Unpublished

UNPUBLISHED
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
No. 03-2420
TKC, a joint venture,

Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
No. 03-2522
NATIONAL LABOR RELATIONS BOARD,

Petitioner,
versus
TKC, a joint venture,
Respondent.
On Petition for Review and Cross-application for Enforcement of an

Order of the National Labor Relations Board. (5-CA-30504; 5-CA30554).
Argued:
October 26, 2004
Decided:
January 6, 2005
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior

Circuit Judge.
Enforced by unpublished per curiam opinion.
ARGUED: Abram William VanderMeer, Jr., PENDER &

COWARD, P.C.,
Virginia Beach, Virginia, for TKC. David A. Seid, Office of the
General Counsel, NATIONAL LABOR RELATIONS BOARD, Washington, D.C.,
for the Board. ON BRIEF: Arthur F. Rosenfeld, General Counsel,
John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson,
Associate General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, Meredith L. Jason, Supervisory Attorney, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for the Board.
Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
PER CURIAM:
The National Labor Relations Board (the Board) found that
TKC, a joint venture of several construction companies, was in
violation
of
the
National
Labor
Relations
Act.
Among
other
violations, the Board found that TKC coercively interrogated an

employee
about
his
union
status
and
activities in support of that union.
then
fired
him
for
his
Because there is substantial
evidence in the record to support the Boards findings, we enforce

its order.
I.
TKC was the general contractor responsible for installing the
foundations of the Woodrow Wilson Bridge which spans the Potomac
River between Maryland and Virginia.
TKC employed approximately 150 people.
At the peak of the project,

One of those employees was
Marcus Lumpkin, a crane operator, who was hired on January 11, 2002
after responding to an ad he saw on the Internet.
Lumpkin says
that when he was hired, the company recruiter told him that the job
would last five or six years.
Shortly
after
Lumpkin
started
working
for
TKC,
the
International Union of Operating Engineers (the Union) began an

organizing campaign.
As part of their effort, Union organizers
handed out literature at the entrance to the job site.
In early
February, Lumpkin spoke with Union representatives and agreed to
occasionally pass out handbills before work.
He placed a union
sticker on his hard hat and one on his car bumper.

On February 7, 2002, Lumpkin had a conversation with John
Mayer, a TKC area manager, about Lumpkins intentions to join the
Union.
According to Lumpkin, Mayer asked him if he was a member of
the Union.
When Lumpkin responded that he hoped to be, Mayer
rudely asked -- with profanity -- why anyone would want to do such

a thing.
Mayer does not recall this conversation.
One week later, on February 14, 2002, Mayer laid off Lumpkin,
explaining that he was no longer needed.
TKC claims that Lumpkin
was fired because the company had recently dismantled a crane, and
thus had more crane operators than it needed.
However, Lumpkin
testified that immediately after he was fired, Mayer again asked

him if he had joined the Union.
After hearing that Lumpkin had not
yet done so, Mayer apparently replied, Well tell them to get you
a job, and walked away.
Mayer denies having said this.
Lumpkin further testified that on the following day, February

15, he went to Mayer to ask about a discrepancy in his paycheck.
According to Lumpkin, Mayer asked if any of his boys had found
Lumpkin a job yet.
When Lumpkin said no, Mayer replied, Well,
tell them to stay the hell away from my gate.
Mayer again denies
these allegations.
Upset over Lumpkins layoff, the Union distributed petitions
protesting TKCs decision to fire him. To spotlight its complaints
over TKCs labor practices, the Union organized a strike and a

picket line outside the projects entrance gates on April 18, 2002.
Two crane operators -- Daniel McVicker and William Cunningham -participated in the protest and did not report to work that day.
TKC issued written warnings to Cunningham and McVicker for their
unexcused absences.
Following these events, the Union filed charges with the NLRB,
accusing TKC of committing unfair labor practices.
A two-day
hearing on the issue was held before an Administrative Law Judge

from April 28-29, 2003.
On October 17, 2003, the Board adopted the
ALJs findings and determined that TKC had violated the National
Labor Relations Act in three separate ways. First, the Board found
that TKC violated 8(a)(1) of the Act by coercively interrogating
Lumpkin on February 7.
Second, it found TKC to have violated
8(a)(3) and (a)(1) of the Act by laying off Lumpkin because of

his
activities
in
support
implying as much to him.
of
the
Union
and
by
impermissibly
And finally, the Board found that the
company violated 8(a)(1) of the Act by issuing disciplinary

warnings to McVicker and Cunningham for engaging in protected
activity.
TKC now appeals.
II.
The Boards findings of fact are conclusive if supported by
substantial evidence on the record considered as a whole.
29
U.S.C 160(e) (2000).
See also Universal Camera Corp. v. NLRB,
340 U.S. 474, 487-88 (1951).
In short, we must decide whether on
this record it would have been possible for a reasonable jury to

