                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1688


PESSOA CONSTRUCTION COMPANY,

                Petitioner,

           v.

NATIONAL LABOR RELATIONS BOARD,

                Respondent.



                              No. 11-1776


NATIONAL LABOR RELATIONS BOARD,

                Petitioner,

           v.

PESSOA CONSTRUCTION COMPANY,

                Respondent.



On Petition for Review and Cross-application for Enforcement of
an Order of the National Labor Relations Board. (5-CA-34547; 5-
CA-34761; 5-CA-35083)


Argued:   December 4, 2012                  Decided:   January 25, 2013


Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
Petition for review denied; cross-application    for   enforcement
granted by unpublished per curiam opinion.


ARGUED: Michael E. Avakian, Washington, D.C., for Pessoa
Construction Company.   David A. Seid, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for the Board.      ON BRIEF: Lafe E.
Solomon, Acting General Counsel, Celeste J. Mattina, Deputy
General Counsel, John H. Ferguson, Associate General Counsel,
Linda Dreeben, Deputy Associate General Counsel, Ruth E.
Burdick, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for the Board.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       Petitioner           Pessoa       Construction                   Company            (“Company”)

discharged William Membrino shortly after his participation in a

union meeting. The union filed charges with respondent National

Labor    Relations          Board    (“NLRB”)         challenging,                 inter    alia,    the

Company’s alleged surveillance of Membrino’s union activities,

its     unilateral          modification          of        the         terms        of    Membrino’s

employment,           and    its     decision          to      terminate              Membrino.       An

administrative          law    judge        found       that           the     Company’s         actions

violated the National Labor Relations Act (“NLRA”), 29 U.S.C. §§

151-169, and subsequently ordered Membrino reinstated with back

pay.    A   three-member            panel    of       the     NLRB           affirmed      the    ALJ’s

decision     in       all     aspects       relevant          to        this       appeal.    Because

substantial evidence supports the NLRB’s decision, we deny the

Company’s        petition      for    review          and    grant           the    Board’s      cross-

petition for enforcement.



                                               I.

       Pessoa      Construction         Company          is        a     highway          construction

contractor based in Fairmont Heights, Maryland, with multiple

job sites throughout the region. In early 2008, the Laborers’

International Union of North America began efforts to organize

the    Company’s        employees,      and        the      union            was    certified       that

summer.     At    a    union    meeting       on       September             30,    2008,    employee

                                                  3
William Membrino asked whether the Company was obligated to pay

him and other employees more for travel time to and from job

sites. He also asked whether the Company’s owner, Julio Pessoa,

was correct when he stated that the Company could not provide

Membrino with a raise because of the union. The following day,

Pessoa    asked    Michael     Moltz,        another    Company     employee     who

participated in the meeting, whether Membrino was in attendance.

Moltz indicated that Membrino was in fact present.

       Two weeks after the union meeting, Membrino met with Pessoa

to request an increase in compensation. During the conversation,

Pessoa indicated that he was aware that “somebody” at the union

meeting had raised the issue of compensation for travel time and

stated that the Company could not afford to pay employees for

such    time.    Four   days   later,      Membrino     and   another     employee,

Nicholas Cappetta, were notified that they would no longer be

able to drive their Company trucks to and from their job sites

because    each    truck   was     to   remain     parked     overnight    at    its

respective site. No other employee received such a notice.

       On October 23, 2008, a hydraulic excavator in use on one of

the Company’s job sites collided with Membrino’s dump truck and

caused significant damage. Shortly afterward, Membrino contacted

his    foremen    and   notified    them     of   the   accident.    One    of   the

foremen, Keith Reeder, advised Membrino and the excavator driver

that they each needed to complete an accident report detailing

                                         4
the circumstances of the collision. Neither of the foremen told

Membrino that he needed to speak directly to Pessoa regarding

the   accident.       Membrino       drafted       a    statement       describing       what

happened and drew a diagram to complement his written account.

Reeder   faxed       the    statement    to       the    Company’s      offices     several

hours later.

      Membrino returned to the yard at the end of the workday and

followed up with the Company dispatcher, Juan Infante, regarding

whether a drug test was necessary in light of the accident. The

dispatcher advised Membrino that he did not need to complete a

drug screening, and Membrino subsequently left work for the day.

Later    that    evening,       Membrino’s             supervisor     called      to     tell

Membrino that he had been terminated. Membrino followed up by

contacting Pessoa directly. When pressed for a reason for the

termination, Pessoa stated that Membrino’s “head is not on [sic]

the company no more,” as evidenced by the fact that Membrino

first    allowed      the     accident      to         occur    and     then    failed     to

personally report it to Pessoa. J.A. 22.

