NAPLETON 1050, INC., D/B/A NAPLETON CADILLAC OF LIBERTYVILLE, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT
No. 19-1025
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2019 Decided October 6, 2020
Consolidated with 19-1064
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Tae Y. Kim argued the cause for petitioner. With him on the briefs was Daniel F. Lanciloti. James F. Hendricks Jr. entered an appearance.
Jared D. Cantor, Senior Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Peter B. Robb, General Counsel, David Habenstreit, Acting Deputy Associate General Counsel at the time the brief was filed, and Julie Brock Broido, Supervisory Attorney.
Before: MILLETT, WILKINS, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
Opinion concurring in part and dissenting in part filed by Circuit Judge RAO.
Napleton Cadillac petitions for review of the Board‘s decision. Its central objection is that, with respect to the adverse actions taken against two employees, its open intent to discriminate against employees for exercising their statutory right to unionize does not matter because Napleton Cadillac was intentionally punishing the entire workforce (including those two employees) for the vote to unionize, rather than retaliating against those employees because of their individual union activity.
We hold that the Board properly focused its analysis on the employer‘s discriminatory
I
A
The National Labor Relations Act makes it “the policy of the United States” to “encourag[e] the practice and procedure of collective bargaining[,]” and to “protect[] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”
To those ends, Section 7 of the Act protects employees’ rights “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]”
Section 8(a) of the Act enforces those rights by prohibiting employers from engaging in several types of unfair labor practices.
B
Napleton Auto Group owns at least fourteen vehicle dealerships in Illinois and neighboring states. In June 2016, the company bought Weil Cadillac, a dealership in Libertyville, Illinois, and rebranded it as Napleton Cadillac of Libertyville.
At the time that Napleton Auto Group acquired Weil Cadillac, the dealership was not unionized. But six of Napleton Auto Group‘s other dealerships were. The Napleton Auto Group dealerships that employed those other unionized employees were all members of the New Car Dealer Committee (“Dealer Committee“), a management-side bargaining association comprising more than 100 dealerships in the Chicago area.
Napleton Cadillac retained most of Weil Cadillac‘s employees, including all twelve car-servicing employees, who were lube technicians, semi-skilled technicians, apprentices, and journeyman mechanics.
One of the journeyman mechanics was David Geisler, who had worked at the dealership for twenty-two years and was “a GM world-class technician[.]” Napleton 1050, Inc., 367 N.L.R.B. No. 6, slip op. at 2 & n.5 (Sept. 28, 2018).
Another was Bill Russell, who had worked at the dealership for nearly thirty years but was on medical leave and receiving workers’ compensation at the time the dealership was acquired. Every month after the ownership change, Russell visited the dealership to provide a work status report from his doctor. He usually provided the reports to a human resources employee who reported to the office manager, Pam Griffin. On each visit, Russell also would stop to talk with the service manager, Walter “Scott” Inman, and discuss
This case arises out of two events at Napleton Cadillac: a union drive in 2016 and a strike in 2017.
1
In early August 2016, Local Lodge 701, International Association of Machinists & Aerospace Workers, AFL-CIO (“Union“) began a unionization drive at Napleton Cadillac. During the campaign, the employees neither openly supported nor discussed the Union at work.
Napleton Cadillac‘s management opposed unionization. As the Board‘s administrative law judge (“ALJ“) recounted, Inman and Tony Renello, Napleton Auto Group‘s corporate manager, led “three captive-audience luncheon meetings” to “discourage employees from voting for the Union[,]” and Napleton sent employees a “lengthy letter from Inman just before the election urging [them] to vote no[.]” Napleton, 367 N.L.R.B. No. 6, at 7, 15.
During Russell‘s August 2016 visit—the first one after the unionization drive started—Inman said to him, “I don‘t know why you guys couldn‘t have waited to see how things played out before you bring the union in.” Napleton, 367 N.L.R.B. No. 6, at 8. Inman and Russell then discussed when Russell might be able to come back to work. That same month, Russell attended a union organizing meeting. He later told Inman about his attendance there.
Inman brought up the Union again when Russell visited in September, asking, “Why couldn‘t you just wait and see how things played out?” Napleton, 367 N.L.R.B. No. 6, at 8. As Russell put it, Inman also said “that with the union coming in, people were going to get written up who were coming in late[;] if you punched in late, you would be written up[.]” Id.
Despite management‘s efforts, the Union won the representation election on October 18, 2016.
When Russell stopped by the dealership shortly after the election with an update from his doctor, Inman said to him, “Well, it looks like you guys had your way. You got the vote in. You got the union in.” Napleton, 367 N.L.R.B. No. 6, at 8. Russell recalled: “And then [Inman] said to me * * * it was kind of shitty and sneaky for me to come in there and vote and not even say hi to him. I said I didn‘t want to make a big deal of it. I was just coming in to vote and leave. Then we discussed when I‘d be coming back.” Id.
Two days later, Napleton Cadillac sent Russell a letter terminating his employment.
Russell returned the next week with a truck and trailer to pick up his tools. While at the dealership, he spoke with Inman, who said “I‘m sorry this happened.” Napleton, 367 N.L.R.B. No. 6, at 9. During their conversation, Bill Oberg, another mechanic, walked by, and Inman said, “That‘s the guy who started all this.” Id. Russell told Inman that “there were other people who got the union in here[,]” and that if Napleton Cadillac was “going after [Oberg], you‘re going after the wrong person.” Id. Inman did not deny that “all this” meant the union drive. Instead, he asked, “Really?” to which Russell replied, “yes.” Id.
About that same time, Napleton Cadillac began the process of laying off David Geisler, the twenty-two-year-veteran journeyman mechanic. On October 21, 2016—three days after the Union won the election—
On October 27, 2016—the same day that Russell was fired—Hendricks informed the Union that Napleton Cadillac was “laying off David Geisler, [the] lowest booking tech for the last 10 weeks.” Napleton, 367 N.L.R.B. No. 6, at 10. Inman then called Geisler into his office and “told him he was being ‘laid off for lack of hours.‘” Id. Geisler testified that, at the end of that meeting, Inman said “he asked us not to vote that way.” Id.
A few months later, Inman contacted Geisler to ask whether he “would entertain the idea of being rehired because business had increased.” Napleton, 367 N.L.R.B. No. 6, at 10. Geisler declined.
