                                       PUBLISH

                      UNITED STATES COURT OF APPEALS
Filed 4/26/96
                                   TENTH CIRCUIT



 READY MIXED CONCRETE
 COMPANY,

        Petitioner,
 v.
                                                             No. 95-9533
 NATIONAL LABOR RELATIONS
 BOARD,

        Respondent.


                   PETITION FOR REVIEW OF AN ORDER OF
                  THE NATIONAL LABOR RELATIONS BOARD
                         (Board Case No. 27-CA-13393)


Janet L. Durkin of Janet L. Durkin, P.C., Denver, Colorado, for Petitioner.

Howard E. Perlstein (Nancy B. Hunt; Frederick L. Feinstein, General Counsel; Linda R.
Sher, Associate General Counsel; and Aileen A. Armstrong, Deputy Associate General
Counsel with him on the briefs) of National Labor Relations Board, Washington, D.C.,
for Respondent.


Before PORFILIO, BARRETT and LUCERO, Circuit Judges.


LUCERO, Circuit Judge.


       Ready Mixed Concrete Company petitions for review of a National Labor

Relations Board order finding that it violated the National Labor Relations Act (the
“Act”) by suspending and discharging its employee, Terry Teter, for his protected union

activities. 29 U.S.C. § 158(a)(1), (3). The order requires Ready Mixed to reinstate Teter

with backpay, expunge from Teter’s record any reference to the suspension or discharge,

and cease and desist from discriminating against employees for union activities. The

Board has filed a cross-application for enforcement. Our jurisdiction to review the order

arises under sections 10(e) and (f) of the Act. 29 U.S.C. §§ 160(e), (f). We deny Ready

Mixed’s petition and grant enforcement of the Board’s order.

                                              I

       Ready Mixed manufactures and supplies concrete to the Denver area building and

construction trade, employing approximately fifty drivers. Teter was hired as a driver in

1991, and worked for Ready Mixed until his discharge on September 15, 1994. The facts

leading up to Teter’s discharge are disputed by the parties, but both agree that the bulk of

the relevant conduct took place in the summer of 1994. In August and early September,

Teter discussed with other drivers the possibility of seeking union representation and

arranged union organizational meetings. The drivers had previously been represented by

the Teamsters union, ending in 1988 when the unit was decertified. On August 31, while

delivering a load of concrete, Teter ran over a manhole cover at the site of one of Ready

Mixed’s customers. On September 15, Teter was suspended and then discharged,

allegedly because of the August 31 accident, failing to report the accident, and failing to

wear his hardhat on the job. Later, during the hearing before the Administrative Law


                                            -2-
Judge (“ALJ”), Ready Mixed added Teter’s bad attitude as a justification for his

discharge.

       After the discharge, the Board’s General Counsel issued a complaint, charging

Ready Mixed with suspending and discharging Teter in violation of sections 8(a)(1) and

(3) of the Act.1 Following a two-day hearing, the ALJ made the following findings:

Teter had engaged in protected union activity by speaking about unionizing with his

coemployees, approaching the Teamsters about an organizational drive, and conducting a

unionization meeting for Ready Mixed drivers; Ready Mixed harbored antiunion animus,

demonstrated by remarks of a senior supervisor later involved in Teter’s discharge; and

Ready Mixed knew about Teter’s union activities at the time of his suspension and

discharge. The ALJ determined from these findings that the General Counsel had made a

prima facie showing that protected conduct was a motivating factor for Teter’s

suspension and discharge.

       Ready Mixed presented evidence at the hearing contesting the prima facie case, as

well as rebuttal evidence showing that regardless of his protected activities it would have

fired Teter based on the justifications it gave in his discharge letter, as well as his general

bad attitude. Although the General Counsel labeled these purported justifications



       1
          Section 8(a) makes it an unfair labor practice “(1) to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 157 of this title [establishing the
right to collective bargaining]; . . . (3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage or discourage membership in
any labor organization . . .” 29 U.S.C. § 158(a).

                                                -3-
“pretexts,” the ALJ nevertheless considered them carefully. The ALJ concluded that

Ready Mixed would not have suspended or discharged Teter for the reasons it advanced.

It found that Ready Mixed violated sections 8(a)(1) and (3) of the Act, and ordered Teter

reinstated with backpay. The Board, in an order dated July 17, 1995, affirmed the ALJ’s

decision and adopted her recommended order. Ready Mixed Concrete Co., 317 N.L.R.B.

