                        UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT



 MJ METAL PRODUCTS, INC.,

          Petitioner,

 v.                                                    Nos. 99-9533 & 99-9538

 NATIONAL LABOR RELATIONS
 BOARD,

          Respondent.
 NATIONAL LABOR RELATIONS
 BOARD,

          Petitioner,

 v.                                                          No. 00-9507

 MJ METAL PRODUCTS, INC.,

          Respondent.


                                         ORDER
                                  Filed October 3, 2001


Before EBEL and HENRY, Circuit Judges, and ROGERS, District Judge.*



      The National Labor Relations Board’s motion to publish our order and judgment

      *
          The Honorable Richard D. Rogers, District Judge for the District of Kansas,
sitting by designation.
dated July 10, 2001, is granted. A copy of the published opinion is attached to this order.

                                                 Entered for the Court,

                                                 Patrick Fisher, Clerk of Court

                                                 By:

                                                        Deputy Clerk




                                             2
                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                     PUBLISH
                                                                    JULY 10 2001
                     UNITED STATES COURT OF APPEALS
                                                                PATRICK FISHER
                                                                          Clerk
                                 TENTH CIRCUIT



 MJ METAL PRODUCTS, INC.,

       Petitioner,

 v.                                                 Nos. 99-9533 & 99-9538

 NATIONAL LABOR RELATIONS
 BOARD,

       Respondent.
 NATIONAL LABOR RELATIONS
 BOARD,

       Petitioner,

 v.                                                       No. 00-9507

 MJ METAL PRODUCTS, INC.,

       Respondent.


            ON PETITION FOR REVIEW, CROSS-APPLICATION
    FOR ENFORCEMENT AND APPLICATION FOR ENFORCEMENT OF
       THE ORDERS OF THE NATIONAL LABOR RELATIONS BOARD
(Nos. 27-CA-15523, 27-CA-15549, 27-CA-15619, 27-RC-7813, and 27-CA-16575)


Harry B. Durham, III, Brown, Drew, & Massey, LLP, Casper, Wyoming, for
Petitioner/Respondent MJ Metal Products, Inc.

William M. Bernstein, Senior Attorney, Leonard R. Page, General Counsel, Linda Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel,
Washington, D.C., for Respondent/Petitioner National Labor Relations Board.


Before EBEL and HENRY, Circuit Judges, and ROGERS, District Judge.*


HENRY, Circuit Judge.



       MJ Metal Products, Inc. (MJ Metal) challenges three decisions of the National

Labor Relations Board (NLRB), issued on August 10, 1999, August 30, 1999, and

January 12, 2000. The first NLRB decision affirmed an administrative law judge’s

conclusion that MJ Metal violated sections 8(a)(1) and 8(a)(3) of the National Labor

Relations Act (NLRA), 29 U.S.C. § 158(a)(1) and (a)(3), by discharging four employees

because of their union activities and engaging in other unfair labor practices. In that

decision, the NLRB also imposed a remedial bargaining order pursuant to NLRB v.

Gissel Packing Co., 395 U.S. 575 (1969). The second NLRB decision certified a union of

MJ Metal workers as a collective-bargaining representative. The third decision concluded

that MJ Metal’s subsequent refusal to bargain with the union violated sections 8(a)(1) and

8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(1) and (a)(5). For the reasons set forth below,

we affirm the NLRB’s decisions.1


       *
          The Honorable Richard D. Rogers, District Judge for the District of Kansas,
sitting by designation.

       After examining the briefs and appellate record, this panel has determined
       1

unanimously that oral argument will not materially assist the disposition of this appeal.

                                             2
                                    I. BACKGROUND

       The relevant facts are fully set forth in the administrative law judge’s decision, and

we summarize them only briefly. MJ Metal manufactures stainless steel food service

equipment in Casper, Wyoming. After attending several meetings in September 1997, a

majority of its employees signed cards authorizing Sheet Metal Workers International

Association, Local Union # 207 (the union) to represent them in collective bargaining

proceedings. A few days after the second of these meetings, Mark Johnston, MJ Metal’s

president and owner, discharged two employees (Shannon Leedall and Kelly Martin) who

had been hired a week before. Mr. Johnston told both men that they were not performing

their jobs adequately.