Napleton Cadillac provided a competing version of the events that led to Russell‘s termination and Geisler‘s layoff. According to the dealership, Russell was never an employee of Napleton Cadillac, and Geisler‘s layoff was in the works before the union vote. The ALJ found those claims to be wholly lacking in credibility and made up. Napleton, 367 N.L.R.B. No. 6, at 15-18.
More specifically, with respect to Russell, the ALJ found that Napleton Cadillac‘s claim that it had never employed Russell “simply reek[ed] of fabrication.” Napleton, 367 N.L.R.B. No. 6, at 15. If Napleton Cadillac really had not hired Russell, the ALJ reasoned, “[s]urely someone [would have] wondered why he was voting in the representation election, or why Inman hand-wrote ‘Disabled’ across from his name on the employee list[.]” Id. at 16.
As for Geisler‘s layoff, the ALJ rejected Napleton Cadillac‘s assertion that it had long planned a productivity-based layoff because of “the complete lack of nonsuspicious explanation for the timing[,]” especially after Jopes testified to a “version of events” that was “flatly contradicted by the record evidence and the testimony of Attorney Hendricks.” Napleton, 367 N.L.R.B. No. 6, at 16-17.
2
Just over a month after the unionization election, Napleton Cadillac and the Union began bargaining for a labor agreement. By August 2017, the Union concluded that negotiations had stalled.
Meanwhile, on August 1, 2017, the Union began a strike against the Dealer Committee‘s 129 member dealerships. While Napleton Cadillac was not part of the Dealer Committee targeted by the strike, Napleton Auto Group‘s six other unionized dealerships were.
On July 31st, the day before the Dealer Committee strike, Napleton Cadillac convened a meeting of its employees. Napleton Auto Group‘s corporate manager, Tony Renello, told the employees that they had an opportunity to take advantage of the strike. He explained that Napleton Auto Group would “funnel the work” from its nearby dealerships, the employees could work as many hours as they wanted, Napleton Cadillac would “feed [them] steaks,” and they could “make as [much] money as [they] want[ed].” Napleton, 367 N.L.R.B. No. 6, at 12. Renello testified that the employees’ response—“smiles and head shakes, yeah, yeah, yeah, yeah“—indicated to him that they were on board with his plan. Id.
But on the morning of August 1st, Napleton Cadillac‘s employees joined the strike. According to Renello, the employees’ decision to strike “caught us totally off
That day, Renello and Jopes hand-delivered a letter to the employees while they were picketing in front of the Napleton Cadillac dealership. The letter was meant “to let [the employees] know the consequences of [their] strike[,]” one of which was that Napleton Cadillac would “[m]ake arrangements to have your tool boxes removed from the shop, as we do not want to be responsible for your tools when you are not working.” J.A. 328. The letter concluded: “It is unfortunate that you have chosen to strike, but that is the choice you have made.” J.A. 328.
Renello testified that, while he and Jopes were distributing the letters, he told the striking employees that they had to remove their toolboxes in two days. Renello also told the employees that they were welcome to return to work, in which case Napleton Cadillac would treat them as if the strike had never happened.
Consistent with industry practice, Napleton Cadillac‘s mechanics owned their own tools and toolboxes and kept them at the dealership even when they were not working. Just to be clear: These are not ordinary, hand-carried toolboxes. Rather, they are “large metal tool cabinets, some up to 15 feet long, some up to 6-7 feet high, mounted on retractable wheels, [and] that can weigh thousands of pounds. They are normally moved with tow trucks or other such loading vehicles.” Napleton, 367 N.L.R.B. No. 6, at 7.
One of the employees’ toolboxes looked like this:
J.A. 330.
On the second day of the strike, Renello again told the striking mechanics that they could “just go back to work,” and that Napleton Cadillac would “act like this never even happened[.]” Napleton, 367 N.L.R.B. No. 6, at 13. But if they continued to strike, “tomorrow we are going to start pushing [the toolboxes] out.” Id.
At the same time, Renello, Hendricks, and the Union were in talks about the deadline for removing the toolboxes, given how difficult it was for employees to arrange tow trucks or similar equipment to move the massive toolboxes on such short
So it was that, on the third day of the strike, Renello, Jopes, Inman, and two employees from another Napleton Auto Group dealership rolled the employees’ toolboxes “outside the fenced gates of the dealership onto the service access driveway[,]” where they left the toolboxes and their “expensive” contents “uncovered and unattended[.]” Napleton, 367 N.L.R.B. No. 6, at 6, 13. That afternoon, there was a “torrential downpour.” Id. at 13. In response, Napleton Cadillac pushed the toolboxes back inside, but not before two employees’ toolboxes were damaged. The Union and the employees hired a towing service to pick up the toolboxes the next day.
Napleton Auto Group did not demand that the striking employees at its other dealerships remove their toolboxes. Renello said that was because, unlike the voluntary choice to strike made by Napleton Cadillac employees, “most of” the “technicians and the other stores wanted to work through the strike. They just weren‘t allowed to.” Napleton, 367 N.L.R.B. No. 6, at 19.
Jopes offered a different explanation at trial, claiming that Napleton Cadillac ordered the toolboxes removed because its “insurance company informed [it] that there would be a lack of coverage should there be damage” because the employees “were not working employees at that point.” Napleton, 367 N.L.R.B. No. 6, at 19. The ALJ did not believe Jopes, pointing out that the insurance policy expressly applied to “loss of or damage to tools and equipment owned by your employees and used by them in your business.” Id. When Jopes asserted that the strikers “were not using the tools in [Napleton Cadillac‘s] business,” the ALJ found that to be as nonsensical as saying that the tools are not covered when employees go home at night or take a vacation. Id.
C
The Union and Russell timely filed unfair labor practice charges against Napleton Cadillac.
After a three-day hearing, the ALJ found that Napleton Cadillac committed several unfair labor practices. He found that Napleton Cadillac terminated Russell and laid off Geisler in “retaliation” for its employees’ voting to unionize, which violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act. J.A. 75. The ALJ also found four more violations of Section 8(a)(1): (i) Inman telling Geisler that he was being laid off because the employees voted to unionize; (ii) Inman creating the impression in his conversation with Russell about Oberg that Napleton Cadillac was surveilling its employees’ union activity; (iii) Napleton Cadillac ordering—and carrying out—the removal of the toolboxes in retaliation for the strike; and (iv) Napleton Cadillac implicitly threatening in the August 1, 2017 letter that employees would lose their jobs for striking.
