                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                         DEC 16 2003
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 WEBCO INDUSTRIES, INC.,

      Petitioner and Cross-
 Respondent,
                                                      Nos. 01-9532 &
 v.                                                        01-9533

 NATIONAL LABOR RELATIONS                                 NLRB
 BOARD,                                             (No. 17-CA-19898)

        Respondent and Cross-
 Petitioner.


 UNITED STEELWORKERS OF
 AMERICA

          Intervenor.




                            ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, McWILLIAMS, and BRORBY, Senior Circuit
Judges.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Webco Industries, Inc. appeals a decision of the National Labor Relations

Board (Board) finding it violated § 8(a)(1) 1 and (a)(3) 2 of the National Labor

Relations Act (Act) 3; the Board cross-appeals for enforcement, and the United

Steel Workers of America (Union) intervenes in support of the Board. Exercising

jurisdiction under 29 U.S.C. § 160(e) and (f) (2002), we grant the Board’s cross-

application for enforcement.

      The issues presented are: (1) whether substantial evidence supports the

findings of the alleged violations; (2) whether Bryan O’Connell was a supervisor

and therefore barred from relief under the Act; (3) whether Eric Martin is barred

from relief because he signed a severance agreement releasing Webco from claims

under the Act; and (4) whether relief for Bryan O’Connell and Charlie Williams is




      1
         Section 8(a)(1) of the National Labor Relations Act corresponds to 29
U.S.C. § 158(a)(1) (2002), which provides: “It shall be an unfair labor practice
for an employer . . . to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 157 of this title [§ 7 of the Act] . . . .” 29
U.S.C. §157 provides: “Employees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection . . . .”
      2
        Section 8(a)(3) of the National Labor Relations Act corresponds to 29
U.S.C. § 158(a)(3), which provides: “It shall be an unfair labor practice for an
employer . . . 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 . . . .”
      3
          29 U.S.C. §§ 151-169.

                                         -2-
time barred under § 10(b) 4 of the Act.

Nature of the Case

      On October 8, 1998, the Union filed an unfair labor practices charge with

the Board’s regional director against Webco alleging, inter alia, violation of §

8(a)(1) and (a)(3) of the Act, stemming from the discharge 5 of a number of

employees in alleged retaliation for Union activity. Based on these charges, later

amended, the Board’s general counsel, by the acting regional director, filed a

complaint, later amended, against Webco.

      After conducting a hearing on the amended complaint, an administrative

law judge issued a decision on September 17, 1999, sustaining certain charges,

dismissing others and recommending remedial relief. By Decision and Order

dated July 19, 2001, the Board found Webco violated § 8(a)(1) 6 and (a)(3) 7 of the


      4
        Section 10(b) of the National Labor Relations Act corresponds to 29
U.S.C. § 160(b). It provides: “[N]o complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the charge
with the Board . . . . Any such complaint may be amended by the member, agent,
or agency conducting the hearing or the Board in its discretion at any time prior to
the issuance of an order based thereon.”
      5
        While one of the employees (Robert Leasman) was discharged during his
probationary term, Webco characterizes the other employees as having been “laid
off.” However, in light of Webco’s own policy that laid-off employees could
never again apply for employment with the company, the event is properly
described as a discharge. For purposes of this proceeding, the two terms are
interchangeable.
      6
       Webco interfered with the § 7 [29 U.S.C. § 157] rights of Messrs.
Schooley, O’Connell, Rogers, and Morris through coercive interrogation about

                                          -3-
Act and issued an order of relief.

Standard of Review

      “The findings of the Board with respect to questions of fact if supported by

substantial evidence on the record considered as a whole shall be conclusive.” 29

U.S.C. § 160(e); see 29 U.S.C. § 160(f). In measuring substantiality, we weigh

the whole record, including evidence leading to inferences contrary to Board

findings. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951).