1140 (1995). Ready Mixed petitioned this court to review the Board’s order.2

       Petitioner raises two issues regarding the Board’s conclusions. First, it argues that

the General Counsel failed to prove a prima facie case that Teter’s union activity was a

motivating factor in his discharge. Second, it contends the Board incorrectly concluded

that Teter would not have been fired for legitimate reasons. Although Ready Mixed

characterizes the Board’s error as misapplication of the legal test for retaliatory

discharges, it is in reality alleging that the record neither supports a prima facie case nor

the ALJ’s failure to credit its rebuttal evidence. In particular, Ready Mixed takes issue

with adverse inferences the ALJ drew from the failure of two Ready Mixed supervisors to




       2
           After filing its complaint with the Board, the Regional Director applied for a temporary
injunction in the district court for the District of Colorado, under section 10(j) of the Act, 29
U.S.C. § 160(j). The district court denied the injunction in a ruling from the bench. Clements v.
Ready Mixed Concrete Co., 94-x-93 (D. Colo. Feb. 1, 1995). The Regional Director appealed
the district court’s denial, Clements v. Ready Mixed Concrete Co, 95-1133, which we dismissed
as moot in light of the Board’s order. Although Ready Mixed cites to the section 10(j)
proceedings in support of its arguments, factual findings made by the district court in that context
have no application to our review of the Board’s order. NLRB v. Acker Indus., Inc., 460 F.2d
649, 652 (10th Cir. 1972).

                                               -4-
testify at the hearing. The adverse inferences were relevant to findings the ALJ made

both with respect to the General Counsel’s prima facie case, and Ready Mixed’s rebuttal.

                                              II

       It is an unfair labor practice to “interfere with, restrain, or coerce the exercise” of

employees’ rights to “form, join, or assist labor organizations,” 29 U.S.C. §§ 157,

158(a)(1), or to discriminate in hire or tenure “to encourage or discourage membership in

any labor organization,” 29 U.S.C. § 158(a)(3). It is a violation of the Act to fire an

employee for having engaged in protected activities when there is no legitimate reason for

the discharge, or the reasons offered are only pretexts. NLRB v. Transportation Mgmt.

Corp., 462 U.S. 393, 398 (1983). If, however, “any antiunion animus that he might have

entertained did not contribute at all to an otherwise lawful discharge for good cause,” an

employer does not violate the Act. Id. This rule is consistent with section 10(c) of the

Act, stating that “[n]o order of the Board shall require the reinstatement of any individual

as an employee who has been suspended or discharged, or the payment to him of back

pay, if such individual was suspended or discharged for cause.” 29 U.S.C. § 160(c); see

Transportation Mgmt., 462 U.S. at 401, n.6.

       Following the Supreme Court’s lead in Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977), the Board has developed a two-part framework

for analyzing “dual motivation” cases. Initially, the General Counsel must establish that

the employee’s protected conduct was a “substantial” or “motivating” factor in the


                                             -5-
discharge decision; thereafter the burden shifts to the employer to show that it “would

have reached the same decision absent the protected conduct.” Wright Line, a Division of

Wright Line, Inc., 251 N.L.R.B. 1083, 1086-87 (1980), enf’d, 662 F.2d 899 (1st Cir.

1981), cert. denied, 455 U.S. 989 (1982); see also Mt. Healthy, 429 U.S. at 285-87. By

shifting the burden, the employer’s justification becomes an affirmative defense. The

Supreme Court and this circuit have both approved the Wright Line test. See

Transportation Mgmt., 462 U.S. at 403; Monfort, Inc. v. NLRB, 965 F.2d 1538, 1540

(10th Cir. 1992).

                                            III

       Here, the ALJ applied the Wright Line test in first determining that the evidence

supported the General Counsel’s contention that Teter’s protected activities were a

motivating factor in his discharge. An employer’s antiunion motivation often may be

proven only by circumstantial evidence. Intermountain Rural Elec. Ass’n v. NLRB, 732

F.2d 754, 759 (10th Cir.), cert. denied, 469 U.S. 932 (1984); McLane/Western, Inc. v.

NLRB, 723 F.2d 1454, 1459 (10th Cir. 1983). Proof of an employer’s specific intent to

discriminate is unnecessary; the evidence may provide a presumption of intent.

Presbyterian/St. Luke’s Medical Ctr. v. NLRB, 723 F.2d 1468, 1476 (10th Cir. 1983). On

the evidence before it, the Board found that Teter was engaged in union activities at the

time of his discharge, that Ready Mixed knew about his activities, that Joe Moseley,

Ready Mixed’s operations manager, exhibited antiunion animus, and that Teter was


                                           -6-
subjected to harsher discipline for his transgressions than were past employees who

similarly violated the company rules.

