                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1642



MASHUDA CORPORATION,

                                                         Petitioner,

           versus

NATIONAL LABOR RELATIONS BOARD,

                                                         Respondent.



                             No. 04-1758



NATIONAL LABOR RELATIONS BOARD,

                                                         Petitioner,

           versus

MASHUDA CORPORATION,

                                                         Respondent.



On Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board. (6-CA-33414)


Argued:   February 1, 2005                 Decided:   April 20, 2005


Before WILKINS, Chief Judge, NIEMEYER, Circuit Judge, and Samuel G.
WILSON, United States District Judge for the Western District of
Virginia, sitting by designation.
Petition for review and cross-application for enforcement granted
in part and denied in part by unpublished opinion. Judge Niemeyer
wrote the opinion, in which Chief Judge Wilkins and Judge Wilson
joined.


ARGUED: Jane Lewis Volk, THE VOLK LAW FIRM, Sewickley,
Pennsylvania, for Mashuda Corporation. Jason Walta, NATIONAL LABOR
RELATIONS BOARD, Office of the General Counsel, Washington, D.C.,
for the Board. ON BRIEF: Charles R. Volk, Sewickley, Pennsylvania,
for Mashuda Corporation.    Arthur F. Rosenfeld, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, Fred B. Jacob, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board.


Unpublished opinions are not binding precedent in this circuit.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




                               -2-
NIEMEYER, Circuit Judge:

            Mashuda Corporation, a highway construction company,

filed this petition for review of an order of the National Labor

Relations Board ("NLRB" or the "Board") adopting an administrative

law judge's findings that Mashuda Corporation violated §§ 8(a)(1)

and 8(a)(3) of the National Labor Relations Act ("NLRA" or the

"Act"), when it declined to hire Gary Singer as a mechanic for its

road-widening project in Follansbee, West Virginia. The NLRB filed

a cross-application for enforcement of its order.

            Ralph Mashuda, Mashuda Corporation's owner and president,

had explained to Singer that one of the company's reasons for not

hiring him was that "maybe you [were] too union for us."                On the

basis of this comment and the surrounding circumstances, Singer

filed   a   complaint   with    the   NLRB.     Following     a   hearing,   the

administrative law judge ("ALJ") concluded that Mashuda Corporation

had coerced employees in the exercise of their self-organization

rights in violation of § 8(a)(1) of the NLRA and that anti-union

animus had contributed to Mashuda Corporation's decision not to

hire Singer in violation of §§ 8(a)(3) and 8(a)(1) of the Act.

Among other remedies, the ALJ recommended that Mashuda Corporation

be ordered to hire Singer and to remit backpay to him.

            We conclude that we have no jurisdiction to consider the

independent § 8(a)(1) coercion violation and that substantial

evidence    supports    the    §§   8(a)(3)   and   8(a)(1)   failure-to-hire


                                       -3-
violation. Accordingly, we deny Mashuda Corporation's petition for

review and grant the NLRB's cross-application for enforcement of

its   order    finding   violations    of   the   Act.   Because   Singer's

entitlement to backpay, however, should have been "tolled" by his

refusal to consider an alternative mechanic position with Mashuda

Corporation, we grant the company's petition for review and deny

the Board's cross-application for enforcement as to that portion of

the remedy.


                                       I

              Complainant Gary Singer is a mechanic and a member of the

International Union of Operating Engineers, Local 132, AFL-CIO.

Local 132 covers West Virginia and operates a "hiring hall" to

which   contractors      such   as   Mashuda   Corporation   can   turn    for

qualified workers.       When a contractor needs to staff a job located

within Local 132's jurisdiction, it calls Local 132 and states the

skills required for the job.         Local 132 then sends to the job the

first person on its list who meets the skill requirements.                Over

the years, Mashuda Corporation, which is headquartered in western

Pennsylvania, has been involved in a number of highway construction

projects in West Virginia. And on three such projects, it employed

Singer pursuant to referrals by Local 132.          In 1982, Singer served

on a Mashuda Corporation job as a drill operator, and in 1985 and

1990, as a master mechanic.