However, we will not “negative the function of the Labor Board as one of those

agencies presumably equipped or informed by experience to deal with a

specialized field of knowledge, whose findings within that field carry the

authority of an expertness which courts do not possess and therefore must

respect.” Id. Nor will we “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.” Id. Substantial evidence denotes

“not the degree of evidence which satisfies the court that the requisite fact exists,

but merely the degree which could satisfy a reasonable factfinder.” Allentown

Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 377 (1998) (emphasis in the


Union activities, implied threat of reprisal for exercise of rights to organize and
interference with rights to solicit Union support.
      7
        Webco discharged Messrs. Schooley, O’Connell, Rogers, Morris, Wilson,
Teague, Leasman, Martin, Ruckman, and Williams in retaliation for Union
support.

                                          -4-
original); see N.L.R.B. v. Wilhow Corp., 666 F.2d 1294, 1299 (10th Cir. 1981).

Credibility and weight determinations belong to the Board, Wilhow Corp. at 1299-

1300, and we will not set them aside “absent extraordinary circumstances.”

Medite of New Mexico, Inc. v. N.L.R.B., 72 F.3d 780, 792 (10th Cir. 1995). As to

the Board’s legal conclusions, “[i]n reviewing the NLRB’s interpretation of the

NLRA, we recognize that Congress made a conscious decision to continue its

delegation to the Board of the primary responsibility of marking out the scope of

the statutory language . . . .” Colorado-Ute Elec. Ass’n, Inc. v. N.L.R.B., 939

F.2d 1392, 1400 (10th Cir. 1991) (quotations and citations omitted), cert. denied

sub nom., 504 U.S. 955 (1992). While we accord great deference to legal rulings

of the Board, we “must reject administrative constructions which are contrary to

clear congressional intent.” N.L.R.B. v. Oklahoma Fixture Co., 295 F.3d 1143,

1145 (10th Cir. 2002), enf. granted, 332 F.3d 1284(2003) (quoting Chevron

U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 843 n.9 (1984), reh’g

denied, 468 U.S. 1227(1984)).

Background

      Webco Industries, Inc. is a manufacturer and distributor of specialty steel

tubing. Its largest facility, Southwest Tube, is located in Sand Springs,

Oklahoma. On October 7, 1998, due to a precipitous market decline, conceded by

the Board’s general counsel and the Union, Webco laid off fifty-three of its 273


                                         -5-
employees at the Southwest Tube facility. The Union contended the ten alleged

discriminatees were selected for discharge because of their Union sympathies and

activities. Webco denied the allegation and showed that employees without

Union sympathies, including supervisory personnel, were also laid off, and

employees with Union sympathies were retained. But history informs the debate.

      The Union tried to organize the Southwest Tube facility beginning in early

1997. In connection with that campaign, Webco was charged with unfair labor

practices. 8 The campaign was suspended in April of 1997, but resumed on

August 19, 1998, 9 with handbilling 10 just outside the Southwest Tube facility by

Union organizer Jim Teague. Supervisor Ted Dye, who observed the handbilling,

testified his presence was intended to ward off any anti-Union misbehavior. Of

the ten alleged discriminatees, eight of them (Messrs. Morris, Rogers, Schooley,

Wilson, Martin, Ruckman, O’Connell and Williams) were active in both the 1997

and 1998 Union organizing efforts, and six served on an in-house organizing

committee (Messrs. Morris, Rogers, Schooley, Wilson, Ruckman and O’Connell).

Richard Teague was not employed by Webco at the time of the 1997 effort, but



      8
       See Webco Indus., Inc. v. N.L.R.B., 217 F.3d 1306 (10th Cir. 2000)
(upholding NLRB decision finding Webco violated § 8(a)(1) and (a)(3) of the
Act).
      9
          Unless otherwise indicated, all date references are to 1998.
      10
           The handbill announced a Union organizing meeting that evening.

                                          -6-
took a handbill from Jim Teague and attended the Union meeting on August 19,

1998. Robert Leasman was a probationary employee with Webco who began

employment in the latter part of July 1998. He also took a flyer from Jim Teague

on August 19 and attended the Union meeting that evening. Unlike the others, all

of whom were laid off on October 7, he was discharged without explanation on

August 24. Richard Teague was a brother of Union organizer Jim Teague, and

Gary Schooley and Robert Leasman were related to Jim Teague by marriage.