       The General Counsel need not follow a rote formula to establish a prima facie

case of discriminatory discharge. The totality of the evidence presented must establish

directly or circumstantially that the employer had knowledge of employees’ protected

activities. See NLRB v. American Spring Bed Mfg., 670 F.2d 1236, 1245 (1st Cir. 1982).

Beyond that, we and our sister circuits have approved many combinations of factors in

concluding that the General Counsel carried its burden See, e.g., Intermountain Rural

Elec., 732 F.2d at 759 (evidence showed union activist was “more than adequate”

employee, supervisor made comments demonstrating hostility to her union activity, and

incident prompting discharge seemed pretextual); Presbyterian/St. Luke’s, 723 F.2d at

1476-77 (disciplined employees were known union activists and Board found the

employer’s explanation for discharge not credible); Hanlon & Wilson Co. v. NLRB, 738

F.2d 606, 614-15 (3d Cir. 1984) (prima facie burden met based solely on one statement by

supervisor to union advocate that his union activity was bad for the company). The

Board’s findings in this case are all relevant to demonstrate a prima facie case of

discrimination. We thus review whether the Board was entitled to make these factual

findings, and whether upon the evidence in the record its conclusions are permissible.

       Our review of the Board’s factfinding is quite narrow. We must uphold the

Board’s factual findings if they are supported by substantial evidence in the record as a


                                            -7-
whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88 (1951); Monfort, 965

F.2d at 1540. Substantial evidence is defined as “‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Presbyterian/St. Luke’s, 723

F.2d at 1471 (quoting Universal Camera, 340 U.S. at 477) (further quotation omitted).

We may not overturn a Board decision just because we might have decided the matter

differently; rather, our function is to ascertain that “the Board acts within reasonable

bounds and that the supporting evidence is truly substantial.” Id. at 1472.

       Credibility determinations are particularly the province of the ALJ and the Board.

Id. at 1477. We “refuse to substitute our judgment on the credibility of witnesses for that

of the ALJ, absent ‘extraordinary circumstances.’” McLane/Western, 723 F.2d at 1458

(quoting NLRB v. Dillon Stores, 643 F.2d 687, 692 (10th Cir. 1982)). “[We] do not sit as

a super trial examiner, and do not weigh the credibility of one witness against another, nor

do we search for contradictory inferences.” Osteopathic Hosp. Founders Ass’n v. NLRB,

618 F.2d 633, 636 (10th Cir. 1980) (quotations omitted).

       Ready Mixed does not contest that Teter was engaged in protected activity at the

time of his discharge. There is substantial evidence supporting the finding that Teter

spoke to perhaps half of the drivers about seeking union representation. Ready Mixed

does contest the Board’s finding that it knew about Teter’s union activities and that it

exhibited antiunion animus. In particular, Ready Mixed argues that Harrison, the




                                             -8-
supervisor who fired Teter, had no knowledge of his union activities and exhibited no

antiunion animus.

       Viewing the record as a whole, we conclude that substantial evidence supports the

Board’s findings regarding Ready Mixed’s knowledge. At the administrative hearing,

Teter testified that he spoke with Joe Moseley, Harrison’s superior, about the union.

Curtis Jones, another supervisor, admitted he was aware of Teter’s union activity. In

addition, another driver testified that he told Moseley that Teter was soliciting union

support from the drivers. While Harrison denied knowledge of Teter’s union activities on

direct examination, on cross-examination he admitted that he might have heard that

“Terry Teter was pushing the union and Terry Teter was going to the union.” Moreover,

Ready Mixed did not call Moseley to testify about management’s knowledge of Teter’s

union activities. From this failure to testify, the Board drew an adverse inference that

Harrison had knowledge of Teter’s activities, and found that Harrison was not credible in

denying such knowledge.

       The evidentiary rule that permits “adverse inferences” is a familiar one. It has

been long accepted by the Board, “that when a party fails to call a witness who may

reasonably be assumed to be favorably disposed to the party, an adverse inference may be

drawn regarding any factual question on which the witness is likely to have knowledge.”