                                      -4-
             During Singer's 1990 engagement with Mashuda Corporation,

two conflicts developed between him and his Mashuda supervisors.

First, toward the end of the project, Mashuda Corporation equipment

foreman Ronald Huffman attempted to lay off Singer while retaining

Dennis Drummond, a "company" mechanic who traveled with Mashuda

Corporation from project to project.        Singer, however, claimed a

right   to   his   continued   employment   on   the   basis   of   Mashuda

Corporation's contract with the union, which required that since

the project was taking place in Local 132's jurisdiction, Singer

had priority over Drummond, who was a member of Local 66 in

Pennsylvania.      The union intervened on Singer's behalf; Drummond

was transferred to another job site; and Singer was retained until

termination of the project.        The second conflict involved the

operation of a steam "jenny," which had been brought to the job

site in order to steam clean construction equipment and which

foreman Huffman had directed a laborer to operate.        Singer advised

Huffman that, under Mashuda Corporation's contract with Local 132,

operators (such as mechanics) -- and not laborers -- were to run

steam jennies. In response to Singer's protest, Huffman had Singer

replace the laborer as the steam jenny operator.

             In connection with the staffing of a project involving

the widening of West Virginia Route 2 in Follansbee in February

2003, Mashuda Corporation representatives met with Local 132 union

members, including business agent Mike O'Hara, to express the need


                                   -5-
for mechanics for the project. After O'Hara stated that Singer was

first on their referral list, Mashuda Corporation sent O'Hara a

letter advising O'Hara that it did not want Singer on the project.

The company's general manager, Robert Mellon, wrote, "Due to past

performance and personality conflicts with other mechanics and

employees[,] we are requesting at this time not to have Mr. Singer

sent to our project."

          Shortly thereafter, Singer contacted O'Hara to inquire

about working on the Mashuda project, and O'Hara told him of the

Mashuda Corporation letter.   Singer then telephoned Ralph Mashuda

to discuss the situation, and the two met alone in a parking lot at

the project site.   According to Singer, whose testimony the ALJ

credited in making his findings of fact in this case, the following

exchange took place.

     Singer asked Mashuda why he did not want Singer for the
     job. Mashuda said his people said Singer was a pain in
     the neck. Singer said he did not understand and asked
     who made this accusation. Mashuda said, "maybe you just
     PO'd somebody real good." Singer asked how, and Mashuda
     replied you bad mouthed [Mashuda Corporation]. . . .
     Mashuda said it was not a problem with Singer's ability
     to do the job and there was no problem with his truck, it
     was just a personality conflict. Singer told Mashuda he
     did not understand the personality conflict assertion
     because he was not aware that he had any problems with
     anyone. Singer asked who the problem was with, but all
     Mashuda would say was it was his people. Mashuda then
     said, "maybe you was too union for us." Mashuda went on
     to state you are a union man. Singer replied he was and
     was proud of it. Mashuda told Singer that Mashuda wanted
     mechanic Andy Potter on the job because Potter was well
     versed in repairing [Mashuda Corporation's] 90's
     scrapers, which are dirt moving machines. Mashuda said
     he would talk to some more people and get back to Singer.

                                -6-
        Mashuda said in a couple of weeks he would be starting a
        night shift.    Singer cut him off, and said "if Gary
        Singer is not good enough to work for you on day shift,
        he sure is not good enough to work night shift for you."

(Footnotes omitted).         Ralph Mashuda later telephoned Singer and

indicated that although he had not had a chance to discuss Singer's

performance     further    with     any   other    individuals,    he   would    be

sticking with his decision not to hire Singer for the project.

              Singer filed a complaint against Mashuda Corporation with

the NLRB, and on July 21, 2003, the NLRB issued a formal complaint

against Mashuda Corporation, alleging that the company "has been

interfering     with,    restraining,       and   coercing    employees    in   the

exercise of the rights guaranteed by Section 7 of the [National

Labor Relations] Act in violation of Section 8(a)(1) of the Act,"

and "has been discriminating in regard to the hire or tenure or

terms    or   conditions    of    employment      of   its   employees,   thereby

discouraging membership in a labor organization in violation of

Section 8(a)(1) and (3) of the [National Labor Relations] Act."