      Webco management testified as to the process for selecting the fifty three

employees laid off on October 7. In late September, founder and chief executive

officer Bill Weber and his daughter, chief operating officer Dana Weber,

informed Ms. Robin Robinette, human resources director, that facility

reorganization and layoffs were necessary to meet a declining market. Ms.

Robinette took charge of the effort to thin the labor force, assisted by Messrs.

Tom Lewis, Don Holder, and Doug Jackson of senior management. The Webers

offered broad guidance to this group, declaring attitude to be the number one

factor in determining which employees would be kept and which let go. Attitude

was described as a willingness to be flexible in job assignments, do whatever

needed to be done, and be a team player. Senior management reviewed personnel

files, discussed the matter, and prepared the initial list of employees to be

released. In the days leading up to the first lay-offs on October 7, middle


                                         -7-
managers were invited into the process and given an opportunity to remove names

from the release list.

      Five former members of Webco middle management testified at the hearing

(Messrs. Whittenburg, O’Brien, Cash, Nance, and Krevett). Each of them claimed

senior Webco management exhibited anti-union animus. 11 All except Mr.

Whittenburg (who left Webco in 1996) testified that active Union activity was a

reason for placing an employee on the October 7 discharge list. According to the

collective testimony of these managers, at the final meetings to firm up the layoff

list, all ten of the alleged discriminatees were variously mentioned as pro-Union

and in need of discharge (Mr. Leasman had already been discharged on August

24). At these meetings, Ms. Robinette wondered aloud how Richard Teague and

Robert Leasman were ever hired, since they were both related to Union organizer

Jim Teague. Members of senior management described Richard Teague and

Robert Leasman as “union plants.” At a meeting on October 7, some managers

defended employees who had been placed on the layoff list. Chief executive



      11
        As the administrative law judge put it, “[T]he witnesses are generally
independent and mutually corroborating and despite certain unlikely aspects . . . I
believe their testimony. In so finding, I have considered that each could have a
motive to fabricate. But when taken together there is just too much evidence to
disbelieve.” (R. Vol. IV, Decision of Administrative Law Judge, at 20.)




                                        -8-
officer Mr. Bill Weber told the assembled group their jobs were on the line for

any name they removed from the list.

Was O’Connell a Supervisor or an Employee?

      Webco argues it did not violate § 8(a)(1) and (a)(3) of the Act with respect

to Bryan O’Connell because he was a supervisor and not an employee. The Act

excludes supervisors 12 from its protection. The employer carries the burden of

proving an individual is a supervisor. N.L.R.B. v. Kentucky River Cmty. Care,

Inc., 532 U.S. 706, 712 (2001). “Employees are statutory supervisors if (1) they

hold the authority to engage in any 1 of the 12 listed supervisory functions [see

n.12], (2) their exercise of such authority is not of a merely routine or clerical

nature, but requires the use of independent judgment, and (3) their authority is

held in the interest of the employer.” Id. at 713 (quotations and citations

omitted). One nominally a supervisor may not enjoy his exempt status under the

Act because the degree of independent judgment exercised is measurably



      12
         “The term ‘supervisor’ means 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).

      “The term ‘employee’ . . . shall not include . . . any individual employed as
a supervisor . . . .” 29 U.S.C. § 152(3).

                                          -9-
circumscribed by the employer. “It falls clearly within the Board’s discretion to

determine, within reason, what scope of discretion qualifies” to separate an

employee from a supervisor. Id. “It was the Senate’s [prevailing] view [during

enactment of 29 U.S.C. § 152(11)] that employees such as ‘straw bosses,’ who

had only minor supervisory duties, should be included within the Act’s

protections.” N.L.R.B. v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267,

281 (1974). We accord great weight to a Board determination of supervisory

status “since the gradations of authority responsibly to direct the work of others

. . . are so infinite and subtle . . . .” N.L.R.B. v. Dixon Indus., Inc., 700 F.2d 595,

598 (10th Cir. 1983) (quotations and citations omitted).

