-
application for enforcement    granted in part and denied in part
by published opinion. Chief     Judge Traxler wrote the opinion, in
which Judge Keenan and Judge   Harwell joined.


John J. Coleman, III, Marcel L. Debruge, BURR & FORMAN LLP,
Birmingham, Alabama, for Gestamp South Carolina, L.L.C.    Stuart
F. Delery, Assistant Attorney General, Beth S. Brinkmann, Deputy
Assistant Attorney General, Douglas N. Letter, Scott R.
McIntosh, Melissa N. Patterson, Benjamin M. Shultz, Dara S.
Smith, Attorneys, Appellate Staff, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C.; Richard F. Griffin, Jr., General
Counsel, Jennifer Abruzzo, Deputy General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, Usha Dheenan, Supervisory Attorney,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.




                                  2
TRAXLER, Chief Judge:

     Gestamp South Carolina, LLC, petitioned for review of an

order of the National Labor Relations Board (“the NLRB” or “the

Board”) affirming the decision of an administrative law judge

(“ALJ”) finding that Gestamp discharged employees David Anthony

Kingsmore   and    Reggie    Alexander       in   violation   of     the    National

Labor Relations Act (“the NLRA”) and that Gestamp was liable for

another violation of the NLRA as well.               The Board cross-applied

for enforcement of the order.

     In an earlier decision, we granted Gestamp’s petition for

review,   denied     the   Board’s   cross-application        for    enforcement,

vacated the Board’s decision, and remanded the case for further

proceedings,      based    upon    our   determination        that    the       recess

appointment of Board Member Craig Becker deprived the Board of a

valid quorum to act when it issued its order.                 The Supreme Court

subsequently      granted    the     Board’s      petition    for     certiorari,

vacated our opinion, and remanded for further consideration in

light of its decision in NLRB v. Noel Canning, 134 S. Ct. 2550

(2014).

     For the reasons set forth below, we now conclude that Board

Member    Becker’s     recess      appointment      was   valid.           We   grant

Gestamp’s petition for review in part and deny it in part, and

we grant the Board’s cross-application for enforcement in part

and deny it in part.

                                         3
                                                I.

       In January 2013, after oral argument had been held in this

case,   Gestamp        raised   as       an   additional       issue    the      question      of

whether    the    Board     had      a    quorum       of    validly     appointed       Board

Members when it issued its order.                      Specifically, Gestamp argued

that    Board    Member     Craig         Becker       had    been    unconstitutionally

appointed to the Board during an intra-session recess of the

Senate in March 2010, in violation of the Recess Appointments

Clause.    See U.S. Const. art. II, § 2, cl. 3.

       Shortly    thereafter,            this    court       issued    an    opinion      in    a

separate        case      finding         invalid           three     different          recess

appointments that had been made to the Board during a three-day

intra-session recess in January 2012.                          See NLRB v. Enterprise

Leasing Co. Southeast, 722 F.3d 609, 652 (4th Cir. 2013).                                Among

other things, the Enterprise Leasing panel held that the Recess

Appointments       Clause       permits          the     President          to    make    such

appointments      only     during         inter-session         Senate       recesses,      not

during intra-session recesses.                       See id.; see also NLRB v. New

Vista Nursing & Rehab., LLC., 719 F.3d 203, 208, 221 (3d Cir.

2013) (reh’g granted, Aug. 11, 2014); Noel Canning v. NLRB, 705

F.3d 490, 506 (D.C. Cir. 2013), aff’d on other grounds, NLRB v.

Noel Canning, 134 S. Ct. 2550 (2014).

       In October 2013, we applied Enterprise Leasing to this case

and held that Board Member Becker’s appointment was likewise

                                                4
invalid.     See Gestamp v. NLRB, 547 F. App’x 164, 165 (4th Cir.

2013) (per curiam); see also New Vista, 719 F.3d at 221 (holding

that    “‘the      Recess     of    the      Senate’           means   only    intersession

breaks,”        and,       therefore,        “that        [Board]        Member      Becker’s

appointment was invalid”).                Accordingly, we vacated the Board’s

decision,       and    remanded       the    case         to    the    NLRB    for     further

proceedings.           The    Board      then       petitioned         the    United   States

Supreme Court for a writ of certiorari.

