Sears Roebuck v. NLRB ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-2504 & 02-2651
SEARS, ROEBUCK & COMPANY,
Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.
On Petition for Review and Cross-Application
for Enforcement of an Order of the
Nation Labor Relations Board
Cases 12-CA-19317 and 12-CA-19533
ARGUED MARCH 31, 2003—DECIDED NOVEMBER 17, 2003
Before BAUER, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. Sears, Roebuck, and Company
petitions for review of a decision of the National Labor
Relations Board (“NLRB” or “Board”) holding that Sears
violated 29 U.S.C. §§ 158(a)(1) and (a)(3) by firing John Iaci,
Corliss Hepburn, and Cordy Richardson for their protected
union activities. Sears requests that we deny enforcement of
the Board’s order that the three be reinstated and otherwise
compensated. The General Counsel of the NLRB cross-
petitions for enforcement. Because substantial evidence does
not support the Board’s decision, we grant the petition for
review and deny enforcement.
2 Nos. 02-2504 & 02-2651
I.
At the end of 1996, John Iaci was an appliance repairman
for Sears in West Palm Beach, Florida. Iaci had three
decades of employment with Sears and, although Iaci had
occasionally received what the General Counsel character-
izes as “minor, informal discipline,” his performance
evaluations were mostly positive. The performance reviews,
and possible annual raises, of a repairman like Iaci de-
pended partly on the number of service calls that he com-
pleted. In February 1997, Iaci claimed falsely to have
completed two repairs at a customer’s house when, in truth,
he had not even visited the customer’s residence. Iaci’s
immediate supervisor, Christine Smith, discovered that he
had falsified company records to reflect that he had com-
pleted the service calls and reported the problem to her
boss, District Service Manager Ron Medford. In her memo-
randum to Medford, Smith stated that “Mr. Iaci is manipu-
lating the system to his own benefit and to the customers
[sic] detriment. In the time Mr. Iaci is doing these ‘dummy’
rounds he could actually be handling customers who need
service.” She also noted that Iaci’s misconduct had delayed
customer repairs, added burdens to the repairmen who
actually were visiting all of the customers whom they
claimed to visit, and forced Sears to pay overtime.
Medford gave Iaci a chance to respond to Smith’s conclu-
sions. In a three-page, hand-written memorandum, Iaci
threw himself on Medford’s mercy. Iaci wrote that “I am
very sorry 4 what I did + know it was wrong.” He apolo-
gized profusely for his “mistake,” admitting that he “said he
had checked” a customer’s dishwasher and washer “when
in fact [he] never went” to the customer’s residence. Iaci also
pointed out, however, that he had “given [his] life to Sears”
and that he had needed to work because he had a wife and
house. He implored Medford, “[p]lease do not terminate
me” and ended his memorandum with the following:
Nos. 02-2504 & 02-2651 3
You probably think well if he did it once how many
times before he has done it. I understand that. Please
call [the customers on] my routes you will see this is not
happening. This was isolated. I don’t know what else to
say except that I’m sorry. Very sorry.
Under the “Sears Human Resources Guide for Managers,”
“falsification of Company records” and “improper record-
ing of detail” were grounds for “immediate termination.”
Instead of firing Iaci immediately, however, Medford
decided to suspend him for a few days. After Iaci returned
to work, Smith followed Iaci’s suggestion and paid particu-
lar attention to his routes. Medford, for his part, warned Iaci
that further violations of company policy would lead to
termination of his employment. The Board aptly character-
ized this as a “last chance warning.”
Shortly after his return to work, Iaci became involved with
the International Brotherhood of Electrical Workers, Local
Union 349, AFL-CIO (“the Union”). According to Iaci’s
testimony, he had learned in late 1996 or early 1997 that the
Union was attempting to organize Sears’s West Palm Beach
facility. Iaci started to play an active role in this attempt in
the spring of 1997, when he began distributing union
authorization cards to, and discussing the Union with, co-
workers in the facility’s parking lot. As Iaci put it, he
distributed “approximately fourteen cards to fourteen
different employees” in “[l]ate April, maybe through May”
1
1997. In June 1997, Medford had a conversation with Iaci.
1
The Board, without discussing the evidence on which it based
its conclusion, found as a matter of fact that Iaci distributed
authorization cards and discussed the Union with co-workers in
the parking lot “between May and June” 1997. On appeal, the
General Counsel’s position is that these acts actually began in
(continued...)
