                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-1651
                                No. 14-1934
                        ___________________________

                         Greater Omaha Packing Co., Inc.

                   lllllllllllllllllllllPetitioner/Cross-Respondent

                                         v.

                         National Labor Relations Board

                   lllllllllllllllllllllRespondent/Cross-Petitioner
                                        ___________

                          Petition for Review of an Order
                      of the National Labor Relations Board
                                    ___________

                           Submitted: February 12, 2015
                              Filed: June 22, 2015
                                 ____________

Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.
                              ____________

LOKEN, Circuit Judge.

      The General Counsel of the National Labor Relations Board charged Greater
Omaha Packing Co., Inc., with wrongfully terminating three employees for engaging
in protected concerted activity, interrogating employees regarding protected
concerted activities, and creating the impression it was conducting surveillance of
employees’ protected concerted activities. After an evidentiary hearing, the Board’s
Administrative Law Judge (“ALJ”) determined that Jorge Degante Enriguez
(“Degante”), Susana Salgado Martinez (“Salgado”), and Carlos Zamora were
wrongfully terminated in violation of Section 8(a)(1) of the National Labor Relations
Act, 29 U.S.C. § 158(a)(1), but found that Greater Omaha had not made coercive
statements to Zamora or created the impression that Degante and Salgado’s protected
activities were under surveillance. Greater Omaha and the General Counsel cross-
appealed to the Board, which sustained all charges. Greater Omaha petitions to set
aside the Board’s Decision and Order; the General Counsel cross-petitions to enforce
the Order. We affirm the wrongful termination rulings, decline to uphold the
interrogation and surveillance rulings, and enforce the Board’s Order, as so modified.

                                   I. Background

        Greater Omaha employs several hundred workers in the fabrication area of its
beef processing plant, where meat is processed into cuts as it moves through the area
on multiple lines at set speeds. The line employees work in close proximity to each
other but cannot see their supervisors’ office from the production floor. In 2008, the
entire non-union fabrication workforce stopped working until Greater Omaha’s owner
listened to their concerns. No employees were fired for the 2008 stoppage.

       In April 2012, the Department of Homeland Security notified Greater Omaha
that the employment eligibility of 179 employees could not be verified. Customs
officials arrested some employees and others quit, forcing Greater Omaha to replace
dozens of workers. During this process, the remaining employees complained that
the speed of the meat lines forced them to assume heavier workloads because there
were so many new workers. In mid-April, ten to twelve employees, including
Zamora, left their workstations and went to the cafeteria to protest these working
conditions. They returned to work when Plant Manager Jose Correa agreed to meet
at the end of the day. During that meeting, employees including Zamora expressed
concern they were not being paid enough and the meat conveyors were moving too

                                         -2-
fast at current staffing levels. Correa replied that the compensation package including
benefits was competitive. He agreed to speak with management about their concerns
and reminded employees of the safety rule that they not leave the production lines
without permission. Zamora testified that Correa said a pay increase was possible,
but he had to speak with Fabrication Manager Eliseo Garcia.

       Degante testified that employees remained disgruntled about wages and line
speeds after the meeting with Correa and looked to Degante for a solution. In early
May, Degante planned a work stoppage for Monday, May 14, with the signal to be
the clock striking 10AM. Over the prior weekend, Degante asked Salgado to tell
other employees about the stoppage; when she told others on her line, they were
already aware of the plan. A friend told Zamora of the planned stoppage before the
end of his 9AM break on Monday morning.

     Around 9:30AM on May 14, Zamora was summoned to the supervisor’s office,
where Correa was waiting with Garcia. Zamora testified:

      Q What did Mr. Correa say?

      A He wanted to know what it is that I wanted, that I have a good job,
        that I have good insurance, that I have good overtime, what else did
         I want?

      Q Did you respond?

      A I told him that all I wanted was an increase.

      Q What did Mr. Correa say?

      A That I was fired, just to leave my stuff back there because I had left
        my line twice.



