                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-1881



SNE ENTERPRISES, INCORPORATED,

                                                             Petitioner,

           versus


NATIONAL LABOR RELATIONS BOARD,

                                                             Respondent.



                               No. 06-1917



NATIONAL LABOR RELATIONS BOARD,

                                                             Petitioner,

           versus


SNE ENTERPRISES, INCORPORATED,

                                                             Respondent.



On Petition for Review and Cross-Application for Enforcement of an
Order of the National Labor Relations Board. (9-CA-40915; 9-CA-
41191; 9-CA-41291; 9-CA-41338)


Argued:   September 25, 2007                 Decided:   December 7, 2007


Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Petition for review denied; cross-application for enforcement
granted by unpublished opinion. Judge Shedd wrote the opinion, in
which Judge Wilkinson joined.    Judge Niemeyer wrote an opinion
concurring in part and dissenting in part.


ARGUED: Grant T. Pecor, NANTZ, LITOWICH, SMITH, GIRARD & HAMILTON,
Grand Rapids, Michigan, for SNE Enterprises, Inc. David A. Seid,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.
ON BRIEF: Ronald Meisburg, General Counsel, John E. Higgins, Jr.,
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
Robert J. Englehart, Supervisory Attorney, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for the Board.


Unpublished opinions are not binding precedent in this circuit.




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SHEDD, Circuit Judge:

     This dispute arises out of a successful organizing campaign by

the United Steelworkers of America (the “Union”) at the Huntington,

West Virginia plant (the “Plant”) of SNE Enterprises, Inc. (“SNE”),

and out of SNE’s subsequent challenge to the results of the Union

election.   SNE petitions for review of an order of the National

Labor   Relations   Board   (the   “Board”),    determining   that   SNE

unlawfully (1) withheld a wage increase during the Union campaign

and failed to conduct planned wage reviews; (2) discharged employee

Benny Moore because of his union activity; (3) prohibited employee

Dana Adkins from speaking with co-workers about a disciplinary

incident and discharged him for violating that prohibition; and (4)

discharged supervisor Ruth Adkins for testifying adversely to SNE’s

interests in a Board proceeding.       The Board cross-applies, seeking

enforcement of its order.     Because substantial evidence supports

the Board’s decision and resulting order, we grant enforcement and

deny SNE’s petition for review.



                                   I

     Section 7 of the National Labor Relations Act, 29 U.S.C. § 151

et seq. (“NLRA” or the “Act”), provides that “[e]mployees 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


                                   3
the    purpose    of    collective    bargaining       or   other   mutual      aid   or

protection.”       29 U.S.C. § 157.       Section 8(a)(1) of the Act makes it

an unfair labor practice for an employer “to interfere with,

restrain,    or    coerce     employees    in    the    exercise    of    the   rights

guaranteed in” § 7.         29 U.S.C. § 158(a)(1).          Section 8(a)(3) makes

it 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.”         29 U.S.C. § 158(a)(3).

       We must affirm the Board’s interpretations of the NLRA if they

are “rational and consistent with the Act,” and we must affirm the

Board’s factual findings if they are “supported by substantial

evidence on the record considered as a whole.”                 Medeco Sec. Locks,

Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998)(internal citations

and quotations omitted).            Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion.”         Consol. Diesel Co. v. NLRB, 263 F.3d 345, 351 (4th

Cir.    2001)     (internal    quotation        and    citation     omitted).         If

substantial evidence exists, we must uphold the Board’s decision

“even though we might have reached a different result had we heard

the evidence in the first instance.”                  NLRB v. Daniel Const. Co.,

731 F.2d 191, 193 (4th Cir. 1984).              Credibility determinations are

left    to   the       discretion    of    the    Board     absent       “exceptional




                                           4
circumstances.”   NLRB v. Air Prods. & Chem., Inc., 717 F.2d 141,

145 (4th Cir. 1983).



                                  II

                                  A.

     As found by the Board, SNE’s policy was to conduct wage

reviews at the Plant twice per year.     Although these reviews did

not automatically result in a wage increase, SNE decided in early

2004 that it would grant a wage increase in March.      Around this

time period, the Union began its organizing campaign at the Plant.

When SNE learned of the Union campaign, it posted a notice at the

Plant stating that although “[a] wage increase was scheduled to be

announced and implemented at the end of this week,” SNE had decided

not to implement the increase while the Union vote was pending.

J.A. 792.   The notice further stated that “[i]f the union is

rejected in the vote, we will be free to implement a wage increase

after the election.”   Id.   After the Union pledged not to file any

unfair labor practice charges if SNE implemented the planned

increase, SNE posted another notice again stating that a wage

increase would be granted if the Union lost the election.   SNE also

failed to conduct wage reviews in September 2004 and March 2005,

notwithstanding its policy.