      Mr. O’Connell, one of twelve trainers at the plant, was responsible for

training in the cold draw department. His immediate supervisor was shift

business manager Mark McIllwain. Mr. O’Connell spent about half his time

training new employees on equipment, and the other half of his time he operated a

machine on the shop floor or ran errands for his supervisor. He also trained

veteran employees shifting from one piece of equipment to another. He exercised

judgment in how to train an employee. He initialed time cards. He had the

authority to send an employee home sick if Mr. McIllwain was absent. He

critiqued employees on how well they were doing their jobs and offered input on

whether an employee would advance from one pay level to another. He could


                                           -10-
offer a recommendation on whether to keep a probationary employee, but he could

not make the decision. He assisted in the employee evaluation process, although

all employees participated in a team evaluation effort. On occasion, he signed

employee evaluations. He signed reprimands of other employees about three

times at the instruction of his supervisor, and after his supervisor had asked him

to investigate the situation. He attended management meetings representing his

department on perhaps three occasions in place of his supervisor. These meetings

concerned safety and production. When his supervisor was absent, which

occurred about four times, he was in charge of the department. He was paid an

hourly wage that exceeded the highest wage in the department by about twenty-

five cents per hour.

      Mr. Nance, general business manager of the cold draw department and

McIllwain’s superior, testified it was rare for a trainer to fill in for his immediate

supervisor because company policy directed a shift business manager be on duty

at all times. According to Mr. Nance, when a trainer was not training he was

usually operating a machine on the shop floor. He considered a trainer a lead

person with no authority to hire or issue disciplinary action, although he might

sign a disciplinary form along with his shift business manager and the general

business manager. Actual discipline was approved by management only.

According to his testimony, the purpose of a trainer “was pretty strictly to keep


                                         -11-
the work and production flowing and teach people how to run machines and that

sort of thing.” (R. Vol. I at 289).

      Notwithstanding the testimony from Mr. O’Connell and Mr. Nance, Ms.

Robinette testified trainer responsibilities were in writing, and Mr. O’Connell

spent all of his time training, which included training on company policies and

procedures. Mr. O’Connell denied having been shown the written responsibilities

of trainers, and he denied training on company policies and procedures. Ms.

Robinette claimed Mr. O’Connell had the authority to initiate disciplinary action

and to suspend other employees. She added he wore a supervisor’s uniform and

parked in a management parking lot for which he needed a special pass.

      From this litany of job descriptors, Webco argues Mr. O’Connell had the

responsibility to direct, evaluate, discipline and suspend other employees, and in

so doing he exercised independent judgment. The Board concluded Webco failed

to prove supervisory status for Mr. O’Connell, and the record supports its

decision. Missing in Webco’s case is a direct link between Mr. O’Connell’s

exercise of his job responsibilities and company decisions “to hire, transfer,

suspend, lay off, recall, promote, discharge, assign, reward, or discipline other

employees.” 29 U.S.C. § 152(11). The Board concluded Mr. O’Connell was an

insignificant player in company decisions affecting other employees. His

participation was at most ministerial and attenuated, as in signing reprimand slips


                                        -12-
at the instruction of his supervisor. Adopting the reasoning of the Board, we

agree Mr. O’Connell performed only the kinds of “minor supervisory duties”

envisaged by legislative history as insufficient to establish supervisory status.

Bell Aerospace, 416 U.S. at 281.

Martin Severance Agreement

      Webco next contends it did not violate § 8(a)(1) and (a)(3) of the Act with

respect to Eric Martin because he signed a severance agreement providing for the

payment to him of $569.40 (less usual withholdings) in exchange, inter alia, for

his promise not to file a complaint with the Board concerning his discharge and

his release of Webco from all employment-related claims. Mr. Martin signed the

agreement when he was discharged on October 7, without taking the opportunity

Webco gave him to discuss it with an attorney or Union officials. On October 8,

the Union filed its first charge against Webco, not naming Mr. Martin as an

alleged discriminatee. He was so named in the first amended charge filed by the

Union on December 29. The Board’s acting regional director issued a complaint

on March 8, 1999. Neither the Board’s general counsel nor the Union had notice

of the agreement when it was signed, and both objected to giving it effect. The

Board, in a divided opinion, upheld the administrative law judge’s decision

finding the severance agreement did not bar relief for Mr. Martin under the Act.