4 Nos. 02-2504 & 02-2651
Medford stated that Sears did not want a “third party” at
the West Palm Beach facility, and he then asked Iaci if
transferring Smith to a different location would “make the
third party go away.” Iaci replied that he did not know
whether Smith’s departure would make the “third party” go
away, but that it would not hurt. Later that month, Medford
assumed a new position with Sears and relocated to Illinois.
In the meantime, according to Smith’s testimony, Iaci’s
troubles with Smith continued. Smith testified that, in
March and April, she documented six instances in which
Iaci falsely recorded that he had repaired a customer’s
appliance when, in fact, the customer had declined the
repair. Again on July 28, August 4, and August 15, accord-
ing to Smith’s testimony, Iaci falsely reported that he had
repaired an item when, in fact, he had not. (Ironically, Smith
testified that she verified the infractions of July 28 and
August 15 by, as Iaci himself had suggested, calling the
customers on his routes.) Smith testified that, by lying about
these events, Iaci once again falsely inflated his record of
productivity; where no warranty or maintenance contract
applied, Sears unsurprisingly charged customers more for
a repair than it charged merely for sending a repairman to
the customer’s house and providing an estimate. Although
Smith testified that she had counseled Iaci orally about these
reports, from March through July, nonetheless, her monthly
evaluations of Iaci’s work were positive, containing compli-
ments like “great job” and “this is a great performance.”
1
(...continued)
April 1997. The only evidence to which any party cites as to when
Iaci engaged in this conduct is Iaci’s own testimony to the effect
that the time period was some time in April or May 1997. We are
therefore satisfied that substantial evidence supports the conclu-
sion that Iaci’s union activities began as early as April 1997 and
ended by June 1997.
Nos. 02-2504 & 02-2651 5
In mid-August, Ralph Graettinger replaced Medford as
the District Service Manager for the West Palm Beach and
Plantation facilities. On August 21, Graettinger had a
meeting with Iaci about issues related to work. Iaci told
Graettinger that he was trying to straighten out some of the
problems at work and that he was upset about the Union.
According to Iaci’s testimony, Iaci had said that “most of the
employees really didn’t want a Union but they did want the
problems straightened out.” Graettinger then stated to Iaci
that he was not going to transfer Smith, and that Iaci had a
“bad attitude,” was too opinionated, was a bad influence on
other employees, and said things that other employees
should not hear.
In late August, according to Smith’s testimony, Smith
showed Graettinger the documentation regarding Iaci’s
false reports of having repaired appliances. Graettinger
replied that Smith should prepare a chronological summary
of Iaci’s false reports. During her investigation, according to
Smith’s testimony, she discovered three more discrepancies
on Iaci’s routes, one of which involved an occasion on which
Iaci had changed the warranty date on a customer’s wash-
ing machine so that Sears (and not the customer)
would assume the cost of the repair to that machine. Smith
testified that Iaci then sold that same customer a mainte-
nance agreement, on which Iaci reaped a commission. Smith
testified that she presented a memorandum with supporting
documentation to Graettinger on September 15, concluding
that Iaci “continued to falsify his routes knowing the
penalty for repeating these actions would be cause for
dismissal.”
Graettinger then had Sears’s loss prevention personnel,
under the direction of Richard Gonzalez, interview Iaci
and investigate whether there was a legitimate explanation
for his conduct. During the interview, Gonzalez assured Iaci
6 Nos. 02-2504 & 02-2651
that he would not be fired and essentially dictated the
2
last two sentences of the statement that Iaci wrote. That
statement reads as follows:
On this date I discussed with Mr. Gonzalez about
picking up calls while at the house and doing a minimal
check. I was doing this to generate more completed calls
and also at times to satisfy a customer request. I did not
know Sears did not want this done. I know now and
will not do this unless cust needs repair. Sometimes I
did not do any check. On some occasions I changed the
warranty date and sold an MA. The customer would get
call done free and MA was sold. I understand doing this
cause a loss to the company.
Immediately after reading the statement, Graettinger
entered the interview room and fired Iaci.
Like John Iaci, Cordy Richardson was an experienced
repairman for Sears, having worked for the company for
more than two decades. In 1997 and 1998, Richardson
worked out of Sears’s facility in Plantation, Florida, and was
also under the indirect supervision of Graettinger. Corliss
Hepburn worked out of the same location, having repaired
sewing machines and vacuum cleaners for about 14 years.
She too was under Graettinger’s indirect supervision. As
was the case with Iaci, both Richardson and Hepburn were
involved in the Union’s attempt to organize the workforce.
