Fedex Freight East, Inc. v. National Labor Relations Board , 431 F.3d 1019 ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-1365 & 05-1791
FEDEX FREIGHT EAST, INC.,
Petitioner,
Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent,
Cross-Petitioner.
____________
Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board,
Case No. 13-CA-40188.
____________
ARGUED OCTOBER 26, 2005—DECIDED DECEMBER 12, 2005
____________
Before FLAUM, Chief Judge, and EVANS and WILLIAMS,
Circuit Judges.
FLAUM, Chief Judge. Tommy Grass (“Grass”) filed a
charge under section 10(b) of the National Labor Rela-
tions Act (“Act”), 29 U.S.C. § 10(b), alleging that his em-
ployer, FedEx Freight East, Inc. (“Cross-Respondent” or
“FedEx”), engaged in unfair labor practices by suspend-
ing and discharging him based on his union activity.
After investigating the charge, the General Counsel of
the National Labor Relations Board (“Board”) issued a
2 Nos. 05-1365 & 05-1791
complaint alleging that FedEx violated section 8(a)(1) of the
Act by threatening Grass and section 8(a)(3) of the Act by
suspending and discharging Grass based on his union
activity. 29 U.S.C. §§ 158(a)(1), (3). The ALJ found for the
General Counsel. The Board adopted the ALJ’s recom-
mended order, but only part of the ALJ’s reasoning. The
Board ordered FedEx to cease and desist from discriminat-
ing against employees based on union activity, ordered
FedEx to reinstate Grass, and awarded back pay. FedEx
petitions this Court for review of the Board’s order. The
Board brings a cross-petition for enforcement of its order.
For the following reasons, we deny FedEx’s petition and
grant the Board’s cross-petition.
I. Background
Grass was a driver at FedEx’s Summit, Illinois terminal
from June 3, 1996, until he transferred to the company’s
newly constructed Chicago Heights terminal in March 2001.
He remained a driver at the Chicago Heights terminal until
his discharge on May 15, 2002. Prior to Grass’s discharge,
Grass’s supervisors found him to be a “good worker” with
“good numbers.” Witnesses for FedEx testified, however,
that Grass was a slow worker and was sometimes suspected
of “milking the clock.” Nonetheless, Grass was never
officially reprimanded by FedEx.
At the time of the incidents alleged in the General Coun-
sel’s complaint, Art Hollrah (“Hollrah”) was a terminal
manager and Grass’s immediate supervisor at Chicago
Heights. Hollrah reported to David Boyle (“Boyle”), a vice
president of Cross-Respondent. Stuart Baxter (“Baxter”)
was Hollrah’s human resources manager. Chris Merritt
(“Merritt”) was a city dispatcher and also a supervisor of
Grass’s, within section 2(11) of the Act, 29 U.S.C. § 152(11),
during the relevant period. Tammy Despaltro (“Despaltro”)
was Grass’s human resources representative at the Chicago
Nos. 05-1365 & 05-1791 3
Heights terminal and was a supervisor within section 2(11)
of the Act, 29 U.S.C. § 152(11). Robert Paulsen (“Paulsen”)
was Cross-Respondent’s operations supervisor at the time,
Bill Hawkins (“Hawkins”) was a dispatcher at the Chicago
Heights terminal, and Steve Cawgill (“Cawgill”) was an
operations manager.
In 1997, the International Brotherhood of Teamsters,
Local 710 (“Union”) attempted, unsuccessfully, to organize
FedEx’s drivers. At this time, only the Summit terminal
was in operation. Grass was on the Union’s organizing
committee in 1997 and wore Union buttons on his hat
and jacket while at work. In 2001, the Union again at-
tempted to organize FedEx’s drivers. In September 2001,
Grass signed a Union authorization card and began speak-
ing in favor of a renewed organizational effort to other
drivers at the Summit and Chicago Heights terminals.
There is no evidence in the record that any supervisor
observed these activities, and Grass did not wear Union
buttons in 2001. In December 2001, the Union filed a
petition seeking to represent Summit and Chicago Heights
drivers. The Union failed to generate sufficient support
from drivers. Therefore, on December 28, 2001, the Union
withdrew the petition for the Chicago Heights drivers and
on January 30, 2002, withdrew the petition for the Summit
drivers.
According to Grass’s testimony, which the ALJ and the
Board credited, Grass and human resources representative
Despaltro had a conversation at Bally’s Health Club in
Chicago on January12, 2002, about the Union’s organiza-
tional activities. According to Grass, Despaltro told him
that he was “making a big mistake with this union thing.”