      The Board concluded that SNE’s failure to grant the March

2004 wage increase and its failure to conduct wage reviews in


                                  5
accordance with its policy violated §§ 8(a)(1) and (3) of the Act.

“An employer’s obligation with regard to wage increases during a

representation campaign is to proceed as it would have proceeded

without regard to union considerations.”        In re Earthgrains Co.,

336 N.L.R.B. 1119, 1129 (2001), enforced, 61 Fed. Appx. 1, 7 (4th

Cir. 2003).    An employer violates the Act when it withholds a

planned wage increase during an organizing campaign without a

legitimate business purpose.      S. Maryland Hosp. Ctr. v. NLRB, 801

F.2d 666, 668 (4th Cir. 1986).

     We   conclude   the    Board’s    determination   is   supported   by

substantial evidence.      There is evidence in the record to support

the Board’s conclusion that SNE had established a practice of

conducting biannual wage reviews.          The notices posted by SNE

support the Board’s conclusion that SNE had decided to grant a wage

increase in March 2004 and that it did not do so because of the

Union.    SNE does not dispute that it did not actually grant the

increase, nor that it did not conduct wage reviews in September

2004 and March 2005.

                                      B.

     The Board also concluded that SNE violated §§ 8(a)(1) and (3)

of the Act by discharging employee Benny Moore for his union

activity.   Moore worked at the Plant from 1997 to 2004.          He was

responsible for initiating the Union campaign at the Plant, was a

member of the Union organizing committee, and solicited other


                                      6
employees to join the Union.           SNE maintained a policy against

employee solicitation during work time.           In February 2004, Moore

was discharged for asking a co-worker to sign a union card during

working time, in violation of that policy.

       Although an employer may prohibit employee solicitation during

working time, an employer may not enforce an otherwise valid no-

solicitation rule against union solicitation, while permitting

non-union solicitation.        Willamette Indus., Inc., 306 N.L.R.B.

1010, 1017 (1992).        The Board concluded that SNE selectively

enforced its no-solicitation policy against Moore, while tolerating

non-Union solicitation.        There is testimony in the record that

SNE’s no-solicitation policy was not enforced against non-union

solicitors. Employee Charles South testified that “solicitation is

virtually every day.     It’s all over the plant.          It’s open.”   J.A.

800.    Other testimony indicated that employees sold various items

such as candles, Girl Scout cookies, or tickets to Plant-related

activities     during   work   time,    sometimes     in   the   presence   of

supervisors.      Accordingly,    we    hold   that   substantial    evidence

supports the Board’s conclusion that SNE unlawfully terminated

Moore.

                                       C.

       The Board also determined that SNE violated § 8(a)(1) of the

Act by prohibiting employee Dana Adkins from speaking with co-

workers about a disciplinary incident and by discharging him for


                                       7
violating that prohibition.           Adkins was employed by SNE from 2003

to 2004.     In April 2004, Adkins broke the computer screen of a

piece of machinery he was operating.              As a result, he was placed on

final warning status, suspended for four days, and instructed not

to   speak   with    anyone       concerning     his     discipline   while   SNE’s

investigation of the incident was pending.

      The next month, after SNE’s investigation was complete, Adkins

attempted to apply for a material handler position, but was told he

could not do so because he was on final warning status.                          When

Adkins stated that he had never received the warning, SNE presented

it to him the next day.               Adkins disagreed with the written

warning’s statement that he had used “inappropriate and offensive

language while talking with maintenance” concerning the broken

computer screen.      Adkins then spoke with the maintenance employee

in question concerning the incident, for which he was discharged.

      An employer violates the Act when it maintains confidentiality

rules    that   prohibit    employees       from    discussing    the    terms   and

conditions of their employment and by discharging an employee for

violation       of   such     a     rule,       unless     substantial    business

justifications outweigh the protected rights involved.                   See, e.g.,

Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 746-47 (4th Cir.

1998).    SNE argues that its instruction to Adkins not to discuss

his discipline was justified by the need to protect the integrity

of its investigation of the broken computer screen, and by SNE’s


                                            8
desire to prevent conflict on the Plant floor, as Adkins had a

temper.

      The Board concluded that SNE’s proffered justifications did

not   outweigh    Adkins’s   §    7    right   to   discuss   his   employment

conditions.      The Board noted that by the time SNE discharged

Adkins,    its   investigation    of    the    broken   computer    screen    was

complete, and thus could not have been jeopardized by Adkins’s

discussion of the incident.       In addition, the Board concluded that

SNE’s desire to prevent conflict at the Plant was too general to

outweigh Adkins’s right to discuss his discipline in the particular

circumstances     here,   where   Adkins’s      warning   contained    what    he

believed was an unjust allegation that prevented him from bidding

for a job.