                                         -3-
A security guard escorted Zamora from the plant; he did not return to the production
floor. Correa and Garcia testified that, during the prior week, Zamora left his line
without authorization to speak to Garcia, who warned him not to. At the May 14
meeting, Garcia told Zamora that he needed to get permission before leaving his line.
Correa fired Zamora when he responded by calling Garcia and Correa assholes and
claimed they were picking on him. Zamora then swore and yelled, “I am going to kill
you and your family.” Zamora denied swearing, yelling, being disrespectful, or
threatening anyone. The security guard who escorted Zamora from the plant testified
that he thought Zamora and the supervisors were threatening each other as they exited
the office but was unsure because they were speaking Spanish.

       Shortly after 9:30AM, Degante’s immediate supervisor told him to go to
Garcia’s office, where Correa and Garcia were waiting. Degante testified that, when
he arrived, Garcia accused him of being “the one agitating people.” Degante denied
“doing anything” but agreed he was not happy with his salary. Garcia said, “Just
leave your stuff in here and you can go. You are dismissed.” Degante testified that,
when he protested that was unfair, Garcia said “that someone had told him that I was
the leader of the strike that we were planning to do.” Two security guards escorted
Degante to his locker and then “to the exit door, where I have my car.”

        Correa and Garcia again offered a different account of the meeting. Correa
testified that Degante was summoned because he was late getting to his line after the
morning break. Garcia testified that Degante’s tardiness had been a continual
problem during Garcia’s four and a half years at the plant. When they brought up
issues of timeliness and following instructions, Degante refused to acknowledge he
had done anything wrong, and Correa fired him for insubordination. Correa testified
that, if Degante had acknowledged wrongdoing and said he would change his ways,
he would not have been fired. Degante admitted he had been warned in 2012 about
taking unauthorized breaks.



                                         -4-
       At some point later that morning, four supervisors including Correa and Garcia
spoke to Salgado in the supervisor’s locker room. She had not seen Degante or
Zamora after their terminations. Correa told her, “You are here because you are one
of the organizers of the strike.” Salgado asked who told him that. Correa responded,
“In here, there are no witnesses. You didn’t take good care of your job. You are
fired.” Security then escorted her from the plant. Salgado testified she was not
informed of any rules she had broken but admitted she sometimes left her work area
without permission to use the restroom. Garcia testified that he summoned Salgado
because he had seen her on the catwalk that morning. Correa and Garcia testified
they informed Salgado she should not leave her workstation without permission.
Salgado replied that others left without permission so she could as well. The
disagreement continued until Salgado said her supervisors “were not very good
employers” and were mistreating her. Correa then fired her for failure to follow
instructions. Garcia described Salgado as “a good performer with no previous
incidents,” but her immediate supervisor testified that Salgado leaving the line
without permission was a daily occurrence.

       No work stoppage occurred on May 14. Greater Omaha was charged with
wrongfully terminating the three employees for engaging in protected concerted
activity. The interrogation and surveillance charges arose out of the three termination
meetings. The issues at the contested hearing turned in large part on conflicting
testimony by the participants in those meetings: Correa, Garcia, and the three
terminated employees.

                         II. The Employee Terminations

      “An employer violates § 8(a)(1) by discharging a non-union employee for
organizing or implementing a collective walkout to protest working conditions.” JCR
Hotel, Inc. v. NLRB, 342 F.3d 837, 840 (8th Cir. 2003). To establish a violation, the
General Counsel must prove that this protected activity was a motivating factor in the

                                         -5-
discharge, which necessarily requires proof that the employer knew the employee was
engaged in protected activity. NLRB v. RELCO Locomotives, Inc., 734 F.3d 764,
780 (8th Cir. 2013). “Because these are fact-intensive issues, we must enforce the
Board’s order if it is supported by substantial evidence on the record as a whole.”
JCR Hotel, 342 F.3d at 841. “Put differently, we must decide whether on this record
it would have been possible for a reasonable jury to reach the Board’s conclusion.”
Allentown Mack Sales and Serv., Inc. v. NLRB, 522 U.S. 359, 366-67 (1998).
Motivation “is a question of fact that may be inferred from both direct and
circumstantial evidence.” Concepts & Designs, Inc. v. NLRB, 101 F.3d 1243, 1244
(8th Cir. 1996).

