                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3855
                                  ___________

National Labor Relations Board,      *
                                     *
           Petitioner,               *
                                     *
     v.                              * Application for Enforcement
                                     * of an Order of the
La-Z-Boy Midwest, a Division of      * National Labor Relations Board
La-Z-Boy Incorporated,               *
                                     *
           Respondent.               *
                                     *
                                ___________

                            Submitted: September 17, 2004
                               Filed: December 7, 2004
                                ___________

Before COLLOTON, HEANEY, and HANSEN, Circuit Judges.
                          ___________

COLLOTON, Circuit Judge.

      The National Labor Relations Board (“Board”) applies for enforcement of an
order finding that La-Z-Boy Midwest (“La-Z-Boy”), a division of La-Z-Boy
Incorporated, committed unfair labor practices against employees John Phillips and
Klint Guinn during a union organizing drive. The Board, after modifying a
recommended order of an administrative law judge (“ALJ”), found that the company
had unlawfully disciplined both employees. We grant the application to enforce the
order with respect to Phillips, but deny the application as to Guinn.
       Section 8(a)(1) of the National Labor Relations Act (“NLRA” or “Act”) makes
it an unfair labor practice for an employer to “interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed” by the Act. 29 U.S.C.
§ 158(a)(1). Section 8(a)(3) forbids an employer to use “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). The
General Counsel brought an unfair labor practice charge alleging that La-Z-Boy
violated both of these sections by disciplining Phillips and Guinn. The Board
ultimately found a violation of Section 8(a)(1) with respect to Phillips, and a violation
of both sections as to Guinn.

                                           I.

       The alleged unfair labor practices involve two separate incidents. The first
occurred on June 16, 2000, when John Phillips, a parts inspector for La-Z-Boy, was
called to a meeting with two of his supervisors, Dave Harris and Wayne Allen. The
supervisors told Phillips that La-Z-Boy had received a complaint from another
employee alleging that Phillips had threatened to reject products from the employee,
thereby negatively affecting that employee’s pay, if the employee failed to sign a
union authorization card. Phillips denied making the threat. Harris testified that he
and Allen reminded Phillips of the company policy against union solicitation during
work hours, and then excused him without further comment. Phillips testified,
however, that Harris went beyond a simple “reminder” and told Phillips to “consider
this your verbal warning.” In addition, the supervisors created a written record of the
conversation and e-mailed it to the director of human resources for placement in
Phillips’s employee file.

      An ALJ conducted a hearing and analyzed the case according to the Board’s
decision in Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.
1981). Under this approach, the General Counsel must make a prima facie showing

                                          -2-
that protected conduct was a “motivating factor” in the employer’s decision to
discipline the employee. The burden then shifts to the employer to demonstrate that
the same action would have been taken notwithstanding the protected conduct. See
Carleton College v. NLRB, 230 F.3d 1075, 1078 (8th Cir. 2000); NLRB v. Fixtures
Mfg. Corp., 669 F.2d 547, 550-51 (8th Cir. 1982).

       The ALJ credited Phillips’s testimony that supervisor Harris told him to
consider their meeting a verbal warning, and also found that e-mails documenting the
meeting were placed in Phillips’s file at the direction of La-Z-Boy’s human resources
manager. The ALJ concluded that these actions constituted the first step in the
company’s progressive discipline process, and that the company took the adverse
action against Phillips with the intent to discourage union activity. Because the ALJ
found that Phillips never threatened a fellow employee, he concluded that the
company had no business justification for the discipline, and that the company failed
to show that it would have taken the same action without regard to Phillips’s
involvement with the union.