Napleton Cadillac and the General Counsel both timely filed exceptions to the ALJ‘s findings. Neither party disputed that Napleton Cadillac violated Section 8(a)(1) by telling Geisler that he was being laid off because the employees voted to unionize.
The Board reversed as to the implied threat of job loss, concluding that Napleton Cadillac‘s August 1, 2017 letter did not
Napleton Cadillac petitioned for review, and the Board cross-applied for enforcement.
II
We have jurisdiction to review the Board‘s decision under
We review the Board‘s procedural rulings for abuse of discretion. See Salem Hosp. Corp. v. NLRB, 808 F.3d 59, 67 (D.C. Cir. 2015); see also Veritas Health Servs., Inc. v. NLRB, 895 F.3d 69, 87 (D.C. Cir. 2018) (“We review the Board‘s affirmance of an ALJ‘s discretionary judgments * * * for abuse of discretion.“). We reverse only if the petitioner establishes that “prejudice resulted from” the Board‘s [procedural] lapses.” Salem Hosp., 808 F.3d at 67 (quoting Desert Hosp. v. NLRB, 91 F.3d 187, 190 (D.C. Cir. 1996)).
III
A
The Board‘s ruling that Napleton Cadillac violated Sections 8(a)(3) and 8(a)(1) by terminating Russell and laying off Geisler to punish its employees for their pro-union vote is reasoned, consistent with the statutory text and precedent, and supported by substantial evidence.
1
To establish a violation of Section 8(a)(3), the Board had to find that Napleton Cadillac “encourage[d] or discourage[d] membership in” the Union in a particular way: “by discrimination in regard to hire or tenure of employment or any term or condition of employment[.]”
The finding of a violation of Section 8(a)(3) would also trigger a violation of Section 8(a)(1), which prohibits employers from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of [their Section 7] rights[,]”
Because the central question in the case was Napleton Cadillac‘s motive for firing Russell and laying off Geisler—whether those decisions were intended to punish or discriminate against union activity—the Board adjudicated the retaliation claims by applying its well-established Wright Line burden-shifting framework. See Wright Line, 251 N.L.R.B. 1083 (1980); see also NLRB v. Transportation Mgmt. Corp., 462 U.S. 393, 400-404 (1983) (upholding the Wright Line framework), abrogated in other part by Director, Office of Workers’ Comp. Programs, Dep‘t of Labor v. Greenwich Collieries, 512 U.S. 267 (1994); Novato Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1100-1101 (D.C. Cir. 2019).
The Board designed the Wright Line test to determine whether an unlawful motive underlay an adverse action taken by an employer. See Wright Line, 251 N.L.R.B. at 1083 (describing the decision as “set[ting] forth formally a test of causation for cases alleging violations of Section 8(a)(3)“); see also Tasty Baking Co. v. NLRB, 254 F.3d 114, 125 (D.C. Cir. 2001) (Under Sections 8(a)(3) and 8(a)(1), “[t]he central question is the employer‘s motivation for taking the adverse action, and to make that determination the [Board] employs the so-called Wright Line test.“).
The Wright Line inquiry requires, first, that the General Counsel “make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the” adverse employment action. Novato Healthcare, 916 F.3d at 1100-1101 (formatting modified); accord Wright Line, 251 N.L.R.B. at 1089. If the General Counsel meets that initial burden, then “the burden of persuasion shifts to the [employer] to show that it would have taken the same action in the absence of the unlawful motive.” Novato Healthcare, 916 F.3d at 1101 (formatting modified).
2
This case turns on the first prong of the Wright Line test—whether the General Counsel made a prima facie showing that Napleton Cadillac‘s overt anti-union animus motivated Russell‘s termination and Geisler‘s layoff. The record amply supports the Board‘s conclusion that such a showing was made.
To make out a prima facie case, the Board held that the General Counsel “need not prove” the employer‘s knowledge of each affected employee‘s individual union activity if the employer “takes adverse action against employees, regardless of their individual sentiments toward union representation, ‘in order to punish the employees as a group to discourage union activity or in retaliation for the protected activity of some.‘” Napleton, 367 N.L.R.B. No. 6, at 14 (quoting Electro-Voice, Inc., 320 N.L.R.B. 1094, 1095 n.4 (1996)); see id. at 14 n.20 (collecting cases). See also Novato Healthcare, 916 F.3d at 1105; Birch Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1180 (6th Cir. 1985).
That is so, the Board has long held, because “general retaliation by an employer against the workforce can discourage the exercise of [S]ection 7 self-organization and collective bargaining rights just as effectively as adverse action taken against only known union supporters.” Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169 (D.C. Cir. 1993) (alteration in original) (quoting Birch Run, 761 F.2d at 1180); cf. Thompson v. North American Stainless, LP, 562 U.S. 170, 172-175 (2011) (holding that “third-party reprisals” can amount in some
Here, the Board properly found a prima facie case that Napleton Cadillac violated the Act by discharging Russell and laying off Geisler “in retaliation for the unit employees’ decision to unionize.” Napleton, 367 N.L.R.B. No. 6, at 1 n.2, 14-16. That decision faithfully followed a long line of Board and judicial precedent, and fully comports with both the relevant statutory text and Wright Line itself.
First, courts and the Board have long recognized that Section 8(a)(3) outlaws punishing the workforce as a whole for its union activity just as strongly as it outlaws punishing particular union supporters. The central focus of the Wright Line analysis is on “the employer‘s motivation,” not on the affected employee‘s union sentiments. NLRB v. Frigid Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991).
Of course, the employer‘s awareness of a targeted employee‘s union activity is the most common way of proving an employer‘s “actual discriminatory intent.” Advanced Life Sys. Inc. v. NLRB, 898 F.3d 38, 49 (D.C. Cir. 2018). But such individualized knowledge is not always necessary for a violation to be found. See Frigid Storage, 934 F.2d at 510. As long as the employer is taking adverse action against an employee or employees for the specific purpose of punishing or discouraging known union activity in the workplace, the employer “cannot cleanse an impure heart with ignorance of individual employee sentiments.” Id.