Grass also testified that he had several conversations with
Despaltro through late January, in which he argued that
employees would benefit from affiliation with the Union.
The ALJ credited this testimony. Grass further testified
that Despaltro told him that FedEx would close the facility
4 Nos. 05-1365 & 05-1791
if the Union was voted in. The ALJ did not credit this
statement, in large part because Grass did not include it in
his affidavits.
Additionally, Grass testified that in early January 2002,
he was involved in an argument with Merritt in which
Merritt accused Grass of taking more time than necessary
to perform certain tasks. Grass reported that at the end
of the argument, Merritt stated, “What are you mad
[about]? Because the Union didn’t get in?” Grass responded
that his differences with Merritt had nothing to do with the
Union. Merritt did not deny Grass’s testimony, and the ALJ
credited it.
The record shows that in late January 2002, FedEx took
Grass off his usual route and assigned him to another one.
In early February 2002, Grass complained to Boyle about
the change. According to Grass, Boyle told him that he
“didn’t like [Grass’s] attitude,” that he would not let
Grass “stay here and ruin this Company,” and that Grass
“knew what [Boyle was] talking about.” Grass replied that
he had worked hard for the company for 5½ years “and this
is the thanks I get.” Boyle did not deny this testimony and
the ALJ found it to be credible. Soon after, FedEx restored
Grass to his usual route.
Operations supervisor Paulsen testified that around
the same time as the incident with Boyle, dispatcher
Hawkins told Paulsen that Grass was “poisoning” the
company and that Paulsen should keep a close watch on
Grass. Paulsen also testified that FedEx was aware of
Grass’s involvement with the Union. Additionally, Paulsen
testified that he told supervisor Hollrah and operations
manager Cawgill that he had been a union driver and
would not be a “headhunter” for Cross-Respondent and
discharge employees without cause. The ALJ credited
Paulsen’s testimony.
Nos. 05-1365 & 05-1791 5
On April 30, 2002, Grass was driving his old route. He
was scheduled to make 11 deliveries and 4 pick-ups. Grass
testified that he had to reverse the order of his usual route,
which resulted in some delays, because FedEx employees
had loaded his truck backwards. Grass testified that he was
also delayed that day because a customer loaded its freight
onto his truck in a way that blocked other deliveries. Grass
testified that by the time he was scheduled to take his
unpaid half-hour lunch break, he had not completed his
morning deliveries and decided to complete a delivery while
on his lunch break. He wrote on FedEx’s driver detail form
that he took lunch from 1:18 to 1:48 p.m. and that from 1:41
to 1:47 p.m., he made a delivery to the Auburn Corporation.
Grass testified that at 3:17 p.m., he arrived at the Thomas
Dodge Company for a pick-up. According to Grass, the
freight he was to pick up was not yet ready, and he waited
at Thomas Dodge until 4:17. Grass testified that he called
dispatcher Merritt to report the problem and that Merritt
told him the Thomas Dodge assignment would be erased
from FedEx’s computerized records. The paperwork gener-
ated by Grass’s itinerary for April 30 shows no activity for
the hour of 3:17 p.m. to 4:17 p.m.
Grass reported that because of the delays, he was
unable to make his final two deliveries of the day, to
Adheron Coatings and Fisher Services. Grass testified that
he called Merritt to explain the problem and Merritt
instructed Grass to report that the deliveries could not
be made because both customers had closed by 3:00 p.m.
FedEx’s records show that Grass marked the 3:00 p.m. close
time as the reason for his nondeliveries. According
to FedEx’s policy, when a driver fails to make a sche-
duled delivery, he or she is required to fill out a returned
delivery receipt and check off one of twenty-eight possible
reasons for the nondelivery. Misloaded freight is an accept-
able reason for nondelivery. However, Merritt would have
been held responsible for such a failure. Several drivers for
6 Nos. 05-1365 & 05-1791
FedEx testified that dispatchers like Merritt routinely
instructed drivers to list a 3 p.m. closure as the cause of a
non-delivery, regardless of the true reason. Merritt denied
having told Grass to report that the customers were closed
by 3:00 p.m. The ALJ credited Grass’s testimony over
Merritt’s. Hollrah testified that there are usually several
returned packages each business day and that “there’s
freight that’s brought back a lot.”
Witnesses for FedEx testified that employees from
Adheron Coatings and Fisher Services called to complain
about the April 30 missed deliveries. However, employees
of the two customers testified that they never called in
the complaints alleged by FedEx. The ALJ credited the
customers’ employees’ testimony and rejected FedEx’s.