       On review of La-Z-Boy’s exceptions to the recommended order, the Board
adopted the ALJ’s findings of fact, and upheld the ALJ’s conclusion that the company
unlawfully disciplined Phillips, but reasoned that the ALJ employed the wrong legal
standard by following Wright Line. The Board held that because there was no dispute
as to the reason Phillips was disciplined (i.e., the alleged threat against a fellow
employee), the proper analytical framework was that found in NLRB v. Burnup &
Sims, 379 U.S. 21 (1964). In Burnup & Sims, the Supreme Court held that the NLRA
is violated when an employer administers discipline based on a good faith but
mistaken belief that the employee engaged in misconduct in the course of protected
activity. Id. at 23-24. Here, the Board found that La-Z-Boy issued a verbal warning
to Phillips based on a good faith belief that Phillips had threatened another employee
in the course of his union solicitation activities. But because the Board agreed with



                                         -3-
the ALJ that the evidence did not establish misconduct by Phillips, it found that the
verbal warning constituted a violation of Section 8(a)(1) under Burnup & Sims.

       La-Z-Boy now argues that the Board committed an error of law by applying
Burnup & Sims to this situation. The company contends that it never imposed
discipline on Phillips for threatening a co-worker, and that it never relied on a good
faith but mistaken belief that Phillips had done so. Indeed, La-Z-Boy says it has
never asserted that it could prove that Phillips threatened a fellow employee.

      We enforce an order of the Board if the Board “has correctly applied the law
and its factual findings are supported by substantial evidence on the record as a
whole.” Pace Indus., Inc. v. NLRB, 118 F.3d 585, 590 (8th Cir. 1997) (internal
quotation and citations omitted); Universal Camera Corp. v. NLRB, 340 U.S. 474,
487-88 (1951). “Substantial evidence is more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

       Although La-Z-Boy casts its argument as a challenge to the Board’s use of the
legal standard from Burnup & Sims, its contention is premised on the view that
Phillips was not disciplined. At bottom, therefore, the company disputes the Board’s
finding of fact that the company issued a verbal warning to Phillips – a matter that we
review under the “substantial evidence” standard. In reaching its conclusion, the
Board adopted the ALJ’s finding that Phillips was credible when he testified that
manager Harris told him to consider the meeting a “verbal warning.” Credibility
determinations generally are for the ALJ to make, and the weight to be given to the
testimony of a witness is primarily a question for determination by the trier of facts.
Town & Country Elec., Inc. v. NLRB, 106 F.3d 816, 819-20 (8th Cir. 1997).
Nonetheless, a credibility finding is still reviewed under the substantial evidence
standard, Carleton College, 230 F.3d at 1078, and La-Z-Boy asserts that the Board’s
finding regarding Phillips does not withstand review.

                                         -4-
      La-Z-Boy cites the testimony of supervisor Harris, who gave a different version
of what transpired at the meeting, and points to the company’s formal discipline log,
which does not contain any record of discipline against Phillips. The company also
emphasizes that the written record of the conversation among Phillips and his two
supervisors does not use the words “verbal warning.” The e-mail record says only
that Allen and Harris “met with John” and “informed him” of the claims against him
and the severity of the charge, and that Phillips denied the allegation and expressed
an awareness of the company’s policy. (J.A. 484).

       We think this evidence is not necessarily inconsistent with the issuance of a
verbal warning to Phillips, and it is not so powerful as to render the Board’s finding
unsupported by substantial evidence on the record as a whole. The testimony of
Phillips and Harris conflicted, and the decision about which witness to believe is a
classic matter of credibility for the trier of fact. The lack of formal disciplinary
records does not preclude a finding that Phillips received a verbal warning. In
particular, the General Counsel elicited testimony from supervisor Harris that a verbal
warning would not always be noted on the company’s standard disciplinary forms.
(J.A. 300). The company’s own employee handbook, moreover, does not use the
magic words “verbal warning.” Step One of the progressive disciplinary process is
described merely as an “Oral Conference,” (J.A. 478), a description that seems
entirely consistent with the e-mail record prepared of the Phillips meeting.