Each spoke favorably about the Union during a meeting
2
The testimony of Iaci and Gonzalez differed as to whether
Gonzalez told Iaci to add anything to his statement. The
Administrative Law Judge (“ALJ”) found that “Gonzalez in-
sisted that [Iaci] add the last two sentences to his ‘statement,’ ”
and the Board adopted that factual finding. Because substantial
evidence supports that finding, we assume it to be correct for
the purposes of our review that Iaci did not actually admit to
the last two sentences in his statement.
Nos. 02-2504 & 02-2651 7
held at the Plantation facility sometime during the week of
3
February 23, 1998 that was called by Sears and that was
attended by at least one Sears supervisor, Charlie Young,
who argued against unionization. Both Richardson and
Hepburn solicited union authorization cards. In addition to
his union activities, Richardson also regularly ate lunch at
a local restaurant with Joe Fowler, a former Sears employee
who had retired in May 1997 and who was instrumental in
the attempt to organize Sears’s facilities at Plantation and
West Palm Beach. On one occasion in March 1997, Sears
supervisor Pat McLaughlin and Sears employee James
Eassey watched the restaurant with binoculars to see who
was there.
In late February 1998, shortly before the representation
4
election on February 27, Fowler distributed an unsigned
letter dated February 20. The letter espoused the virtues of
the Union to Sears’s employees at the Plantation facility,
was addressed to “Dear Fellow Worker,” and began with
the phrase “Why I will vote in favor of the Union.” As
Fowler testified, he “wanted it [the letter] to sound as if it
was coming from someone who still worked” for Sears.
(Fowler, of course, was no longer a “Fellow Worker” at
3
The ALJ, without discussing or citing any evidence, placed this
meeting in “mid-February.” As we discuss in detail later, the
weight of the evidence shows that the meeting took place at some
point during the week of Monday, February 23, 1998.
4
The Board found as a matter of fact that the election was held
on Saturday, February 28, 1998. In his brief, the General Counsel
states that the election was held on Sunday, March 1, 1998.
However, the uncontested evidence, in the form of the NLRB’s
tally of ballots, shows that the election actually was held on
Friday, February 27, 1998. As will become evident, the date of the
election is important.
8 Nos. 02-2504 & 02-2651
Sears, and he was therefore in no position to “vote in favor
of the Union.”) Unsurprisingly, speculation arose as to the
authorship of Fowler’s anonymous letter. Sandra Smith,
who stated that she was “in charge of cashier audit and data
entry” in February 1998 at Sears’s Plantation facility,
testified that, although she did not know who wrote the
letter, “there was a whole lot of gossip” circulating at the
Plantation facility regarding the letter.
During one of her days off in mid-February 1998, Hep-
burn, who owned a Sears refrigerator, called the service
center to request a repair, specifically asking that Richard-
son be assigned to fix the appliance. There was nothing
necessarily unusual about that request: employees who
were also owners of Sears appliances were treated the same
as any other customer needing a repair, and sometimes a
customer requested a specific repairman by name. Richard-
son went to Hepburn’s residence and replaced the compres-
sor in Hepburn’s refrigerator. He also, however, incorrectly
reported that Hepburn’s refrigerator was covered by a
“service flash” that Sears had issued as to 24 model num-
bers. The service flash extended the warranty period for
models that had a tendency to break within an abnormally
short amount of time. Although Hepburn’s refrigerator was
of a similar age and type to some of the 24 models listed in
the service flash, it was not actually covered. The effect of
Richardson’s incorrect report, had Sears not discovered it,
would have been that Hepburn would have improperly
received a free repair and compressor, which together were
worth about $600.
Thanks to an alert auditor, however, Sears learned within
days of the repair that Richardson had incorrectly reported
that Hepburn’s refrigerator was covered by the service flash.
Graettinger testified that, upon hearing of the incident, he
immediately concluded that the two had conspired to steal
Nos. 02-2504 & 02-2651 9
a compressor from Sears, and he thus sought permission to
fire them. Graettinger received that permission, subject
to one condition: he had to prove that his suspicions were
correct. Toward that end, he had Gonzalez interview
separately Richardson and Hepburn on March 6, 1998,
which was about one week after employees voted 139 to 62
against the Union. During his interview with Richardson,
Gonzalez told him that his “mistake was not serious” and
that the purpose of the interview was a “slap on the wrist.”