On May 2, allegedly in response to the customer com-
plaints, Hollrah called Grass into his office and told him to
write a statement recounting his actions on his route on
April 30. Grass testified that he told Hollrah that he
could not recall his exact itinerary for April 30 and that
Hollrah did not provide him with the paperwork from that
day to refresh his memory. Hollrah testified that he showed
Grass the day’s paperwork, and the ALJ credited Hollrah’s
testimony over Grass’s. Grass wrote down his recollection
of the day for Hollrah. According to Grass, after he com-
pleted the statement, he realized that he had made errors
and therefore drafted a second short statement. In response
to Hollrah’s further questioning, Grass wrote three more
short statements. Hollrah asked Grass to draft a sixth
statement explaining why he had indicated on returned
delivery receipts that he had failed to make the deliveries
to Adheron Coatings and Fisher Services because the
customers had closed by 3 p.m. Grass explained that his
truck had been incorrectly loaded, which prevented him
from making the deliveries and that he had reported the
problem to Merritt, who instructed him to state on the
Nos. 05-1365 & 05-1791 7
receipts that the deliveries could not be made because the
customers had closed by 3 p.m.
Grass admits that his statements contain errors and
contradictions regarding where he was on April 30 and why
he did not make the two deliveries.1 At the conclusion of the
nearly two-hour meeting and after reviewing Grass’s
answers, receipts, and paperwork, Hollrah told Grass that
he was suspended pending investigation, because records
showed that he had not worked between 3:17 and 4:17 p.m.
on April 30. Grass gave an explanation for the missing
hour, though he did not say that he was at Thomas Dodge.
Hollrah sent Grass home.
Hollrah testified that he consulted with Boyle and Baxter
regarding Grass’s case and forwarded relevant documents
to them, along with his recommendation that Grass should
be terminated. Boyle and Baxter agreed. Hollrah did not
need Boyle and Baxter’s approval to discharge Grass. On
May 15, Hollrah told Grass that he was being discharged
for submitting a false statement. FedEx’s policy provides
that “dishonesty” and “providing false or misleading infor-
mation” are causes for immediate discharge.
Subsequently, Grass filed a charge with the Board
alleging that his discharge violated the anti-discrimination
provisions of the Act. See 29 U.S.C. §§ 158(a)(1), (3). The
1
FedEx also argues in its reply brief that Grass wrote in his
statements that he was making deliveries at Strnad Rivit four
times on April 30, but that Grass admitted later that he never
went to Strnad Rivit. However, FedEx did not make this argu-
ment in its opening brief. “As a general rule, we do not con-
sider argument raised for the first time in a reply brief.” Dixon v.
Page, 291 F.3d 485, 489 (7th Cir. 2002). Application of that rule is
appropriate here, especially because the ALJ and Board did not
comment on this specific argument and we have no determination
to review.
8 Nos. 05-1365 & 05-1791
ALJ held that FedEx’s suspension and discharge of Grass
violated sections 8(a)(1) and 8(a)(3) because 1) the General
Counsel proved, under Wright Line v. Lamoureux, 251
N.L.R.B. 1083 (1980), enf’d 662 F.2d 899 (1st Cir. 1981),
cert. denied, 455 U.S. 898 (1982), that FedEx had knowledge
of Grass’s pro-union sympathies and suspended and
discharged Grass based on anti-union animus; and 2) FedEx
failed to prove that it would have taken the same actions
against Grass even if he was not engaged in protected
activity because FedEx’s investigation of Grass was
prompted solely by invidious anti-union motivation.
The Board adopted the ALJ’s recommended order, but
found it was unnecessary to reach the question whether
FedEx’s investigation had an invidious motivation. Instead,
the Board found that the reasons FedEx gave for suspend-
ing and discharging Grass were false and pretextual and
that FedEx failed to prove it would have taken the same
actions in the absence of Grass’s union activities. FedEx
filed a timely petition for review with this Court, and the
Board filed a cross-application for enforcement of its order.
II. Discussion
Section 8(a)(1) of the National Labor Relations Act makes
it an unfair labor practice for an employer “to interfere
with, restrain, or coerce employees in the exercise of” rights
guaranteed under section 7 of the Act. 29 U.S.C. § 158(a)(1).
Section 8(a)(3) prohibits an employer from discriminating
against employees with regard to hiring, tenure of employ-
ment, or other terms and conditions of employment in order
to discourage membership in a labor organization. 29 U.S.C.
