                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 04-2439
                               ________________

National Labor Relations Board,          *
                                         *
             Petitioner,                 *
                                         *      Petition for Enforcement of a
      v.                                 *      Final Order of The National
                                         *      Labor Relations Board.
Rockline Industries, Inc.,               *
                                         *             [PUBLISHED]
             Respondent.                 *

                               ________________

                               Submitted: February 18, 2005
                                   Filed: June 21, 2005 (corrected 6/24/05)
                               ________________

Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.
                      ________________

HANSEN, Circuit Judge.

       The National Labor Relations Board (Board) petitions for enforcement of an
order it entered finding that Rockline Industries, Inc. (Rockline) engaged in unfair
labor practices and ordering Rockline to reinstate David Kennan, an employee that
Rockline had suspended and then discharged in violation of § 8(a)(3) of the National
Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(3) (2000). We grant the petition
and enforce the order.
                                           I.

       Rockline Industries employs approximately 650 employees at its manufacturing
facility in Springdale, Arkansas. In May 2002, the United Food and Commercial
Workers Union, Local 2008 (Union) began an organizational campaign at Rockline’s
facility. David Kennan had begun working at Rockline in 1997 and was employed
as a maintenance worker. Kennan became a member of the union organizing
committee in June 2002 and participated in the organizing drive by attending union
meetings, passing out union literature, and soliciting union membership.

       Rockline promulgates an employee handbook that contains rules governing
employee discipline and sets out a progressive discipline policy consisting of a verbal
warning, an initial written warning, a final written warning (which may include
suspension), and final termination. (J.A. at 316.) In June 2002, Kennan received a
written warning for interrupting the work of a co-worker for ten minutes to discuss
union-related activities.1 Prior to this time, Kennan had received one verbal warning
for not performing his job duties during his five years of employment. On August 27,
2002, Kennan was not scheduled to work. Instead, he distributed pro-union literature
in the parking lot of Rockline. During work two days later, Kennan stopped a
warehouse employee, Bonnie Bunch, who was operating a forklift, and told her that
“those fliers they [Rockline] are handing out are illegal.” The evidence is disputed
as to the length of the conversation, but Bunch told Kennan that she did not know
anything about it and drove off. Bunch did not report the incident, but her supervisor
later asked her to prepare a statement about the incident.

       The following day, Kennan greeted another employee, Duane Stevens, on the
plant floor, and Stevens responded by saying something about “that union crap.”


      1
       The Board did not include this disciplinary action in its charges of unfair labor
practices against Rockline.
                                          -2-
Kennan told Stevens that he could not discuss union issues during work time, but
would be glad to discuss it with him during break time. Stevens responded that he
would rather discuss it “in the parking lot,” and the two exchanged a few more words.
Kennan reported to his administrator, Catherine Jones, that Stevens had threatened
him and asked to see Human Resources Director Sam Wilson about it. Kennan was
called to Wilson’s office later that day, where Jones and Kennan’s supervisor, Linda
Riley, were present. Kennan voiced his complaint to Wilson about Stevens, stating
that he felt threatened by Stevens’ words. Wilson agreed to investigate, but told
Kennan not to expect much since it was a “he said/she said” kind of situation.
Stevens later denied that he intended to threaten Kennan, though he thought Kennan
might have misunderstood what he had said as a threat. Stevens was not disciplined
in relation to the incident.

       After Kennan discussed the Stevens incident with Wilson, and as part of the
same conversation, Wilson told Kennan that he had a couple of things to discuss with
him. Wilson first brought up Kennan’s distribution of papers in the parking lot on
August 27. Wilson told Kennan that if he came to the premises on his day off, he
needed to get a visitor’s badge. Wilson presented Kennan with a written “Employee
Warning Record” and asked Kennan to sign it. The warning detailed his actions in
distributing the papers, not mentioning that the papers were pro-union literature, and
stated that Kennan’s presence in the parking lot presented a security issue. The
warning directed Kennan to obtain a visitor’s pass if he came to Rockline on a day
when he was not scheduled to work, and it informed Kennan that he needed
permission to go to areas of the plant other than human resources on such visits. The
warning stated that Kennan “will be terminated if [he] violates this direction.”
Rockline has never insisted on such requirements from any of its other employees.
After giving Kennan the written warning, Wilson also gave Kennan a written
suspension notice premised on Kennan’s actions the prior day in stopping a
warehouse employee (Bunch) from performing her work to discuss non-work-related
issues. The notice did not identify Bunch by name, and Wilson did not ask Kennan

                                         -3-
for his version of the events. Again, the notice did not mention whether the non-
work-related discussion was related to the union.