       On September 26, 1997, the union filed a petition with the NLRB seeking an

election among MJ Metal’s production employees. The NLRB scheduled a

representation election for November 25, 1997. Of thirteen employees, six voted for the

union, and six voted against it. MJ Metal challenged the final ballot, which belonged to

Shannon Leedall, arguing that he had been properly discharged from employment and

that his vote should not be counted. Following the election, Mr. Johnston discharged two

other employees, Jay Newcombe and Brian Johnson. Mr. Newcombe had worked for MJ

Metal since April 1992 while Mr. Johnson had worked for the company since January




See Fed. R. App. P. 34(a)(2)(C). The case is therefore ordered submitted without oral
argument.

                                             3
1989.

          The union filed a complaint against MJ Metal alleging that it had committed unfair

labor practices in violation of the NLRA. The NLRB consolidated the unfair practice

charges with the representation proceeding involving the challenge to Mr. Leedall’s

ballot.

          After conducting a hearing, an administrative law judge concluded that the

following practices constituted violations of the NLRA by MJ Metal: (1) interrogation of

employees by managers and supervisors regarding employees’ attendance at union

meetings and their support for the union; (2) Mr. Johnston’s informing an employee that

“if the employees wanted to go union he would hire journeyman sheet metal workers and

that the current employees would all become apprentices, and that his company . . . would

never go union,” Aplt’s App. vol. III, at 449 (administrative law judge’s decision, issued

Aug. 26, 1998); (3) Mr. Johnston’s abrupt change in Mr. Johnson’s work schedule in

retaliation for union activity; (4) Mr. Johnston’s discharge of Messrs. Leedall and Martin

“as a result of their know[n] union adherence,” id.; (5) Mr. Johnston’s retracting an

agreement to allow an employee (Earl Anthony Sanchez) to take time off because he was

a union adherent; (6) Mr. Johnston’s requiring two employees (Jay Newcombe and Brian

Johnson) to document certain common errors because of their known union adherence;

(7) Mr. Johnston’s requiring Mr. Newcombe and Danny Ashley to submit a doctor’s slip

regarding their absence of work because of their union adherence; (8) Mr. Johnston’s


                                               4
discharging Mr. Newcombe and Mr. Johnson on the purported basis of insubordination

but actually because of their union adherence; (9) coercive statements by a customer

(attributable to the company) that identified certain employees as leaders of the union

movement and suggested that the customer could act as an arbitrator of the dispute

between management and employees; and (10) remarks by an MJ Metal salesman that

unionization would result in the sale and closure of the company.

       The administrative law judge further concluded that these unfair labor practices

were “sufficiently serious and pervasive to warrant a remedial bargaining order.” Id. at

451. He reasoned as follows:

              [MJ Metal’s] unfair labor practices include threats that the
              Respondent would sell and shut down its Casper operations
              and the unlawful discharge of four employees comprising
              over 20 percent of the employees in the bargaining unit.
              Moreover, [MJ Metal’s] unlawful treatment of [Brian]
              Johnson, by knowingly changing his work schedule in a
              manner designed to interfere with his ability to provide care
              for his seriously ill son, after accommodating [Mr.] Johnson
              in this regard for many years, is particularly egregious and
              sends a clear message to the employees that serious adverse
              repercussions will follow their selection of the Union as their
              bargaining agent. Such violations . . . are not likely to be
              remedied by the Board[’]s traditional remedies short of a
              bargaining order, as they are likely to have a long term
              coercive impact on the employees’ freedom of choice under
              the Act.

Id.

       After MJ Metal filed exceptions, the NLRB issued a decision and order adopting a

majority of the administrative law judge’s findings and recommendations, including his

                                             5
evaluation of the credibility of witnesses’ testimony. See Aplt’s App. vol. III, at 487 n. 1

(NLRB decision and order, issued Aug. 10, 1999). The NLRB rejected MJ Metal’s

contention that a remedial bargaining order was not warranted.

       In support of the latter conclusion, the NLRB reasoned that MJ Metal had engaged

in unfair labor practices from the day after the union requested recognition. It noted that

the company had unlawfully discharged four union supporters, a violation that went “to

the very heart of [the NLRA].” Id. at 488 (internal quotation marks omitted). According

to the NLRB, MJ Metal’s conduct “sent employees the unequivocal message that it was

willing to go to extraordinary lengths in order to extinguish the union organizational

effort.” Id. (internal quotation marks omitted). It also noted that the severity of the

misconduct was compounded by the involvement of high-ranking officials within the

company; that, even though the discharged employees were entitled to reinstatement and

back pay, those remedies were not likely to erase the coercive effect of the unfair labor

practices, and that there had been a relatively short time between the unfair practices and

the issuance of the NLRB’s order. Finally, the NLRB found that there was no evidence

indicating that, without a bargaining order, MJ Metal was prepared to allow its employees

to exercise their rights under the NLRA.

