209 F.3d 671 (7th Cir. 2000)
Jet Star, Inc.,    Petitioner/Cross-Respondent,v.National Labor Relations Board,    Respondent/Cross-Petitioner.
Nos. 99-2488 & 99-2778
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 10, 2000Decided April 4, 2000

Petition for Review and Cross-Application for Enforcement   of an Order of the National Labor Relations Board.  No. 13-CA-35087--Robert A. Giannasi, Administrative Law  Judge.
Before Flaum, Manion, and Evans, Circuit Judges.
Flaum, Circuit Judge.


1
Jet Star, Inc. petitions  for review of the National Labor Relations  Board's ("NLRB" or "Board") decision affirming an  administrative law judge's ("ALJ") finding that  the Company violated Sections 8(a)(1) and 8(a)(3)  of the National Labor Relations Act ("NLRA" or  "Act"), 29 U.S.C. sec. 151 et seq., by  discharging employee John Krueger in retaliation  for his union activities. The Board ordered Jet  Star to make Krueger whole for the discrimination  he suffered, including reinstatement, back pay,  the removal of any reference to the unlawful  discharge from his employment file, and the  posting of an appropriate notice. The Board  cross-petitions this Court for enforcement of  that order and, for the reasons stated herein, we  enter final judgment enforcing the Board's  decision and order in full.

I.  Facts

2
Jet Star is a corporation primarily engaged in  the business of delivering jet fuel to airports.  The Company employs 180 employees at seventeen  terminals nationwide. It has forty employees and  seventeen trucks at its facility in Hammond,  Indiana.


3
John Krueger, the Jet Star employee who is the  subject of the Board's unfair labor practice  charge in this case, was a driver at the  Company's Hammond facility. He began working for  Jet Star in July 1995, and received Company  safety awards in both 1995 and 1996. The Company  also gave Krueger a quarterly safety bonus, as  well as a gift certificate in appreciation for  his help in handling damaged trucks. Prior to  coming to work at Jet Star, Krueger had  accumulated approximately ten years experience  driving trucks and approximately twenty years  experience as an automobile mechanic.


4
In March 1996, Krueger and another driver  visited the offices of Teamsters Local 142 and  told officials of that union that the drivers at  Jet Star were interested in improving their wages  and working conditions. Soon after, Krueger began  to speak with other drivers about improving their  benefits. Krueger also attended union meetings  and distributed union buttons and authorization  cards. Local 142 eventually filed a petition for  certification as the employees' collective-  bargaining representative, and the Regional  Director of the NLRB scheduled a representation  election for June 1996.


5
During the election campaign, the Company  instituted mandatory meetings with its drivers at  which its management argued against union  representation. Krueger defended the union at  these meetings, and insisted that the employees  deserved higher wages. When the union election  was conducted, Krueger served as the union  observer. Jet Star employees voted against union  representation nineteen to fourteen.


6
In 1996 and early 1997, at about the same time  as the union campaign, Jet Star began to  experience excessive clutch and transmission  failures in trucks at its Hammond facility. As a  result of these problems, the Company was forced  to make two costly transmission replacements in  truck #296, as well as two transmission  replacements and a clutch replacement in truck  #298. Jet Star believed these equipment failures  to be a direct result of employee abuse. The  Hammond Terminal Lead Mechanic, Bill Atkins,  informed Jet Star's Chief Executive Officer,  Darryl Guiducci, that it was Krueger who was  abusing the trucks.


7
In response to its equipment problems, Jet Star  scheduled Safety Performance Observations  ("SPOs") for nine drivers at the Hammond  facility, including Krueger. During the SPOs,  Guiducci, who oversees maintenance at the  Company, rode with each driver and observed how  he operated the truck. When he rode with Krueger,  Guiducci noticed that Krueger was starting the  truck from a stopped position in fourth or fifth  gear and was slipping the clutch badly. When a  truck is operated in this manner, excessive heat  is generated and the clutch and transmission can  burn out, causing serious damage and  necessitating extensive repairs.


8
At the conclusion of his SPO with Krueger,  Guiducci informed Krueger that he would have to  cease starting the truck in fourth or fifth gear  because it caused the clutch to slip and  consequently burned out the clutch and the  transmission. Krueger acknowledged that he was  starting the truck in this manner, but stated  that he did not know it would damage the truck.  Guiducci then demonstrated the proper way to  start the truck, and told Krueger to watch an  instructional video on the proper use of the  clutch. Krueger was not formally disciplined at  this time.


