Dynasteel Corporation v. National Labor Relations Board

United States Court of Appeals
Fifth Circuit
F I L E D
January 16, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60006
DYNASTEEL CORPORATION,
Petitioner-Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross-Petitioner,
Petition for Review of an Order of the
National Labor Relations Board
Before SMITH, BENAVIDES, and PRADO, Circuit Judges.
BENAVIDES, Circuit Judge:
An administrative law judge (ALJ) found that Dynasteel
Corporation engaged in a number of unfair labor practices in
violation of the National Labor Relations Act (NLRA). 29 U.S.C. §§
151-69. The unfair practices arose out of Dynasteel’s
discrimination against employees and prospective employees
affiliated with labor unions. The National Labor Relations Board
(NLRB) adopted a substantial majority of the ALJ’s findings, issued
a cease and desist order, and instructed Dynasteel to undertake

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several affirmative remedies. The NLRB now seeks to enforce its
order.
Dynasteel challenges the NLRB’s factual findings. Its
arguments amount to little more than reasserting, before this
Court, that its witnesses should have been credited over union
witnesses. Finding that substantial evidence supports all of the
NLRB’s findings, we DENY Dynasteel’s petition for review and GRANT
the NLRB’s request to enforce its order.
I. NLRB’S FACTUAL FINDINGS
Dynasteel is a steel manufacturer with several plants. The
NLRB found that unfair labor practices occurred at facilities in
Iuka, Mississippi and Millington, Tennessee. The Iuka activity
involved illegal threats and discipline of Dynasteel employees,
while the Millington activity involved discrimination against job
applicants.
A. Illegal Threats, Discipline and Discharge in Iuka
In July 2001, Dynasteel altered employee benefits and required
workers to purchase some of their own equipment. Employees found
this to be an unwelcome development, and discussed forming a union.
Eddy Goss and Dee Vaughn, the only two permanent employees in the
maintenance department, spearheaded the effort.
When local supervisors learned that employees were possibly
forming a union, they responded with hostility. The Iuka plant
manager, Mark Jones, told Goss that Dynasteel would “shut the doors

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and fire everybody before [it] let a Union come in.” In July, shop
foreman Glen Adcock told a group of employees virtually the same
thing. In August, Jones again told Goss in front of co-workers
that there “wouldn’t be no union,” and supervisor Bill Sanders
subsequently put his arm around Goss and told him that if a union
started, “you’ll be the first one fired.” There were several
similar incidents.
In mid- to late-September, Goss and Vaughn contacted the
Steelworkers and Boilermakers unions. Following the unions’
advice, the pair contacted 80 to 90 percent of the Iuka plant
employees and collected names of those interested in forming a
union. On the morning of October 3, foreman Adcock asked Goss
whether the workers were starting a union, and he replied “probably
so.” Adcock then indicated that he would have to get Goss involved
in management so he could not be involved with the union.
He then pointed to a number of tools left out overnight and a
work truck with its windows down, and instructed Goss to fill out
disciplinary forms for Vaughn and a temporary maintenance employee,
Tim Barnes. Goss objected to filling out the disciplinary forms,
but eventually did as instructed. Goss told Vaughn and Barnes that
he was forced to write them up and not to worry about it. Adcock
then called Vaughn and Barnes to his office and issued their
disciplinary forms. By all accounts, this was the first time Goss
administered any type of punishment.
Later that same day, Goss was called into manager Jones’s

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office and terminated. Jones said it was not his decision and that
the company’s general counsel, Jack Melvin, told him to fire Goss.
Goss called Jones again the next day and tape recorded the
conversation, where Jones once again claimed he fired Goss at the
direction of Melvin. While admitting to these statements, Jones
claimed at the administrative hearing that Goss was fired for poor
job performance and for leaving work equipment out unsecured
overnight.
The following week Vaughn organized approximately 25
employees, including Goss, for a lunchtime union meeting at a
nearby diner. Vaughn drove a company truck along with two other
employees to the meeting. During the meeting, supervisor Sanders
walked into the diner and looked around without purchasing anything
while Jones waited for him in a truck outside. When Vaughn
returned from the meeting, Adcock called him into an office and
terminated him, supposedly for taking a company truck off the
premises. While Dynasteel’s handbook does provide that employees
are forbidden from taking company trucks off the premises without
permission, several employees testified that the rule was regularly
disregarded without consequence.
In mid-October, after their terminations, Goss and Vaughn
returned to the plant wearing union buttons and were greeted in a
reception area by secretary Glenda Basham. In a tape-recorded
conversation, Basham indicated that they would not be rehired while
wearing union buttons and reiterated that the company did not want