The complaint was heard before an ALJ on October 1, 2003, and

Singer testified to the events as related above by the ALJ.

              In response, Ralph Mashuda testified that the Mashuda

Corporation letter to O'Hara was based on his discussions with his

equipment     foreman,     Ronald    Huffman,     regarding    Huffman's    prior

experience with Singer. According to Mashuda, Huffman found Singer

to be lazy and a difficult individual with whom to work.                  Mashuda

recounted an episode involving some work on a 50-ton truck, during

                                          -7-
which Singer sat in a pickup truck and watched because it was

raining, and a somewhat different version of the steam jenny

incident.    Ralph Mashuda testified that Huffman attempted to have

an operator run the steam jenny, but that the operators declined

because it was dirty work.    Later, only after an operator was going

to be laid off did Singer allegedly protest, resulting in the

laying off of the laborer and the placement of an operator on the

steam jenny. Ralph Mashuda also testified that Paul Owens, Mashuda

Corporation's master mechanic on the Follansbee project, told

Mashuda that he would not work with Singer because, on a prior job,

Owens had ended up having to do the work that should have been

performed by Singer. Finally, Ralph Mashuda testified that Charlie

Hinkle, a supervisor for a Mashuda Corporation competitor, had told

him that the company was unlikely to get much work out of Singer.

            Huffman and Owens testified on their own about these

events, but their testimony was significantly less detailed. Owens

testified that he told Ralph Mashuda that he would not work with

Singer because Singer was lazy, although he admitted on cross

examination that he had never actually worked directly with Singer.

Huffman testified simply that Singer did not work hard and did not

like to work in the rain.

            The ALJ credited Singer's testimony, finding Huffman

entirely unbelievable and Owens' testimony contradictory.           The ALJ

determined   that   Ralph   Mashuda's   remark   to   Singer   in   partial


                                  -8-
explanation of why Singer was not being hired -- that maybe he was

"too union for us" -- was coercive and violated § 8(a)(1) of the

NLRA.   In addition, the ALJ found that Singer was qualified for the

mechanic position and that anti-union animus stemming from Singer's

actions   to   enforce    the   union   contract      during   the     1990   job

contributed to Ralph Mashuda's decision not to hire him.                The ALJ

also found that the performance-related reasons given by Mashuda

Corporation for not hiring Singer were pretextual.               Finally, the

ALJ concluded that Ralph Mashuda's discussion with Singer about the

night shift position was not "a bona fide job offer to Singer" and

that "Mashuda never made a firm offer . . . for such a position."

           With   these    findings,      the   ALJ     held    that    Mashuda

Corporation engaged in unfair labor practices within the meaning of

§§ 8(a)(1) and 8(a)(3) of the Act and recommended that Mashuda

Corporation be ordered to offer Singer the day-shift mechanic

position for which he had applied and to make him whole for any

losses he had suffered.     Mashuda Corporation filed exceptions, and

on April 30, 2004, the Board issued a decision and order affirming

the ALJ's "rulings, findings, and conclusions."                The Board also

adopted the ALJ's recommended order with a slight modification.

Mashuda Corporation filed this petition for review, and the Board

filed a cross-application for enforcement of its order.

           In its petition, Mashuda Corporation contends that the

Board erred in finding anti-union animus by failing to consider the


                                    -9-
context   surrounding       Ralph   Mashuda's   "too   union"   comment,   the

company's long-standing relationship with the unions, and the

company's non-union-related objections to employing Singer.                 In

addition, the company contends that even if a prima facie case had

been made against Mashuda Corporation, the company "sustained its

burden to prove that the same action would have been taken even

absent the allegedly discriminatory motive."              Finally, Mashuda

Corporation argues that backpay should not have been awarded to

Singer in light of its offer of night-shift employment.