       Accordingly, the NLRB ordered MJ Metal to cease and desist from violations of

the NLRA. It also required MJ Metal to take the following actions: reinstate the

discharged employees and pay them for loss of earnings and benefits; remove from its


                                              6
files any reference to the unlawful discharges; recognize and bargain upon request with

the union; preserve payroll records regarding the amount of back pay due the discharged

employees; post a notice explaining employees rights under the NLRA and the NLRB’s

order; and file a sworn certification with the Regional Director of the steps taken to

comply with the order.

       Finally, the NLRB instructed the Regional Director to open and count the disputed

ballot of Shannon Leedall in the union election. If the majority of the votes (including

Mr. Leedall’s) had been cast for the union, the NLRB’s order directed the Regional

Director to issue the appropriate certification. On the other hand, if the union had not

received a majority, the NLRB instructed the Director to set the election aside and dismiss

the representation case.

       Pursuant to the NLRB’s order, the Regional Director opened Mr. Leedall’s ballot

and included it in the results of the union election. The revised count indicated that seven

employees had voted for the union, and six had voted against it. As a result, on August

30, 1999, the Regional Director certified the union as the exclusive bargaining

representative of the MJ Metal employees.

       Following that certification, MJ Metal continued to contend that Mr. Leedall had

been lawfully discharged and that, as a result, his vote should not have been counted. The

company therefore refused to bargain with the union. In response, the union filed another

unfair labor practice charge. On December 30, 1999, the NLRB issued a decision and


                                             7
order concluding that MJ Metal had violated sections 8(a)(1) and 8(a)(5) of the NLRA by

refusing to bargain with the union. It again required MJ Metal to cease and desist from

unfair labor practices, to bargain with the union upon request, to reduce to writing any

agreement reached with the union about the terms and conditions of employment, to post

a remedial notice, and to file a sworn statement with the Regional Director regarding its

efforts to comply with the NLRB’s order.

                                     II. DISCUSSION

       On appeal, MJ Metal first challenges the NLRB’s decision that it discharged

Messrs. Leedall and Martin because of their support of the union. It then argues that the

evidence was insufficient to justify the imposition of “such a drastic remedy” as an order

to bargain with the union. See Aplt’s Br. at 20. Finally, it contends that because it

discharged Mr. Leedall for legitimate reasons, his vote in the union election was

improperly counted. As a result, MJ Metal maintains, its refusal to bargain with the union

was not an unfair labor practice.

       In challenging the conclusion that Messrs. Leedall and Martin were discharged

because of their union activities, MJ Metal attacks the administrative law judge’s factual

findings. We review these findings to determine whether they are supported by

substantial evidence. Webco Indust., Inc. v. NLRB, 217 F.3d 1306, 1311 (10th Cir.

2000). That standard “already gives the agency the benefit of the doubt, since it requires

not the degree of evidence which satisfies the court that the requisite fact exists, but


                                              8
merely the degree that could satisfy a reasonable factfinder.” Id. (internal quotation

marks omitted). Thus, “[i]f the Board has made a plausible inference from the evidence,

we may not overturn its findings, although if deciding the case de novo we might have

made contrary findings.” Id. (internal quotation marks omitted). When, as here, the

NLRB has referred a matter to an administrative law judge, “[his] credibility resolutions

deserve great weight to the extent they are based on testimonial evidence of live witnesses

and the hearing judge has had the opportunity to observe their demeanor.” Id. (internal

quotation marks omitted).

       In contrast, MJ Metal’s challenge to the NLRB’s decision to issue a remedial

bargaining order addresses a mixed question of law and fact. We therefore review that

decision for an abuse of discretion. See Ann Lee Sportswear, Inc. v. NLRB, 543 F.2d

739, 743 (10th Cir. 1976).

                        A. Discharge of Messrs. Leedall and Martin

       Section 8(a)(1), 29 U.S.C. § 158(a)(1), prohibits an employer from interfering

with, restraining, or coercing employees who exercise certain rights under the NLRA,

including “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.” See 29 U.S.C. §§ 157, 158(a)(1). Section 8(a)(3) prohibits “discrimination

in regard to hire or tenure of employment or any term or condition of employment to


                                               9
encourage or discourage membership in any labor organization.” See 29 U.S.C. §

158(a)(3).