9
In January 1997, the Company informed the  drivers that they would be hauling gas fuel, and  Krueger inquired as to whether they were to  receive a higher wage for carrying a more  dangerous fuel. The Company denied this request  for a pay raise. At about this time, several  drivers approached Krueger about starting another  union campaign. Krueger told them that they would  have to wait a year before they could hold  another election, but he urged them to go to the  union hall and "to stay together."


10
After other drivers began to express interest  in a renewed union campaign, Krueger contacted  officials at Teamsters Local 705. He explained to  a representative at Local 705 that several of the  drivers had expressed concern about the  leadership of Local 142, and asked the  representative how Local 705 would go about  addressing the drivers' concerns. In total,  Krueger had approximately six or seven  conversations with union officials at Local 705.


11
In February 1997, at the request of union  supporter Wesley Gillian, Jet Star dispatcher Amy  Gregory faxed a copy of Local 705's bylaws to  driver John Ramos. The faxed document was  received at the motel at which Ramos was staying,  but he never received the document. Eventually,  Ed Bell, Jet Star's Director of Operations,  obtained a copy of the bylaws. Gregory was then  asked if she knew anything about the bylaws by  the Hammond facility's Terminal Manager, Mark  Smith. When Gregory responded that she did not,  Smith stated: "[W]e need[ ] to start pushing the  issue of writing drivers up. And three in  particular because they are getting the [u]nion  vote." According to Gregory, Smith named Krueger  as one of the drivers he was particularly  concerned about. Gregory also testified that she  overheard a conversation between Smith and Bell  during which Smith said he needed some reason to  fire Krueger.


12
On March 10, 1997, Krueger left the Hammond  facility to deliver a load of jet fuel to Midway  Airport in Chicago, Illinois. While Krueger was  exiting the terminal parking lot, Fleet Manager  Robert Mulligan and Terminal Manager Smith  observed him starting the truck in too high a  gear. Krueger completed his delivery to Midway  and, when he informed the Company he had extra  fuel remaining, he was instructed to make a  second delivery that he successfully completed.


13
When Krueger reported to work on March 11,  1997, he was told that Smith wanted to see him.  When Krueger reported to Smith's office, he was  given a discharge form signed by Smith and  witnessed by Mulligan. The form stated that  Krueger was being discharged for abuse of  equipment in violation of Company Rule  I(a)(4).1 Smith told Krueger that the discharge  was not his idea, and that the order came from  Company headquarters. Gregory testified that  after Kreuger left she overheard Smith say, "[W]e  finally got him."


14
On April 17, 1997, Krueger filed an unfair  labor practice charge against Jet Star with the  Chicago regional office of the NLRB. In his  charge, Krueger alleged that Jet Star violated  Sections 8(a)(1) and 8(a)(3) of the NLRA when it  terminated his employment based upon his union  activities. The Chicago regional office issued a  complaint on the charge and a hearing was  conducted before ALJ Robert Giannasi on June 29  and 30, 1998.


15
On September 16, 1998, the ALJ ruled that Jet  Star discriminatorily discharged Krueger in  violation of Sections 8(a)(1) and 8(a)(3) of the  NLRA. The case was then transferred to the NLRB.  On March 27, 1999, the NLRB issued its decision  and order adopting the ALJ's rulings, findings,  and conclusions. Jet Star now petitions for  review of the NLRB's March 27 decision and order,  and the NLRB cross-petitions for enforcement of  that order.

II.  Analysis

16
The Board affirmed the decision of the ALJ in  which the ALJ found that in discharging Krueger  Jet Star violated Sections 8(a)(1) and 8(a)(3) of  the NLRA. Section 7 of the Act guarantees  employees "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 the purpose of  collective bargaining or other mutual aid or  protection . . . ." 29 U.S.C. sec. 157. Section  8(a)(1) protects these rights by making it an  unfair labor practice for employers "to interfere  with, restrain, or coerce employees in the  exercise of [their Section 7 rights] . . . ." 29  U.S.C. sec. 158(a)(1). Section 8(a)(3) also helps  to effectuate employees' ability to unionize by  prohibiting employers from "discriminati[ng] 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. sec. 158(a)(3).