       In   NLRB      v.   Noel    Canning,         134    S.    Ct.    2550    (2014),   the

Supreme Court affirmed the D.C. Circuit’s determination that the

recess appointments of the three Board Members at issue in that

case were invalid.                In doing so, however, the Supreme Court

disagreed with the lower court’s reasoning, making it clear that

the    Recess    Appointments         Clause        applies      to    both    inter-session

recesses and “intra-session recess[es] of substantial length,”

id. at 2561, as well as to Board vacancies that occur prior to

or during the recess, id. at 2567.                    The Court additionally held,

however, that Senate “pro forma sessions” must be considered,

id. at 2574, and affirmed the judgment because the resulting

three-day recess at issue there was “too short a time to bring

[the] recess within the scope of the Clause.”                            Id. at 2557; see

id. at 2578.

       Relying        heavily       on      historical           practice,       the    Court

confronted the “interpretive problem [in] determining how long a

                                                5
recess must be in order to fall within the Clause,” id. at 2565-

66, and concluded “that a recess of more than 3 days but less

than 10 days [would be] presumptively too short to fall within

the   Clause,”      id.   at    2567.       The   addition    of    “the     word

‘presumptively,” the Court explained, was “to leave open the

possibility that some very unusual circumstance – a national

catastrophe, for instance, that renders the Senate unavailable

but calls for an urgent response – could demand the exercise of

the recess-appointment power during a shorter break.”               Id. 1

      Shortly thereafter, the Supreme Court granted the Board’s

petition for a writ of certiorari in this case, vacated our

judgment, and remanded for further consideration in light of its

decision in Noel Canning.         See NLRB v. Gestamp, 134 S. Ct. 2901

(2014).        In contrast to the recess appointments of the Board

members at issue in Noel Canning and Enterprise Leasing, which

took place over a three-day recess in January 2012, the recess

appointment of Board Member Becker took place over a two-week

recess    in    March   2010.    Accordingly,     we   now   hold   that    Board

Member Becker was validly appointed to the Board when it issued


      1
       Recognizing that there were “petitions [pending] from
decisions in other cases involving challenges to the appointment
of Board Member Craig Becker,” as well as “similar challenges .
. . pending in the Courts of Appeals,” the Court believed it was
important to answer all three questions presented in the case
before it, Noel Canning, 134 S. Ct. at 2558, including the
proper “calculation of the length of a ‘recess,’” id. at 2556.


                                        6
the order in this case.                   See Teamsters Local Union No. 455 v.

NLRB, No. 12-9519, 2014 WL 4214920, at *2 (10th Cir. Aug. 27,

2014) (noting that because Board Member Becker “was appointed

during an intra-session recess exceeding two weeks . . ., there

seems    little       reason       to     [now]       doubt    the    validity      of       [his]

appointment.”).            Having already had the benefit of full briefing

and oral argument on the remaining questions presented in this

case, we now proceed to decide Gestamp’s original challenges to

the Board’s order.


                                              II.

                                              A.

        LSP Automotive (“LSP”) owned and operated a plant in Union,

South     Carolina         that    manufactures          metal       body   parts       for    BMW

vehicles that BMW assembles at a nearby facility.                              In May 2007,

LSP     hired    Kingsmore,         a     former       BMW    employee,       as    a       quality

inspector.           LSP    hired       Alexander       in    June     2007    as       a    supply

coordinator.

        On October 1, 2009, Gestamp purchased the facility from LSP

and retained LSP’s employees and personnel policies, including

those     provided         in     LSP’s    employee          handbook.        The       handbook

provided,       as   is     relevant       here,       that    “[m]isleading            or   false

statements . . . made during an interview” or “[f]alse . . .

entries . . . in any books or records of the Company” could


                                                  7
result      in     LSP         withdrawing        any     employment           offer      or    in

termination.           J.A. 371, 377.           The handbook provided for multiple

levels      of     discipline          depending        upon     the        severity      of   the

misconduct but reserved for the company the right, in its sole

discretion,        to     impose        the      level    of     punishment          it    deemed

appropriate.