              In   its   cross-application    for   enforcement,   the   Board

contends that its decision and order is supported by substantial

evidence and that Mashuda Corporation waived any objection to the

independent § 8(a)(1) violation because it failed to present the

issue to the Board.          The Board also maintains that its backpay

order   was     justified    because   Mashuda's    night-shift    offer   was

insufficiently clear to toll backpay under the Board's established

mitigation doctrine.


                                       II

              We address first the Board's contention that we lack

jurisdiction to review the independent § 8(a)(1) violation stemming

from    Ralph      Mashuda's   "too    union"   comment    because   Mashuda

Corporation did not preserve the point.

              Section 8(a)(1) makes it unlawful for an employer "to

interfere with, restrain, or coerce employees in the exercise of"

                                       -10-
their self-organization rights.         29 U.S.C. § 158(a)(1).     The Board

may find an independent § 8(a)(1) violation, and any § 8(a)(3)

violation that it finds arising from a failure to hire also

necessarily includes a derivative violation of § 8(a)(1).                  See

Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 n.4 (1983) (explaining

the relationship between § 8(a)(1) and § 8(a)(3)).

             In its exceptions taken from the ALJ's findings and

recommendations, Mashuda Corporation addressed only the failure-to-

hire   violation,     and   it   preserved   no   challenge   to   the   ALJ's

independent finding that the "too-union" remark itself violated §

8(a)(1).   Because Mashuda Corporation did not preserve this issue

before the Board, it cannot present it to us now.             We agree with

the Board that on that basis we have no jurisdiction to review the

violation.      See 29 U.S.C. § 160(e) (noting that the court has no

jurisdiction to consider objections not urged before the NLRB,

absent "extraordinary circumstances"); see also Woelke & Romero

Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982).                  Mashuda

Corporation's conclusory assertions that it "filed exceptions to

the [ALJ's] entire decision" and that it "is not relinquishing its

appeal from the 8(a)(1) portion of the Order" are unsupported by

the record and unavailing, given the requirements of the Act.

Indeed,    it    is   telling    that   Mashuda    Corporation's    argument

challenging this violation is confined to a solitary footnote in

its opening brief.


                                     -11-
             Mashuda Corporation's petition for review of this portion

of the Board's order is accordingly dismissed, and the Board's

cross-application for enforcement is granted.


                                      III

             We now turn to Mashuda Corporation's principal argument

that   the    Board    erred   in   concluding       that    anti-union   animus

contributed to its decision not to hire Singer, and that Mashuda

Corporation     thus   violated     NLRA   §   8(a)(3)      and   derivatively    §

8(a)(1).     Section 8(a)(3) makes it unlawful 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."              29 U.S.C. § 158(a)(3).       We

enforce the Board's order with respect to violations such as these

if, looking at the entirety of the record, the Board's factual

findings are supported by substantial evidence.                     29 U.S.C. §

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

             The analysis for determining a § 8(a)(3) violation was

initially set out in NLRB v. Wright Line, Inc., 662 F.2d 899 (1st

Cir. 1981), and has since been adopted and restated by us.                  See,

e.g., USF Red Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th Cir.

2000); FPC Holdings v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995).                   It

is a two-step, burden-shifting analysis under which we determine

first whether the General Counsel proved a prima facie case that

the employer's decision not to hire an employee was motivated by

                                      -12-
anti-union animus.   See FPC Holdings, 64 F.3d at 942.        To prove a

prima facie case, "the General Counsel must show (1) that the

employee was engaged in protected activity, (2) that the employer

was aware of the activity, and (3) that the activity was a

substantial or motivating reason for the employer's action."          Id.

If the General Counsel has carried his burden, we move to the

second step, under which we determine whether the employer has

carried its burden of proving that the same action would have been

taken even in the absence of the employee's union activity.           Id.

          Mashuda    Corporation    contends   first   that   there    was

insufficient evidence that Singer's 1990 pro-union activity was a

motivating reason behind Mashuda's decision not to hire him.