       In this case, the ALJ resolved conflicts in the testimonies of the terminated
employees and supervisors Correa and Garcia about the events on the morning of
May 14, 2012. “[A]n ALJ’s credibility determinations are considered with the rest
of the NLRB’s factual findings under the general substantial evidence test derived
from Universal Camera Corp. v. NLRB, 340 U.S. 474 [] (1951).” Town & Country
Elec., Inc. v. NLRB, 106 F.3d 816, 819 (8th Cir. 1997). “[T]he question of credibility
of witnesses is primarily one for determination by the trier of facts, and findings in
this area are reversed only in extraordinary circumstances.” Chemvet Labs., Inc. v.
NLRB, 497 F.2d 445, 449 (8th Cir. 1974) (quotation omitted).

       The ALJ found “the discriminatees’ account of what transpired on May 14 to
be far more credible than that of Correa and Garcia.” The ALJ cited several factors
that tended to discredit testimony by Correa and Garcia as to why the three employees
were terminated: “virtually simultaneous discharge of three employees for ostensibly
unrelated reasons”; the implausibility of terminating employees for misconduct
Greater Omaha had tolerated for years; the “precipitous discharge” of Salgado, who
had a clean disciplinary record; and the sparse explanation for the terminations on the
employees’ records. The ALJ found it implausible that Degante and Salgado “would
simply dig in their heels” when supervisors demanded that they abide by plant rules,

                                         -6-
and that the supervisors would summarily terminate Salgado for violating company
policy, rather than giving a warning, as Degante had previously been given.

       The ALJ found that Zamora was terminated for engaging in the protected
activity of complaining with other employees about the speed of the conveyor chains.
The ALJ credited the employees’ testimony that there was a planned 10AM work
stoppage on May 14 and found that Correa and Garcia knew of the plan. They
terminated Degante because they suspected he was behind the planned stoppage and
Salgado because she too was suspected of playing a significant role in the plan. The
ALJ concluded the stoppage did not occur because the abrupt absence of three leaders
of their protected activity likely deterred others from taking action.

      Greater Omaha filed exceptions to the ALJ’s decision, objecting to many
findings of fact, the credibility determinations, the inferences from the facts, the
conclusions of law, and the remedy. The Board upheld the wrongful termination
rulings. Accepting the ALJ’s credibility findings, the Board determined that “the
discriminatees previously had engaged in protected activity and the Respondent
terminated them because it perceived they would continue to do so.”

       On appeal, Greater Omaha argues the General Counsel failed to prove that the
employees’ alleged protected activity was a motivating factor in their terminations.
There is no substantial evidence that Greater Omaha had knowledge of the protected
activity, Greater Omaha contends, and therefore the record does not support the
inferences of wrongful motive drawn by the ALJ and by the Board. In support of this
contention, Greater Omaha emphasizes that no witness testified that any supervisor
was told about the planned work stoppage, the involved supervisors testified they had
no knowledge of any alleged stoppage, and no stoppage in fact occurred on May 14.

      The Board responds: (i) the General Counsel was not required to prove how
Greater Omaha’s supervisors learned of the planned work stoppage for the record to

                                         -7-
permit the ALJ and the Board to reasonably infer that Greater Omaha knew of the
protected activity; (ii) there was direct evidence of employer knowledge because the
supervisors knew of Zamora’s participation in similar protected activity in April and
accused Degante and Salgado of planning a work stoppage on May 14; and (iii) the
suspicious timing and pretextual reasons given for the abrupt firing of three suspected
protected activity leaders supported the inference drawn by the ALJ and the Board
that the protected activity was a motivating factor in the discharges.

       We agree with the Board that substantial evidence clearly supports its
conclusion that Greater Omaha violated Section 8(a)(1) in terminating the three
employees. All three terminated employees testified to the planned work stoppage,
and two testified that Correa and Garcia accused them of organizing the concerted
activity in the termination meetings. Greater Omaha urges us to discredit this
“uncorroborated self-serving testimony.” But all testimony relating to what was said
at those meetings came from interested witnesses whose testimony would typically
be denigrated by opposing lawyers as “self-serving.” “When the Board is faced with
conflicting testimony, it is the sole prerogative of the ALJ to make credibility
findings,” and it is our more limited task to assess “whether substantial evidence, on
the record as a whole, supports the Board’s findings.” DeQueen Gen. Hosp. v.
NLRB, 744 F.2d 612, 617 (8th Cir. 1984). Here, there are no “extraordinary
circumstances” causing us to question the ALJ’s well-supported credibility findings.