      Based     on    the    foregoing      facts,       the    union     filed    multiple

unfair labor practice charges with the NLRB. The NLRB General

Counsel (“General Counsel”) then issued a complaint alleging,

inter alia, that (1) the Company violated 29 U.S.C. § 158(a)(1)

by creating the impression that Membrino’s union activities were

under    surveillance;         (2)    the     Company          violated    29     U.S.C.   §

                                              5
158(a)(1)         and       (a)(3)      by     responding         to     Membrino’s         union

participation by preventing him from driving his company vehicle

to   work       and    eventually       terminating        him;    and    (3)       the   Company

violated        29     U.S.C.    §    158(a)(1)      and    (a)(5)       by    modifying     its

vehicle-use policy without bargaining with the union beforehand.

         Following a hearing, an administrative law judge found that

the Company had engaged in the alleged unfair labor practices.

With respect to the surveillance claim, the ALJ concluded that

the Company violated 29 U.S.C. § 158(a)(1) when Julio Pessoa

created “an impression of surveillance” by indicating that the

Company     was        “closely      monitoring      the    extent       of    an    employee’s

union     involvement.”          J.A.       17-18.   The    ALJ    further       found      that,

based      on     Pessoa’s        statements,        the    timing        of    the       adverse

employment            actions,       and     comparator      evidence,          the       Company

discriminated against Membrino’s union activities in violation

of 29 U.S.C. § 158(a)(1) and (a)(3) by changing his working

conditions and subsequently terminating him. Finally, the ALJ

concluded that the Company’s unilateral change to its vehicle-

use policy was unlawful because, when employees are represented

by   a    union,       29    U.S.C.     §    158(a)(5)      requires      an    employer      to

bargain with the union before changing employment terms, and the

Company failed to undertake such bargaining here.

         The ALJ ordered the Company to reinstate Membrino with back

pay, make both Membrino and Cappetta whole for any losses that

                                                6
resulted from the unilateral change to their employment terms,

and post a notice of union members’ rights on Company job sites.

A three-member panel of the NLRB reviewed the ALJ’s ruling and

affirmed on all issues relevant to this appeal. The Company now

petitions for review of the NLRB order, and the Board cross-

petitions for enforcement of that order.



                                      II.

      The   NLRB    determined    that    the    Company      committed   multiple

violations of the NLRA, and the decision below is entitled to

deference      in   this   court.   The       NLRB’s   factual       findings    and

application of law to facts are binding “if they are supported

by substantial evidence on the record as a whole.” WXGI, Inc. v.

NLRB, 243 F.3d 833, 840 (4th Cir. 2001) (citing 29 U.S.C. §

160(e), (f); Sam’s Club v. NLRB, 173 F.3d 233, 239 (4th Cir.

1999)). This court may not “displace the Board’s choice between

two   fairly    conflicting      views,       even   though    the    court     would

justifiably have made a different choice had the matter been

before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S.

474, 488 (1951). And, although we review legal conclusions de

novo, we must defer to the NLRB’s interpretation of the NLRA “if

it is reasonably defensible.” Indus. TurnAround Corp. v. NLRB,

115 F.3d 248, 251 (4th Cir. 1997). For the reasons that follow,

we conclude that the NLRB’s order must be enforced.

                                          7
                                           A.

      Pursuant   to     29    U.S.C.   §     158(a)(1),        an   employer       may    not

“interfere with, restrain, or coerce employees in the exercise

of” their union rights. In determining whether an employer has

violated this provision, we look to “whether, under all of the

circumstances,    the        employer’s      conduct     may     reasonably        tend    to

coerce or intimidate employees.” NLRB v. Air Contact Transp.,

Inc., 403 F.3d 206, 212 (4th Cir. 2005) (quoting Medeco Sec.

Locks, Inc. v. NLRB, 142 F.3d 733, 745 (4th Cir. 1998) (internal

quotation   marks      omitted)).      Substantial         evidence           supports    the

NLRB’s determination that the Company -- acting through owner

Julio Pessoa -- engaged in such conduct.