17
It is well-established that Jet Star violated  Sections 8(a)(1) and 8(a)(3) of the NLRA if it  discharged Krueger because of his union  activities. See NLRB v. Transportation Management  Corp., 462 U.S. 393, 398 (1983); NLRB v. Joy  Recovery Tech. Corp., 134 F.3d 1307, 1314 (7th  Cir. 1998); NLRB v. Dorothy Shamrock Coal Co.,  833 F.2d 1263, 1266 (7th Cir. 1987). We first  look to whether the NLRB's General Counsel,  representing Krueger, established a prima facie  case that the employer acted with an unlawful  motivation. See Transportation Management, 462  U.S. at 398; Wright Line, a Div. of Wright Line,  Inc., 251 NLRB 1083, 1089 (1980), enforced 662  F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S.  989 (1982). If so, we then look to whether the  employer was able to rebut that evidence or to  show that the job action would have been taken  even in the absence of the employee's protected  activities. See Transportation Management, 462  U.S. at 398; Wright Line, 251 NLRB at 1089.


18
In this case, Jet Star first contends that the  Board's decision was in error because the General  Counsel failed to establish a prima facie case of  discrimination. To make out a prima facie case,  the General Counsel must show: (1) that the  employee engaged in a protected activity; (2)  that the employer had knowledge of the employee's  activities; and (3) that the employer acted with  anti-union animus. See Director, Office of  Workers' Compensation Programs, Dep't of Labor v.  Greenwich Collieries, 512 U.S. 267, 278 (1994).  In order to uphold the Board's determination, we  need only find that the decision is supported by  substantial evidence in the record considered as  a whole. 29 U.S.C. sec. 160(e); see Universal  Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951);  Beverly Farm Found., Inc. v. NLRB, 144 F.3d 1048,  1051 (7th Cir. 1998). Under the substantial  evidence standard, a court may not "dabble in  factfinding, . . . [or] displace reasonable  determinations simply because [it] would have  come to a different conclusion if [it] reviewed  the case de novo." NLRB v. Augusta Bakery Corp.,  957 F.2d 1467, 1471 (7th Cir. 1992) (quoting NLRB  v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th  Cir. 1991)).


19
In challenging the evidence supporting the  Board's decision, Jet Star argues that the  Company had no knowledge, at the time it  discharged him, of Krueger's union activities  following the defeat of Local 142 in the June  1996 representation election. In this regard, Jet  Star notes that Krueger himself testified that he  did not wear or distribute any union  paraphernalia in the presence of Company  officials after the election, and that he did not  inform Jet Star management of his union  activities nor identify himself as a union  spokesperson at any Company meetings. Jet Star  contends that the only hint it had of Krueger's  union affiliation was his union activities prior  to the certification election, and his  participation as an observer in that election.


20
The Company's knowledge of Krueger's union  activities was primarily established by  dispatcher Gregory's testimony. Gregory testified  that in January 1997, Terminal Manager Smith  announced his intention to begin "writing up"  Krueger and two other drivers who were "getting  the [u]nion vote." Furthermore, Gregory stated  that she overheard Smith tell Director of  Operations Bell that he had to find some reason  to fire Krueger. Finally, after Krueger was  fired, Gregory overheard Smith say "we finally  got him." This testimony as to Smith's comments  is evidence that Smith had knowledge of Krueger's  union activities, and strongly supports an  inference that the Company's discharge of Krueger  was motivated by the Company's anti-union animus.  See Dorothy Shamrock Coal, 833 F.2d at 1267  (stating that "comments [that] demonstrate a  'manifest hostility' toward union activity . . .  are relevant in determining the Company's motive  for its conduct").


21
Jet Star does acknowledge that Gregory's  testimony indicates knowledge of Krueger's union  activities on the part of the Company, but  asserts that this testimony was so incredible  that the ALJ should have disregarded it. We must  affirm credibility determinations made by the  ALJ, and adopted by the Board, in the absence of  extraordinary circumstances. See J.C. Penney Co.  v. NLRB, 123 F.3d 988, 995 (7th Cir. 1997);  Dilling Mechanical Contractors, Inc. v. NLRB, 107  F.3d 521, 524 (7th Cir. 1997). Such extraordinary  circumstances "include a clear showing of bias by  the ALJ, an utter disregard for uncontroverted  sworn testimony or the acceptance of testimony  which on its face is incredible." Carry Co. of  Il., Inc. v. NLRB, 30 F.3d 922, 928 (7th Cir.  1994). In this case, Jet Star argues that the  ALJ's credibility determination as to Gregory's  testimony was irrational and patently incredible  because her testimony was manifestly contradicted  by other evidence in the record.