"Motive may be demonstrated by circumstantial as well as direct

evidence and is a factual issue 'which the expertise of the Board

is peculiarly suited to determine.'"      FPC Holdings, 64 F.3d at 942

(citations omitted) (quoting Perel v. NLRB, 373 F.2d 736, 737 (4th

Cir. 1967)).   When these "factual findings rest upon credibility

determinations, they should be accepted by the reviewing court

absent 'exceptional circumstances.'"       Fieldcrest Cannon, Inc. v.

NLRB, 97 F.3d 65, 69 (4th Cir. 1996) (quoting NLRB v. Air Products

& Chemicals, Inc., 717 F.2d 141, 145 (4th Cir. 1983)).

          In this case, the issue does come down to a question of

witness   credibility,   and   accordingly     our   review   is   highly

deferential.   Applying the standard of review, we can find no


                                   -13-
"exceptional circumstances" that compel us to reject the ALJ's

credibility determinations.      Singer testified to two union-related

conflicts that he had in 1990 and to Ralph Mashuda's observation in

2003 that Singer might be "too union" for Mashuda Corporation.            Of

course, Mashuda Corporation disputes this testimony, contending

instead that Ralph Mashuda's decision not to hire Singer was

motivated by negative reports on Singer's work ethic.               Ralph

Mashuda testified to conversations he had about Singer with Ronald

Huffman, Greg Demistratus, Mike O'Hara, Charlie Hinkle, and Paul

Owens.   Of this group, however, only Huffman and Owens testified

before   the   ALJ,   and    neither   testified   as   fully   about   the

conversations as did Ralph Mashuda.       For example, Owens testified

that Singer was lazy and that he told Mashuda he would not work

with him.   But Owens admitted that he had never worked with Singer

directly and that his opinion was based on what he himself had only

heard from others.          When Owens was asked directly about his

experience with Singer, he only replied that he would "hear a lot

of stuff," that Singer would be "[s]itting in his truck, wouldn't

report to the master mechanic for other stuff to do."                   This

testimony compares with Ralph Mashuda's testimony recounting a

conversation in which Owens stated that he had had to do Singer's

work.    Similarly, Ralph Mashuda testified that Huffman told him

about the steam jenny incident and about Singer's sitting in a

truck watching others repair a 50-ton truck in the rain.          Huffman,


                                   -14-
however, testified in only very general terms about Singer's work

ethic and mentioned something about Singer's not liking the rain.

Huffman never mentioned the steam jenny incident, and the record

reveals that his testimony in general was somewhat agitated.

          Singer's testimony, if credited, provides support for the

motivation prong under the Wright Line test, especially because

anti-union    animus   need      only   be   a   contributing   factor    and    is

sufficient for a prima facie case even if "combined with other

legitimate    nondiscriminatory         motives."        Ultrasystems    Western

Constructors, Inc. v. NLRB, 18 F.3d 251, 257 (4th Cir. 1994).

          Second, Mashuda Corporation contends that even if a prima

facie case was proved, it sustained its burden of proving that it

would not have hired Singer anyway because of his work ethic.                   But

the evidence that would substantiate Ralph Mashuda's claim that he

heard Singer was lazy is the same discredited evidence that was

used in an attempt to rebut a prima facie case of anti-union

animus. Moreover, under this second prong of the Wright Line test,

Mashuda has the shifted burden of proof.              See FPC Holdings, 64 F.3d

at 942.

             Given   the    ALJ's   credibility       determinations     and    the

unexceptional circumstances of this case, we conclude that the

Board's   findings         are    supported      by    substantial      evidence.

Accordingly, we deny Mashuda Corporation's petition to review the




                                        -15-
§§ 8(a)(3) and 8(a)(1) violations and grant the Board's cross-

application for enforcement with respect to these violations.


                                 IV

           Finally, Mashuda Corporation challenges the Board's order

awarding Singer backpay on the basis of the conversation between

Ralph Mashuda and Singer in which Singer essentially rejected the

possibility of accepting an offer for night employment.    As found

by the ALJ, the exchange took place as follows:

     Mashuda said in a couple of weeks he would be starting a
     night shift.    Singer cut him off, and said "if Gary
     Singer is not good enough to work for you on day shift,
     he sure is not good enough to work night shift for you."