       La-Z-Boy also cites the company’s employee handbook as support for its
position that Phillips was not disciplined. The handbook describes the company’s
three-step discipline policy: Step One is an “Oral Conference”; Step Two involves
a “Written Reminder”; and Step Three is “Decision Making Time.” According to the
handbook, “serious” and “major” violations “usually” trigger Step Two or Step Three
discipline. (J.A. 479-80). In addition, Harris and Wilson testified on behalf of the
company that “harassment” of a fellow employee is a “serious” or “major” violation
that typically would be punished at Step Two or Step Three, and not by a verbal

                                         -5-
warning. The company argues that if it believed that Phillips had threatened a co-
worker in an effort to gain support for the union, such a threat would constitute a
“serious” or “major” violation under the handbook. Thus, says the company, the
Board’s finding that Phillips was disciplined at Step One with a “verbal warning” is
inconsistent with the Board’s finding that the company believed Phillips had
committed the alleged misconduct.

       The difficulty with La-Z-Boy’s reliance on the handbook is the substantial
ambiguity that permeates the particular rules of conduct on which La-Z-Boy relies.
The company emphasizes that the description of “serious violations” includes the
following example: “Distribute or post literature of any kind in working areas during
working time. All solicitation is prohibited during working time. For purpose of this
rule, ‘working time’ does not include break periods and mealtimes.” (J.A. 480). This
example states clearly that distributing or posting literature usually would be a serious
violation, but what about oral solicitation or oral “harassment”? It is unclear whether
such conduct is within the scope of an example that “usually” would be treated as a
serious violation warranting Step Two discipline. Similar ambiguity plagues the
section on “major violations.” La-Z-Boy relies on the handbook’s statement that
“[a]busive language directed at a fellow employee” is a major violation. But we do
not know whether La-Z-Boy considered Phillips’s alleged threat to reject units
inspected by a co-worker to involve “abusive” language, which is commonly defined
as “harsh insulting language.” Webster’s Third New International Dictionary 8
(2002). The company may well have concluded that the alleged statement violated
company policy even though no “abusive language” was used. Again, therefore, the
record does not necessarily show that Phillips’s alleged conduct was a “major
violation” as defined by the handbook.

       The company’s argument based on the handbook is weakened further by
qualifying language in the rules of conduct. Even when there is a “serious violation,”
the rules state only that Step Two or Step Three discipline is “usually” appropriate.

                                          -6-
The manual plainly states that “[m]anagement may, in its discretion, choose to
attempt resolution of a disciplinary problem by beginning with Step One,” and it
specifies that the discussion of various violations is “not designed to be conclusive
or to limit or restrict the rights of Management.” (J.A. 479). Because the employee
handbook clearly contemplates discretion in the disciplinary system, it does not
render unsupported by substantial evidence the Board’s credibility finding that
Phillips was told to consider his meeting with supervisors a “verbal warning.”

       We conclude, therefore, that the Board’s finding that La-Z-Boy subjected
Phillips to Step One discipline was supported by substantial evidence. The allegation
of misconduct by Phillips was the sole reason for the conference between Phillips and
his supervisors that resulted in the verbal warning, so there is also substantial
evidence to support the Board’s conclusion that the warning was issued based on the
company’s belief that Phillips had committed misconduct. The Board thus correctly
applied the law set forth by the Supreme Court in Burnup & Sims, and we enforce the
Board’s order with respect to Phillips.

                                         II.

       The second incident involved Klint Guinn, a parts picker for La-Z-Boy. As a
parts picker, Guinn was subject to a 40-hour scheduled work-week that was
sometimes reduced by four hours (with a corresponding reduction in pay) if a full
staff of parts pickers was not needed on Friday. According to Guinn’s testimony, the
four parts pickers, in order of seniority, were given the option to take a reduced
schedule when a full staff was not required. Guinn said that the Friday schedule was
finalized each Thursday afternoon when the supervisor, Jerry Von Ach, met with the
employees and told them how many parts pickers were needed.