At least as reflected in Board decisional law, the most common way employers have taken their anti-union animus out on a workforce rather than a specific union-supporting employee has been through “extensive” or “mass” layoffs, e.g., Davis Supermarkets, 2 F.3d at 1168-1169; Birch Run, 761 F.2d at 1180, or attempts to cover up targeted retaliation against union supporters by sweeping in employees whose union views were unknown, e.g., Novato Healthcare, 916 F.3d at 1105.
But those are not the only ways. Employers have also vented their discriminatory animus by scapegoating a few employees to send a message of anti-union hostility and anger over collective action to the larger workforce. For example, in Frigid Storage, the day after the union petitioned for a representation election, the company‘s manager gathered his fifteen employees, went on an “anti-union tirade,” and threatened to fire two employees that day and possibly one more the coming Monday. 934 F.2d at 507-508, 510. He followed through by firing two known union supporters the same day. Then, on Monday, the employer fired a third employee whose union views were unknown. Id. at 508-510.
The Board found that each of the three firings independently violated Section 8(a)(3). Frigid Storage, Inc., 294 N.L.R.B. 660, 661 (1989). When the employer petitioned for review, the Fourth Circuit rejected its claim that firing the third employee could not be unlawful discrimination because the employer did not know whether the third employee was a union supporter. Frigid Storage, 934 F.2d at 509-510. The court of appeals held that, “[t]hough employer knowledge” of an employee‘s union views “is obviously relevant, it is not dispositive, especially in a multiple-employee discharge.” Id. at 510. What mattered was “that [the] discharge was motivated by anti-union animus,” as evidenced by the connection between the firing and the employer‘s threat, and by the “pretextual”
The Board has likewise held that an employer violated Section 8(a)(3) by implementing a retaliatory wage freeze that affected only one employee, even though it did not know whether that particular employee was a union supporter. See W.E. Carlson Corp., 346 N.L.R.B. 431, 432-433 (2006). In the face of a dissent that would have required knowledge of the affected employee‘s union views, id. at 437 (Battista, Chairman, dissenting in part), the Board unequivocally held that it was “immaterial that the [employer] lacked knowledge of union activity specifically by” that particular employee because it was retaliating against “the organizing effort” by employees generally, id. at 433 (majority opinion) (citing Birch Run, 761 F.2d at 1180).
Similarly, we said just last year that “the Board has long held” that “an employer‘s discharge of uncommitted, neutral, or inactive employees” either to cover up for discrimination against a targeted union-supporting employee “or to discourage employee support for the union” violates Section 8(a)(3). Novato Healthcare, 916 F.3d at 1105 (emphasis added) (quoting Dawson Carbide Indus., Inc., 273 N.L.R.B. 382, 389 (1984)); see generally Circus Circus Casinos, 961 F.3d at 480 (“[T]he line between employer prerogative and unlawful infringement of employees’ rights is a question of motive.“).
To that same point, every case on which the Board relied here focused its analysis on the employer‘s unlawful motive, not on the particular union views of the employees affected by its actions and not on whether the action targeted many rather than a few employees. See, e.g., Birch Run Welding & Fabricating, Inc., 269 N.L.R.B. 756, 764-765 (1984) (holding that an employer violated Section 8(a)(3) by “engag[ing] in a general retaliation against its employees because of the union activities of some of its employees in order to frustrate all union activities“), enforced, 761 F.2d 1175 (6th Cir. 1985); J.T. Slocomb Co., 314 N.L.R.B. 231, 241 (1994) (noting that “the focus of the discrimination theory approved in Birch Run “is upon an employer‘s motive in discharging its employees rather than upon the antiunion or prounion status of particular employees“) (internal quotation marks omitted).1 Napleton Cadillac‘s effort to distinguish these cases as “all requir[ing] a mass layoff” (Br. 35) mistakes their facts for the Board‘s reasoning.
Tellingly, Napleton Cadillac has not identified—and we have not found—a single case to support its view that discrimination in this form only counts when the employer‘s action hits some numerosity or workplace-wide threshold. There is no two-free-bites rule under Section 8(a)(3). Nor have any of the cases that Napleton Cadillac cites (or that we have found) treated the number of employees affected as dispositive, or even analyzed it as doctrinally relevant. To the contrary, the Board‘s and courts’ analysis in workplace-wide discrimination cases focuses time and again on whether the employer acted with the unlawful intent of discouraging or punishing union activity. Creatively or erratically packaging that discrimination gets no free pass.
So too here: The Board found that Napleton Cadillac discharged Russell and Geisler for the express, announced, and prohibited purpose of retaliating against
retaliation against its employees because of the union activities of some.“) (emphasis added). In other words, when the intent is to punish or discourage union activity, it is no defense to a
Second, the consistency of precedent is explained by the plain statutory text, which focuses on the employer‘s anti-union motive, not the views of the affected employees. After all,
Likewise,
Said another way, “motive is the lynchpin” under the statute. Dissent Op. 10. Firing employees—union supporters or not—to intentionally send a message to employees that union activity will have hurtful consequences falls squarely within the statute‘s prohibitions. And Napleton Cadillac, for its part, makes no argument that the statutory text permits such intentional discriminatory retribution as long as it comes just a couple of employees at a time. Discrimination is a “toxin[] [that] can be deadly in small doses.” Buck v. Davis, 137 S. Ct. 759, 777 (2017).
Third, the Board‘s focus on an employer‘s intent to discriminate against known union activity hews to Wright Line itself. The problem the Board set out to solve in Wright Line was uncertainty surrounding the correct “test of causation for cases alleging violations of
To that end, the Board devised in Wright Line a burden-shifting framework designed to “determine the relationship, if
Applying the Wright Line framework, the Board reasonably concluded that Napleton Cadillac violated
Through Inman‘s comments, Napleton Cadillac all but admitted that it discharged Russell and laid off Geisler as retribution for the employees’ collective decision to unionize. And Napleton Cadillac‘s later pretextual explanations for its actions brought the point home. See Fort Dearborn Co. v. NLRB, 827 F.3d 1067, 1075 (D.C. Cir. 2016) (“A finding of pretext may support an inference of unlawful motive[.]“); Napleton, 367 N.L.R.B. No. 6, at 15-16 (finding that Napleton Cadillac‘s assertion that it never hired Russell was “a pretext” for retaliation, and summarizing evidence debunking Napleton Cadillac‘s “fantastic claim that it did not notice * * * until immediately after the election” that it had treated Russell as an employee who was on disability leave); id. at 16-17 (“There is no documentation—no notes, no email, no message slips, no report, nothing—that” supports Napleton Cadillac‘s claim that a layoff was in the works before the union election.).