§ 158(a)(3). An employer that discharges an employee
because of his or her union activities violates sections
8(a)(1) and 8(a)(3) of the Act. Vulcan Basement Waterproof-
ing of Ill., Inc. v. NLRB, 219 F.3d 677, 684 (7th Cir. 2000).
Nos. 05-1365 & 05-1791 9
To prove that an employer violated the Act by discharging
an employee, the General Counsel must show by a prepon-
derance of the evidence that “(1) the employee engaged in a
protected activity; (2) the decisionmaker knew it; and (3)
the employer acted because of anti-union animus.” Ryder
Truck Rental v. NLRB, 401 F.3d 815, 825 (7th Cir. 2005)
(citing Wright Line, 251 N.L.R.B. 1083). Once the General
Counsel meets this burden, “the company must either rebut
that evidence or mount an affirmative defense that the
company would have taken the same action despite the
employee’s protected activities.” Id.FedEx challenges three aspects of the Board’s decision.
First, FedEx maintains that the Board’s determination that
FedEx was aware of Grass’s union activities was not
supported by substantial evidence. Second, FedEx argues
that the Board erred by finding substantial evidence
supported its determination that FedEx discharged Grass
because of anti-union animus. Third, according to FedEx,
the Board should have accepted FedEx’s argument that
it would have suspended and discharged Grass regardless of
his union activities, because Grass was untruthful during
FedEx’s investigation of his April 30 itinerary.
A. Standard of Review
In this case, where FedEx is challenging the Board’s
determination that the General Counsel’s case is supported
by substantial evidence, we owe significant deference to the
Board’s factual and legal conclusions and will not retry the
case. As this Court has explained:
We will enforce the NLRB’s order if its factual find-
ings are supported by substantial evidence and its
conclusions have a reasonable basis in the law.
Bloomington-Normal Seating Co. v. NLRB, 357 F.3d
692, 694 (7th Cir. 2004). The substantial evidence test
“requires not the degree of evidence which satisfies the
10 Nos. 05-1365 & 05-1791
court that the requisite fact exists, but merely the
degree that could satisfy the reasonable fact finder.”
ATC Vancom of Cal. v. NLRB, 370 F.3d 692, 695 (7th
Cir. 2004) (quoting Allentown Mack Sales & Serv., Inc.
v. NLRB, 522 U.S. 359, 377 (1998))(emphasis in origi-
nal). We owe particular deference to the Board’s credi-
bility determinations, which we will disturb only in
extraordinary circumstances. SCA Tissue N. Am.
v. NLRB, 371 F.3d 983, 988 (7th Cir. 2004).
We apply a similarly deferential standard in
determining whether the Board’s legal conclusions have
a reasonable basis in law. Int’l Union of Operating
Eng’rs v. NLRB, 325 F.3d 818, 828 (7th Cir. 2003). We
must uphold the Board’s legal conclusions unless they
are irrational or inconsistent with the NLRA. ATC
Vancom, 370 F.3d at 695. Where the Board adopts the
ALJ’s findings of facts and conclusions of law, it is the
ALJ’s determinations that we review. SCA Tissue, 371
F.3d at 988.
Ryder Truck Rental, 401 F.3d at 825 (footnote omitted).
FedEx maintains that we are required to review the
Board’s decision with “special scrutiny,” based on this
Court’s decision in Weather Shield Manufacturing, Inc. v.
NLRB, 890 F.2d 52 (7th Cir. 1989). That standard, however,
applies only in instances in which the Board has rejected
the ALJ’s credibility determinations. Id. at 58 (“The first
question we must address[ ] . . . is whether the Board
rejected either the express or implied credibility findings of
the ALJ. If it did, then the Board’s conclusion is subject to
special scrutiny rather than merely the substantial evi-
dence test.”). This is not such a case.
Before the ALJ, FedEx argued that it discharged Grass
because Hollrah determined that Grass was dishonest about
where he was on company time and why he did not make
Nos. 05-1365 & 05-1791 11
deliveries to two customers. Contrary to FedEx’s assertion,
the ALJ did not credit Hollrah’s testimony that Grass was
fired for dishonesty.2 Instead, the ALJ found that Grass’s
statements may have given the appearance of dishonesty.