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1 The ALJ did fault Dynasteel for Basham’s remarks because
Melvin, a supervisor, failed to disavow her statements. The NLRB
did not adopt the ALJ’s finding on that count, since it was not
clear that Melvin ever heard Basham’s statement.
2 Dynasteel uses the lack of applications as a justification
for failing to hire the union organizers. It also repeatedly
points out that none of the applicants passed a welding test,
although the company never attempted to administer welding tests
for any of them.
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a union. General Counsel Melvin then emerged and asked them to
leave the property. The NLRB did not fault Dynasteel for Basham’s
statements as she was not a supervisor.1
B. Failure to Hire or Consider for Hire in Millington
In early November, 2001, union organizer Barry Edwards saw a
Dynasteel advertisement seeking welders and fitters in a Memphis
newspaper. On November 5, Edwards called Dynasteel and discussed
the openings with receptionist Rhonda Duffin. He asked if he
needed to turn in an application and she told him a resumé would
suffice. Edwards then contacted two unemployed union members, Ron
Fuqua and Jeff Pearson, to apply for the openings with him. Each
of them had significant welding experience, ranging from five to
thirty-four years. Edwards dropped off the three resumés—with each
identifying himself as a union organizer—to Dynasteel’s president,
Harold Trusty, on November 5. Trusty indicated it was unnecessary
for them to fill out applications.2
Between November 5 and 16, Dynasteel hired six welders, but
none of the three union applicants were contacted. None of the six
hired welders had more than five years of experience, and two of

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them did not have applications in the record.
On December 5, union member Tony Churchill attempted to apply
for a position at the Memphis plant. He arrived wearing a union
shirt. General Counsel Melvin, without asking what position
Churchill was seeking, told him that the company was not hiring
during the month of December. He did not give Churchill the
opportunity to fill out an application or take a welding test. The
company hired three laborers later that month.
II. STANDARD OF REVIEW
Dynasteel’s arguments amount to little more than complaints
that its witnesses should have been credited over union witnesses.
We do not make a habit of second guessing such credibility
determinations. This Court will uphold the NLRB’s fact findings so
long as they are “supported by substantial evidence on the record
considered as a whole.” NLRB v. McCullough Envtl. Servs., Inc., 5
F.3d 923, 927 (5th Cir. 1993).
Where, as here, there are two materially conflicting versions
of the events requiring that one story be credited over the other,
the ALJ’s credibility determination must be deferred to unless it
(1) is unreasonable, (2) contradicts other findings, (3) is based
upon inadequate reasons or no reason, or (4) is not justified by
the ALJ. Asarco, Inc., v. NLRB, 86 F.3d 1401, 1406 (5th Cir.
1996).
III. SUBSTANTIAL EVIDENCE SUPPORTS ALL THE NLRB’S FINDINGS

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NLRA Section 8(a)(1) makes it unlawful to “interfere with,
restrain, or coerce employees in the exercise of rights” to
collective organization. 29 U.S.C. § 158(a)(1). Section 8(a)(3)
makes it unlawful for employers, “in regard to hire or tenure of
employment . . . to encourage or discourage membership in any labor
organization.” Id. at § 158(a)(3). The NLRB found numerous
violations of these sections.
The violations are based on four findings that Dynasteel now
disputes: (1) Goss was not a supervisor, and therefore was an
employee covered by the NLRA, (2) Goss and Vaughn were terminated
due to their union activities, (3) Edwards, Pearson, Fuqua and
Churchill were not hired or considered for hire due to their union
activities, and (4) Dynasteel threatened, interrogated and spied on
employees to deter the formation of a union. Generally, Dynasteel
argues that its witnesses were more believable and should have been
credited over union witnesses, but that is precisely the type of
judgment we leave to the ALJ. Substantial evidence supports each
of the disputed findings.
A. Goss was not a Supervisor
The NLRA generally only protects employees, thereby excluding
supervisors from its protections. Id. at §§ 151, 152(3). The NLRA
defines a supervisor as:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward or discipline other
employees, or responsibility to direct them, or to adjust