       Following his suspension, Kennan returned to work on September 6. He
carried a small tape recorder in his shirt pocket, which two co-employees saw and
reported to Kennan’s supervisor, Riley, and to Continuous Improvement Coordinator
Pattie Whisenhunt. From the adjacent patio, Riley and Whisenhunt observed Kennan
in the break room for approximately 15 minutes acting, in their minds, suspiciously.
Kennan was not on break at the time, and although his job duties included emptying
waste baskets in the break room, it did not appear that he was doing any work. After
Kennan left the break room, Whisenhunt told two employees who had been in the
break room that Kennan had a tape recorder and appeared to have been taping their
conversation. The two employees complained to Jones and Wilson about the tape
recorder, asking whether state law allowed Kennan to record their conversations
without their knowledge. Neither Riley nor Whisenhunt (both supervisors) informed
Wilson of their suspicion that Kennan had a tape recorder or confronted Kennan
about it.

        Later that afternoon, Kennan was called to Wilson’s office and asked about the
tape recorder. He admitted having one but denied taping any conversations. Wilson
informed Kennan that he was being terminated for bringing the tape recorder to work
and for being disruptive. Kennan’s termination notice (which was already prepared
when Kennan arrived in Wilson’s office) stated: “TAPE RECORDER IN PLANT-
CAUSING EMPLOYEE PROBLEMS.” Wilson later testified at the administrative
hearing that Kennan was also terminated because he kept other employees from doing
their jobs, including twice earlier that day, and because Kennan was not doing his job.
Neither of these reasons was expressed to Kennan at the time of his termination or
stated on the termination notice.




                                          -4-
       The Union filed charges against Rockline with the Board, and the Board filed
a complaint against Rockline on February 28, 2003. The complaint alleged that
Rockline violated § 8(a)(3) of the NLRA by warning, suspending, and discharging
Kennan.2 An Administrative Law Judge (ALJ) held a hearing in September 2003 and
recommended to the Board that, based on the evidence and the witnesses’ credibility,
Rockline had violated the NLRA when it warned, suspended, and terminated Kennan.
The Board adopted the ALJ’s recommended order, with modification. The Board
now petitions this court for enforcement of its final order. See 29 U.S.C. § 160(e)
(2000). Rockline challenges the order related to Kennan’s suspension and
termination, but does not dispute that the warning given to Kennan for distributing
union literature in the parking lot on his off-duty time violated the NLRA. The Board
is therefore entitled to summary enforcement of that part of its order. We turn to the
contested findings.

                                         II.

        We will enforce the Board’s order as long as the Board correctly applied the
law, and its findings are supported by substantial evidence, even if we might have
reached a different decision on de novo review. N.L.R.B. v. La-Z-Boy Midwest, a
Div. of La-Z-Boy Inc., 390 F.3d 1054, 1058 (8th Cir. 2004); King Soopers, Inc. v.
N.L.R.B., 254 F.3d 738, 742 (8th Cir. 2001). Substantial evidence is such evidence
that a reasonable mind would find adequate to support the Board’s conclusion. La-Z-
Boy, 390 F.3d at 1058. Although we give great deference to the fact finder’s
credibility assessments, these, too, must be supported by substantial evidence. Id.