The ALJ’s findings support two alternative theories under
which the ALJ could reject FedEx’s affirmative defense:
first, that the reasons FedEx gave for discharging Grass
were false and pretextual (since Grass was able to clear up
2
Specifically, the ALJ found:
Before [FedEx]’s investigation, Grass did show in his paper-
work an overlap between his lunchtime and the time of a
delivery, but [FedEx] makes no suggestion that he did so to
deceive [FedEx], or to deceive a customer, or to en-
rich himself. And [FedEx] does not contend that the over-
lap would have been noted by Hollrah, and would have caused
Hollrah to investigate Grass’ conduct of April 30, absent the
alleged customer complaints. Grass also showed in his pre-
investigation paperwork a failure to account for one hour, but
Merritt did not deny Grass’ testimony that Grass had told
him that he had been delayed that amount by a pickup at
Thomas Dodge. And [FedEx] does not contend that the lost
hour would have been noted and investigated by Hollrah
absent the alleged customer complaints. And Grass also
showed in his preinvestigation paperwork that Fisher
Services and Aderhon Coatings had closed before 3 p.m. when
they actually did not, but Grass credibly testified that Merritt
told him to do such and, anyway, the customers could not
have been deceived about their own closing times. And again,
[FedEx] would not have routinely investigated Grass’ report
of the customers’ closing times absent the alleged customer
complaints. But even if I agree with [FedEx] in all respects
and found that Grass was inexcusably untruthful in his
paperwork that he submitted before its investigation, the fact
remains that [FedEx] did not begin its investigation because
of that untruthfulness.
Fedex Freight East, Inc. and Tommy Grass, 344 N.L.R.B. No. 5, at
8 (Jan. 31, 2005) (emphasis added) [hereinafter “Order”].
12 Nos. 05-1365 & 05-1791
the inconsistencies in his statements); and second, that
even if Grass could not explain his apparent “untruthful-
ness,” the fact that FedEx began its investigation based on
antiunion animus was sufficient to show that Grass would
not have been discharged but for FedEx’s animus. The
Board chose to rest its decision on the first theory, while the
ALJ chose to rest it on the second.
We apply the substantial evidence standard of review
here, where “the Board and the ALJ disagree as to . . .
derivative inferences made from the testimony,” Weather
Shield Mfg., 890 F.3d at 57, but do not disagree over the
credibility of the testimony itself. The Board referred
to specific findings by the ALJ that supported the Board’s
determination that the reasons given by FedEx for Grass’s
discharge were false and pretextual:
[FedEx] claimed that Grass was discharged for lying
in his paperwork about missed deliveries on April 30,
2002, for lying in conjunction with an inquiry into the
missed deliveries, and additionally for lying “about his
whereabouts on Company time.” Credited evidence
adduced at the hearing, some of it undisputed, belies
these reasons. Grass’ undisputed testimony is that the
failure of deliveries on April 30 had several causes,
among them the misloading by [FedEx]’s employees
of Grass’ truck on that day, and a delay encountered by
Grass at an earlier delivery at Thomas Dodge. The
judge credited Grass’ testimony that he recorded the
inaccurate reason for the nondeliveries—that the
addressee-companies were “[c]losed after 3:00 p.m.”—
in his paperwork upon the instruction of dispatcher
(and statutory supervisor) Chris Merritt. [FedEx] also
claimed that Grass falsely reported that he was on his
(unpaid) lunchbreak from 1:18 to 1:47 p.m., in apparent
contradiction of his statement that he was making a
stop at Auburn Corporation between 1:41 and 1:47 p.m.
Grass explained that he carries his lunch with him and
Nos. 05-1365 & 05-1791 13
“cut his lunch short because of the workload.” [FedEx]
did not produce evidence contravening Grass’ testi-
mony.
Order at 1 (emphasis added).
These findings by the Board are consistent with and
supported by the ALJ’s credibility determinations. Thus, we
will enforce the Board’s order “if its factual findings
are supported by substantial evidence and its conclu-
sions have a reasonable basis in the law,” and we will
overturn the Board’s credibility determinations only if
we find this to be an “extraordinary case.” Ryder Truck
Rental, 401 F.3d at 825.
B. Knowledge of Union Activity
Under Wright Line, the General Counsel was first
required to prove that FedEx was aware of Grass’s union
activities. FedEx argues that the evidence shows that
FedEx was not aware of Grass’s union activities and that
the ALJ simply assumed that decisionmakers at FedEx had
this knowledge. FedEx relies heavily on Grass’s testimony
that they were unaware of Grass’s support of the Union.
FedEx also points to testimony of its own witnesses, who
stated that “they did not know of activity by Grass in
support of a union.” These witnesses include Hollrah,
Merritt, and Boyle, among others.