       Crediting the employees’ testimony, there was substantial direct and
circumstantial evidence that Greater Omaha’s knowledge of the protected activity in
April and its planned continuation on the morning of May 14 was a motivating factor
in the precipitous terminations of Zamora, Degante, and Salgado that morning. That
no work stoppage occurred on May 14 is nearly irrelevant. Section 8(a)(1) prohibits
an employer “from discharging an employee for conduct the employer believes to be
protected concerted activity . . . . even if the employer misjudged what the fired
employee had done.” JCR Hotel, 342 F.3d at 841. Moreover, the ALJ and the Board

                                         -8-
reasonably inferred that the abrupt discharge of three plan leaders may well have
persuaded other employees to scuttle the plan. We deny the petition to review and
grant the petition to enforce this portion of the Board’s Order.

                           III. Coercion and Interrogation

       The ALJ concluded “that the General Counsel did not prove illegal
interrogations and/or surveillance as alleged in paragraph 4 of the complaint.” The
Board sustained the General Counsel’s appeal of these rulings and modified its
Decision and Order accordingly. The Board found that Correa’s statements to
Zamora may not have been interrogation but were nonetheless coercive. Board
Member Johnson in concurring “emphasize[d] the need to afford employers the
legitimate opportunity to exchange views with employees on terms and conditions of
employment.” The Board further found that statements to Degante and Salgado
created the impression of wrongful surveillance: “Garcia told Degante that
‘someone’ had told him that Degante was the leader of the planned work stoppage,
and Correa accused Salgado of organizing the work stoppage.” Member Johnson
dissented from this ruling, finding “insufficient basis to find that Degante and
Salgado would reasonably infer from Correa and Garcia’s statements that knowledge
or suspicion of their role in the protected activity resulted from management
surveillance.” Greater Omaha petitions for review of both rulings.

                                      A. Coercion

       Section 8(a)(1) prohibits an employer from “coerc[ing] employees in the
exercise of the[ir] rights.” However, Section 8(c) explicitly recognizes that not all
displeased communications from an employer to an employee are coercive: “The
expressing of any views, argument, or opinion . . . shall not constitute or be evidence
of an unfair labor practice . . . if such expression contains no threat of reprisal or force
or promise of benefit.” 29 U.S.C. § 158(c). Accordingly, to violate Section 8(a)(1),

                                            -9-
a statement must contain a threat of reprisal or force or promise of benefit. See
NLRB v. Hart Beverage Co., 445 F.2d 415, 420 (8th Cir. 1971). “Questioning which
does not coerce or restrain employees in their right to [engage in protected activity]
is permissible.” NLRB v. Douglas Div., Scott & Fetzer Co., 570 F.2d 742, 745 (8th
Cir. 1978).

       The Board found that supervisor Correa asking Zamora, “what it is that
[Zamora] wanted,” stating that Zamora had a good job, and then repeating the inquiry,
while perhaps not interrogation, “were nonetheless coercive, as they conveyed
displeasure with Zamora’s protected activity.” But the relevant question is not
whether management expressed displeasure, but whether the statements reasonably
tended to coerce the employee not to exercise his right to engage in concerted
activity. The only coercion articulated by the Board was that the statements were
made just before the planned work stoppage “and were immediately followed by
Zamora’s termination for engaging in protected conduct.” But Zamora was not being
coerced, he was being fired. And other employees were not coerced by this
statement, as Zamora was summarily escorted from the plant without an opportunity
to relate management’s displeasure to his coworkers.