      2
       The complaint also alleged that Wilson violated § 8(a)(1) of the NLRA by
engaging in illegal surveillance of a union meeting. Following the hearing, the Board
adopted the ALJ’s recommendation that the surveillance charge be dismissed; thus,
that charge is not at issue on appeal.
                                         -5-
       Under § 8(a)(3) of the NLRA, an employer commits an unfair labor practice
when, “by discrimination in regard to . . . any term or condition of employment [it]
encourage[s] or discourage[s] membership in any labor organization.” 29 U.S.C. §
158(a)(3). This section makes it an unfair labor practice for an employer to discipline
an “employee in order to discourage [him] from engaging in union activities.” SCA
Tissue N. Am. LLC v. N.L.R.B., 371 F.3d 983, 988 (7th Cir. 2004). To support a
violation of § 8(a)(3) based on employee discipline, the General Counsel of the Board
“must make a prima facie showing that protected conduct was a ‘motivating factor’
in the employer’s decision to discipline the employee.” La-Z-Boy, 390 F.3d at 1057
(describing the NLRB’s burden-shifting analysis of Wright Line, 251 N.L.R.B. 1083
(1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982)).
The Sixth Circuit describes the prima facie case as containing the following elements:
“(1) the employee was engaged in protected activity; (2) . . . the employer knew of the
employee’s protected activity; and (3) . . . the employer acted as it did on the basis of
anti-union animus.” FiveCAP, Inc. v. N.L.R.B., 294 F.3d 768, 777 (6th Cir. 2002).
The burden then shifts to the employer to put forward a legitimate reason for the
discipline and to establish that it would have taken the same disciplinary action
notwithstanding the employee’s protected conduct. La-Z-Boy, 390 F.3d at 1057; Hall
v. N.L.R.B., 941 F.2d 684, 688 (8th Cir. 1991).

       The Board found that Rockline’s discipline of Kennan violated the NLRA on
three separate occasions: the August 30 written warning for distributing “papers” in
the parking lot on August 27; the August 30 three-day suspension for interrupting
Bunch’s work on August 29; and the September 6 termination related to bringing a
tape recorder to work and causing employee problems on September 6. As noted
above, Rockline does not dispute that the written warning for distributing papers in
the parking lot violated the NLRA by discouraging union activity.

      The ALJ noted that few of his findings depended on contradictions in the
testimony, but discredited Bunch’s hearing testimony that her encounter with Kennan

                                           -6-
lasted five to eight minutes to the extent that her testimony contradicted her more
contemporaneous written statement, which the ALJ construed as describing an
incident that could not have lasted more than fifteen seconds. His “chief credibility
determinations” included rejection of Rockline’s justifications for its actions in light
of its establishment of a rule affecting only Kennan, its disparate treatment of Kennan
compared to other employees, and its change in position between the initial reasons
stated in the termination notice and the reasons given at the hearing. In adopting the
ALJ’s recommended order, the Board found no reason to reverse the ALJ’s credibility
findings. (Appellant’s Add., Order at 1 n.2.) It did, however, limit its finding of
pretext regarding the three-day suspension solely to evidence of disparate treatment,
specifically that Kennan was disciplined for interrupting Bunch’s work, while
Stevens was not disciplined for interrupting Kennan’s work. (Id. n.3.)

        Rockline does not dispute that Kennan was generally engaged in protected
activity related to his involvement in the union organizing committee or that it was
aware of his activities. Rockline focuses on the third element of the prima facie case
and argues that there is no evidence that there was a causal connection between
Kennan’s protected activity and his disciplinary suspension and termination, neither
of which related to incidents involving Kennan’s participation in protected activity.
Rockline also argues that the Board erroneously found that Rockline’s justifications
for its disciplinary actions were pretextual.

      “[G]eneral hostility toward the union does not itself supply the element of
unlawful motive.” GSX Corp. of Mo. v. N.L.R.B., 918 F.2d 1351, 1357 (8th Cir.
1990). Although Rockline openly opposed the Union, other than its dealings with
Kennan, there is no evidence that it ever threatened or intimidated employees for
engaging in union activity. Rockline distributed information to its employees
encouraging them to weigh the pros and cons of unionization, though it warned the
employees not to discuss union issues during work time. Evidence of Rockline’s
union animus is fairly weak as compared to other cases finding union animus. See

                                          -7-
id. (finding sufficient evidence of hostility from statements that management was
tired of dealing with the current union’s frivolous complaints and preferred a different
union, noting that such evidence was relatively mild compared to then recent cases,
including York Prods., Inc. v. N.L.R.B., 881 F.2d 542, 543 (8th Cir.1989) (employer
threatened over 50 times to close the plant if a union was organized); DeQueen Gen.
Hosp. v. N.L.R.B., 744 F.2d 612, 615 (8th Cir. 1984) (administrator told supervisors
to get rid of union employees if the opportunity arose); Ballou Brick Co. v. N.L.R.B.,
798 F.2d 339, 345 (8th Cir. 1986) (employer threatened employees); N.L.R.B. v.
Quick Find Co., 698 F.2d 355, 357 (8th Cir. 1983) (employer fired all but two
employees in the proposed bargaining unit after the union sought recognition)).