Hollrah was the decisionmaker responsible for suspending
and discharging Grass. FedEx argues that the ALJ erred by
finding that Hollrah had knowledge of Grass’s union
activities because the ALJ “based this conclusion in part
upon evidence of a single conversation between Hollrah and
Robert Paulsen . . . , FedEx Freight’s former Operations
Supervisor, and Paulsen’s conversation with two lower level
supervisors, dispatcher Hawkins and Operations Manager
Cawgill.” Specifically, the ALJ found:
14 Nos. 05-1365 & 05-1791
Paulsen, who was [FedEx]’s operations supervisor
until he terminated in October, testified that 4 or 5
months before Grass was discharged “information got
out” that Grass was engaging in union activities. At the
time, he and dispatcher Hawkins and operations
manager Cawgill had a discussion in which Hawkins
said, “We need to keep an eye on Mr. Grass, . . . make
sure he’s doing everything out there right.” Paulsen,
obviously knowing that Hawkins was not just referring
to Grass’ performance (which, again, Hollrah testified
was “good”)3 replied to Hawkins that, “I’m not going
to be a headhunter for the company and fire people for
no reason.” Paulsen was immediately called on
Hollrah’s carpet and asked what Paulsen had meant by
his statement. Paulsen told Hollrah that he had once
been a “union driver” and that he was not going to fire
any employee for also being one. Hollrah did assure
Paulsen that [FedEx] did not want Paulsen to fire
anyone for prounion sympathies, and that fact can be
said to significantly dilute any evidence of animus that
was implied by the statement of Hollrah’s subordinate,
Hawkins. Nevertheless, the exchange is at least further
proof that [FedEx]’s supervisors were aware of Grass’
prounion sympathies and activities.4
3
The ALJ states that “[o]n cross-examination, Paulsen acknowl-
edged that [FedEx] suspected Grass of running up extra hours
(milking the clock) and that it would not be surprising that a
manager would suggest keeping an eye on a driver who was
suspected of doing such, but he denied that those suspicions about
Grass were mentioned during those exchanges.” Order at 5. The
ALJ credited Paulsen’s testimony.
4
Specifically, Paulsen testified that Hollrah “asked me why . . .
I . . . had the response of saying that I was not going to head
hunt anybody’s job. And I told him, ‘Look, Art, I have been a union
driver before I worked here, [and] I have been a supervisor. I’d
(continued...)
Nos. 05-1365 & 05-1791 15
Order at 7 (emphasis added).
Substantial evidence supports the Board’s conclusion that
FedEx was on notice that Grass was engaged in union
activity. The ALJ credited Paulsen’s statement that
“information got out” at FedEx about Grass’s union activity.
Additionally, Paulsen’s testimony shows that Hollrah
understood that Paulsen thought Hollrah wanted Grass
fired because of his union activity. Even if Hollrah was not
aware of such activity earlier, his conversation with
Paulsen put him on notice that Grass was active in the
Union. FedEx also argues that the ALJ erred by imputing
knowledge of lower-level managers to Hollrah. However, the
ALJ found specifically that Hollrah himself was made
aware of Grass’s union activities through his conversation
with Paulsen, if not earlier. The fact that Grass testified
that he did not openly support the Union at work (by
wearing Union buttons, for example) does not disprove the
conclusion that Hollrah found out about Grass’s union
activities in some other way. This is not an extraordinary
case in which we should disrupt the Board’s credibility
determinations. See SCA Tissue, 371 F.3d at 988.
Additionally, Grass’s testimony about his argument with
Merritt, who was Grass’s supervisor under the Act, indi-
cates that FedEx knew that Grass was a Union supporter.
In testimony the ALJ credited, Grass said that in early
January 2002, he got into an argument with Merritt, in
which Merritt asked Grass, “What are you mad [about]?
Because the Union didn’t get in?”
4
(...continued)
just as soon stay out of the whole thing. I’m just keeping a low
profile on the situation, and I do not like the way that this was
going on, and I’m just not going to do it.’ . . . He said, ‘Well, that’s
not what we want you to do.’ . . . I said, ‘Okay, that’s fine, because
I’m not going to.” Order at 5.
16 Nos. 05-1365 & 05-1791
Moreover, a number of additional pieces of testimony
support the ALJ’s conclusion that FedEx was aware of
Grass’s union activity. Grass was a longtime union sup-
porter and had openly and vigorously campaigned for the
Union at FedEx’s Summit facility in 1997. Grass was active
in the Union’s December 2001 organizing drive at Chicago
Heights. In early January 2002, according to Grass’s
testimony, Despaltro told Grass he was “making a big
mistake with the whole union thing.” In early February
2002, Grass complained to vice president Boyle about being
taken off his old route, and Boyle told Grass that he didn’t
like his attitude and then he would not let Grass “stay here
and ruin the company.” The company did give Grass back
his old route. Around the same time, however, Hawkins told
Paulsen that Grass was “poisoning the company.”