22
Gregory testified that she faxed a set of Local  705's bylaws to a union supporter at a Milwaukee  hotel, but that she did not know what the  documents were. According to Jet Star, this  testimony was contradicted by that of another Jet  Star driver, Wesley Gillian, who testified that  he gave Gregory the bylaws to fax and stated,  "John wanted to see a copy of the bylaws." In  addition, Jet Star argues that Gregory herself  testified that Gillian asked her to fax a copy of  the bylaws, and that she admitted during cross  examination that she "faxed some bylaws of the  union to a Super 8 in Milwaukee." Jet Star  contends that both Gillian's and Gregory's  statements contradict Gregory's assertion that  she did not know she was faxing a copy of the  bylaws, and that the ALJ therefore erred in  finding her testimony credible.


23
The deferential standard of review that we  apply to the credibility determinations of the  ALJ is based on our desire to avoid  "redetermining credibility 'on the basis of a  cold record.'" Joy Recovery, 134 F.3d at 1312  (quoting Carry Co., 30 F.3d at 928). In this  case, Jet Star has failed to show that the ALJ's  acceptance of Gregory's testimony was irrational  or patently incredible because none of the  testimony cited by the Company clearly  contradicts that of Gregory. Gillian's testimony  indicates that he told Gregory that the document  to be faxed was a copy of the bylaws, but it does  not establish that Gregory in fact knew they were  bylaws. And, while Gregory herself referred to  the documents as bylaws, it is possible that this  reference only indicates the state of her  knowledge at the time she testified. Gregory's  reference to bylaws does not prove that she knew  the documents were bylaws at the time she faxed  them, and does not demonstrate that the ALJ's  credibility determination was irrational or  patently erroneous.


24
In addition to Smith's comments about Krueger,  the timing of the discharge itself supports an  inference that Krueger was dismissed because of  his union-related activities.2 See NLRB v.  O'Hare-Midway Limousine Serv., 924 F.2d 692, 697  (7th Cir. 1991) (holding that the timing of a discharge may indicate the existence of an  unlawful motive). At the time Krueger was  discharged, Jet Star employees had expressed  interest in renewing a campaign to unionize the  Hammond facility. Furthermore, Krueger's  discharge came only shortly after Smith expressed  concern about drivers who were "getting the union  vote," and after he specifically stated that  management needed a reason to fire Krueger. The  timing of Krueger's discharge, coupled with the  evidence of anti-union animus presented by the  General Counsel, provides a sufficient basis for  the Board's finding that Jet Star committed an  unfair labor practice by discharging Krueger  because of his union activities. See NLRB v.  Shelby Memorial Hosp. Ass'n, 1 F.3d 550, 568 (7th  Cir. 1993) (stating that an employer's  discriminatory motive can be proved through  circumstantial evidence); Justak Bros. & Co. v.  NLRB, 664 F.2d 1074, 1077 (7th Cir. 1981) (same).


25
Jet Star attempts to rebut the inference that  it fired Krueger based upon his union activities  by arguing that it actually discharged him  because of its good-faith belief that he was  abusing equipment. According to Jet Star, it was  not Krueger's union activities that led to his  firing, but rather the damage to the trucks  Krueger caused through his consistent mishandling  of them. Jet Star further contends that because  of his abusive treatment of equipment, Krueger  would have been fired even in the absence of his  union-related efforts. The Board rejected the  Company's abuse of equipment rationale as a  pretext, and we look only to whether there was  substantial evidence in the record to support  such a finding. 29 U.S.C. sec. 160(e); see  Universal Camera Corp., 340 U.S. at 488; Beverly  Farm Found., 144 F.3d at 1051.


26
In this case, Jet Star claims that it  discharged Krueger because he was abusing the  equipment by starting trucks in too high a gear.  Yet when Smith and Mulligan allegedly saw Krueger  exit the parking lot in fourth or fifth gear on  March 10, 1997, Krueger was not called back to  work nor was he prevented from making a second  delivery that day. Moreover, Krueger was never  formally warned about the potential consequences  of abusing the trucks, and was discharged without  even a cursory investigation into the reported  misconduct. See NLRB v. Advanced Transp. Co., 979  F.2d 569, 574 (7th Cir. 1992) (holding that  evidence of a cursory investigation can give rise  to an inference of an unlawful motive). While  this evidence is not conclusive as to Jet Star's  motivation, it does provide sufficient  evidentiary support for the Board's determination  that the abuse of equipment rationale offered by  Jet Star was a pretext to cover the fact that  Krueger was discharged because of his union  activities.