      In Independent Stave Co, Inc., employees on whose behalf unfair labor


                                         -13-
practices were filed reached private, non-Board settlement agreements with the

employer, approved by their union, and requested withdrawal of charges.

Independent Stave Co, Inc., 287 N.L.R.B. 740 (1987). The Board’s general

counsel objected, relying on Board precedent which suggested a private

settlement agreement should be rejected if it does not mirror the complete remedy

which the alleged discriminatees might achieve on all charges in a concluded

unfair labor practice proceeding. The Board noted its “power to prevent unfair

labor practices is exclusive, and that its function is to be performed in the public

interest and not in vindication of private rights and the Board alone is vested with

lawful discretion to determine whether a proceeding, when once instituted, may

be abandoned.” Id. at 741 (quotations and citations omitted). The Board then

revised its test for evaluating whether to give effect to private, non-Board

settlement agreements:

             [I]n order to assess whether the purposes and policies
             underlying the Act would be effectuated by our approving
             the agreement, the Board will examine all the surrounding
             circumstances including, but not limited to, (1) whether
             the charging party(ies), the respondent(s), and any of the
             individual discriminatee(s) have agreed to be bound, and
             the position taken by the General Counsel regarding the
             settlement; (2) whether the settlement is reasonable in
             light of the nature of the violations alleged, the risks
             inherent in litigation, and the stage of the litigation; (3)
             whether there has been any fraud, coercion, or duress by
             any of the parties in reaching the settlement; and (4)
             whether the respondent has engaged in a history of
             violations of the Act or has breached previous settlement

                                         -14-
             agreements resolving unfair labor practice disputes.

Id. at 743. In giving effect to the agreements, the Board noted the settlement

terms were reasonable and respondent had no history of violating the Act. Id.

      Again, in Hughes Christensen, the validity of private settlement agreements

was before the Board. In September and October 1992, the union filed charges

based on the non-selection of certain employees for transfer to a new company

facility. Hughes Christensen Co., 317 N.L.R.B. 633, 634 (1995), enf. denied on

other grounds, 101 F.3d 28 (5th Cir. 1996). In November, the Board’s regional

director dismissed the charges, and the union appealed. Id. While appeal of the

dismissal was pending, three employees signed private settlement agreements. Id.

In April 1993, the appeal was sustained and the charges reinstated. Both the

union and the general counsel opposed giving effect to the severance agreements,

although there was no contention they were fraudulent. Id. Nevertheless,

applying the Independent Stave test, the Board enforced the agreements. The

Board specifically stated the agreements were “a reasonable adjustment in light of

the potential costs and risks inherent in any litigation.” Id. Further, the Board

emphasized the company “does not have a history of violating the Act . . . .” Id.



      Here, the administrative law judge examined all of the surrounding

circumstances, applied the Independent Stave test and declined to give effect to


                                         -15-
Mr. Martin’s private settlement agreement. As in Hughes Christensen, the Union

and general counsel opposed the settlement agreement and there was no

contention it was fraudulent. The administrative law judge, however,

distinguished Hughes Christensen, particularly noting the respondent’s history of

prior violation of the Act. As to the agreement’s reasonableness, he further

distinguished Hughes Christensen on the grounds the Martin severance agreement

was executed before charges were filed, suggesting it was thus impossible for the

judge to evaluate its reasonableness “in light of the nature of the violations

alleged, the risks inherent in litigation, and the stage of litigation.” Independent

Stave Co, Inc., 287 N.L.R.B. at 743. A majority of the Board adopted the

administrative law judge’s reasoning, and so do we. We are particularly

compelled to this conclusion by consideration of the responsibility of the Board to

effectuate the purposes of the Act, an exercise to which we accord great

deference. Oklahoma Fixture, 295 F.3d at 1145. While we concur in the

principle of just settlement of claims, in this instance the Board’s refusal to give

effect to the Martin severance agreement came after an examination of the totality

of the circumstances and a reasoned application of the Independent Stave test; it

is thus a lawful exercise of Board discretion with which we will not interfere.




