Lou's Transport, Inc. v. National Labor Relations Board, 644 F. App'x 690

Hershey was a union-represented truck driver at Lou’s/TKMS working at a quarry where road and equipment conditions were dangerous; drivers repeatedly complained to management.
On Jan. 7, 2013 Hershey and co-worker Pledger discussed unsafe conditions and bad tires over a company two-way radio; profanity was used and managers overheard the exchange.
Management gave Hershey and Pledger a verbal warning (memorialized in writing) for "badmouthing" the company and offered Hershey reassignment, which he declined.
Hershey later posted multiple handwritten signs in his truck about working conditions; drivers engaged in a work stoppage over road safety.
On Mar. 27, 2013 management discovered the signs, viewed them in light of the prior radio incident, and terminated Hershey for the signs and for "continued" disparagement.
The NLRB and an ALJ found the termination violated Section 8(a)(1) because Hershey engaged in protected concerted activity; the Sixth Circuit denied Petitioners’ review and enforced the Board order.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Hershey’s Jan. 7 radio conversation was protected concerted activity	Hershey/NLRB: the radio conversation was concerted, job-related complaints entitled to §7 protection	Lou’s/TKMS: (did not preserve contest on appeal)	Court treated radio conversation as conceded protected concerted activity (issue unreviewable on appeal)
Whether employer knew of the protected activity	Petitioners: Board must make explicit finding that employer knew activity was protected; lack of such finding defeats liability	NLRB: employer was aware of the radio incident and signs; knowledge was implicit from record admissions	Court barred from considering this argument (not raised before Board); jurisdictional waiver applies
Whether protected activity motivated the discharge	NLRB: termination was motivated in part by radio conversation and signs, violating §8(a)(1)	Petitioners: termination was solely for the signs (non-protected conduct)	Held: substantial evidence (management admissions) shows firing was motivated in part by protected radio conversation, so §8(a)(1) violation
Whether Board needed to decide if signs themselves were concerted protected activity	Petitioners: signs not protected; if only reason for firing, no violation	NLRB: even if signs not protected, employer believed signs were protected concerted activity, making discharge unlawful	Court: unnecessary to resolve because finding as to radio conversation sufficed to support enforcement

Meijer, Inc. v. NLRB, 463 F.3d 534 (6th Cir. 2006) (Board deference and requirement of some subjective component to §8(a)(1) liability)
Pleasantview Nursing Home, Inc. v. NLRB, 351 F.3d 747 (6th Cir. 2003) (court jurisdiction over NLRB orders)
Beth Israel Hosp. v. NLRB, 437 U.S. 483 (Sup. Ct.) (judicial review of Board rules limited to consistency with Act and rationality)
Universal Camera Corp. v. NLRB, 340 U.S. 474 (Sup. Ct.) (definition of substantial evidence standard)
W.F. Bolin Co. v. NLRB, 70 F.3d 863 (6th Cir. 1995) (upholding Board factual findings supported by substantial evidence)
Conley v. NLRB, 520 F.3d 629 (6th Cir. 2008) (prima facie test for §8(a)(1) discrimination)
NLRB v. City Disposal Sys., Inc., 465 U.S. 822 (Sup. Ct.) (individual employee can engage in concerted activity when acting alone on behalf of others)
NLRB v. Main St. Terrace Care Ctr., 218 F.3d 531 (6th Cir. 2000) (concerted activity when acting to induce group action)
Turnbull Cone Baking Co. of Tenn. v. NLRB, 778 F.2d 292 (6th Cir. 1985) (employer admissions can support §8(a)(1) motive findings)
Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (Sup. Ct.) (issues not raised before Board generally cannot be asserted on judicial review)
S. Moldings, Inc. v. NLRB, 728 F.2d 805 (6th Cir. 1984) (jurisdictional bar where issue not raised before Board)