Richardson then wrote the following statement, which was
5
virtually dictated to him by Gonzalez:
On 2/17/98 I Replaced A Compressor In A Associate
Refrigerator And Put It In As Customer Satisfaction. I
Was To Charge For Part And Labor Out Of Warranty 1
Year. Total Cost Would Have Been Around 600.00. This
Is What I Should Have Charge Her. I Didn’t Because I
Trying To Be Nice. I Understand The Company Loses
Money When I Do This I Know It Is Wrong. I Didn’t
Receive Any Money On The Side For This.
Similarly, Gonzalez interviewed Hepburn. She wrote the
following statement after Gonzalez essentially told her what
to write:
2 weeks ago Tech Richardson came to my home, re-
paired my refrigerator which was out of warranty and
he didn’t charge me for the repair. Doing me a favor.
The charge was $600.00. He didn’t charge me anything.
No money was paid to tech Richardson, I offered to buy
5
Gonzalez denied that he told any employee what to write. But
the employees testified that he had done so, and the ALJ found
their version of events more credible because “Gonzalez’
memory, manner of testifying, and demeanor were entirely
unconvincing.”
10 Nos. 02-2504 & 02-2651
him lunch which he refused. I now realize this is wrong.
At the time I didn’t think of it like that, but now I know
that its wrong and that the Company loses money.
Statements in hand, Graettinger first met with Richardson.
Graettinger told Richardson that his conduct was tanta-
mount to stealing from Sears and that he was fired.
Graettinger then met with Hepburn and fired her as well.
Hepburn testified that, when she asked Graettinger whether
she was being fired because of the Union, he answered no
and smiled. Graettinger testified that he had not smiled and
that Hepburn never asked him whether her discharge was
for protected activities.
The Board’s General Counsel later filed an administrative
action, alleging that Sears violated 29 U.S.C. §§ 158(a)(1) and
(a)(3) by firing Iaci, Richardson, and Hepburn for their
union activities. The ALJ, Jane Vandeventer, agreed,
ordering Sears to reinstate, and otherwise make whole, the
three workers. The Board upheld the ALJ’s order on admin-
istrative appeal, although it limited its discussion to Iaci’s
firing. See Sears, Roebuck & Co., 337 NLRB 65 (2002).
II.
We have jurisdiction to review, pursuant to 29 U.S.C.
§§ 160(e) and (f), petitions for review of Board decisions. In
conducting our review, we must determine whether “the
Board’s decision is supported by substantial evidence and
whether its legal conclusions have a reasonable basis in
law.” International Union of Operating Engineers v. NLRB, 325
F.3d 818, 828 (7th Cir. 2003). The substantial evidence
standard applies to the Board’s factual findings, and is
satisfied when the Board relies upon “such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Id. “[W]e defer particularly to the
Nos. 02-2504 & 02-2651 11
Board’s findings regarding credibility, which cannot be
disturbed absent extraordinary circumstances.” Id. As to
whether the Board’s legal conclusions have a reasonable
basis in law, we must apply a similarly deferential standard.
Id. With these standards in mind, we turn to the relevant
statutory provisions.
Under 29 U.S.C. § 157:
Employees shall have the right 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, and shall also have the right to refrain
from any or all of such activities except to the extent
that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition
of employment as authorized in section 158(a)(3) of this
title.
These rights are protected by 29 U.S.C. § 158. Section
158(a)(1) makes it unlawful for a covered employer “to
interfere with, restrain, or coerce employees in the exercise
of rights guaranteed in section 157 of this title,” and
§ 158(a)(3) makes it unlawful for a covered employer to
discriminate against employees regarding tenure of employ-
ment in order to discourage membership in a labor union.
Van Vlerah Mechanical, Inc. v. NLRB, 130 F.3d 1258, 1262-63
(7th Cir. 1997). The Board ordered Iaci, Richardson, and
Hepburn reinstated because it concluded that Sears violated
both provisions by firing them because of their union
activities.
If a covered employer were to fire an employee because of
his union activities, it would trigger liability under both
§§ 158(a)(1) and (a)(3). Jet Star, Inc. v. NLRB, 209 F.3d 671,
12 Nos. 02-2504 & 02-2651
675 (7th Cir. 2000). To establish a prima facie case that an
employer has committed this offense, the Board’s General
Counsel must show that: (1) the employee engaged in
protected activity; (2) the decisionmaker knew it; and (3) the
employer acted because of antiunion animus. Id. If the
General Counsel establishes a prima facie case, the em-
ployer then must either rebut the General Counsel’s evi-
dence or prove, pursuant to the affirmative defense delin-
eated in Wright Line, a Div. of Wright Line, Inc., 251 NLRB
1083 (1980), that the employment action would have been
taken in the absence of the protected activities. Id. The prima
facie case and the affirmative defense available under
Wright Line are linked: the weaker the prima facie case, the
easier it is for the employer to establish that it would have
taken the adverse action regardless of the employee’s
protected activity. Sasol N. Am., Inc. v. NLRB, 275 F.3d 1106,
1113 (D.C. Cir. 2002).