     During the afternoon of Thursday, August 10, 2000, Guinn was absent from his
workstation because he was acting as an observer in a union election. He then left the

                                         -7-
plant that day without speaking to his supervisor about the Friday schedule. The
following day, Guinn did not report for work, but he did come to the plant to pick up
his paycheck. When Von Ach asked him why he did not “call in” to explain his
absence, Guinn answered that he had “slept through two alarms.” The following
Monday, a fellow employee alerted Guinn that he had been assessed “attendance
points” – a form of company discipline – for his absence on Friday. Guinn’s
supervisor informed him the next day that he had been assessed two attendance points
for “no-call, no-show” attendance on the previous Friday.

       The Board adopted the ALJ’s rulings, findings, and conclusions regarding
Guinn. In determining that the assessment of attendance points against Guinn
violated Sections 8(a)(1) and 8(a)(3) of the Act, the ALJ applied the burden-shifting
framework of Wright Line. The ALJ first found that the General Counsel had
established a prima facie case that Guinn’s protected activity was a motivating factor
for the assessment of attendance points. The ALJ relied in part on previous findings
by the Board concerning the company’s conduct during a union organizing drive.
Finding that the company’s “conduct (or misconduct) was serious,” the ALJ
concluded that it “clearly warrants a finding that there was substantial anti-union
animus” on the part of La-Z-Boy. The ALJ also cited evidence that supervisors
treated Guinn differently from another parts picker while Guinn was engaged in union
activity on August 10, and concluded that this unequal treatment supported an
inference that Guinn’s protected conduct was a motivating factor in the employer’s
disciplinary decision.

       Turning to the question whether La-Z-Boy met its burden of demonstrating that
the same disciplinary action would have taken place notwithstanding Guinn’s union
activities, the ALJ concluded that a “minimal effort would have been involved” in




                                         -8-
sending another employee to ask Guinn whether he wanted to work, and that he could
not imagine the company taking the same action “absent an agenda.”1

       La-Z-Boy challenges the Board’s finding that its actions toward Guinn were
motivated by anti-union animus. We reject the company’s claim that the Board erred
by considering La-Z-Boy’s conduct during the union organizing drive. The Board
generally may rely upon, take notice of, and use as background the findings and
decisions that it makes in other
                                            acknowledges, however, that it may not use
such findings as the sole basis for its decision on motivation in a subsequent matter,
see Helena Labs. Corp., 225 N.L.R.B. 257, 257-58 (1976), so our focus in Guinn’s
case moves to the ALJ’s finding of alleged unequal treatment of Guinn based on his
involvement in protected activity.

       The ALJ found that Guinn’s supervisor, Von Ach, had established a practice
of allowing the parts pickers to decide among themselves, based on order of seniority,
who would work on Friday when fewer than all of the employees were needed. On

      1
        La-Z-Boy argues that the unfair labor practice charge arising out the discipline
of Guinn was untimely because it was not filed until February 13, 2001, which is
more than six months after the date on which Guinn failed to appear for work, August
11, 2000. See 29 U.S.C. § 160(b). A charge is timely if it is filed within six months
of the point at which the employee had “clear and unequivocal notice” that the unfair
labor practice had occurred. NLRB v. Dynatron/Bondo Corp., 176 F.3d 1310, 1317-
18 (11th Cir. 1999); NLRB v. Jerry Durham Drywall, 974 F.2d 1000, 1004 (8th Cir.
1992). The Board applied the correct legal standard, so we review its factual findings
for substantial evidence on the record as a whole. NLRB v. Pub. Serv. Elec. and Gas
Co., 157 F.3d 222, 228 (3d Cir. 1998); Metromedia, Inc., KMBC TV v. NLRB, 586
F.2d 1182, 1189 (8th Cir. 1978). We believe there was substantial evidence to
support the Board’s conclusion that Guinn did not have clear notice of the discipline
until Von Ach orally informed him on August 15, 2000, that attendance points had
been assessed.