For those reasons, the Board reasonably concluded that Napleton Cadillac “wield[ed] an undiscerning axe” against Russell and Geisler to punish its employees’ collective decision to unionize. Frigid Storage, 934 F.2d at 510.
3
The partial dissenting opinion presses two main objections to the Board‘s decision. But those concerns misunderstand the Board‘s precedent and its application to this case.
First, the dissenting opinion objects that the Board has departed from prior precedent requiring that the employer have knowledge specifically of the affected employee‘s union activities. Dissent Op. 2-3.
But prior Board decisions and court precedent had already held that Wright Line does not strictly require that an employer always have knowledge of an affected employee‘s individual union activities. The holding that Napleton Cadillac violated
In Frigid Storage, as here, employer knowledge of the affected employee‘s union views or activities “[wa]s not dispositive” or even required. 934 F.2d at 510. Even though the ALJ found that “[t]here is no evidence that anyone on behalf of the Respondent was aware of” union activity
Likewise, in W.E. Carlson, the Board held that the denial of a pay increase for employee Lightfoot violated
The dissenting opinion would chalk those two decisions up to the “essential” fact that other employees whose union views were known to the employer were also the object of retaliation. Dissent Op. 10.
But if that factor were so essential, one would expect it to play some role in those decisions. Yet it was never mentioned in the Board‘s analysis. In Frigid Storage, the court of appeals explained that “the Board had substantial evidence to support its finding that Franklin‘s discharge violated
The Board in Frigid Storage, for its part, overturned an ALJ decision that (like the dissenting opinion here) focused on the employer‘s knowledge of the affected employee‘s union views. See 294 N.L.R.B. at 661 (disagreeing with ALJ‘s finding that Franklin‘s discharge did not violate the act); id. at 668 (ALJ dismissing complaint as to Franklin because there was “no evidence that anyone on behalf of the [employer] was aware” of Franklin‘s union activity). The Board ruled that Franklin‘s termination by itself violated
The Board‘s decision in W.E. Carlson was similarly devoid of any tie between the adverse employment action and known union supporters. In response to a dissent that (again, like the dissenting opinion here) would have required employer knowledge of Lightfoot‘s union views for liability to attach, the Board said that knowledge of Lightfoot‘s union activity was “immaterial.” 346 N.L.R.B. at 433. All that mattered to the Board was that the employer “knew that its service technicians were seeking to organize,” and it was “because of its animus against that activity”
In short, the Board‘s holding here was on all fours with Board and circuit precedent. The Board relied on compelling record evidence to show what its decisions have always required: evidence that the adverse action at issue was substantially motivated by the employer‘s intent to punish and discourage known union activity. Wright Line, 251 N.L.R.B. at 1089 (“[W]e shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a ‘motivating factor’ in the employer‘s decision.“) (emphasis added).
Second, the dissenting opinion reasons that the Board here abandoned the Wright Line requirement of employer knowledge of union activity, and now “requires showing only animus by the employer[.]” Dissent Op. 6.
Not so. The Board has always required evidence both that the employer knew of its employees’ union activity, and that its adverse action at issue was substantially motivated by its intent to punish and discourage that activity. W.E. Carlson, 346 N.L.R.B. at 433 (“The Respondent contends it was unaware of Lightfoot‘s union sympathies when it decided against giving Lightfoot a wage increase in his January 31 paycheck. The Respondent was aware, however, that its service technicians had engaged in union activity.“); Frigid Storage, 294 N.L.R.B. at 661 (“All three discharges were precipitated by the Respondent‘s awareness of union activity[.]“).
So too here. The Board expressly found that Napleton Cadillac knew of its employees’ union activity—including their decision to unionize—and that management‘s anger over that activity was precisely what motivated the discharge and layoff. Napleton, 367 N.L.R.B. No. 6 at 1 n.2 (affirming ALJ‘s finding of a violation of
In other words, the Board nowhere adopted the knowledge-less general retaliation standard that the dissenting opinion fears. And the dissenting opinion‘s agreement with the application of Wright Line to the mass-layoff and cover-up scenarios, see Dissent Op. 3-4, 7, shows that knowledge of the targeted employee‘s individual views is not necessary to establish a violation of
The dissenting opinion worries that, by prohibiting employers from deliberately making an individual employee the fall guy for the workforce‘s union activity, knowledge of union activities or anti-union animus alone will trigger liability for adverse employment actions. See Dissent Op. 9-12. But that concern forgets that, under Wright Line, the Board always bears the burden “to ‘make a prima facie showing sufficient to support the inference that protected conduct was a “motivating factor” in the employer‘s decision to take adverse action.‘” Chevron Mining, Inc. v NLRB, 684 F.3d 1318, 1327 (D.C. Cir. 2012) (quoting Wright Line, 251 N.L.R.B. at 1089).
So the “ultimate inquiry is whether there is a ‘link, or nexus, between the employees’ protected activity and the adverse employment action.‘” Chevron Mining, 684 F.3d at 1328 (quoting Tracker Marine, LLC, 337 N.L.R.B. 644, 646 (2002)). A showing of general animus (let alone mere knowledge) unconnected to the challenged employment action will not suffice. See id.; see also Amber Foods, Inc., 338 N.L.R.B. 712, 714 (2002) (finding that, in the absence of any nexus between the employer‘s general knowledge of union activity and the affected employee‘s discharge, no
In other words, correlation is not enough. The prima facie case must demonstrate a nexus between the employer‘s anti-union sentiments and the precise adverse action taken. Such evidence of deliberate scapegoating is usually hard to come by. Most employers will not announce or otherwise evidence their intent to sacrifice an employee or two on the altar of their hostility to collective action. But as in Chevron Mining, 684 F.3d at 1328, in this case that link was easily established by the employer‘s virtual admissions that the discharge and layoff were taken in response to the employees’ decision to unionize, Napleton, 367 N.L.R.B. No. 6, at 9-10, 15-16.