A. John Iaci
We turn first to John Iaci. Iaci was involved in union
activities in April or May 1997 when he distributed authori-
zation cards and promoted the Union to his fellow employ-
ees. NLRB v. Q-1 Motor Exp., Inc., 25 F.3d 473, 478 (7th Cir.
1994). It is less clear that substantial evidence supports the
second element of the prima facie case, knowledge of Iaci’s
protected activities. To satisfy this element, the General
Counsel had to show that the decisionmaker(s) responsible
for the firing of Iaci knew that he was involved in union
activities. Vulcan Basement Waterproofing v. NLRB, 219 F.3d.
677, 685 (7th Cir. 2000) (reasoning that “the decision-makers
at Vulcan had to know of” the protected activities); Jim
Walter Resources, Inc. v. NLRB, 177 F.3d 961, 963 (11th Cir.
1999) (reasoning that “[n]one of the persons who gave ‘bad
attitude’ statements was ‘an agent responsible for hiring’ ”);
Nos. 02-2504 & 02-2651 13
NLRB v. McEver Eng’g , Inc., 784 F.2d 634, 640 (5th Cir. 1986)
(holding that “[b]efore an employer can be said to have
discriminated against its employees for their protected
activity, the Board must show that the supervisor responsi-
ble for the alleged discriminatory action knew about the”
union activity); Air Surrey Corp. v. NLRB, 601 F.2d 256, 257-
58 (6th Cir. 1979) (vacating the Board’s order because
substantial evidence did not show that the employee’s
supervisor knew of his protected activity); see also Richdel,
Inc., 265 NLRB 467, 475-75 (1982) (focusing on the
decisionmaker’s knowledge of protected activities). In
holding that the General Counsel had met his burden, the
Board reasoned thus:
[W]e find, contrary to [Sears’s] argument, that the
record contains ample evidence of employer knowledge
of Iaci’s union activity. The judge credited Iaci’s testi-
mony concerning conversations with District Service
Managers Medford and Graettinger in June and August,
respectively. In the June conversation, Iaci was asked
whether the “third party” “would go away” if Supervi-
sor Smith were transferred. The term “third party”
clearly referred to the Union. Thus, it is evident that
[Sears] was aware that at the time that Iaci was involved
with the Union. Graettinger’s reference in the August
conversation to [Sears’s] decision not to transfer Smith
indicates that Graettinger was aware of the content of
Iaci’s June conversation with Medford. In addition, Iaci
specifically mentioned the Union in the August conver-
sation. The judge discredited Graettinger’s denial that
he knew about Iaci’s union activities. We find the record
sufficient to support a finding that [Sears] had knowl-
edge of Iaci’s union support and activities.
We agree that the record demonstrates that Medford and
Iaci had a conversation about the Union. Medford, however
14 Nos. 02-2504 & 02-2651
was not the decisionmaker who fired Iaci; Graettinger made
6
that decision. Therefore, Medford’s knowledge of Iaci’s
involvement with the Union is relevant only insofar as it
may be imputed to Graettinger. Essentially, the Board
imputed that knowledge to Graettinger because it reasoned
that Medford had discussed with Iaci the possibility of
transferring Smith in order to foil the drive toward union-
ization, Medford told Graettinger that Iaci might be inter-
ested in Smith’s transfer and, therefore, it was probable that
Graettinger was aware of the antiunion context within
which Smith’s possible transfer was broached. Considering
that Iaci testified that Graettinger had told him that “Chris
Smith’s name had come up with Mr. Medford, and he told
me that she was not going to be moved,” a reasonable
person could conclude that Medford and Graettinger had
spoken, and that Iaci’s involvement with the Union was a
topic of conversation. Although this statement was a thin
reed to support the element of knowledge, we nevertheless
hold that substantial evidence supports the Board’s finding
that Graettinger knew of Iaci’s protected activities.