                                           Union Activity

       Kingsmore contacted the United Steelworkers (“the Union”)

in late December 2009 regarding the possible organization of the

facility’s hourly employees.                     Alexander and Kingsmore were both

among the seven or eight employees on an organizing committee

that    the      Union    helped       form     and   which      met    approximately          four

times      in    January        and    early      February       2010.            Alexander    and

Kingsmore also both spoke to other employees about supporting

the     Union. 2         The     Union’s        strategy,      which        was     conveyed     to

Alexander, Kingsmore, and others, was to keep organizing efforts

secret     from     the    management.            Nevertheless,          management        became

aware      of    the   efforts        as   a    result    of     many       questions     it    was

receiving from employees.

       Kingsmore’s         and        Alexander’s        roles     in       the     unionization

effort also became known by some plant supervisors.                                     In early

February, Kingsmore told Supervisor and Quality Engineer Michael

       2
       The Union decided                   in    mid-February          to    discontinue       its
efforts to organize.


                                                  8
Fink    that     he   intended       to    unionize       the    plant.        Fink        warned

Kingsmore       to    be    careful       because    if     Gestamp      General       Manager

Carmen Evola found out, Kingsmore would be “gone.”                                   J.A. 433

(internal        quotation      marks       omitted).            Kingsmore          also        told

Supervisor Michael Sullivan that he was going to try to unionize

Gestamp’s employees.                On another occasion, however, Kingsmore

called General Manager Evola to deny possible rumors that he was

part of the unionization effort.

       In early to mid-February 2010, management conducted group

meetings explaining its position concerning the Union.                                 Several

statements       at   the     meetings      showed     that      the   union        issue        was

evoking     very      strong     feelings,          including      one     threat          by     an

employee       that   when     he    found     out    who    called      the     Union,          the

employee and others would “whip his ass.”                        J.A. 101.           After the

meeting,       two     employees          together     and       another       individually

approached       Alexander      and       accused    him    of     being      one    of     those

attempting to organize the facility.

       Alexander           related     these        accusations          to      Maintenance

Supervisor       Daniel      Morris.        Following       that    conversation,               Fink

told Alexander, with another employee in the vicinity, “I didn’t

know you were one of the ones that were trying to bring the

Union     in.”         J.A.     46    (internal       quotation          marks       omitted).

Alexander offered no response.



                                               9
                  Kingsmore’s Suspension and Discharge

      On August 13, 2009, Kingsmore and Morris were instructed as

part of their jobs to go on a tour of the BMW facility.                      When

they arrived at the facility, Morris was allowed in, but a BMW

guard refused to allow Kingsmore to enter.                 BMW representatives

did not give him or Morris any explanation for denying Kingsmore

entry.       Kingsmore     immediately      called   his     supervisor,     Alex

Keller, to report the incident.             According to Kingsmore, he also

told Evola about the incident that day when he returned to LSP.

      In    September     2009,   Kingsmore     applied     for   an    internal

promotion to a quality supervision position and interviewed with

Human Resources Director Susan Becksted for the position later

that month.       During the interview, Kingsmore told Becksted that

he had left his previous job with BMW because of the length of

the drive to BMW’s plant, the long hours, and his desire to

spend more time with his young family.               Despite the fact that

the   job   for   which   he   was   interviewing    required     him   to   have

access to BMW’s premises, Kingsmore did not mention that he had

been barred from the facility.              Kingsmore did not receive the

promotion.

      In early February 2010, Evola told Becksted that he had

just learned that Kingsmore had been banned from BMW’s premises.

Becksted told Evola that the ban caused her concern for two

reasons.     First, since she knew other Gestamp employees who had

                                       10
worked at BMW previously but were not banned from the facility,

she questioned whether Kingsmore had lied when he told her he

had left BMW voluntarily.              Second, Gestamp needed its employees

to have access to BMW’s premises at certain times.                                    Evola asked

Becksted to investigate both why Kingsmore left BMW and why he

was banned from the premises.

     Becksted         began   by     contacting        Keller,          who     confirmed         that

Kingsmore       had    been   denied       access      to       BMW’s     facility.           After

consulting again with Evola, Becksted then met with Kingsmore

and his manager Juergen Weckermen on February 17.                                       Kingsmore

continued    to       maintain      that   the      reasons        he    had     given       in   his

interview for leaving BMW were correct.                          Becksted explained that

she needed to know the reason for the ban and, in that regard,

asked him to sign a release that she could provide to BMW.                                        When

Kingsmore       hesitated,         Becksted         told     him        that     he    could       be

terminated if he refused to sign, and Kingsmore relented and

signed    the    document.          After      consulting          with        Evola    regarding

whether    to     give    Kingsmore        a   copy        of     the    release,        Becksted

suspended Kingsmore with pay, effective immediately, and told

him that during the suspension he was not to enter Gestamp’s

premises    or    contact        Gestamp       employees          since       doing     so    would

interfere with her investigation.