        “It is the primary responsibility of the Board and not of the

courts to strike the proper balance between the asserted business

justifications and the invasion of employee rights in light of the

Act and its policy.”      NLRB v. Fleetwood Trailer Co., 389 U.S. 375,

378 (1967) (internal citation and quotation omitted).               We find no

reason to disturb the Board’s weighing of competing considerations

here.

                                        D.

      Finally, the Board determined that SNE violated § 8(a)(1) of

the Act by discharging supervisor Ruth Adkins.            The Board rejected

SNE’s contention that it terminated Ruth Adkins for “telling the


                                        9
untruth”    in   a   Board   proceeding,    and    concluded    that   she    was

discharged because she testified against SNE’s interests.

      Ruth Adkins worked at the Plant from 1998 until 2004, holding

a lead position beginning in 2002.            Prior to the election, the

Board determined that the lead position was supervisory.                     As a

supervisor, Ruth Adkins was prohibited by SNE from advocating on

behalf of the Union during the Union campaign. After the election,

SNE filed objections in another NLRB proceeding, including an

objection that the election should be set aside because some of the

leads supported the Union.       Ruth Adkins was subpoenaed to testify

at a Board hearing on SNE’s challenges to the Union election.                  At

the hearing, Ruth Adkins testified that she had not advocated for

the Union after she was determined to be a supervisor.                 When she

returned    to   work   following   the    hearing,     SNE   terminated     her,

claiming that her testimony in the hearing conflicted with what she

had   earlier    told   SNE’s   management        and   attorneys   about     her

involvement with the Union, specifically, that she had engaged in

Union solicitation.

      An employer violates § 8(a)(1) of the Act by discharging a

supervisor for testifying in a Board proceeding where the testimony

impacts employee § 7 rights.              Glover Bottled Gas Corp., 275

N.L.R.B. 658, 658 n.7 (1985), enforced, 801 F.2d 391 (2d Cir.

1986).     If an employer seeks to justify such a discharge on the

grounds that the testimony was false, the employer must “show


                                     10
affirmatively not only that the testimony was false, but also that

it was willingly and knowingly false, that it was uttered with

intent to deceive, and that it related to a substantial issue.”

Id. at 673 (internal quotation and citation omitted).

     We hold that the Board’s conclusion that SNE failed to carry

this burden of proof is supported by substantial evidence. The ALJ

declined to credit the testimony of several SNE witnesses that Ruth

Adkins did advocate for the Union on the grounds that these same

witnesses had not testified to that effect during the proceedings

on SNE’s challenge to the election.   Citing discrepancies in the

testimony of SNE attorney Grant Pecor, the ALJ likewise declined to

credit his testimony that Ruth Adkins lied in the Board hearing.

We decline to disturb the ALJ’s credibility determinations.*



                               III

     Because we conclude that the Board’s findings are supported by

substantial evidence, we deny SNE’s petition for review and grant

the Board’s cross-application for enforcement of its order.

                                      PETITION FOR REVIEW DENIED;
                        CROSS-APPLICATION FOR ENFORCEMENT GRANTED


     *
      SNE’s claim that it was denied a fair hearing because the ALJ
was biased is without merit. We find no evidence of bias on this
record. Similarly, SNE’s allusion to prior cases over which the
ALJ presided is irrelevant to the issues raised in this proceeding.
See Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996)
(“A decision-maker’s ruling deserves to rise or fall on the case at
hand, not on the results in other cases that have little bearing on
the issues before us.”).

                                11
NIEMEYER, Circuit Judge, concurring in part and dissenting in part:

     Except with respect to the disposition based on the discharge

of Ruth Adkins, a supervisor, I concur in the majority opinion.

With respect to Adkins, I respectfully dissent.

     A supervisor generally does not enjoy the protections of § 7

of the NLRA.    But there are exceptions.   In USF Red Star, Inc. v.

NLRB, 230 F.3d 102, 106 (4th cir. 2000), we noted that although

supervisors are not explicitly covered by the NLRA, § 8(a)(1) “is

violated if a supervisor’s discharge results from his refusal to

commit an unfair labor practice” (emphasis added). But we have not

held, as the majority now holds, that § 7 employee rights are

violated when a supervisor is fired for giving testimony in a Board

proceeding.    Firing a supervisor for giving testimony is something

quite different from firing a supervisor for committing an unfair

labor practice against an employee. Accordingly, I would grant the

petition of SNE Enterprises, Inc., with respect to the Board’s

decision on Ruth Adkins’ discharge and deny the NLRB’s petition to

enforce in that limited respect.




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