The Board concluded that because Mashuda Corporation did not make

a valid offer of employment for the night shift, it could not toll

Singer's entitlement to backpay.

           The general rule is that an individual's entitlement to

backpay is tolled if he fails to mitigate damages.      See NLRB v.

Pepsi Cola Bottling Co. of Fayetteville, 258 F.3d 305, 310 (4th

Cir. 2001). Accordingly, "[a]n employer's offer of reinstatement,"

or, in this case, of employment, "tolls the accrual of backpay,"

Halle Enterprises v. NLRB, 247 F.3d 268, 271 (D.C. Cir. 2001),

because it creates an opportunity for the employee to mitigate

damages.   Such an offer of employment is only effective, however,

if it is "firm, clear, and unconditional."     Id. (quoting Consol.




                                -16-
Freightways      v.   NLRB,    892   F.2d    1052,   1056   (D.C.    Cir.    1989))

(internal quotation marks omitted).

            In this case the Board correctly noted that Mashuda

Corporation did not demonstrate that it had firmly, clearly, and

unconditionally offered Singer a job on the night shift.                    But the

Board ignored the fact that the reason for this failure was

Singer's preemption of such an offer.                By telling Ralph Mashuda

that he would not consider a night shift job when Mashuda raised

the   subject,    Singer      must   now    be   estopped   from   asserting      the

insufficiency of Mashuda's offer as a basis to excuse his failure

to mitigate.

            This is not the case where an employer has extended a

conditional      or   hypothetical         offer   and   attempted   to     use    an

employee's rejection of that offer as evidence of a failure to

mitigate.     A number of circuits have held that such a situation

does not result in the tolling of an entitlement to backpay.                      See,

e.g., Consol. Freightways, 892 F.2d at 1056 (noting that it is

"incumbent on the [employer] to extend to the injured employee a

facially valid offer of reinstatement before the burden shifts to

the injured employee to accept or reject the offer" (citation and

internal quotation marks omitted)); NLRB v. Seligman & Assoc., 808

F.2d 1155, 1163 (6th Cir. 1986) (noting that "an employee is under

no obligation to decide whether to accept reinstatement until an

unconditional offer of reinstatement is made").                Instead, in this


                                       -17-
case Singer cut Ralph Mashuda off and precluded his extending any

offer of employment -- conditional, hypothetical, or bona fide --

and the only evidence received was that Ralph Mashuda was prepared

to extend a valid offer.

            Although it was unnecessary to his conclusion, the ALJ

also concluded that the day shift mechanic position was a "higher

profile job" than the night shift position and that it was not

"incumbent on Singer, after being told that he was 'too union' for

[Mashuda], to be required to accept a less favorable shift and a

position of less stature as a result of his union activities."

Such a conclusion, however, is not supported by the record, and

Singer testified before the ALJ that the night shift position paid

the same as the day shift. Moreover, the Board explicitly declined

to address this finding.

            Accordingly,   we    conclude   that     Singer's   preemptive

statement renouncing any interest in a night shift position with

Mashuda Corporation tolled his entitlement to backpay.               While

Mashuda Corporation did not make a bona fide offer of employment,

it need not have done so in the face of Singer's unambiguous

anticipatory rejection of any such offer.      Therefore, with respect

to   this   portion   of   the   Board's    order,    we   grant   Mashuda

Corporation's petition for review and deny the Board's cross-

application for enforcement.




                                   -18-
                                V

           In sum, we dismiss Mashuda Corporation's petition for

review of the independent § 8(a)(1) violation based on the "too-

union" comment; we deny its petition for review of the Board's

findings that it violated §§ 8(a)(3) and 8(a)(1) in declining to

hire Singer; we grant Mashuda Corporation's petition for review

with respect to the Board's award of backpay to Singer; and we

grant the Board's cross-application for enforcement of its order in

its entirety, with the exception of its order awarding Singer

backpay.



                                                 IT IS SO ORDERED.




                               -19-