The Board‘s application of its “labor law expertise,” Dissent Op. 7, in this way fully comports with Wright Line and the plain statutory text it implements. To conclude otherwise, as the dissenting opinion proposes, would mean that the law allows an employer to fire a randomly chosen worker for the express and announced purpose of punishing its employees for unionizing—to “teach them a lesson.” Yet that form of direct retribution and punishment of employees is the very type of “discrimination” against and “discourage[ment]” of “membership in any labor organization” that
B
Napleton Cadillac argues that the Board‘s separate finding that it retaliated against striking employees by removing their toolboxes from the work area “makes no logical or rational sense” because Napleton Auto Group allowed striking employees at its other dealerships to keep their toolboxes at work during the strike. Napleton‘s Br. 42.
Napleton Cadillac‘s argument actually proves the Board‘s point. The key decisionmaker at Napleton Auto Group, Corporate Manager Tony Renello, explained that the company treated the striking employees at Napleton Cadillac adversely precisely because “[m]ost of our—the other technicians and the other stores wanted to work through the strike. They just weren‘t allowed to.” Napleton, 367 N.L.R.B. No. 6, at 19.
That testimony is a straightforward “admission that it was the Napleton [Cadillac] technicians’ choice to exercise their right to strike—a choice freely made and thus, in Napleton [Cadillac]‘s view, deserving of punishment—that prompted the demand to remove the toolboxes[.]” Napleton, 367 N.L.R.B. No. 6, at 19 (emphasis added). The fact that Napleton Cadillac leveled its punitive response only against those employees who voluntarily and willingly chose to exercise their statutory right to strike proves its retaliatory, discriminatory motive.
C
Napleton Cadillac next challenges the Board‘s finding that it unlawfully created an impression of surveillance of union activities when Inman told Russell that he thought a certain employee had started the union drive. On this front, Napleton Cadillac‘s only argument to this court is that, because Russell was no longer an employee at the time of the conversation, Inman‘s statement could not have “coerce[d] or restrain[ed] Russell from engaging in protected union activity.” Napleton‘s Br. 32. Because Napleton Cadillac did not present
Absent extraordinary circumstances (which Napleton Cadillac does not argue exist here), our jurisdiction is confined to objections that parties have first presented to the Board.
In the list of exceptions that Napleton Cadillac filed with the Board, it identified its general disagreement with the impression-of-surveillance finding. But it never argued that Russell‘s employment status precluded the finding of an unfair labor practice. Napleton Cadillac‘s vague and very general exception was not enough to put the Board on notice of every possible argument it might later choose to advance.
That is not to say that each “ground for [an] exception” must “be stated explicitly in the written exceptions filed with the Board[.]” Camelot Terrace, 824 F.3d at 1090 (internal quotation marks omitted). Instead, the problem here is that Napleton Cadillac did not even cross the minimum threshold of ensuring that “the ground for the exception [would] be evident by the context in which the exception is raised.” Id. (formatting modified).
Case in point is Napleton Cadillac‘s brief in support of its exceptions. See Pennsylvania State Corr. Officers, 894 F.3d at 376. That brief put the Board on notice of just one objection to the impression-of-surveillance finding: that Inman‘s statement was too ambiguous to create an improper impression of surveillance. See Respondent‘s Brief in Support of Exceptions to the Decision and Recommended Order of the Administrative Law Judge at 13, Napleton, 367 N.L.R.B. No. 6 (Nos. 13-CA-187272 et al.). Napleton Cadillac does not pursue that argument here. See Oral Arg. Tr. 11:13-12:2 (conceding that the argument “is not in” its brief to this court). And the argument it does pursue—that Inman‘s statement could not have violated the Act because Russell had already been fired—is nowhere to be found in its arguments to the Board, as Napleton Cadillac conceded at oral argument, see Oral Arg. Tr. 12:2-23.
IV
Finally, Napleton Cadillac asks this court to overturn the Board‘s affirmance of three of the ALJ‘s procedural rulings. First, Napleton Cadillac objects to the ALJ‘s application of the witness sequestration rule to exclude one of its attorneys, James Hendricks, from the hearing because Napleton Cadillac planned to call him as a witness.
Second, Napleton Cadillac takes exception to the ALJ‘s order to return witnesses’ affidavits after its cross-examination concluded, rather than at the conclusion of the hearing.
Third, Napleton Cadillac complains that the ALJ declined to sanction a witness for failing to comply with its subpoena directing the witness to bring his toolbox to the hearing.
We need not address the merits of those challenges because, even assuming they were valid, Napleton Cadillac cannot prevail unless it can also “show that ‘prejudice resulted from’ the Board‘s [procedural] lapses.” Salem Hosp., 808 F.3d at 67 (quoting Desert Hosp., 91 F.3d at 190). “Whether an error is prejudicial depends on a number of factors, including the closeness
Napleton Cadillac has not come close to making the required showing of prejudice for any of its objections. With respect to witness sequestration, Napleton Cadillac‘s briefs do not say what more it could have done in its defense had Hendricks been at counsel table or how his absence otherwise impaired its ability to present its case. Napleton Cadillac‘s attempt to argue prejudice for the first time at oral argument was too little, too late. See Save Jobs USA v. Department of Homeland Sec., 942 F.3d 504, 511 (D.C. Cir. 2019) (“Generally, arguments raised for the first time at oral argument are forfeited.“) (internal quotation marks omitted). In any event, Napleton Cadillac acknowledged that Hendricks was not planning to serve as lead counsel at the hearing. And although Napleton Cadillac suggested that it was at some type of disadvantage because it had only one attorney present, it failed to offer anything concrete or to explain what Hendricks would have done that could not have been handled by counsel at the hearing or any other attorney who was not designated to testify as a witness in the case.
Nor does Napleton Cadillac explain how its cross-examination or presentation of its case was impaired by having to return witnesses’ affidavits after they left the stand.
Finally, Napleton Cadillac does not say what it would have gained from having a witness haul his more than a thousand-pound toolbox to the eighth-floor hearing room in the federal courthouse. In fact, at oral argument, Napleton Cadillac (wisely) conceded that there was “no way [the witness] could have brought the toolbox” into the hearing room. Oral Arg. Tr. 8:19-20. Notably, the ALJ repeatedly offered Napleton Cadillac the opportunity to inspect the toolbox in a more appropriate location. But it ignored those offers. For present purposes: No harm, no foul.
Having entirely failed to demonstrate prejudice, Napleton Cadillac‘s procedural objections all fail.