       Nevertheless, sufficient evidence exists in the record as a whole to support the
Board’s finding that Rockline was motivated by union animus when it suspended and
then terminated Kennan. We have previously considered such factors as: an
employer admitting to recent discriminatory conduct, see Golden Eagle Spotting Co.
v. Brewery Drivers and Helpers, Local Union 133, 93 F.3d 468, 471 (8th Cir. 1996)
(noting that employer’s uncontested NLRA violations lent support to the Board’s
other findings); an employer treating its union and anti-union employees disparately,
see Berbiglia, Inc. v. N.L.R.B., 602 F.2d 839, 844 (8th Cir. 1979) (“[T]he convincing
evidence of disparate treatment of union and anti-union employees furnishes the
keystone for the arch of the Board’s case.”); and an employer changing the
justifications for its disciplinary actions, see Hall, 941 F.2d at 688 (“[F]alse or
shifting reasons support a finding of illegal motivation.”). All of these factors are
present in this case and support the Board’s finding of discriminatory motive.

A.    Three-Day Suspension

       Kennan was clearly involved in protected activity when he distributed union
literature during his off-work time, and Rockline does not dispute that it violated the
NLRA by disciplining him for it. Rockline tried to hide its true motives for that

                                          -8-
discipline by stating first security, and then safety, as its legitimate reasons for issuing
the warning to Kennan. However, the Board found that Rockline singled out Kennan
for disparate treatment when it issued the warning requiring Kennan to get a visitor’s
pass and prohibiting him from entering the premises on an off-duty day, even though
other employees’ friends and spouses often did so. See Hall, 941 F.2d at 688
(“[F]alse or shifting reasons support a finding of illegal motivation.”). This is
important background information regarding Rockline’s motives toward Kennan, as
it occurred just two days prior to the incident resulting in Kennan’s suspension. See
id. (“The timing of an adverse employment decision is given great weight in unlawful
discharge cases as an indication of anti-union motive.”); cf. Sioux Quality Packers,
Div. of Armour & Co. v. N.L.R.B., 581 F.2d 153, 157 (8th Cir. 1978) (finding that
a discriminatory discharge in October did not support the Board’s conclusion that a
discharge seven months later was likewise discriminatory, absent other evidence).

       Rockline’s articulated reason for suspending Kennan for three days was that
he had interrupted another employee’s work for non-work-related purposes. The
Board found this stated reason to be pretextual because Kennan was treated
differently than Stevens, who had interrupted Kennan during work hours to express
his anti-union views but was not disciplined. “It is often reasonable for the Board to
infer animus from unequal treatment of similarly situated employees.” La-Z-Boy, 390
F.3d at 1061. Kennan was disciplined for disrupting Bunch’s work even though
Bunch never complained to anyone; rather, Bunch’s supervisor sought her out and
asked her to make a statement concerning the incident. Even then, Bunch did not
allege that Kennan disrupted her work. Kennan was not given an opportunity to
respond but was summarily suspended the following day. In fact, the suspension
notice was already prepared when Kennan was called to Wilson’s office to discuss
the incident. In contrast, when Kennan reported Stevens’ comments to Wilson,
Wilson’s initial response to Kennan was not to expect much. Stevens was then given
an opportunity to respond to the allegations and was not disciplined for the incident.



                                            -9-
        The parties dispute the length of Kennan’s conversation with Bunch. If it
lasted the five to ten minutes urged by Rockline, the length of the conversation could
legitimately support Kennan’s discipline and distinguish it from the lack of discipline
to Stevens. Two considerations counsel against finding this timing dispute sufficient
to overturn the Board’s findings of disparate treatment. First, the Board accepted the
ALJ’s credibility findings, which included discrediting Bunch’s testimony that the
conversation lasted five to eight minutes. Great deference is given to a fact finder’s
credibility assessments, see JHP & Assocs., LLC v. N.L.R.B., 360 F.3d 904, 910-11
(8th Cir. 2004) (citing Golden Eagle Spotting Co., 93 F.3d at 471 (“We will not
overturn Board findings that are based on credibility determinations unless those
findings shock the conscience.”)), and Bunch’s vague statement given to her
supervisor provides record support for the ALJ’s decision to discredit Bunch’s
hearing testimony. Further, regardless of the length of the conversation, Rockline
still treated Kennan disparately in its investigation of the incident as compared to its
investigation of the discussion between Kennan and Stevens. Kennan was not asked
his version of the events concerning the Bunch conversation. Instead, he was called
to Wilson’s office and summarily given the suspension notice. Even then, he was not
informed of the specific incident supporting the allegations of interrupting a co-
employee’s work stated in the suspension notice. By contrast, Kennan’s complaint
about Stevens was virtually ignored, with Wilson responding that Kennan should not
expect much. Stevens was later asked for his version of events and ultimately was
not disciplined for the incident. Notably, the incident was documented in Kennan’s
personnel file but not in Stevens’ file.