27
The Board's conclusion that the abuse of  equipment justification was only a pretext is  further supported by Jet Star's handling of  previous problems with employees abusing  equipment. Other drivers who damaged Company  trucks in minor ways were apparently not fired  for their first offense. Rather, the only first-  time offenders the Company did discharge were  those involved in serious accidents with high  degrees of damage. While the Company contends  that the clutch and transmission failures  involved in this case are more analogous to the  major damage that led to previous dismissals, the  Board disagreed. More significantly, the Board  found that Jet Star failed to present any  concreteevidence that it believed that Krueger's  operation of the trucks led to the damage the  Company claims to have sustained.3 Absent a  more conclusive connection between Jet Star's  dismissal of Krueger and its asserted belief that  Krueger caused the damage to Jet Star's trucks,  we cannot determine that the Board erred in  finding Jet Star's asserted justification  pretextual. See NLRB v. Thor Power Tool Co., 351  F.2d 584, 587 (7th Cir. 1965) (stating that the  Board may disregard an employer's asserted  justification when it "furnishe[s] the excuse  rather than the reason" for the action).


28
Jet Star complains that even accepting the  Board's pretext finding, the Board did not go on  to determine whether Jet Star would have fired  Krueger even had he not engaged in union  activity. However, that argument is necessarily  answered by our conclusion that there was  sufficient evidence in the record to support the  Board's determination that the Company's asserted  justification was pretextual. Where the Board  finds that the proffered reason for a discharge  was pretextual, we cannot conclude that the  discharge would have occurred in the absence of  the protected activity. See Wright Line, 251 NLRB  at 1089. Furthermore, the Board's pretext finding  lends added support to its determination that Jet  Star discharged Krueger based on his union  activities. See Union-Tribune Publishing Co. v.  NLRB, 1 F.3d 486, 490-91 (7th Cir. 1993);  Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466,  470 (9th Cir. 1996) (stating that where an  employer's stated justification is pretextual, it  can be inferred "that the motive is one that the  employer desires to conceal--an unlawful motive--  at least where, as in this case, the surrounding  facts tend to reinforce that inference"). In  these circumstances, we cannot conclude that the  record lacks substantial evidence supporting the  Board's conclusion that Jet Star's asserted non-  discriminatory rationale was pretextual.

III.  Conclusion

29
We find that there is substantial evidence in  the record to support the Board's conclusion that  Jet Star violated Sections 8(a)(1) and 8(a)(3) of  the NLRA by firing Krueger because of his union-  related activities. Accordingly, we deny Jet  Star's request to set aside the Board's decision  and order dated May 27, 1999, and enter final  judgment enforcing that decision and order in  full.



Notes:


1
 Company Rule I(a)(4) is titled "Tampering with  and/or abusing Company owned or leased  equipment," and is set forth in the employee  handbook. According to the handbook, a violation  of Rule I(a)(4) is a major violation and the  punishment for a first infraction is a minimum  one-week suspension without pay or,  alternatively, termination.


2
 Jet Star argues that the timing of Krueger's  discharge actually supports an inference that it  was not union-related. According to Jet Star, if  it wanted to terminate Krueger based upon his  union activities, it would have done so in  November 1996 after he was observed starting the  truck in too high a gear during the Safety  Performance Observation. In such circumstances,  an employer's decision not to terminate an  employee at the first opportunity could undermine  an inference of anti-union animus. Carry Co., 30  F.3d at 929 n.4; NLRB v. Newman-Green, Inc., 401  F.2d 1, 4 (7th Cir. 1968). However, at the time  Guiducci conducted the SPOs, there was no  indication that Jet Star was concerned about  unionization. Local 142 had already been  defeated, and the new union movement had not yet  begun. In contrast, by March 1997, Jet Star was  aware of Krueger's renewed union activities, and  had reason to be concerned about potential  unionization at its Hammond facility.


3
 The only evidence Jet Star presented of Krueger's  mishandling of the trucks was Guiducci's  testimony and notes that Krueger started the  truck in too high a gear during his Safety  Performance Observation, and the testimony of  Smith and Mulligan that they observed Krueger  exit the Company parking lot in too high a gear.  Were the ALJ to have credited this testimony, Jet  Star could certainly argue that the record  supported its contention that Krueger was  discharged for an abuse of equipment. However,  the ALJ rejected this testimony as incredible,  and did not believe the Company's asserted  justification. Because we do not second-guess an  ALJ's credibility determinations absent  extraordinary circumstances, Augusta Bakery  Corp., 959 F.2d at 1467, and because we do not  find any such circumstances present in this case,  we find no evidence in the record that supports  Jet Star's argument that its abuse of equipment  rationale was not pretextual.