V
For all of those reasons, we dismiss Napleton Cadillac‘s petition for review as to the impression-of-surveillance finding, deny the petition in all other respects, and grant the Board‘s cross-application for enforcement.
So ordered.
RAO, Circuit Judge, concurring in part and dissenting in part: Napleton Cadillac discharged mechanics William Russell and David Geisler shortly after a majority of their fellow employees voted to unionize. The National Labor Relations Board found that the discharges constituted unlawful discrimination. While I join the majority in enforcing the Board‘s other unfair labor practice findings, the discrimination finding cannot be upheld under the Board‘s precedents. Employer knowledge of an employee‘s union activity, or a proxy for employer knowledge, is an essential element of a discrimination charge under the National Labor Relations Act (“NLRA“). Because the General Counsel did not attempt to demonstrate that Napleton had knowledge of whether Russell or Geisler participated in union activity, and none of the established exceptions to the employer knowledge element applies here, the Board‘s finding of discrimination departs from its announced standards. The Board neither acknowledges nor explains this departure, which requires
I.
The NLRA bars employers from terminating employees “because of union activity.” Fort Dearborn Co. v. NLRB, 827 F.3d 1067, 1072 (D.C. Cir. 2016) (citing NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 394 (1983)).
Notably absent from the majority‘s discussion, however, are the well-established elements of the General Counsel‘s prima facie burden. Antiunion discrimination on the part of an employer is unlawful under sections
The Board‘s decision in this case is arbitrary and capricious for a simple reason: the Board excused the requirement that the General Counsel prove either that Napleton discharged employees Russell and Geisler with knowledge of “their individual union activity” or that discriminatory intent could be imputed to Napleton through the longstanding mass-layoff or cover-up exceptions to the actual knowledge requirement. Napleton 1050, Inc., 367 NLRB No. 6, at *1 n.2, *8 (Sept. 28, 2018). Indeed, as the ALJ recognized, the General Counsel‘s “theory of violation” does not include an argument that Geisler and Russell were discharged “in retaliation for their individual union activity.” Id.
Neither the Board nor the majority suggests that Napleton had any knowledge of specific individuals’ union activity; instead, they attempt to craft a novel “retaliation” exception to Wright Line‘s employer knowledge requirement. In the decision below, the ALJ asserted that the General Counsel “need not prove” employer knowledge of any protected activity by any discharged employees if the terminations were meant “to punish the employees as a group to discourage union activity or in retaliation for the protected activity of some.” Id. (cleaned up). The ALJ found that the terminations violated sections
Despite the majority‘s claims, there is no “retaliation” exception to the employer knowledge requirement of an unfair labor practice under sections
First, the “mass-layoff” exception excuses the requirement of proving the employer knew about each discharged worker‘s protected activity when the discharge was (1) part of a “mass layoff” and (2) undertaken “for the purpose of discouraging
union activity.” Davis Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1168 (D.C. Cir. 1993) (quoting Birch Run Welding & Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1180 (6th Cir. 1985)). As we explained in Davis Supermarkets, a “mass layoff” occurs when an employer dismisses a class of employees that includes both known union sympathizers and others of unknown sympathies. Id. at 1168-69. The mass-layoff exception allows imputing employer knowledge of union activity by one member of the class to others subject to the same adverse action. So long as the employer knew that some class members engaged in protected activity and the employer acted
Courts have accordingly upheld a prima facie case of discrimination when the adversely treated class includes at least some known union supporters and the adverse treatment was unlawfully motivated. See id. at 1168-69 (employer sought to “get[] rid of the troublemakers and the people with attitude problems,” including those known to have engaged in union activity); Birch Run, 761 F.2d at 1179-81 (at least two and up to six of thirteen terminated employees were known union advocates); NLRB v. Frigid Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991) (two of three terminated employees were known union advocates, but all three were subject to the employer‘s “undiscerning axe“). The Board has always required proof that the employer knew of protected activity by at least some members of the adversely treated class, even when the employer lacked knowledge as to each individual member.2 Thus, the mass-layoff exception recognizes that the Board need not demonstrate knowledge as to each impacted employee; however, this does not create a general “retaliation” standard that requires showing only animus by the employer, rather than knowledge of protected activity. The majority errs by adopting a standard that makes an employer‘s general motivation to harm unions—rather than specific motivation to punish an individual‘s union activity—sufficient to make out a discrimination claim. See Maj. Op. 17-21. And in any event, it is far-fetched that laying off only two employees could constitute a mass layoff.
The second exception excuses proof of knowledge as to each wronged employee when an employer adversely treats neutral employees along with known union supporters in order to cover up evidence of discriminatory motive. Novato Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1105 (D.C. Cir. 2019); see also Bay Corrugated Container, 310 NLRB 450, 451 (1993) (“The Board has held that the discharge of a neutral employee in order to facilitate or cover up discriminatory conduct against a known union supporter is violative of [s]ection[s] 8(a)(3) and (1) of the Act.“). The Board need not prove the employer‘s knowledge of union activity by the neutral employees because they were treated adversely as part of the employer‘s plan to discriminate against known union supporters. As with mass-layoff cases, the cover-up exception allows the Board to sanction intentional discrimination in the form of actions and policies that sweep in neutral employees. See Contractors’ Lab. Pool, Inc. v. NLRB, 323 F.3d 1051, 1057 (D.C. Cir. 2003) (Rules enacted “for the very purpose of excluding applicants who had recently been covered by union contracts” may be discriminatory “even if the operation of the rule excluded nonunion applicants as well.“). In this situation, the Board retains the burden of proving the employer‘s knowledge of union support by
Both the mass-layoff and cover-up exceptions reflect evidentiary inferences grounded in the Board‘s labor law expertise. When an antiunion employer adversely treats a known union supporter through an action that impacts multiple employees, the Board infers that the other employees are also victims of discrimination. In other words, one tainted apple spoils the barrel. Yet the Board must still prove employer knowledge as to at least one adversely treated employee because knowledge remains an essential element of the Board‘s prima facie case. Although the Board is permitted to make certain inferences about an employer‘s conduct and intentions, the inferential chain must begin with an actual evidentiary foundation: knowledge of at least one employee‘s union activities. See Avecor, 931 F.2d at 931 (noting that inferences drawn from expertise may “reduce[] the weight of evidence necessary to impute knowledge ... but ... do[] not wholly eliminate the need for evidence“).