        In these circumstances, the termination was coercive, but the brief statements
preceding termination were not. We agree with Board Member Johnson that
employers must be permitted a reasonable opportunity to exchange views with
unrepresented employees about their collective concerns with the terms and
conditions of their employment. Here, Correa’s question, “What do you want,” was
exactly such an inquiry. If Zamora had responded, “We need to talk about line
speeds,” rather than, “I want more money,” perhaps management’s response would
have been different than summary discharge. The point is that unless the statement
itself coerces an employee not to exercise his rights, it is protected by Section 8(c)




                                        -10-
and is not a violation of Section 8(a)(1).1 The Board’s Order was contrary to this
essential statutory principle. We therefore decline to enforce paragraph 2(b) of the
Amended Conclusions of Law and paragraph 1(b) of the cease and desist Order.

                           B. Impression of Surveillance

       We have in numerous cases upheld Board determinations that an employer
violated Section 8(a)(1) by “keeping its employees’ union activities under
surveillance. . . . Such conduct is violative of Section 8(a)(1) as it could inhibit the
right of employees to pursue their union activities untrammeled by the fear of
possible employer economic coercion or other forms of retaliation.” NLRB v. Ralph
Printing & Lithographing Co., 379 F.2d 687, 691 (8th Cir. 1967) (maintaining list of
union adherents); see Miss. Transp., Inc. v. NLRB, 33 F.3d 972, 978 (8th Cir. 1994)
(monitoring union activities). However, “absent a tendency to coerce, surveillance
or creating the impression of surveillance does not constitute a § 8(a)(1) violation.”
Belcher Towing Co. v. NLRB, 726 F.2d 705, 708 (11th Cir. 1984). Indeed, the
employer’s right to non-coercively gather information, even about union activities,
is protected by Section 8(c). See Douglas Div., 570 F.2d at 745-46 (enforcement
denied because “casual and sporadic” questions about union organizing campaign
were not coercive); Bridgestone Firestone S.C., 350 N.L.R.B. 526, 527 (2007).




      1
        In April 2012, Zamora was a vocal participant in a work stoppage (for which
he was not disciplined). Correa told the involved employees that Greater Omaha’s
salaries were competitive taking employee benefits into account. Correa’s question
at the start of his May 14 meeting with Zamora, and Zamora’s response, were
consistent with a continuation of that lawful April discussion. By contrast, the cases
on which the Board relies all involved statements made to discourage employees from
supporting or voting for a union, and the employers used words conveying a clear
threat of reprisal. See, e.g., NLRB v. Intertherm, Inc., 596 F.2d 267, 273-76 (8th Cir.
1979); NLRB v. Crystal Tire Co., 410 F.2d 916, 918 (8th Cir. 1969).

                                         -11-
      In recent cases involving employer surveillance of union activities, the Board
has seemed to ignore this critical coercion element:

      The Board’s test for determining whether an employer has created an
      unlawful impression of surveillance is whether, under all of the relevant
      circumstances, reasonable employees would assume from the statement
      in question that their union or protected activities had been placed under
      surveillance.

McClain & Co., Inc., 358 N.L.R.B. No. 118, at *5 (Aug. 31, 2012) (quotation
omitted). In addition, while adhering to the distinction that it is only employer
surveillance that is unlawful, not obtaining information volunteered by other
employees, the Board has reduced this issue to a single inquiry:

      [W]hen an employer tells employees that it is aware of their union
      activities, but fails to tell them the source of that information, it violates
      Section 8(a)(1) because employees are left to speculate as to how the
      employer obtained the information, causing them reasonably to conclude
      that the information was obtained through employer monitoring.

Id. (quotation omitted). Again the essential element of coercion is entirely missing
from this articulation of the statutory standard. Most, indeed virtually all employer
surveillance cases have involved union organizing or election campaigns, with the
surveillance issue typically surrounded by the employer’s other anti-union unfair
labor practices. In that context, the absence of an explicit finding of coercion is not
surprising, because it is often reasonable to infer that the employer’s monitoring of
union activities or adherents was done for precisely that reason. For example, in
Mississippi Transport, the employer told an employee “there was word going around
that I had sent in a union card” minutes after wrongfully terminating another
employee for his pro-union activities. 33 F.3d at 977-79. But when the Board does
not explicitly find the requisite coercion, and it is not apparent to the reviewing court


                                          -12-
from the record, a creating-the-impression-of-surveillance order should not be
enforced.