                                          -9-
August 10, Von Ach permitted the parts picker with the most seniority, Collinsworth,
to elect whether he wanted to work on August 11. The ALJ found, however, that
despite Guinn’s status as the second most senior employee, “Von Ach did not accord
him the opportunity to exercise his seniority allegedly because he was engaged in
being an observer for the Union.” As a result, the ALJ concluded that “Von Ach
treated Guinn different than Collinsworth while Guinn was engaged in union activity,
being an observer for the Union at a Board election.”

       We are not persuaded that substantial evidence supports the Board’s conclusion
that the company’s failure to offer Guinn a day off was motivated by anti-union
animus. It often is reasonable for the Board to infer animus from unequal treatment
of similarly situated employees. See, e.g., Ky. Gen., Inc. v. NLRB, 177 F.3d 430, 435-
36 (6th Cir. 1999). But the ALJ’s conclusion that Guinn was treated differently from
another parts picker on Thursday, August 10, ignores the fact that Guinn and
Collinsworth were not similarly situated. Collinsworth was present in the
workstation, and supervisor Von Ach followed standard procedure by offering him
the opportunity to decide whether to work on Friday. Guinn, however, had clocked
out and left the workstation to be an observer at the union election.

       While it is true that Von Ach did not seek to contact Guinn despite his absence
from the workstation, there is no evidence in the record that it was normal company
practice to contact any parts picker who was absent from the workstation on Thursday
afternoon, whether for union business, a dental appointment, or a vacation day. Nor
has the Board demonstrated that La-Z-Boy was under any legal duty to do more than
treat an employee engaged in union activity in the same manner that it treats
employees absent from the workstation for other valid reasons. Under those
circumstances, we are not convinced that the company’s failure to contact Guinn
away from the workstation to discuss the Friday work schedule, which represented
equal treatment of an absent employee, is substantial evidence of anti-union animus.



                                        -10-
        Alternatively, even assuming there was a prima facie case that the company
was motivated by anti-union animus when it failed to offer Guinn a day off, we do not
believe there is substantial evidence that La-Z-Boy’s decision to impose attendance
points for Guinn’s “no-call, no-show” was similarly motivated. There is a disconnect
between the ALJ’s finding of unlawful motivation and Guinn’s discipline. Guinn’s
real complaint is that he did not have an opportunity on August 10 to request a day
off on August 11 when his rank in seniority should have entitled him to do so. But
the ALJ did not explain why the company’s alleged motivation on August 10, when
it failed to offer Guinn a day off, should also be attributed to its decision to assess
attendance points when Guinn failed to report for work on a scheduled workday.
There is no evidence, for example, that La-Z-Boy somehow was armed with
clairvoyant knowledge on August 10 that if Guinn remained on the work schedule for
August 11, he would sleep through two alarms, thus creating the opportunity to
impose discipline. Absent some articulation of how the company’s alleged motive
for declining to offer Guinn the day off is connected to its separate decision to impose
attendance points for Guinn’s failure to report to work on a scheduled workday, we
do not believe the Board’s order regarding Guinn can be sustained.

       Guinn was disciplined because he failed to report for work on a day when his
absence was not approved. The evidence is clear that Friday is a work day for parts
pickers unless they are notified to take the day off. (J.A. 185, 216, 309). Guinn’s
absence was not excused: The ALJ specifically discredited Guinn’s testimony that
he informed supervisor Von Ach in advance that he planned to take off Friday,
August 11 to bale hay. There is no evidence in the record suggesting that Guinn was
treated differently from any other employee who missed work without calling the
company. Accordingly, we reject as unsupported by substantial evidence the Board’s
conclusion that La-Z-Boy’s decision to assess attendance points against Guinn was
motivated by anti-union animus.




                                         -11-
                                   *       *       *

        For the foregoing reasons, we grant the Board’s application for enforcement
of its order with respect to Phillips, but deny the application as it pertains to Guinn.
The case is remanded to the Board for modification of its order consistent with this
opinion.
                        ______________________________




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