                                         -16-
Sec. 8(a)(1) Violations

      Gary Schooley

      Mr. Schooley was a draw bench operator before being discharged on

October 7. He was active in both the 1997 and 1998 Union campaigns. Jim

Teague, the Union organizer, was his brother-in-law. On September 7, a few

weeks after the Union renewed its campaign to organize Webco, supervisor Jene

Harmon called Mr. Schooley at home and asked him how Union activities were

going. Mr. Schooley claimed not to know, stating he was trying to stay out of it

and “lay low.” (R. Vol. I at 361). This was false, by Mr. Schooley’s own

testimony, since he was at the very time trying to convince other employees to

sign Union cards and attend meetings.

      Bryan O’Connell

      Mr. O’Connell was also active in both the 1997 and 1998 Union organizing

campaigns. He offered unrefuted testimony that on September 7 his supervisor,

Mr. McIllwain, called him at home, and informed him his own superior, Mr.

Nance, had called to say Mr. O’Connell had been discussing the Union with other

employees. Mr. O’Connell denied this to Mr. McIllwain. Later that week, Mr.

McIllwain approached Mr. O’Connell on the shop floor, and asked him if he was

talking Union again. He told Mr. O’Connell that Larry O’Brien, quality assurance

manager, had informed him Mr. O’Connell had been discussing the Union with


                                        -17-
Jerry Rogers at break time. Mr. O’Connell denied this, although he had discussed

Union issues with Mr. Rogers on previous occasions. Mr. McIllwain then told

Mr. O’Connell that Mr. O’Brien had told him to “keep an eye on” him.

      Jerry Rogers and Roy Morris

      Messrs. Rogers and Morris, both Union activists in the 1997 and 1998

campaigns, were employed as quality assurance auditors under the direct

supervision of Charlie Conn. Both were laid off on October 7, while the third

quality assurance auditor was retained in a restructured position. Messrs. Rogers

and Morris worked in an area of the plant described as the tensile room, which

also doubled as an informal break room. An official break room was across the

hall. According to each of them, on September 18, Mr. Conn came into the

tensile room and locked the door behind him. He informed them that while it was

acceptable to take their breaks in the tensile room, Union talk was only

appropriate on break time and in the official break room across the hall. Mr.

Conn himself took occasional lunch breaks with Messrs. Rogers and Morris in the

tensile room, where they discussed family and recreational matters. He asked Mr.

Rogers if he was still serious about getting the Union into the plant. They

discussed Union activities and then other subjects. 13


      13
         Webco suggests Mr. Rogers initiated the conversation, and argues the Act
is not violated when an employee who is an avowed union supporter initiates
discussion of the union with the employer. However, the record indicates Mr.

                                         -18-
      Analysis

      The Board found the interrogation of Mr. Schooley and Mr. Rogers to be

coercive, that of Mr. O’Connell to constitute an intent by management to surveil

in order to discourage Union activities, and that of Messrs. Rogers and Morris to

be an attempt to restrain Union discussion on break time in a de facto break room,

while permitting discussion of other subjects in the same room, all in violation of

§ 8(a)(1) of the Act. We agree.

      Webco cites to Rossmore House, 269 N.L.R.B. 1176 (1984), aff’d sub nom.

Hotel Employees & Restaurant Employees Union, Local 11 v. N.L.R.B., 760 F.2d

1006 (9th Cir. 1985), for the proposition that employer-initiated questioning of an

avowed union supporter concerning union activities does not violate § 8(a)(1) of

the Act. However, the holding was fact specific. To determine whether

questioning violates the Act, we consider “whether under all of the circumstances

the interrogation reasonably tends to restrain, coerce, or interfere with rights

guaranteed by the Act . . . . [E]ither the words themselves or the context in which

they are used must suggest an element of coercion or interference.” Rossmore

House, 269 N.L.R.B. at 1177 (citation and footnote omitted); accord,

Presbyterian/St. Luke’s Med. Ctr. v. N.L.R.B., 723 F.2d 1468, 1475 (10th Cir.