reach the Boards conclusions. Allentown Mack Sales & Serv. Inc.,
v. NLRB, 522 U.S. 359, 366 (1998).
The same deferential standard
of review applies to the Boards determinations of mixed questions

of law and fact. Sams Club v. NLRB, 173 F.3d 233, 239 (4th Cir.
1999).
Such deference is particularly appropriate when reviewing
determinations of credibility.
Because the balancing of the
credibility of witnesses is at the heart of the fact-finding

process, . . . it is normally not the role of reviewing courts to
second-guess a fact-finders determinations about who was the more
truthful witness. NLRB v. Transpersonnel, Inc., 349 F.3d 175, 184
(4th Cir. 2003).
Thus, absent exceptional circumstances, the
ALJs credibility findings when adopted by the Board are to be

accepted by the reviewing court.
NLRB v. Air Prods. & Chems.,
Inc., 717 F.2d 141, 145 (4th Cir. 1983) (internal quotation and
punctuation omitted).
In this case, an ALJ heard testimony from all witnesses, and
authored a thorough opinion defending his conclusions.
opinion was subsequently adopted by the Board.
102 (2003).
This
TKC, 340 N.L.R.B.
As to the February 7, 2004 encounter between Lumpkin
and Mayer, the ALJ found Lumpkins demeanor and detailed
testimony to be more believable than Mayers denial.
For similar
reasons, the ALJ credited Lumpkins version of events on February

14, 2002, the day he was fired, finding him to be a more credible
witness than Mayer.
Thus, in light of the hostile encounters
between Lumpkin and Mayer and in accordance with the test outlined
in Wright Line, 251 N.L.R.B. 1083 (1980), the ALJ rejected TKCs
claim that it fired Lumpkin simply because the company had no work
for him to do.
The ALJ also considered the claim that Lumpkins co-workers,
McVicker and Cunningham, were improperly punished after they missed
work to protest Lumpkins dismissal.
The ALJ was persuaded that
these two employees were in fact disciplined for engaging in

protected activity.
Applying, as we must, a deferential standard
of review to this conclusion, we find no error in the ALJs

application of Supreme Court precedent to the facts of this case.
See NLRB v. Washington Aluminum Co., 370 U.S. 9, 16-17 (1962)
(governing permissible discipline of employees after a concerted
work stoppage with no prior notice).
III.
We have reviewed the record, briefs, and applicable case law
on this matter, and we have had the benefit of oral argument.
Our
careful review persuades us that the Boards decision is based upon
substantial evidence and is without reversible error. Accordingly,

the Boards October 17, 2003 order shall be
ENFORCED.

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

TKC, a joint venture,

NATIONAL LABOR RELATIONS BOARD,

On Petition for Review and Cross-application for Enforcement of an

October 26, 2004

Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior

Enforced by unpublished per curiam opinion.

ARGUED: Abram William VanderMeer, Jr., PENDER &

Unpublished opinions are not binding precedent in this circuit.

violations, the Board found that TKC coercively interrogated an

activities in support of that union.

Because there is substantial

evidence in the record to support the Boards findings, we enforce

At the peak of the project,

International Union of Operating Engineers (the Union) began an

As part of their effort, Union organizers

handed out literature at the entrance to the job site.

February, Lumpkin spoke with Union representatives and agreed to

occasionally pass out handbills before work.

sticker on his hard hat and one on his car bumper.

According to Lumpkin, Mayer asked him if he was a member of

When Lumpkin responded that he hoped to be, Mayer

rudely asked -- with profanity -- why anyone would want to do such

Mayer does not recall this conversation.

TKC claims that Lumpkin

testified that immediately after he was fired, Mayer again asked

After hearing that Lumpkin had not

Mayer denies having said this.

Lumpkin further testified that on the following day, February

When Lumpkin said no, Mayer replied, Well,

tell them to stay the hell away from my gate.

Mayer again denies

over TKCs labor practices, the Union organized a strike and a

hearing on the issue was held before an Administrative Law Judge

On October 17, 2003, the Board adopted the

Second, it found TKC to have violated

8(a)(3) and (a)(1) of the Act by laying off Lumpkin because of

implying as much to him.

And finally, the Board found that the

company violated 8(a)(1) of the Act by issuing disciplinary

TKC now appeals.

U.S.C 160(e) (2000).

See also Universal Camera Corp. v. NLRB,

340 U.S. 474, 487-88 (1951).

In short, we must decide whether on

this record it would have been possible for a reasonable jury to

The same deferential standard

of review applies to the Boards determinations of mixed questions

Because the balancing of the

credibility of witnesses is at the heart of the fact-finding

Thus, absent exceptional circumstances, the

ALJs credibility findings when adopted by the Board are to be

NLRB v. Air Prods. & Chems.,

TKC, 340 N.L.R.B.

As to the February 7, 2004 encounter between Lumpkin

and Mayer, the ALJ found Lumpkins demeanor and detailed

testimony to be more believable than Mayers denial.