      While meeting with Membrino, Pessoa indicated that he knew

both that Membrino was involved in the union meeting two weeks

earlier    and   that    Membrino      had       asked    about      compensation         for

travel time at that meeting. It is well settled that a single

conversation can violate § 158(a)(1) if the employer’s statement

contains    “sufficiently         specific         information           to    convey     the

impression that the employer or its agents has conducted union

surveillance.” NLRB v. Grand Canyon Mining Co., 116 F.3d 1039,

1046 (4th Cir. 1997). Here, Pessoa’s statement suggested that

the   Company    was    tracking       not       only    which      of    its    employees

participated     in      union     meetings         but     also         what     opinions

participants expressed in those meetings. Under our standard of

                                             8
review,      the      statement      is    sufficient         to     support        the   NLRB’s

finding      that     the      Company    violated       29    U.S.C.     §     158(a)(1)      by

creating an impression of union surveillance.

                                              B.

       The record also substantiates the NLRB’s conclusion that

the    Company      acted       unlawfully       when    it    (1)      implemented       a   new

policy preventing Membrino from driving a company vehicle to his

jobsite      and    (2)     discharged       Membrino.         Pursuant        to    29   U.S.C.

§     158(a)(3),       an      employer     is       prohibited         from    engaging       in

“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.”           In   Wright       Line,    251

N.L.R.B. 1083 (1980), the NLRB established a two-step framework

for analyzing cases in which an employee alleges discrimination

and an employer responds by citing legitimate business purposes

for the challenged decision. TNT Logistics of N. Am., Inc. v.

NLRB, 413 F.3d 402, 406 (4th Cir. 2005). To begin, “the NLRB

General Counsel must prove by a preponderance of the evidence

that anti-union animus was a substantial or motivating factor in

the    discharge”         or     other     adverse       employment        action.        Dorsey

Trailers, Inc. v. NLRB, 233 F.3d 831, 839 (4th Cir. 2000). After

the General Counsel establishes its prima facie case, the burden

shifts to the employer to prove “that the discharge would have

occurred even in the absence of the protected activity.” USF Red

                                                 9
Star, Inc. v. NLRB, 230 F.3d 102, 106 (4th Cir. 2000). If “the

employer’s stated lawful reasons are non-existent or pretextual,

the defense fails.” Id. Here, the NLRB properly engaged in the

Wright       Line    analysis,   and    substantial       evidence       supports     its

conclusion that the challenged adverse employment actions were

motivated       by     anti-union      animus    rather     than     by    legitimate

business justifications.

                                          1.

       The Company failed to rebut the General Counsel’s prima

facie case that the Company limited Membrino’s use of Company

vehicles because of his union activities. To establish a prima

facie case, the General Counsel must, as it did here, establish

“(1) the existence of protected activity; (2) employer knowledge

of    that    activity;    (3)   adverse       employment    action       suffered     by

alleged discriminatees; and (4) a link, or nexus, between the

employees’          protected    activity       and   the    adverse       employment

action.” Wal-Mart         Stores,      Inc.,    352   N.L.R.B.     No.    103,   at    *5

(2008). Membrino’s attendance and participation at the September

30,    2008,    union     meeting   constitutes       protected      activity,        see

Local 100 of United Ass’n of Journeymen & Apprentices v. Borden,

373 U.S. 690, 695 (1963), and there is no dispute that Pessoa

was aware of the activity. The change to the vehicle-use policy

was an adverse employment action because it required Membrino to

secure his own transportation to and from his job site, which

                                          10
was 35-40 miles from his home. And, finally, “the timing of the

change, Pessoa’s comments to Membrino . . ., and the unexplained

failure to make the same change in the working conditions of

other   drivers”       were   sufficient          to   establish       a    nexus    between

Membrino’s protected union activity and the change in policy.

J.A. 19.

       The   Company     argues       that    the      rising        cost    of   fuel     and

changing     project     requirements         led      to   the      decision     to     leave

Company      vehicles    parked        at     job      sites      overnight.        However,

substantial evidence supports the NRLB’s determination that the

Company’s justifications were pretextual and that its actions

were    thus    unlawful.       Several       other      truck       drivers      were     not

required to report for work at their job sites, and the policy

was scrapped in short order even though work at Membrino’s site

--   35-40     miles   from    the    Company’s        main     construction        yard    --

continued       well    after        his     termination.            This    evidence       is

sufficient      to     support       the     NLRB’s     decision        to    reject       the

Company’s claimed justifications for the policy change.

                                             2.

       The   Company    also     failed       to    rebut      the    General     Counsel’s

prima facie case that Membrino was discharged because of his

protected union activities. As discussed above, the Company was

aware of Membrino’s participation in the union meeting. The NLRB

found that the requisite nexus between union participation and

                                             11
Membrino’s discharge was demonstrated by Pessoa’s inquiry with

another employee regarding Membrino’s union activities, Pessoa’s

statements to Membrino, and the timing of the discharge relative

to the foregoing two incidents.