All of this evidence, taken as a whole and reviewed under
the substantial evidence standard, supports the ALJ’s and
the Board’s conclusion that decisionmakers at FedEx were
aware of Grass’s union activities.
C. Antiunion Animus
The second element of a Wright Line prima facie case
is that the employer acted against the employee based
on antiunion animus. FedEx argues that the Board’s finding
that FedEx possessed the requisite antiunion animus was
not supported by substantial evidence, because 1) testimony
regarding vice president Boyle’s statements did not demon-
strate that FedEx acted out of antiunion animus and 2)
there was no evidence that FedEx had discriminated
against other employees who openly supported unioniza-
tion.
First, FedEx disputes the Board’s finding that Boyle
demonstrated antiunion animus. Grass testified that
when he complained to Boyle about being taken off his
regular route shortly after the unionization efforts failed
Nos. 05-1365 & 05-1791 17
Dave Boyle said that he didn’t like my attitude there.
He said that I was unhappy and he didn’t like to see me
unhappy. Dave went on and said that he’d rather see
me leave the Company and go somewhere else where I’ll
be happy.
And Dave said, “I’m not going to have you stay here
and ruin this Company. And you know what I’m talking
about.”
Order at 3.
Boyle did not deny Grass’s testimony, and the Board
found it to be credible. The ALJ explained that this “threat
by Boyle, a vice president of [FedEx], is more than enough
proof of unlawful animus that would require [FedEx], under
Wright Line, to go forward with evidence absent
his protected activities.” Order at 7.
The ALJ’s explanation recognizes that Boyle did not
tell Grass explicitly that Grass would “ruin the company” by
helping to unionize employees. Nonetheless, the ALJ could
reasonably infer this meaning from Grass and Boyle’s
conversation and the surrounding circumstances. Cf. Van
Vlerah Mech., Inc. v. NLRB, 130 F.3d 1258, 1262-63 (7th
Cir. 1997) (in determining if a section 7 violation occurred,
“[t]he words used by the employer, as well as the context in
which they were conveyed, must be examined”). In evaluat-
ing an allegation of discrimination based on antiunion
animus, “the Board must determine the employer’s motiva-
tion in taking a particular action[, and t]his determination
often must be made on the basis of circumstantial evi-
dence.” Id. at 1263. We will not overturn the ALJ’s determi-
nation even if we would reach a different outcome based on
the same evidence. See id. (“We shall not ‘displace the
Board’s choice between two fairly conflicting views, even
though [we] would justifiably have made a different choice
had the matter been before [us] de novo.’ ” (internal citation
omitted) (alteration in original)).
18 Nos. 05-1365 & 05-1791
As the Board points out, sophisticated employers have
an incentive to avoid using explicit language when threat-
ening employees for their union activity. Thus, “[i]n deter-
mining what an employee reasonably might have inferred
from a communication, the Board must consider the
economic dependence of the employee on the employer and
the concomitant tendency of the employee ‘to pick
up intended implications . . . that might be more
readily dismissed by a more disinterested ear.’ ” Id. (quoting
NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969))
(alteration in original).
Looking at the circumstances surrounding Boyle’s
statement—including the Union’s renewed efforts at
FedEx’s Illinois plants—it was reasonable for the Board to
infer that Boyle’s statement that he didn’t want Grass to
“ruin the company” referred to Grass’s union activity
and that his complaint about Grass’s “attitude” referred
to that activity as well. Cf. SCA Tissue N. Am. LLC v.
NLRB, 371 F.3d 983, 989-91 (7th Cir. 2004) (finding
employer terminated employee based on antiunion animus
in part because of employer’s comment about employee’s
“attitude”). The ALJ reasonably ruled out the possibility
that Boyle was referring to Grass taking extra time to
do his work when Boyle said he did not want Grass to “ruin
the company,” especially because Hollrah testified that
Grass was a “good worker” with “good numbers.” Moreover,
as the ALJ determined, the inefficiency of a single employee
would not “ruin” FedEx.
Second, FedEx points out that the company did not
discriminate against other employees who openly supported
the Union’s 2001 organization attempt. FedEx argues that
this shows it does not possess antiunion animus. As the
Board correctly noted in its brief, however, “the fact that the
Company did not avail itself of every opportunity to treat
[U]nion supporters more harshly— either by keeping Grass
Nos. 05-1365 & 05-1791 19
on an unwanted delivery route, or by discharging other
[U]nion sympathizers—does not relieve it from responsibil-
ity for the unlawful actions that it did undertake.” “[A]
discriminatory motive, otherwise established, is not dis-
proved by an employer’s proof that it did not weed out all
union adherents.” Union-Tribune Publ’g Co. v. NLRB, 1
F.3d 486, 492 (7th Cir. 1993) (quoting Nachman Corp. v.