We now turn to prong three of the prima facie case and
must decide whether substantial evidence supports the
Board’s finding that Graettinger acted because of antiunion
animus. The Board identified three reasons upon which it
based its finding of animus. The Board stated that, “[in]
finding that the record supports an inference of animus, we
rely on the timing of Iaci’s discharge and the ‘blatant
disparity’ between the treatment of Iaci and that of other
employees who engaged in similar work infractions.” In a
6
During oral argument, the attorney for the General Counsel
conceded that “Graettinger is the decisionmaker . . . Graettinger
is the one who fired Iaci. . . . The question needs to be whether or
not he had bias.”
Nos. 02-2504 & 02-2651 15
footnote, the Board added its third reason, stating that “[i]n
addition, we agree with the judge that Medford’s question-
ing of Iaci as to what steps [Sears] might take in order to
make the Union ‘go away’ shows antiunion animus.”
We begin with the timing of Iaci’s discharge. Coincidence
between union activity and an employee’s discharge may,
when added to other evidence of an employer’s antiunion
motivation, form part of the substantial evidence underlying
a finding of antiunion animus. Chicago Tribune Co. v. NLRB,
7
962 F.2d 712, 717-18 (7th Cir. 1992). The coincidence relied
upon by the Board, however, is exceedingly weak. Iaci’s
union activities consisted of distributing about 14 union
authorization cards to, and discussing the Union with, co-
workers in April or May 1997. Sears did not fire Iaci,
however, until October 2, 1997, more than four months after
his protected activities had ended. There is thus a significant
lapse in time between Iaci’s protected activities and his
discharge. Cf. NLRB v. Stor-Rite Metal Products, Inc., 856 F.2d
7Although we need not resolve the matter in this case, we note
that it is less clear whether the timing of an employee’s discharge,
by itself, may constitute substantial evidence of antiunion
animus. Some authorities hold that it may not. See Chicago Tribune
Co., 962 F.2d at 717-18 (reasoning that “mere coincidence is not
sufficient evidence of antiunion animus”); NLRB v. Loy Food
Stores, Inc., 697 F.2d 798, 800-01 (7th Cir. 1983) (reasoning that
evidence that the employer fired a worker while he was involved
with an organizing campaign was not substantial evidence of the
prohibited animus). At least one opinion holds that “[t]iming
alone may suggest antiunion animus.” NLRB v. Rain-Ware, Inc.,
732 F.2d 1349, 1354 (7th Cir. 1984). Still another authority takes a
middle view, reasoning that “mere coincidence alone, without
other circumstantial evidence, may not always support an
inference of animus.” Martech Med. Products, Inc., 331 NLRB 487,
501 (2000).
16 Nos. 02-2504 & 02-2651
957, 965 (7th Cir. 1988) (asking rhetorically, “[i]f Stor-Rite
acted with retaliatory intent, then why did it delay the full
impact of its retaliation until months” after the protected
conduct?).
Further undermining the Board’s reliance on the timing of
Iaci’s discharge is that the string of misconduct for which
Sears first disciplined, and later purported to fire, Iaci began
well before the union election and well before Iaci’s pro-
tected activities. See Chicago Tribune Co., 962 F.2d at 718(noting that “Kaczmarek’s poor work record dated to well
before the union election”); Peavey Co. v. NLRB, 648 F.2d 460,
462 (7th Cir. 1981) (noting that “it is undisputed that Snider
had been disciplined, for cause, prior to her contact with the
union”). It is undisputed that Iaci was disciplined and
nearly fired in February 1997 for filing reports, in which he
falsely claimed to have fixed appliances, months before he
distributed authorization cards. The testimony of Christine
Smith, testimony that the ALJ and the Board never acknowl-
edged, was that Iaci continued to file reports, on various
occasions from March through mid-August 1997, in which
he falsely claimed to have repaired appliances. Smith
testified that she had orally counseled Iaci about these
infractions repeatedly. Iaci himself admitted in his written
statement of October 2, 1997 that “[s]ometimes I did not do
any check.” (Although the ALJ found that the last two
sentences of Iaci’s statement were dictated by Gonzalez, she
made no such finding as to the preceding statement, in
which Iaci confessed to the same conduct for which he had
been disciplined in February 1997.)
Where, as here, an employee’s discharge purportedly
stems from a series of disciplinary incidents or warnings
that predate the employee’s union activities, the timing of
that discharge rarely if ever constitutes substantial evidence
of the employer’s antiunion animus. See id.; see also NLRB v.