     The Company argues that it fired Membrino for legitimate,

nondiscriminatory reasons, to wit, because he caused significant

damage    to    his   Company      vehicle        and    because      he    failed      to

personally     report    the     damage   to      Pessoa.      Relying     on    (1)    the

Company’s      disparate      treatment     of    Membrino      relative        to   other

employees who accidentally damaged Company equipment and (2) its

termination of Membrino based on a policy which, “assuming it

existed, was never communicated to him,” the NLRB concluded that

the Company’s proffered justifications were pretextual and thus

that Membrino’s discharge was unlawful. J.A. 22.

     The record provides adequate justification for the NLRB’s

finding   of    disparate       treatment.       Two    Company      employees,        Juan

Carlos    Martinez      and     Purcell   Smith,        each    caused      significant

accidental      damage     to     Company        equipment      in    the       2007-2009

timeframe, neither was terminated, and both were required only

to reimburse the Company for the damage in order to maintain

their employment. In the case of Martinez, he “neither wrote an

accident report nor went to see Julio Pessoa the same day,” yet

he was not terminated. J.A. 39.



                                          12
       The record also substantiates the NLRB’s finding that the

Company      did    not       have     a   policy   requiring       those       involved      in

Company vehicle accidents to personally report to Pessoa. The

Company employee handbook states: “In the case of a vehicular

accident, all information should be reported immediately to your

supervisor and the office.” J.A. 161. There is no mention of

reporting          to        Pessoa.       Moreover,      the       Company’s          general

superintendent testified that there were no additional accident-

reporting procedures beyond the handbook requirement that those

involved     report          the   incident    to   their     supervisor         and   file    a

written report with Pessoa’s office.

       Because there is substantial evidence to undermine both of

the Company’s proffered justifications for terminating Membrino

--   that    he    damaged         Company    equipment       and   that    he    failed      to

personally report the damage to Pessoa -- we agree with the

NLRB’s      finding         that    Membrino’s      discharge       was    the    result      of

unlawful animus against his protected union activities.

                                               C.

       Finally,             substantial       evidence        supports       the       NLRB’s

conclusion that the Company violated 29 U.S.C. § 158(a)(5) when

it unilaterally changed its vehicle-use policy without offering

the union an opportunity to bargain over the modification. The

NLRA    imposes         a    duty    on    employers     to     engage     in     collective

bargaining with organized labor regarding “rates of pay, wages,

                                               13
hours   of   employment,    or   other      conditions   of   employment.”   29

U.S.C. §§ 158(a)(5), 159(a). “Unilateral action by an employer

without prior discussion with the union does amount to a refusal

to negotiate” and constitutes a violation of § 158(a)(5). NLRB

v. Katz, 369 U.S. 736, 747 (1962).

     As an initial matter, the Company argues that the change in

its vehicle-use policy is “outside the scope” of the provision

because it involves a decision about where and how the Company’s

property     is   stored.    Petr’s    Br.    at   66.   However,   the     NLRB

explicitly found that the change in vehicle-use policy “was a

sufficiently significant change in the terms and conditions of

Membrino and Cappetta’s employment to put the new policy into

the category of a mandatory subject of bargaining.” J.A. 19.

This interpretation of the statutory phrase “other conditions of

employment”       is   at   least     “reasonably    defensible,”     and     we

therefore defer to the NLRB’s conclusion that the change falls

within the coverage of § 158(a)(5). See Sure-Tan, Inc. v. NLRB,

467 U.S. 883, 891 (1984); Indus. TurnAround, 115 F.3d at 251.

     It is undisputed that the Company never provided the union

with notice of the proposed change, much less an opportunity to

bargain over it. We agree with the NLRB’s determination that the

Company violated 29 U.S.C. § 158(a)(5) when it required Membrino

and Cappetta to report to work at their job sites rather than at

the Company’s construction yard.

                                       14
                               III.

     For the foregoing reasons, this court grants enforcement of

the NLRB’s order and denies the Company’s petition for review. *



                                      PETITION FOR REVIEW DENIED;
                        CROSS-APPLICATION FOR ENFORCEMENT GRANTED




     *
       The order may need to be modified to reflect the union’s
alleged decertification following the operative facts of this
case. We leave any such modification to the discretion of the
NLRB.



                                15