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their grievances, or effectively to recommend such
action, if . . . such authority is not of a merely
routine or clerical nature, but requires the use of
independent judgment.
Id. at § 152(11).
The burden of demonstrating Goss’s supervisory status rests
with Dynasteel as the party asserting it. “It falls within the
Board’s discretion to determine, within reason, what scope of
discretion qualifies.” NLRB v. Kent. River Cmty. Care, Inc., 532
U.S. 706, 713 (2001). Dynasteel argues that Goss was a supervisor
on three bases: Goss (1) disciplined Vaughn and Barnes on one
occasion, (2) effectively recommended Vaughn’s hire, and (3)
assigned work and directed employees.
The NLRB’s finding that Goss was not a supervisor is supported
by substantial evidence and was within its scope of discretion.
First, it is uncontested that the only time Goss disciplined
anybody was hours before he was fired, when he was instructed to
write disciplinary memos for employees Vaughn and Barnes. The ALJ
credited Goss’s and Vaughn’s testimony that this was a subterfuge
to make it appear that Goss was a supervisor, and that he was
unlawfully forced to write the disciplinary memos.
As to the second point, even if Goss recommended Vaughn for
hire—an issue that is refuted by Goss—there is nevertheless no
evidence in the record that his recommendation was of any decisive
import.
Third, Barnes testified with regard to Goss that, “I guess he

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was supervisor, but I don’t know.” Goss told him to do “little-
bitty particular things” like sweeping the floor and making welding
leads. Such instructions should be considered “routine or clerical
in nature” under the NLRA, and it is within the Board’s discretion
to decide whether those activities made Goss a supervisor. Kent.
River Cmty. Care, Inc., 532 U.S. at 713.
Dynasteel’s repeated reliance on the fact that Goss was “the
highest paid employee in his department” is almost comical when
reminded that the department had only two permanent employees, Goss
and Vaughn. Goss had been employed by Dynasteel approximately six
months longer than Vaughn, thereby explaining his marginal pay
advantage.
We conclude that the NLRB was well within its discretion when
it found on these facts that Goss was not a supervisor.
B. Goss and Vaughn Were Discharged due to Union Animus
The NLRB found that Goss and Vaughn were discharged in
retaliation for attempting to start a union. The ALJ credited
Goss’s and Vaughn’s testimony, finding it to be “clear, detailed,
and specific” and supported by the evidence. Specifically, Goss
was fired the day he filled out his first ever disciplinary form
and was told repeatedly that he would be fired if he started a
union. Vaughn was fired the day he was seen organizing a union
meeting. Their testimony and the remarkable timing of their
terminations provide substantial evidence that they were fired due

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3 Dynasteel’s explanation of Sanders’s activity when he spied
on Vaughn in the diner is dubious at best. At one point, it
claims that Sanders went inside the diner to assess who took the
company truck, despite the fact that upon seeing twenty-five
employees in the diner Sanders never asked who took it. (Blue
Br. at 55). At another point, Sanders claims that he was simply
trying to get a plate of food, making it peculiar that he left so
quickly without actually getting food. Id. In either case, this
testimony was discredited by the ALJ, and we do not disturb that
finding.
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to union animus.
Dynasteel presented witnesses that claimed Goss was fired for
leaving tools unsecured and that Vaughn was fired for taking a
company truck to a lunch meeting. But the existence of divergent
testimony is not enough to make the administrative findings
unreasonable or unsupported. Once again, we are faced with
contradictory testimony, and we defer to the NLRB’s findings so
long as they are reasonable and supported. There is no requirement
that they be undisputed. The discredited and highly suspect3
testimony of supervisors does not compel a finding that Goss and
Vaughn would have been fired absent the protected activity.
C. Applicants Not Hired or Considered for Hire due to Union Animus
There was substantial evidence to support the finding that
applicants Edwards, Pearson, Fuqua and Churchill were not hired or
considered for hire due to union animus. On Friday, November 2,
Dynasteel ran an advertisement seeking welders and fitters for its
Memphis plant. The following Monday, November 5, union
representative Edwards submitted resumés for himself, Pearson and