While the mass-layoff and cover-up exceptions obviate the General Counsel‘s burden of demonstrating knowledge as to all impacted employees, they do not create the general “retaliation” standard implicitly adopted by the Board (and justified by the majority). Rather, these narrow exceptions allow the Board to establish that a particular employee of unknown union sympathy was discharged “because of” a cover up or mass layoff intended to target those with known union sympathies. These two exceptions are consistent with the General Counsel‘s requirement to satisfy the three elements of the traditional prima facie case.
Here, the General Counsel never argued that Napleton knew of protected activity by Russell or Geisler, and no known union supporter was subject to the same adverse employment action. See Napleton, 367 NLRB No. 6, at *8. With no showing of individualized knowledge, the Board‘s finding of discrimination allows the exceptions to swallow the rule. This is not a straightforward application of the law; it is a sea change. Agencies may announce new policies within the scope of their statutory authority while deciding individual cases, but they must do so explicitly and explain why the policy is reasonable and consistent with the Act. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). In a case like this, where the Board neither acknowledged nor justified its novel “retaliation” exception, we must vacate the discrimination finding and remand for additional reasoning.
II.
With no further explanation from the Board, the majority offers a lengthy justification for why this novel “retaliation” exception is consistent with judicial precedent, the text of sections
Even if courts had the authority to administer the NLRA in the first instance, the majority‘s justification for a “scapegoating” exception would fail on its own terms. Maj. Op. 27 n.3. Relevant precedents and the text of sections
In filling in for the Board‘s lack of reasoning, the majority misconstrues precedents applying the mass-layoff and cover-up exceptions described above. I agree that motive is the lynchpin in discrimination cases, not “the number of employees affected” by the employer‘s actions. Maj. Op. 20. But this does not excuse the General Counsel from proving that some member of the terminated class was known by the employer to be a union supporter and then subjected to intentional discrimination. The court in Frigid Storage, for example, found the termination of two known union supporters alongside a third neutral employee to permit the Board‘s inference of knowledge as to all three employees. 934 F.2d at 508–10. The employer “wield[ed] an undiscerning axe” by striking the neutral employee, but it was nevertheless essential that the axe was directed in part at known union supporters.4 Id.
at 510; accord Novato Healthcare, 916 F.3d at 1105; Birch Run, 761 F.2d at 1179–81.
The majority likewise expands the Board‘s decision in W.E. Carlson Corp., 346 NLRB 431 (2006), reading it to abrogate the employer knowledge requirement. Maj. Op. 18–19, 24–26. Yet the Board did no such thing. Rather, in that case, the employer froze wage increases to discourage further organizing efforts by several known union supporters. The impact of the freeze first fell exclusively on an employee of unknown sympathies. But the “undiscerning axe” was aimed at the known union supporters and would have soon impacted them as well. Id. at 432–34, 442. The Board simply recognized that a facially neutral policy can be unlawfully discriminatory where the facts demonstrate that the employer had knowledge that its actions would impact union supporters. See, e.g., Contractors’ Lab. Pool, 323 F.3d at 1057. The Board could rationally have determined that these facts fell within the typical cover-up exception, in which the employer intends to hurt neutral employees along with known union supporters. It makes no difference that a neutral employee was hurt first, for as the majority and I agree, the focus of the Board‘s precedents is on the employer‘s knowledge and motive.5
Because some cases have murky reasoning, the majority infers that we may do away with the individual knowledge requirement in discrimination claims. Maj. Op. 17–21, 27–29. Yet the majority can cite no case for this proposition, which is directly at odds with the basic framework of discrimination claims. Employer knowledge of individuals’ union activity is simply part of the Board‘s discrimination framework, and the failure to reiterate this in every case does not eviscerate the individual knowledge requirement. After all, why have mass-layoff or cover-up exceptions if general knowledge of union activity suffices?
Prior to this case, the Board consistently required employer knowledge and rejected reliance on employer animus drawn from circumstantial evidence. Indeed, the majority today propounds a rule that the Board has numerous times declined to create or enforce. For instance, in In re Amber Foods, Inc., the Board reversed an ALJ‘s finding of a violation because there was “not a scintilla of record evidence that the Respondent believed or, at the very least, even suspected that [the discharged employee] was engaged in union activity at the time she was warned and discharged, although the Respondent knew generally, by March 31, that its employees had contacted the Union.” 338 NLRB 712, 714 (2002); see also Gruma Corp.,6
350 NLRB 336 (2007) (finding no
Furthermore, the majority‘s general animus test runs against the statutory text. On its face,
Moreover, the majority‘s expansive reading of
Finally, the majority reads a “retaliation” theme into Wright Line that is absent from the Board‘s discussion of the standard. See Maj. Op. 16–17. The Board in Wright Line designed a framework to “determine the relationship, if any, between employer action and protected employee conduct.” 251 NLRB at 1089. In doing so, however, the Board explicitly understood that the potentially unlawful actions were those taken against the employee engaged in protected activity and not against other employees. See id. at 1083 (“In resolving cases involving alleged violations of [s]ection 8(a)(3) and, in certain instances, [s]ection 8(a)(1), it must be determined, inter alia, whether an employee‘s employment conditions were adversely affected by his or her engaging in union or other protected activities.“); id. at 1090 (“It is undisputed that Respondent was well aware of [the discharged employee‘s] sympathies and activities.“). Improper motivation does not become discrimination until combined with an act intentionally taken against known protected activity.
As explained in Part I, the Board‘s decision obfuscates rather than frankly acknowledges a change in the legal standard. The majority tries to connect the dots, but in doing so misapplies the Board‘s longstanding precedents and reinforces this anomalous decision, “preventing both consistent application of the law by [ALJs] and effective review of the law by the courts.” Allentown Mack, 522 U.S. at 375. The majority also undercuts a foundational principle of administrative law, which requires a reasoned explanation from the agency for a change in legal standards.
* * *
The Board failed to hold the General Counsel to the prima facie burden of proving discriminatory animus was a motivating factor in Napleton‘s decision to fire Russell and Geisler. Further, the Board departed from precedent by excusing this failure under a novel legal theory for which it offered no justification. Because our court cannot fill in the blanks left by the agency, I would vacate the discrimination finding and remand to the Board for further consideration.