International Automated Machs., Inc., 285 N.L.R.B. 1122, 1123 (1987), enf’d, 861 F.2d

720 (6th Cir. 1988); see also United Auto Workers Int’l Union v. NLRB, 459 F.2d 1329,


                                            -9-
1339 (D.C. Cir. 1972) (decision whether to draw the adverse inference lies with the

factfinder). The rule has been applied in other civil contexts. See, e.g., Interstate Circuit,

Inc. v. United States, 306 U.S. 208, 225-26 (1939) (failure of antitrust defendant to call

company officers as witnesses “is itself persuasive that their testimony, if given, would

have been unfavorable”). We conclude that in this case, the Board reasonably drew the

adverse inference. Ready Mixed did not present any reason why it did not call Moseley,

the record suggests Moseley should have known whether Harrison knew about Teter’s

union activities, and his testimony appears to be within the control of Ready Mixed. See

NLRB v. Norbar, Inc., 752 F.2d 235, 240 (6th Cir. 1985) (inappropriate to draw adverse

inference when absent witness no longer worked for employer). As an alternative basis

for finding a prima facie case, the Board properly imputed Moseley’s knowledge of

Teter’s activities to Ready Mixed. See Pinkerton’s, Inc., 295 N.L.R.B. 538 (1989)

(knowledge of a supervisor is attributable to the employer where the employer does not

negate imputing such knowledge).

       Substantial evidence also supports the finding that Ready Mixed exhibited

antiunion animus. The only direct evidence of Ready Mixed’s antiunion animus involves

a conversation between Moseley and Teter in June 1994. According to Teter, he told

Moseley that “somebody was liable to go to the union and try to get them to come back

in,” to which Moseley responded, “as long as he was there, those scum-sucking, lazy,

sorry-ass son of a bitches wouldn’t get back in.” After Teter persisted, Moseley


                                            - 10 -
purportedly told Teter that he did not want to hear “any more of your shit.” The ALJ

found Teter’s account credible, particularly in light of Ready Mixed’s failure to call

Moseley to rebut Teter’s testimony. These statements alone sufficiently indicate

antiunion animus. Harrison admitted that the decision to discharge Teter, though based

on his recommendation, was jointly made by him and Moseley.

       Based on the evidence in the record as a whole, the Board’s conclusion that Teter’s

protected union activity motivated his suspension and discharge is well supported. Much

of the evidence supporting the Board’s conclusions derives from the ALJ making

credibility determinations from conflicting testimony. Each of these determinations is

reasonably supported in the ALJ’s decision. While there is evidence pointing both ways,

“it is not our function to retry this case on a cold record.” NLRB v. Blue Hills Cemetery,

567 F.2d 529, 530 (1st Cir. 1977).

                                             IV

       Once the General Counsel establishes a prima facie case, the burden shifts to the

employer to prove “by a preponderance of the evidence that it would have discharged the

employee, even if he had not engaged in the protected conduct.” McLane/Western, 723

F.2d at 1459 (citing Transportation Mgmt., 462 U.S. at 398-99). Ready Mixed argues

before us that Teter was discharged for his general bad attitude, his failure to wear a

hardhat after many admonitions, his accident of August 31, and his failure to report the

accident immediately. However, based on substantial testimony and exhibits


                                            - 11 -
documenting Ready Mixed’s response to accidents and safety infractions by other drivers,

the Board found that Teter would not have been suspended or fired for the accident itself

or for his failure to wear a hardhat. Because Teter had never in the past been disciplined

for his attitude, and it was not a reason given in his discharge letter, the Board concluded

that Teter’s attitude was not a reason for his discharge. The Board also found that Teter

received five raises before his discharge and he was assigned one of five new mixer

trucks even though he was low in line of seniority. Substantial evidence supports each of

these findings.

       Ready Mixed’s remaining justification for the discharge is Teter’s failure to report

his August 31 accident, which violated the strict company rule to report such events

immediately. The parties advance different accounts of how and when the accident was

reported. Harrison testified that he was unaware of the accident until a quality control

inspector reported it to him on September 1, and that Teter’s failure exhibited dishonesty

for which he was fired. According to Teter, after he broke the manhole cover, the

customer’s supervisor at the job site called Ready Mixed about the accident in Teter’s

presence; Teter himself reported the accident to Harrison either that day or the next, and

Harrison did not raise any concern about Teter’s failure to report the accident personally

when it occurred. The incident report prepared by Harrison on September 1 notes that the

accident was reported by the customer, not by the driver. Teter’s letter of suspension also

states that the accident was reported on August 31, although Harrison testified that the


                                            - 12 -
date in the letter was a typographical error. Based on ready Mixed’s failure to call the

quality control employee who purportedly first reported the accident to Harrison, the ALJ

made an adverse inference that the employee would not have corroborated Harrison’s

testimony. To the extent Teter and Harrison’s testimony conflicted on this point, the ALJ

found Teter’s version the more credible. The Board determined that the accident had

been reported and that, consequently, Ready Mixed did not carry its burden of proving

that Teter would have been fired regardless of his protected activity. From our review of

the record, crediting Teter’s testimony over Harrison’s is reasonable.3

       As noted above, our review is limited to ascertaining whether substantial evidence

supported the Board’s conclusion that Ready Mixed did not carry its burden. It is not for