     Becksted         sent    the    release         to     BMW    on     February        17      but

received    no    response.          She    testified           that     she     contacted        BMW

                                               11
within two business days of Kingsmore’s suspension and briefly

spoke to someone in human resources who refused to give her any

information.             She    also     testified       that   she     did       not   remember

whether she documented the conversation and she does not recall

any    details      about       the     human    resources      employee          to    whom   she

spoke.     On February 22, she told Kingsmore that she did not want

her investigation to drag on and that he had until 5:00 p.m. on

February      24    to     obtain      documentation       from    BMW       explaining        the

reason he left BMW.              BMW, however, would only provide Kingsmore

with    written      documentation          of     the    dates    of       his    employment.

Kingsmore faxed that documentation to Becksted on the afternoon

of    February       24.        Upon     receiving        the    information,           Becksted

informed Kingsmore that it was not what she had requested and

that     he    was        terminated.           Kingsmore’s       employee             separation

checklist          listed        the      reasons         for     his         discharge         as

“[f]alsification           of    prior     work      history,     not       supplying        proper

documentation from prior employer as requested and not supplying

information for reason of BMW’s refusal to allow employee on

property.”         J.A. 348.

                                 Alexander’s Discharge

       It was normal procedure for Gestamp employees to create

weekly self-prepared timesheets that listed their start times,

ending    times,      and       total    hours     and    to    submit       those      to   their

supervisors.             The    company     also      maintained        a    system       whereby

                                                12
employees checked in and out of work electronically, and the

resulting records were compared by supervisors to the employee-

submitted time sheets.

     Alexander           had    a    pre-prepared     timesheet    template    on   his

computer that included 7:00 a.m. start times.                      Alexander arrived

late to work on both February 9 and 10.                     In preparing his time

sheet    –       probably      on    Friday,   February   12   –   Alexander    struck

through the 7:00 a.m. start time for February 10 and wrote in

the time he had actually arrived, which was 7:15 a.m.; however,

he neglected to make any change noting that on February 9 he had

arrived at 7:38 a.m.                 With Alexander having failed to make that

change, the timesheet he submitted indicated that he arrived on

time on February 9.                 Alexander’s supervisor, Sullivan, noted the

discrepancy         in   comparing       the   employee-submitted     timesheets     to

the electronic records, advised Alexander of the problem, and

changed Alexander’s time sheet to reflect that Alexander had

arrived at 7:38 a.m., and Alexander was not paid for the extra

38 minutes.          When Becksted learned of the discrepancy, she met

with Alexander on February 19, informed him that he had violated

company policy, and terminated him for falsifying his timesheet.

                                          Complaint

     Based on these facts, the Board’s Acting General Counsel

issued       a    complaint         alleging    unfair    labor    practice    charges

against Gestamp.               As is relevant to this appeal, the complaint

                                               13
alleges that Gestamp violated 29 U.S.C. § 158(a)(3) and (1) by

suspending          and     discharging       Kingsmore         and     by     discharging

Alexander      because         of   their   union      organization          efforts    (“the

discharge claims”) and that Fink violated 29 U.S.C. § 158(a)(1)

by warning Kingsmore that he would be fired if Evola found out

he was trying to unionize the facility (“the threat claim”).

       Following a hearing, the ALJ found that Gestamp and Fink

had committed the alleged violations.                        Regarding the discharge

claims,       the    ALJ       concluded    that      the    General     Counsel       proved

protected activity on the part of Alexander and Kingsmore since

both participated actively in the union campaign.                             He concluded

that    knowledge         of    Alexander’s     and       Kingsmore’s    union      activity

could    be    imputed         to   Gestamp    by     virtue    of     its    supervisors’

awareness of their participation.                   In response to an argument by

Gestamp that the supervisors with knowledge were not involved in

the employment decisions at issue, the ALJ acknowledged that the

record was unclear whether Becksted made the adverse employment

decisions herself or whether she consulted with others in making

them.        Nevertheless, the ALJ determined that knowledge of the

union    activity         by    Gestamp’s     “management”       was     established      by

circumstantial            evidence,    namely       the     evidence    that     the    union

campaign was highly charged, as exemplified by the threat of

physical violence made by an employee against union supporters

and     by    the    accusations       of     union        involvement       made   against

                                              14
Alexander.      J.A. 442.         The ALJ also found that Kingsmore was

suspended, and Alexander and Kingsmore were fired, because of

anti-union animus and that Gestamp failed to show that it would

have taken the same actions even in the absence of the protected

activity.