Nos. 02-2504 & 02-2651 17
Newman Green, Inc., 401 F.2d 1, 3-4 (7th Cir. 1968) (holding
that no substantial evidence supported the Board’s finding
of anti-union animus where the employee, who had been
repeatedly disciplined for coming to work under the
influence of alcohol, was fired for drunkenness); 1 The
Developing Labor Law 297 (Hardin et al. eds., 4th ed. 2001)
(reasoning that “the giving of warnings for specific conduct
may suggest that a subsequent discharge based upon similar
conduct is not discriminatorily motivated”). This case is no
exception to the rule. Iaci had begun the series of infractions
for which Sears ostensibly fired him well before he began
his protected activities. And he had been counseled, if not
warned, continually as these infractions occurred. In light of
that consideration, no reasonable person could conclude
that, simply because Sears fired Iaci more than four months
after his union activities had ceased, it had therefore fired
him because of his union activities. The temporal link
between Iaci’s protected activities and his firing is, as we
said in Chicago Tribune Co. v. NLRB, “too remote, indetermi-
nate and ethereal” to amount to substantial evidence of
antiunion animus. 962 F.2d at 718; cf. Medeco Sec. Locks, Inc.
v. NLRB, 142 F.3d 733, 743-44 (4th Cir. 1998) (holding that no
substantial evidence of knowledge could be inferred from
the company’s decision to fire a worker within a year after
he had ceased to be a visible supporter of the union and had
disavowed further interest in the union). To reach the
contrary conclusion, and hold that substantial evidence of
antiunion animus exists merely when an employer knows
of a worker’s union activities and later fires that employee,
would be tantamount to making union activism a shield
against discharge, which is a result that would be incompat-
ible with the statute. Loy Food Stores, Inc., 697 F.2d at 801.
Next, we look to the second reason that the Board found
antiunion animus: “the ‘blatant disparity’ between the
treatment of Iaci and that of other employees who engaged
18 Nos. 02-2504 & 02-2651
in similar work infractions.” The Board is correct in observ-
ing that the disparate disciplinary treatment of employees
who engaged in union activities can constitute substantial
evidence of antiunion animus. Great Lakes Warehouse Corp.
v. NLRB, 239 F.3d 886, 891 (7th Cir. 2001). Despite opining
that the discrepancy in treatment in this case was “blatant,”
however, the Board did not identify a single employee who,
like Iaci, falsified reports of service calls, but was treated
differently than Iaci was treated. We would expect that, if
the disparate treatment were really “blatant,” or even if
there were just substantial evidence of disparate treatment,
the Board would be able to point to at least one specific
employee who was disciplined more lightly for infractions
similar to Iaci’s misconduct. In Great Lakes Warehouse Corp.
v. NLRB, for example, the Board’s decision as to disparate
treatment rested on evidence that the employer “had been
more lenient in the application of its disciplinary policy”
toward specifically named employees who were less
identified with the union. Id. at 889-91.
Here, however, the Board identifies no such employee.
Moreover, what is most perplexing about the Board’s silence
on this point is that Sears does point to one other employee
who committed basically the same conduct for which Iaci
was fired. According to the uncontradicted testimony of
Christine Smith, Bruce Edwards, whom Sears had employed
since 1974, was another senior repairman under her supervi-
sion who, in March 1997, falsely reported that he was
conducting a service call during a time in which he was
actually at his own home. As she had done in Iaci’s case,
Smith reported the problem to Medford, who asked Ed-
wards to respond. Edwards admitted his misconduct and
wrote a confession. Medford then suspended and demoted
Edwards, and warned him that further misconduct of a
similar nature would result in immediate discharge. When
Nos. 02-2504 & 02-2651 19
Edwards returned to work, Smith scrutinized his routes
more carefully. In mid-September 1997, when Smith learned
that Edwards had changed the warranty date on an appli-
ance that he owned, and then installed Sears’s parts for free,
she reported the problem to Graettinger. After Gonzalez
interviewed Edwards on October 2, 1997, and Edwards
admitted his misconduct, Graettinger fired him.
Edwards’s situation was almost a mirror image of Iaci’s
situation. In early 1997 Medford suspended both, and gave
both a last chance warning, for falsifying reports of their
service calls. After confessing his misdeeds, each was
allowed to return to work under Smith’s increased scrutiny.
Both then falsified warranty dates, Iaci on a customer’s
appliance, Edwards on his own. Had Sears not detected
both falsifications, the effect of each would have been that
Sears would have unwittingly given away parts and repairs
for which a customer should have paid. After Graettinger
became aware of Iaci’s and Edwards’s misconduct, he fired
both in October 1997 after brief investigations by Gonzalez.