Conn led Mr. Rogers into the Union discussion, and thus supports the
administrative law judge’s finding of coercive interrogation.

                                         -19-
1983). “A violation is established if the questions asked, when viewed and

interpreted as the employee must have understood the questioning and its

ramifications, could reasonably coerce or intimidate the employee with regard to

union activities.” Presbyterian/St. Luke’s, 273 F2d at 1475 (quotations and

citation omitted).

      It is uncontested Messrs. Schooley, O’Connell and Rogers were avowed

Union supporters. The fact that Mr. Harmon called Mr. Schooley at his home and

inquired about Union activities, and the fact that Mr. Schooley felt a need to

falsely deny his Union involvement evidences a context suggesting coercion. The

same is true of the questioning of Mr. Rogers, prefaced by his supervisor locking

the door of the tensile room. The merits of the alleged violation concerning Mr.

O’Connell are perhaps the most convincing. He was questioned about his Union

activities during a telephone call to his home and once on the job site, and he was

informed management was going to “keep an eye” on him. Webco’s recent

history of unfair labor practices provides additional coercive context to each of

these conversations. With good reason, Webco offers no defense in its brief to the

allegation of attempting to ban Union discussion from a de facto break room

during break time. Bearing in mind “a reviewing court must recognize the

Board’s competence in the first instance to judge the impact of utterances made in

the context of the employer-employee relationship,” N.L.R.B. v. Gissel Packing


                                        -20-
Co., 395 U.S. 575, 620 (1969), we uphold the Board’s findings of the listed §

8(a)(1) violations.

Sec. 8(a)(3) Violations

      The Board upheld the administrative law judge’s findings that in

discharging Mr. Leasman and in laying off Messrs. Morris, Rogers, Schooley,

Wilson, Teague, Martin, Ruckman, O’Connell, and Williams, Webco violated §

8(a)(1) and (a)(3) of the Act. 14

      Analysis

      In an unfair termination action under the Act, “the General Counsel need

show by a preponderance of the evidence only that a discharge is in any way

motivated by a desire to frustrate union activity . . . .” N.L.R.B. v. Transportation

Mgmt. Corp., 462 U.S. 393, 399 (1983). However, “proof that the discharge

would have occurred in any event and for valid reasons amount[s] to an

affirmative defense on which the employer carrie[s] the burden of proof by a

preponderance of the evidence.” Id. at 400. The employer “does not violate the

NLRA . . . if any anti-union animus that he might have entertained did not

contribute at all to an otherwise lawful discharge for good cause.” Id. at 398.

The Board concluded the general counsel had established its case, and Webco had


      14
        “Although § 8(a)(1) and(a)(3) are not coterminous, a violation of § 8(a)(3)
constitutes a derivative violation of § 8(a)(1).” Metropolitan Edison Co. v.
N.L.R.B., 460 U.S. 693, 698 n.4 (1983).

                                        -21-
failed to establish its affirmative defense. We agree.

      The record is replete with evidence of Webco’s anti-union animus in the

face of two successive Union organizing campaigns in 1997 and 1998, evidenced

in particular by the damning testimony of its former executives, the prior unfair

labor practice charges relative to the 1997 campaign, and the course of conduct

leading to the § 8(a)(1) violations discussed above. All of the persons discharged

were known Union activists, except Messrs. Leasman and Richard Teague, who

were known relatives of Union organizer Jim Teague. Webco personnel

monitored Union handbilling on August 19, 1998, the kick-off to the new

organizing campaign. At this time, Messrs. Leasman and Richard Teague took

handbills from Union organizer Jim Teague.