       The ALJ further found that Fink’s warning to Kingsmore that

Kingsmore would be fired if Evola learned of Kingsmore’s attempt

to unionize the plant constituted an unlawful threat under §

8(a)(1).      The ALJ concluded that Fink’s statement “reasonably

conveyed the message that Kingsmore’s protected activities might

harm    his   employment        and    thus    reasonably       could     have          caused

Kingsmore      to     fear      reprisals       for     engaging         in        protected

activities.”        J.A. 498.

       The    ALJ    determined        that    Gestamp       was   liable          for    the

statement,      rejecting        the     company’s          argument      that          Fink’s

authority     over    two    Gestamp    employees       that    worked        at    the    BMW

plant was not sufficient to make him a supervisor.                        Having found

the    aforementioned        violations,       the    ALJ    recommended           an    order

requiring     Gestamp    to     cease   and    desist       from   its    unfair         labor

practices, to reinstate Kingsmore and Alexander and make them

whole, to remove any mention of the terminations from its files,

and to post the required notice.

       On appeal, a three-member panel of the NLRB affirmed the

ALJ’s   decision      and    adopted     the    ALJ’s       recommended       order       with

                                          15
minor modifications not relevant here.           Gestamp now petitions

for review of the Board order and the Board cross-petitions for

enforcement of the order.

                                   B.

     Gestamp first argues that because the ALJ did not find that

the official who made the challenged employment decisions knew

of the employees’ union activity, the ALJ erred in concluding

that the General Counsel established a prima facie case as to

the discharge claims.    We agree.

     “Although we ordinarily review questions of law de novo,

the NLRB’s interpretation of the Act is entitled to deference if

it is reasonably defensible.”           Industrial TurnAround Corp. v.

NLRB, 115 F.3d 248, 251 (4th Cir. 1997).         However, the Board is

required “to follow the law as set forth by the relevant court

of appeals.”     NLRB v. Flambeau Airmold Corp., 178 F.3d 705, 712

(4th Cir. 1999).

     It is a violation of 29 U.S.C. § 158(a)(3) and (a)(1) to

discharge an employee for engaging in protected union activity.

See NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 397-98 (1983),

overruled   on   other   grounds   by    Director,   OWCP   v.   Greenwich

Collieries, 512 U.S. 267 (1994); Valmont Indus. v. NLRB, 244

F.3d 454, 463 (5th Cir. 2001).            In Transportation Management

Corp., the Supreme Court approved the test set forth by the

Board in Wright Line, 251 N.L.R.B. 1083 (1980), for mixed-motive

                                   16
cases.   See 462 U.S. at 401-04.              Under that test, the General

Counsel bears the burden of making a prima facie case that the

challenged employment decision was at least partly motivated by

discriminatory intent.        See Medeco Sec. Locks, Inc. v. NLRB, 142

F.3d 733, 741-42 (4th Cir. 1998).              Meeting this burden requires

the General Counsel to prove “(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 decision.”                    FPC Holdings,

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

knowledge requirement entails proving knowledge “on the part of

the company official who actually made the discharge decision.”

Firestone Tire & Rubber Co. v. NLRB, 539 F.2d 1335, 1338 (4th

Cir. 1976); see Vulcan Basement Waterproofing of Illinois, Inc.

v. NLRB, 219 F.3d 677, 685 (7th Cir. 2000); Pioneer Natural Gas

v. NLRB, 662 F.2d 408, 412 (5th Cir. 1981).                 Even if the General

Counsel meets this burden, the employer can avoid liability if

it can prove that the employee would have been discharged for

legitimate     reasons     even   absent     the   protected     activity.     See

Medeco Sec. Locks, Inc., 142 F.3d at 742.