       Here, the Board applied the above quoted standard from McClain in finding
that Greater Omaha impermissibly created the impression of surveillance in its
termination meetings with Degante and Salgado. This is not the typical case where
an employer gathers information about ongoing union activities. Rather, the Board
found unlawful surveillance of the protected activities of non-union employees who
were acting in concert to protest their working conditions. The Board has cited and
our research has uncovered only one such prior case, Sams Club, a Div. of Wal-Mart
Corp., 342 N.L.R.B. 620, 620-21 (2004). We do not doubt that employer surveillance
of this type of protected activity can violate Section 8(a)(1) if the necessary element
of coercion is proved. But it is far less likely in this situation that the employer’s
statement was intended to be, or was perceived as being, coercive. Therefore, more
careful analysis of the coercion element is required than in the McClain standard.

      The Board found that the statements accusing Degante and Salgado of being
leaders of the stoppage impermissibly created the impression of surveillance. But the
Board did not explain how those statements could have coerced or restrained the
employees from engaging in their protected activity, the planned work stoppage. In
assessing Section 8(a)(1) claims, we must consider the entire factual context.
Widespread employee communication of the plan before May 14 made it unlikely that
Degante, Salgado, or others would assume Greater Omaha learned of the plan through
employer surveillance. The statements did not create fear of reprisal or inhibit
protected activity by Degante and Salgado, as they were immediately terminated --
independent Section 8(a)(1) violations that are being remedied -- and were prevented
from communicating with other employees.2 The statements were not made known


      2
       Correa had no reason to respond when Salgado asked who told him she was
an organizer because she was being terminated. The Board’s emphasis on his failure

                                         -13-
to the rest of the workforce, so the likelihood they would be perceived as coercive is
hard to fathom. The protected activity on May 14 was a work stoppage that would
immediately reveal all employee participants to Greater Omaha. In these
circumstances, like Dissenting Board Member Johnson, we conclude the ALJ
properly found that the statements to Degante and Salgado just before they were
wrongfully terminated did not constitute distinct illegal surveillance violations of
Section 8(a)(1). Accordingly, we decline to enforce paragraph 2(c) of the Amended
Conclusions of Law and paragraph 1(c) of the cease and desist Order.

                         IV. An Additional Remedy Issue

        Sustaining the General Counsel’s appeal of a third issue, the Board ordered
that, in reinstating the wrongfully terminated employees with backpay, Greater
Omaha must reimburse them “an amount equal to the difference in taxes owed upon
receipt of a lump-sum backpay payment and taxes that would have been owed had
there been no discrimination against them” and “[s]ubmit the appropriate
documentation to the Social Security Administration so that when backpay is paid . . .
it will be allocated to the appropriate periods.” Greater Omaha argues that these new
remedies are invalid because the case in which the Board initially adopted them was
decided by a panel that lacked a quorum because two members were invalid recess
appointments. See Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), aff’d, 134
S. Ct. 2550 (2014).

       This contention is without merit. The current Board regained a full quorum of
five Senate-confirmed members in August 2013 and has since reaffirmed and
explained its new remedial policy. See Don Chavas, LLC, 361 N.L.R.B. No. 10, at
*3-6 (Aug. 8, 2014). The panel that ordered the remedies in this case was properly
constituted and exercised the Board’s “broad discretion to fashion appropriate


to respond was illogical.

                                        -14-
[backpay] remedies once an unfair labor practice is established.” NLRB v. J.S.
Alberici Const. Co., 591 F.2d 463, 468 (8th Cir. 1979).

       As Greater Omaha does not attack the merits of applying the new remedies in
this case, they must be enforced. We need not consider whether the Board’s apparent
adoption of a rigid policy imposing these requirements in every case where backpay
is ordered might in some cases impose a burden so unreasonable or unnecessary that
it abuses the discretion “given it by Congress to attain just results in diverse,
complicated situations.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941).

                                 IV. Conclusion

      For the foregoing reasons, we grant enforcement of the Board’s Decision and
Order except as to paragraphs 2(b) and 2(c) of the Amended Conclusions of Law and
paragraphs 1(b) and 1(c) of the Order.
                       ______________________________




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