Windsor Redding Care Center, LLC v. NLRB, 944 F.3d 294

Background

Windsor Redding Care Center is a skilled nursing facility whose nurses were unionized; Angelia Rowland was a long‑time nurse and active union participant.
On May 24, 2012, while escorting a verbally volatile patient (“Resident B”) to a doctor’s appointment, three doctor‑office employees reported hearing Rowland tell the resident “If you don’t knock that off, I’m going to beat your ass.”
The Company suspended Rowland pending investigation and, after discussions among supervisors, terminated her on May 29, 2012 under a zero‑tolerance elder‑abuse policy. Rowland denied making the statement.
An ALJ found the Company reasonably concluded Rowland committed willful abuse, that the zero‑tolerance policy justified discharge, and that the Company carried its Wright Line step‑two burden (i.e., would have fired Rowland regardless of union activity).
The NLRB majority reversed the ALJ on step two, relying on (1) a purportedly comparable employee (Antonson) who received only a warning, and (2) the Company’s continued post‑discharge investigation, which the Board viewed as indicating doubt about the accusations.
The D.C. Circuit granted Windsor Redding’s petition, holding the Board failed to confront material record evidence (the zero‑tolerance policy, ALJ findings, and plausible explanations for the post‑discharge inquiry) and thus lacked substantial‑evidence support for its finding as to Rowland; the remainder of the Board Order was enforced.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether GC proved anti‑union motivation under Wright Line (step one)	GC relied on Gilles’s statement “This is about the Union” and timing to show union activity was a motivating factor	Company disputed motive, emphasizing investigation and legitimate elder‑abuse policy	Court accepted that Board found step one satisfied; review focused on step two reasons only
Whether Company met Wright Line step two (would have fired absent union motive)	Board: comparator Antonson and post‑discharge investigation show Company wouldn’t have fired on accusations alone	Company & ALJ: zero‑tolerance policy, three neutral witnesses, thorough investigation, and explanations for post‑discharge probing show discharge would have occurred regardless	Court held Board lacked substantial evidence to reject ALJ; Company met step two as to Rowland; Board’s reversal unsupported
Whether Board adequately engaged ALJ findings and dissenting Member’s analysis	Company: Board ignored ALJ’s factfindings and zero‑tolerance policy and failed to address dissent’s non‑frivolous points	Board: free to substitute judgment for ALJ	Court held Board failed to explain disagreement and did not adequately engage material record/dissenting arguments; arbitrary in part
Whether Antonson was a proper comparator for disparate treatment	GC: Antonson’s lighter discipline shows disparate treatment	Company: Antonson’s incident differed (mild roughness/eye‑roll vs. an alleged verbal threat found to be willful abuse)	Court held record does not support that Antonson was similarly situated; Board’s disparate‑treatment inference unsupported

Key Cases Cited

NLRB v. Transp. Mgmt. Corp., 462 U.S. 393 (Wright Line burden‑shifting framework)
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (arbitrary and capricious review)
Universal Camera Corp. v. NLRB, 340 U.S. 474 (agency must consider record detracting evidence)
Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929 (Board must explain disagreement with ALJ)
Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630 (substantial‑evidence standard for Board factual findings)
Hawaiian Dredging Constr. Co. v. NLRB, 857 F.3d 877 (requirement to engage dissenting Member’s arguments)
Universal Camera Corp. v. NLRB, 340 U.S. 474 (agency must weigh contrary evidence in record)
David Saxe Productions, LLC v. NLRB, 888 F.3d 1305 (Board must account for record evidence that detracts from its conclusions)