     As Gestamp asserts, the ALJ never found that the official

making   the    discharge    decisions       was   aware    of   Kingsmore’s   and

Alexander’s union activity, but rather only imputed Gestamp’s

supervisors’ knowledge to Gestamp and alternatively found that

                                        17
Gestamp’s management knew of the activity. 3                      In fact, the ALJ

acknowledged that the record was unclear whether Becksted made

the   adverse       employment        decisions     herself       or     whether      she

consulted with others in making them.

      The    General       Counsel     defends    the   ALJ’s     decision       on   two

bases.       He    first    suggests     that    Gestamp     bore      the   burden    of

proving who made the discharge decisions.                    He also argues that

supervisors’ knowledge of union activity can be imputed to the

employer.

      The    General       Counsel’s    first    argument    is     easily    handled,

because it is the General Counsel and not Gestamp that bears the

burden      of    proving    the     General     Counsel’s    prima      facie     case,

including the knowledge requirement.                See Firestone, 539 F.2d at

1338-39 (“[T]he burden of establishing . . . knowledge rest[s]

on the Board.”). 4             As for the second argument, the General


      3
        Gestamp also argues that the ALJ, instead of requiring
that   the   General  Counsel  prove   anti-union animus   by  a
preponderance of the evidence, required only that the General
Counsel produce evidence that could support an inference of
anti-union animus. We disagree. The ALJ explained that “[t]he
General Counsel must show, either by direct or circumstantial
evidence, that the employee engaged in protected conduct, the
employer knew or suspected the employee engaged in such conduct,
the employer harbored animus, and the employer took action
because of this animus.”    J.A. 440 (emphasis added).   Indeed,
the ALJ’s order makes clear that he found each of these elements
was proven by a preponderance of the evidence.
      4
       The General Counsel claims that our analysis in Firestone
concerning the knowledge requirement was mere nonbinding dicta,
(Continued)
                                          18
Counsel is incorrect to the extent he suggests that supervisors’

knowledge     of       an   employees’       union     activity   is    automatically

imputed to the employer.               See id. at 1339 (refusing to impute

supervisors’ knowledge of employees’ union activity to decision-

maker).      On the other hand, to the extent that the General

Counsel argues only that a finding of decision-maker knowledge

can be based on wholly circumstantial evidence, he is certainly

correct.     See NLRB v. Grand Canyon Mining Co., 116 F.3d 1039,

1048 (4th Cir. 1997).                However, as we have explained, the ALJ

never found, based on circumstantial evidence or otherwise, that

any Gestamp official involved in the decisions to suspend or

fire Alexander or Kingsmore was aware of their union activity.

Nor could the ALJ have made such a finding based on the record

before him.

                                              C.

     Gestamp       also       challenges      the    ALJ’s    finding    that   Fink’s

warning     to     Kingsmore         about     Evola    constituted      a   § 8(a)(1)

violation.       On this violation, we disagree with Gestamp.

     We     are        bound    by     the     Board’s       factual    findings    and

application       of    law    to    the     facts   “if   they   are   supported    by



apparently because it was only one of two different bases
supporting the grant of the petition for review in that case.
However, alternative holdings are not dicta.      See MacDonald,
Sommer & Frates v. Cnty. of Yolo, 477 U.S. 340, 346 n.4 (1986);
United States v. Fulks, 454 F.3d 410, 434-35 (4th Cir. 2006).


                                              19
substantial evidence on the record as a whole.”                            WXGI, Inc. v.

NLRB, 243 F.3d 833, 840 (4th Cir. 2001); see 29 U.S.C. § 160(e),

(f).    “Substantial evidence” is

       such relevant evidence as a reasonable mind might
       accept as adequate to support a conclusion.   It is
       more than a scintilla but less than a preponderance.
       Although a reviewing court accords due deference to
       the Board’s factual findings under the substantial
       evidence standard of review, the court does not
       mechanically accept those findings.

Vance v. NLRB, 71 F.3d 486, 489-90 (4th Cir. 1995) (per curiam)

(alterations, citations, and internal quotation marks omitted).

We   may    not     “displace         the    Board’s      choice   between     two   fairly

conflicting views, even though the court would justifiably have

made a different choice had the matter been before it de novo.”

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).