      While Webco offered no explanation for the discharge of probationary

employee Robert Leasman, it explained the discharge of the remaining nine

alleged discriminatees was due to plant restructuring, a review of their personnel

files and an evaluation of their attitude. The administrative law judge offered this

concerning the personnel records upon which Webco relied:

             The fact is for even the worst alleged discriminatee,
             certain sections support General Counsel’s theory; for
             even the best alleged discriminatee, certain sections
             support Respondent’s theory. Those employees among the
             53 laid off, who are not claimed to be alleged
             discriminatees also had records which could be argued
             from either side. For good measure, my attention is also
             called to those employees not laid off who in some cases

                                        -22-
             had equally inconsistent records. The result of this tidal
             wave of reports, evaluations, reviews, and the disciplinary
             write-ups is in my opinion, inconclusive.

Webco Indus., 334 N.L.R.B. 77 at 30, 2001 WL 831622(2001) (quoting Webco

Indus., 1999 WL33454714 (Sept. 17, 1999) (citation omitted)).

      As well, each of the nine employees discharged in at least partial reliance

upon alleged poor personnel records testified no explanation was given for their

discharge other than poor market conditions requiring downsizing. This was the

company response even when two employees specifically asked if their discharge

was due to anything in their work record. When Mr. O’Connell challenged

supervisor Mr. Nance about the reason for his layoff, Mr. Nance offered the stock

economic justification and added, “sometimes when people hear things, they hold

a grudge.” (R. Vol. I at 579). When Mr. Wilson asked why he was being

discharged, a company supervisor told him it was due to economic conditions and

his name was “pulled . . . out of a hat.” (R. Vol. I at 603). As to “bad attitude,”

the Board relied on its own precedent and characterized this terminology as a

codeword for union sympathizer. See Highland Yarn Mills, Inc., 313 N.L.R.B.

193, 211 (1993).

      On the sum of the evidence, and after an exhaustive review of the record,

we believe the Board had a substantial basis for finding Webco employed the

opportunity provided by a legitimate economic layoff to rid itself of persons it


                                         -23-
regarded as actual or potential troublesome Union activists, by blending them in

with the discharge of other employees who had no demonstrated Union

sympathies, and, in fact, by retaining some employees who may have had

quiescent Union leanings. Despite Webco’s efforts to camouflage its intent, the

Board correctly found the general counsel met its burden of establishing unlawful

termination of the ten alleged discriminatees, and Webco failed to establish its

affirmative defense of legitimate discharge.

§10(b) of the Act

      Webco contends § 10(b) of the Act bars relief for Messrs. O’Connell and

Williams because their names were added to the action by way of an amended

charge, dated April 30, 1999, which was filed more than six months after the

alleged unfair labor practices at issue. However, the same practices that gave rise

to the timely filed charges gave rise to the amended charges.

      The Board allowed the amendment by relying on its enunciated procedure

in Redd-I, Inc.: “[W]e would not find the amendment barred under Section 10(b)

. . . because the discharge occurred within 6 months of a timely filed charge and

the alleged violation appears to be closely related to the allegations of that

charge.” 290 N.L.R.B. 1115 (1988). To determine whether a charge is “closely

related” to a timely filed charge, the Board examines (1) whether the untimely

charges concern the same legal theory as the timely charge, (2) whether they arise


                                         -24-
from the “same factual situation or sequence of events,” and (3) whether the

respondent would raise the “same or similar defenses.” Id. at 1118; see also,

Facet Enterprise, Inc. v. N.L.R.B., 907 F.2d 963, 979 (10th Cir. 1990) (allowing

amendment alleging an unfair labor practice closely related to a timely filed

charge).

      We defer to the Board’s authority to construe provisions of the Act,

Oklahoma Fixture, 295 F.3d at 1145, agree with the Board’s application of its test

to the facts of this case, and conclude § 10(b) of the Act does not bar relief for

Messrs. O’Connell and Williams.

Conclusion

      We conclude the Board at all times acted within its authority, and

substantial evidence supports its findings. Therefore, we GRANT enforcement of

the Board’s order and DENY Webco’s petition for review.

                                        Entered by the Court:

                                        TERRENCE L. O’BRIEN
                                        United States Circuit Judge




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