       In applying these statutes, we have adopted a burden-shifting approach. “Initially,

the [NLRB’s] General Counsel must establish that the employee’s protected conduct was

a substantial or motivating factor in the discharge decision; thereafter the burden shifts to

the employer to show that it would have reached the same decision absent the protected

conduct.” Ready Mixed Concrete Co. v. NLRB, 81 F.3d 1546, 1550 (10th Cir. 1996)

(internal quotation marks omitted).

       An employer’s antiunion motivation may be proven by circumstantial evidence.

Intermountain Rural Elec. Ass’n v. NLRB, 732 F.2d 754, 759 (10th Cir. 1984). Thus,

proof of an employer’s specific intent to discriminate is unnecessary, and the evidence

may provide a presumption of intent. Presbyterian/St. Luke’s Med. Ctr. v. NLRB, 723

F.2d 1468, 1476 (10th Cir. 1983). The NLRB may consider factors such as the

employer’s knowledge of the employee’s union activities, the employer’s commission of

other unfair labor practices, the timing of the employer’s action, and the credibility of its

explanation of the reasons for the discharge. See Ready Mixed Concrete Co., 81 F.3d at

1550–51.

       Here, MJ Metal contends that there is a lack of substantial evidence supporting the

conclusion that anti-union animus was a motivating factor in the discharges of Messrs.

Leedall and Martin. In particular, MJ Metal challenges the administrative law judge’s


                                              10
finding that the two employees were not informed of the company’s one-week

probationary period for new employees. It also challenges the judge’s reliance on the

testimony of two supervisors that the discharged employees were doing adequate work.

Additionally, MJ Metal argues that the judge and the NLRB erred in relying on the short

period of time between the employees’ public support of the union and their discharges.

Finally, MJ Metal points to evidence that another recently hired employee (William

Lawrence) also supported the union but was not fired. According to MJ Metal, the reason

for discharging Mr. Leedall and Mr. Martin but not Mr. Lawrence was the inferior quality

of their work.

       Upon review of the record, we are not convinced by these arguments. With regard

to the administrative law judge’s finding that the two employees were not told that they

were on a period of probation, we note that there was conflicting evidence on this point

and that the judge acted within his discretion in believing these two employees rather than

MJ Metal’s witnesses. More importantly, the judge found that, even if the two employees

had been told of the probationary period, their discharge was still not justified by the

deficiencies in their work asserted by MJ Metal.

       On this point, the judge properly relied on the testimony of two other

employees—team leaders Mr. Newcombe and Mr. Miller—that the work of Messrs.

Leedall and Martin was satisfactory. Although MJ Metal correctly notes that Mr. Miller

admitted that “[w]e really didn’t have time to see what kind of work [Mr. Leedall and Mr.


                                             11
Martin] were doing,” Mr. Miller also stated that the two discharged employees were

progressing in their work “okay.” Aplt’s App. vol. I, at 165-66. MJ Metal correctly

observes that Mark Johnston (its president and owner) testified that the work of Messrs.

Leedall and Martin was deficient and that it was because of that deficient work that they

were discharged. However, the other team leader, Mr. Newcombe, testified that he never

observed Mr. Johnston or production manager John Dykes inspecting that work. Aplt’s

App. vol. II, at 311. According to Mr. Newcombe, “[f]or new people[,] they were doing

at least average, if not better.” Id. at 309. In light of this testimony, the administrative

law judge was entitled to reject Mr. Johnston’s explanation of the discharges.

       Similarly, we discern no error in the administrative judge’s reliance on the timing

of the discharges. Under our cases, this is one of many factors that may be considered in

assessing the employer’s motivation. See Ready Mixed Concrete Co., 81 F.3d at

1550–51. Aside from the timing of the discharges, there is considerable evidence

supporting the finding of anti-union animus, including the testimony of Mr. Miller and

Mr. Newcombe that the discharge employees were doing adequate work, evidence of

anti-union statements made by MJ Metal’s president and owner, and other instances of

retaliatory action found by the judge and not objected to by MJ Metal.

       Finally, the fact that MJ Metal did not discharge a third employee (William

Lawrence), who was hired at the same time as Messrs. Leedall and Martin and who was

also a union supporter, is not dispositive. As the NLRB notes, an employer’s failure to


                                              12
take action against “all pro-union employees does not necessarily undermine the NLRB’s

finding of unlawful motivation.” NLRB v. McCullough Envtl. Servs., Inc., 5 F.3d 923,

937 (5th Cir. 1993).

       Thus, the administrative judge’s finding that MJ Metal unlawfully discharged

these two employees is supported by substantial evidence.