       Section 7 of the NLRA guarantees employees the “right to

self-organization,               to         form,      join,       or    assist       labor

organizations,”           and    the    right       “to   engage   in   other    concerted

activities for the purpose of . . . mutual aid or protection.”

29 U.S.C. § 157.            Section 8(a)(1) of the Act in turn protects

those      rights    by    making       it    an     unfair    labor    practice     for   an

employer “to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 7.”                            29 U.S.C.

§ 158(a)(1).          The       NLRA   provides       that     “[t]he   term    ‘employer’

includes any person acting as an agent of an employer.”                                    29

U.S.C. § 152(2).            We have held that it is proper to attribute

                                                20
liability to an employer for statements of a supervisor.                  See

Benson Veneer Co. v. NLRB, 398 F.2d 998, 1000 (4th Cir. 1968).

The NLRA defines “supervisor” to

     mean[]   any  individual   having  authority, in   the
     interest of the employer, to hire, transfer, suspend,
     lay off, recall, promote, discharge, assign, reward,
     or discipline other employees, or responsibly to
     direct them, or to adjust their grievances, or
     effectively to recommend such action, if in connection
     with the foregoing the exercise of such authority is
     not of a merely routine or clerical nature, but
     requires the use of independent judgment.

29 U.S.C. § 152(11) (emphasis added).

     Gestamp raises two challenges to the ALJ’s finding that it

violated § 8(a)(1), and we will address them seriatim.

     Gestamp     first   argues    that    substantial   evidence   did   not

support    the   ALJ’s   finding    that    Fink   was   a   supervisor   for

purposes of the alleged § 8(a)(1) violation.             We disagree.     The

ALJ found that Fink was a supervisor by virtue of his authority

over two Gestamp employees that worked at the BMW plant.                  The

ALJ found that Fink gave them instructions; that they report to

him or another employee, Beasley, if they have problems; and

that the employees inform Fink or Beasley if they need to take

time off for an emergency and that Fink then makes the initial

decision whether to approve the leave.               Fink and Beasley also

prepare the two employees’ biannual evaluations and review their

training reports.        The ALJ noted that while a third employee

retained    final   authority     regarding    the    emergency   leave   and

                                     21
evaluation       questions,        he     had      never      disagreed     with     Fink’s

recommendations.          We conclude that these factual findings were

supported     by     substantial         evidence       and     warranted      the      ALJ’s

conclusion that Fink was a supervisor.                             See NLRB v. Yeshiva

Univ., 444 U.S. 672, 683 n.17 (1980).

       Gestamp     next      challenges         the     ALJ’s       finding      that     the

conversation       at   issue    took      place       as    Kingsmore    said     it   did.

Gestamp argues that Fink’s testimony regarding the conversation

contradicted       Kingsmore’s          account        of    it.        Gestamp      further

contends that the ALJ found Fink to be “truthful and reliable”

based    in   part      on   his        “candid[]”      testimony        concerning      the

conversation at issue, but the ALJ found Kingsmore “not fully

reliable.”       J.A. 426, 429.            In light of the ALJ’s credibility

findings, Gestamp contends that no substantial evidence supports

the finding that Fink told Kingsmore that if Evola discovered

his pro-union activity, Kingsmore would be “gone.”                            See Weather

Shield Mfg., Inc. v. NLRB, 890 F.2d 52, 59 (7th Cir. 1989)

(reversing NLRB finding based on witnesses ALJ discredited).                              We

disagree with Gestamp’s argument.                       Nothing prevented the ALJ

from    crediting       portions         of     each        witness’s     testimony      and

discrediting others.            And while the ALJ found that Fink was a

reliable witness and that he testified candidly concerning the

conversation at issue, part of his candor was admitting that he

did not recall all the details of the conversation.                           In light of

                                              22
that   fact,   there   was   nothing    contradictory   about   the   ALJ’s

decision to accept Kingsmore’s account.



                                   III.

       For the foregoing reasons, we grant the petition for review

and deny the cross-application for enforcement with respect to

the discharge claims.        We deny the petition for review with

respect to the threat claim and grant the cross-application for

enforcement with respect to that claim.



                 PETITION FOR REVIEW GRANTED IN PART AND DENIED IN
                 PART; CROSS-APPLICATION FOR ENFORCEMENT GRANTED
                 IN PART AND DENIED IN PART




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