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4 Dynasteel also contends that it hires using a reverse
chronological method, giving first consideration to those
candidates that apply latest (closer to the time of hire).
Dynasteel’s account of its hiring policy is suspect. Dynasteel
argues that it hired the most recent applicant every time a job
position opened up, and during the several days that the union
applicants were the most recent applicants, no job positions were
open. But once somebody else applied, on November 11, there was
suddenly a job opening and that person became the most recent
applicant. It is a whimsical policy that could insulate any
company’s hiring choices, but the ALJ was not obligated to
believe such a far-fetched account.
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Fuqua, with each identifying himself as a union member. Two
welders were hired that very day, one the next, and one each on
Nov. 11th, 13th, 14th, and 16th. The most experienced person hired
had five years of welding experience, the same amount as the least
experienced of the three union applicants. This provided
substantial evidence that (1) the employer was hiring, (2) the
applicants were adequately qualified, and (3) union animus
contributed to the decision not to hire the applicants.
Dynasteel denies that its decision was based on union animus,
and claims that the applicants were not hired because they did not
complete an application or welding test.4 But Edwards testified
that both a receptionist and Dynasteel’s president informed him
that a resumé was all that was needed to apply. While Edwards’s
testimony is enough to constitute substantial evidence, this is
further supported by the fact that two hired applicants had no
application on file.
As for Churchill, who attempted to apply on December 5 wearing
a union t-shirt, General Counsel Melvin told him that the company

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5 At oral argument, Dynasteel’s counsel attempted to undercut
the ALJ’s reasoning that Churchill was turned away because he was
wearing a union t-shirt. Counsel argued that, “if I were wearing
a Drew Brees jersey, you wouldn’t assume that I’m Drew Brees.”
But, as opposing counsel pointed out, we would probably assume he
was a Drew Brees fan, much like Melvin would have assumed that
Churchill was a union supporter.
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was not hiring during December and would not accept any application
materials from him. Melvin did not ask Churchill about his
experience or what position he was applying for. Dynasteel hired
three laborers in the weeks after Churchill attempted to apply.
Dynasteel argues that its activities were consistent with a
general plan not to hire welders or fitters during December, and
points out that it did not hire any welders after Churchill
attempted to apply. But its theory is drastically undercut by the
fact that Melvin did not ask what type of job Churchill was
applying for. For all Melvin knew, Churchill wanted to be a
laborer, and Dynasteel hired three laborers in subsequent weeks.
The best account of what happened, and an account that is at least
supported by substantial evidence, is that Churchill was turned
away because of his union affiliation as signified by his shirt.5
D. Illegal Threats, Surveillance and Interrogations
Finally, the NLRB adopted numerous findings that Dynasteel
threatened, interrogated and spied on its employees attempting to
form a union. The numerous threats include: (1) Adcock telling
employees that Dynasteel would shut down before it let a union in,
(2) Jones telling Goss that “there wouldn’t be no Union come in

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here,” and (3) Sanders telling Goss he would be the first one fired
if a union came in. Interrogations include (1) Adcock asking Goss
if they were starting a union and, post-termination, (2) Jones
asking Goss “why do they want a union?” The only incident of
surveillance occurred when Jones and Sanders arrived at a company
diner during a union meeting and Sanders stepped in, looked around,
and left just minutes before Vaughn was fired.
Dynasteel’s only complaint with regard to these findings is
that the ALJ credited the wrong witnesses. Once again, that is a
judgment we generally leave to the ALJ and NLRB, and will defer to
their findings so long as they are reasonable and supported by
substantial evidence. Dynasteel never shows how the findings were
unreasonable or unsupported, so we defer to the NLRB on the matter.
IV. CONCLUSION
Because all the NLRB’s findings are supported by substantial
evidence, Dynasteel’s petition for review is DENIED, and the NLRB’s
request to enforce its order is GRANTED in full.

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