Ready Mixed to prove that it “could have discharged [Teter for his actions], but whether

it would have done so regardless of [his] union activities.” Presbyterian/St. Luke’s, 723

F.2d at 1480. Based on the record as a whole, substantial evidence supports the Board’s

conclusion that Ready Mixed failed to prove by a preponderance of the evidence that it

would have fired Teter in the absence of his protected activities.4


       3
         In the alternative, the Board determined that even had Ready Mixed’s version of events
been credited, it still would not have discharged Teter for failing to report the accident in person
and immediately. At least one other driver had failed to call in an accident immediately and had
not been discharged. Moreover, a former dispatcher testified that sometimes accidents were
reported by the customer, not the driver.
       4
          Petitioner misunderstands the nature of the Wright Line test when it suggests that
engaging in protected activities improperly insulates a bad employee from discharge for
legitimate reasons. Such a formulation would be inconsistent with the Act, but that is not how
the Wright Line test operates. If the employer can prove that it did discharge the employee for

                                               - 13 -
                                             V

       We have considered all of Ready Mixed’s arguments in this case and find them

unpersuasive. The Board’s findings and conclusions are supported by substantial

evidence in the record as a whole. The decision and order of the Board is ENFORCED in

all respects.




legitimate, nondiscriminatory reasons no violation may be found. Here, Ready Mixed simply did
not meet its burden.

                                            - 14 -
No. 95-9533, Ready Mix Concrete Company v. National Labor
Relations Board

BARRETT, Senior Circuit Judge, dissenting:



    I respectfully dissent.   My review of the entire record

on appeal leads me to conclude that the Board’s factual

findings and conclusions are not supported by substantial

evidence in the record as a whole.

    In my view, there is not substantial evidence to support

the ALJ’s and the Board’s finding that Ready Mix engaged in

unfair labor practices when it suspended and then discharged

employee Teter for repeated violations of safety and work

rules.   Furthermore, Teter was belligerent and vulgar in the

workplace. There is no evidence that the company used Teter’s

activities to form a union as a reason for his termination.

None of the other drivers came forward to support Teter before

the Board.

    The Board relied on Teter’s testimony and inferences

drawn therefrom to support its order.   Ready Mix had some 50

drivers. Teter testified that he had spoken to some 29 of them

about the union; however, only one driver, John Novak, turned

up at the September 13th organizational meeting and even he

did not sign a card indicating an interest in the union.    A

second meeting was called at the union hall on September 15th.
Attending    were   Teter    and   a      Mr.   Fraunenfeld,   the   union

organizer.    Only one driver, David Fleishman, showed up.              No

further organization meeting was called.              The only possible

employee support for the union, other than Teter, was that

indicated by Novak.         Thus, the “activity” involved in this

case is exclusively that of Teter.              After Teter’s discharge,

there were no other attempts made to organize the union.

      There were no witnesses that Teter’s discharge had any

chilling effect on employees’ attitude toward unions or union

activity.    There was no evidence of any action taken by the

company concerning union activity. The burden of proving that

a discharge was unlawfully motivated is upon the Board.                “A

finding of discrimination by the Board must be supported by

substantial evidence; it may not rest upon flimsy evidence,

mere inference or guesswork.”          N.L.R.B. v. First Nat. Bank of

Pueblo, 623 F.2d 686, 693 (10th Cir. 1980).             Even if we treat

this as a “mixed motive” case, the company has carried its

burden of showing that Teter would have been discharged absent

any protected union activity. See Miera v. N.L.R.B., 982 F.2d

441, 446 (10th Cir. 1992)., cert. granted in part sub nom.,

ABF Freight Sys., Inc. v. N.L.R.B., ___ U.S. ___ (1993), and

aff’d, ___ U.S. ___ (1994).        Certainly, there is no evidence


                                   -16-
here of any company coercion, threats or restraints.      See

Presbyterian/St. Luke’s Medical Ctr. v. N.L.R.B., 723 F.2d

1468, 1475 (10th Cir. 1983).

    The company’s actions taken toward Teter were not a

pretext for anything Teter did in relation to union activity.

In my opinion, the record supports the conclusion that Teter’s

termination was fully justified.

    I would set aside and vacate the Board’s order and deny

enforcement.