NLRB, 337 F.2d 421, 424 (7th Cir. 1964)) (alteration in
original).
D. Affirmative Defense
Finally, FedEx argues that the Board erred by reject-
ing its Wright Line defense. FedEx maintains that it
would have suspended and discharged Grass regardless of
his union activities. First, FedEx argues that the Board
ignored findings by the ALJ that Grass lied to Hollrah
during his investigation into Grass’s activities on April 30.
As explained above (see supra section I.A), although the
ALJ went further than the Board thought was neces-
sary—by finding that Hollrah’s investigation would not
have occurred but for FedEx’s antiunion animus—the ALJ
did not find that Grass was discharged for dishonesty.
The ALJ found that 1) Grass’s paperwork showed an
overlap between his lunchtime and the time of a delivery,
but this was not evidence of Grass being dishonest; 2)
Grass’s statement to Hollrah did not account for an hour of
time on April 30, but Grass was later able to account
for this hour, which was missing because Merritt removed
the Thomas Dodge delivery from FedEx’s computerized
records; and 3) two of Grass’s returned delivery forms
were marked with an incorrect reason for the return, but
Merritt instructed Grass to mark this reason and Grass’s
actions did not deceive FedEx’s customers. Based on this
evidence, the ALJ reasoned that “I at least agree with
[FedEx] that Grass appeared to be untruthful in some of the
20 Nos. 05-1365 & 05-1791
answers that he gave during Hollrah’s May 2 investigation.”
Order at 8 (emphasis added). However, this statement does
not show that Grass was untruthful, was trying to deceive
FedEx, or was discharged because of his apparent untruth-
fulness. The Board, relying on the ALJ’s findings of fact,
concluded that although Grass’s statements were inconsis-
tent, his testimony cleared up the confusion surrounding his
actions on April 30.
Additionally, the Board found that Grass’s action in
providing the wrong reasons for returning two deliveries did
not constitute a violation of company policy. Vice president
Boyle testified that Grass was discharged primarily for
falsely stating on FedEx’s returned delivery receipts that he
was unable to deliver freight to Adheron Coatings and
Fisher Services because they were closed by 3:00 p.m. The
ALJ credited Grass’s testimony that Merritt instructed
Grass to record this reason for the missed deliveries. The
testimony of other FedEx drivers established that Merritt’s
instruction to Grass conformed with standard company
practice. Most important, one of those drivers, William
Kiley, testified that his “supervisor specifically told him
that under company policy, this did not constitute falsifica-
tion of records.” Under these circumstances, the Board
reasonably found that FedEx’s explanation for its discharge
of Grass was pretextual. See Ryder Truck Rental, 401 F.3d
at 826-27 (finding that an employer’s explanation that it
discharged an employee because the employee falsified
maintenance reports was pretextual because the employer
had never discharged other employees based on this offense
and the employer had instructed employees to falsify
maintenance reports). We agree with the Board’s conclusion
that FedEx’s reasons for discharging Grass “ ‘furnished the
excuse rather than the reason’ for the discharge.” Ryder
Truck Rental, 401 F.3d at 827 (quoting SCA Tissue, 371
F.3d at 991-92).
Nos. 05-1365 & 05-1791 21
FedEx’s second argument in support of its affirmative
defense is that it produced evidence that the company
discharges all employees who are found to have been
dishonest. As the Board points out, however, the discharged
employees FedEx cites as examples were mainly managers
and supervisors. FedEx also admitted at oral argument that
the discharged employees it compared to Grass had been
discharged for defrauding FedEx. FedEx produced no
example of an employee who was discharged for reasons
analogous to the why Grass was allegedly fired, i.e. provid-
ing a false reason for returning a delivery. This
point—especially taken in conjunction with the testimony
of other truck drivers that the conduct in question does
not constitute falsifying records—undermines FedEx’s
affirmative defense. Under these circumstances, the Board’s
decision to reject FedEx’s claim that it would have dis-
charged Grass regardless of his union activity is supported
by substantial evidence.
III. Conclusion
For the foregoing reasons, FedEx’s petition for review
of the Board’s order is DENIED and the NLRB’s cross-
petition for enforcement of its order is GRANTED.
22 Nos. 05-1365 & 05-1791
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-12-05