                              B. Remedial Bargaining Order

       MJ Metal also challenges the NLRB’s issuance of a remedial bargaining order,

arguing that the unfair labor practices found by the NLRB are insufficient to support such

a remedy. In support of this contention, it first reasserts the argument that the discharges

of Messrs. Leedall and Martin were not retaliatory. It then attacks the NLRB’s findings

that MJ Metal managers and supervisors improperly interrogated employees about their

union activities and threatened adverse action if they continued to support the union.

According to MJ Metal, the various incidents noted by the administrative law judge

merely involved management stating its views about unionization, and “[t]he NLRA does

not compel an employer to remain silent regarding his feelings regarding a union.” Aplt’s

Br. at 22. Additionally, MJ Metal contends that because the vote of Mr. Leedall should

not have been counted in the election, “there is simply no evidence that a union majority

was dissipated by MJ Metal’s actions.” Id. at 27.

       In Gissel, the Supreme Court held that the NLRB may issue a remedial bargaining

order when an employer’s unfair labor practices, although not “outrageous” or


                                             13
“pervasive,” still “have the tendency to undermine majority strength and impede the

election processes.” 395 U.S. at 613-14. The Court further explained that, “[i]f the

[NLRB] finds that the possibility of erasing the effects of past practices and of ensuring a

fair election (or a fair rerun) by the use of traditional remedies, though present, is slight

and that employee sentiment once expressed through cards would, on balance, be better

protected by a bargaining order, then such an order should issue.” Id. at 614-15. The

Court added that reviewing courts should afford substantial deference to the NLRB’s

selection of an appropriate remedy. See id. at 612 n.32 (“In fashioning its remedies . . .

[the NLRB] draws on a fund of knowledge and experience all its own, and its choice of

remedy must therefore be given special respect by reviewing courts.”); see also Artra

Group, Inc. v. NLRB, 730 F.2d 586, 593 (10th Cir. 1984) (“The [NLRB’s] position that

[a remedial bargaining order] is a proper remedy is based on its expertise, and the choice

of remedy is entitled to special respect by appellate courts.”).

       In light of this standard, we are unconvinced by MJ Metal’s challenge to the

issuance of a remedial bargaining order. Because we have rejected MJ Metal’s challenge

to the findings concerning the discharges of Messrs. Leedall and Martin, the record

supports the conclusion that MJ Metal terminated four employees (Mr. Leedall, Mr.

Martin, Mr. Johnson, and Mr. Newcombe) because of their union activities. Courts have

recognized that the discharge of union supporters may constitute a serious infringement of

the NLRA. See NLRB v. Wilhow Corp., 666 F.2d 1294, 1304 (10th Cir. 1981) (noting


                                              14
that “[a]n unlawful termination of an employee under § 8(a)(3) may raise a question in

determining whether a fair election can be held”); see also NLRB v. Gordon, 792 F.2d 29,

33 (2d Cir. 1986) (stating that “[t]hreats of discharge of union adherents are hallmark

violations” that “will support the issuance of a bargaining order unless some significant

mitigating circumstance exists”) (internal quotation marks omitted); NLRB v. Davis, 642

F.2d 350, 353 (9th Cir. 1981) (characterizing the discharge of union supporters as “among

the most serious infringements of [the NLRA]”). Here, as the NLRB observes, it was

reasonable to conclude that the effect of the discharges was heightened by the small size

of the company: MJ Metal discharged four union supporters in a unit of fifteen

employees.

       Moreover, in its August 10, 1999 order, the NLRB noted many other unfair labor

practices, including “retaliating against unit employees for their union activity by

changing their work schedules, requiring them to bring doctor’s slips when they are

absent and to document repairs to products and refusing to give them previously approved

time off for personal business; . . . [and] threatening to demote employees to apprentice

positions and hire journeymen sheet metal workers if employees select[ed ] the Union to

represent them.” Aplt’s App. at 487-88. The NLRB added that high-ranking officials

had been involved in these violations.

       Substantial evidence supports these findings. Accordingly, we conclude that the

NLRB did not abuse its discretion in issuing a remedial bargaining order.


                                             15
                    C. MJ Metal’s Refusal to Bargain with the Union

       As noted above, on January 12, 2000, the NLRB issued a decision and order

concluding that MJ Metal unlawfully refused to bargain with the union following its

certification as an exclusive bargaining agent, thereby violating section 8(a)(1) and

8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(1) and (5). In light of our conclusion that the

NLRB properly counted the vote of Mr. Leedall, this decision and order is supported by

the record and the applicable law.

                                     III. CONCLUSION

       Accordingly, we AFFIRM the decisions of the NLRB.




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