       Finally, Wilson gave Kennan the written disciplinary notice for distributing
papers, which concededly violated § 8(a)(3), on the same day as the suspension
notice. Given the temporal proximity of the violative disciplinary action to the action
at issue, the failure of Rockline to investigate, and its refusal to allow Kennan to
respond to the allegations, there is sufficient evidence in the record to support the



                                          -10-
Board’s findings that Rockline’s stated reason for suspending Kennan was pretextual
and that Rockline violated § 8(a)(3) when it suspended Kennan for three days.

B.     Termination

       Kennan carried a tape recorder in his pocket on the day that he returned to work
following his suspension. Co-employees who saw the tape recorder reported to two
supervisors that Kennan was carrying it. Rather than confronting Kennan about the
tape recorder or informing the Human Resources Director, the supervisors told other
employees in the break room that it appeared that Kennan was trying to record their
conversations. Later that day Kennan was called to Wilson’s office, where Wilson
informed him that his employment was being terminated because he had a tape
recorder and was being disruptive. Again, there was no investigation and Kennan
was not allowed to respond to the allegations prior to his termination. The written
termination notice stated that Kennan’s termination was based on “TAPE
RECORDER IN PLANT–CAUSING EMPLOYEE PROBLEMS.” At the hearing,
Wilson testified that Kennan was terminated for the additional reasons that he was
keeping other employees from doing their jobs and he was not doing his own job.
However, Rockline failed to articulate these reasons to Kennan at the time of his
termination. Further, Rockline had no policy regarding tape recorders on the
premises. In fact, another employee, Edward Reygadas, brought a tape recorder to
work less than a year prior to this incident. He was confronted about the tape
recorder and told not to bring it to work but was not disciplined. Rockline’s different
responses to these incidents suggest disparate treatment, and thus union animus.

       Rockline claims that the Reygadas incident was distinguishable because
Reygadas did not have prior written warnings under Rockline’s progressive discipline
policy. Rockline misses the point. Kennan was not treated disparately because he
was terminated and Reygadas was not. The disparate treatment comes from being
disciplined at all for something not covered by Rockline’s employment policies and

                                         -11-
from the lack of investigation or confrontation. Further, Kennan was terminated the
first day back from a suspension that the Board found to be discriminatory, and a
week after Rockline discriminatorily disciplined Kennan for distributing union
literature. Like the policy created specifically for Kennan regarding his presence on
Rockline property on his days off, Rockline again created a policy specific to Kennan.
Given the shifting justifications offered by Rockline for terminating Kennan, his
disparate treatment relative to Reygadas, and the close timing to Kennan’s
distribution of union literature and Rockline’s ensuing discriminatory discipline, the
Board’s findings are supported by substantial evidence in light of the record as a
whole. See Hall, 941 F.2d at 688 (shifting justifications and the timing of discipline
relative to protected activity support finding that union animus motivated employer’s
actions).

                                          III.

        Engaging in protected activity does not shield employees from legitimate
disciplinary action by their employer. Employers still control their workforce even
if their employees are (or seek to be) represented by a union. Protected activity is just
that however–protected–and employers cannot single out employees who engage in
such activities for adverse or disparate treatment. Having disciplined an employee
who has engaged in protected activity, it is not enough that an employer put forth a
nondiscriminatory justification for discipline. It must be the justification. See SCA
Tissue N. Am., 371 F.3d at 991-92 (“SCA’s asserted justification for its termination
decision . . . appears to have furnished the excuse rather than the reason for the
discharge.” (internal marks omitted)). While we find this to be a close case, given our
limited review, we enforce the Board’s order, as it is supported by substantial
evidence in the record as a whole.
                         _____________________________




                                          -12-