There is only one glaring difference between Iaci and
Edwards: in the case of Edwards, there is no evidence that
he had any involvement with the Union.
To refute the General Counsel’s allegation of disparate
treatment, Sears cited the example of Edwards before the
Board. There are strong parallels between Sears’s investiga-
tion and firing of Edwards and its investigation and firing
of Iaci. Yet the Board (and the ALJ, for that matter) did not
even mention Edwards’s name before concluding that there
was a “blatant disparity” between Sears’s treatment of Iaci
and other employees who had committed similar miscon-
duct, but were not involved with the Union. It would have
been error merely for the Board to select and discuss only
the evidence that favored its conclusion (that Sears fired Iaci
because of the prohibited animus), while failing to articulate
20 Nos. 02-2504 & 02-2651
its reasons for rejecting a line of countervailing evidence.
Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). What the
Board did in this case, however, was worse. The Board not
only ignored Sears’s Edwards-related evidence; it also failed
to select and discuss the evidence that would have shown
that Sears treated at least one similarly-situated employee
differently than it treated Iaci. We therefore hold that
substantial evidence did not underlie the Board’s disparate-
treatment theory.
We next address the final reason that the Board found
animus regarding Iaci: Medford’s questioning of Iaci about
how to make the “third party” “go away.” We agree with
the Board that this conversation could be construed as
substantial evidence of Medford’s antiunion animus. But
Medford was not involved in the decision to fire Iaci and his
antiunion animus, therefore, is irrelevant. What matters is
the antiunion animus of Graettinger, the decision-making
8
supervisor who fired Iaci. See Vulcan, 219 F.3d at 686. Or, as
the attorney for the General Counsel aptly put it during oral
argument, “the question needs to be whether or not he
[Graettinger] had bias.” Medford’s conversation with Iaci
8
In general, a decision to discharge an employee cannot be
caused by an antiunion animus that the decisionmaker does not
possess. We nonetheless note that there may be limited circum-
stances in which it is proper to impute the animus of a non-
decisionmaker to the employer. In Grand Rapids Die Casting Corp.
v. NLRB, 831 F.2d 112 (6th Cir. 1987), the Sixth Circuit held that
the antiunion animus of a supervisor could be attributed to the
company because, even though that supervisor was not the
decisionmaker, he knew of the employee’s protected activities
and was involved in the decision to fire the employee. Vulcan, 219
F.3d at 686 (citing Grand Rapids, 831 F.2d at 117). In this case,
however, Medford was not involved in the decision to discharge
Iaci, and his animus is totally irrelevant.
Nos. 02-2504 & 02-2651 21
sheds no light on the issue of whether Graettinger acted out
of ill will toward the Union, and therefore does not consti-
tute substantial, or even relevant, evidence that antiunion
animus caused Iaci’s discharge.
The Board provided three reasons for its conclusion that
Sears terminated Iaci’s employment because of antiunion
animus: (1) the timing of the discharge; (2) the “blatant
disparity” between Sears’s treatment of Iaci and its treat-
ment of employees who committed similar offenses, but
were not involved in protected activity; and (3) Medford’s
conversation with Iaci about union activities. Because the
evidence underlying these three reasons, taken individually
or as a whole, does not constitute substantial evidence of
Graettinger’s animus, we refuse to enforce the Board’s order
insofar as it pertains to Iaci.
We also refuse to enforce the Board’s order as to Iaci on an
alternate ground: Sears had shown that it would have fired
Iaci regardless of his protected activity, and the ALJ relied
upon no substantial evidence when she reached the contrary
conclusion. In its brief before the Board, Sears contended
that it was entitled to the affirmative defense provided by
Wright Line because it had fired Iaci for falsifying his
production records by recording service calls he did not
actually make and also because Iaci had changed the
warranty date on a product to sell the customer a mainte-
nance agreement. The Board rejected this argument without
conducting its own analysis, stating that “[f]or the reasons
set forth by the [ALJ], we agree” that Sears had not proven
that it would have fired Iaci even without his union activi-
ties. On this point, we therefore review the ALJ’s decision
for substantial evidence. NLRB v. Federal Sec., Inc., 154 F.3d
751, 755 (7th Cir. 1998).
The ALJ’s first reason for rejecting Sears’s position was,
essentially, that Sears had not fired a similar employee for
22 Nos. 02-2504 & 02-2651
committing the same offenses that Iaci had perpetrated, and
that its claim of having discharged Iaci for filing false
reports was therefore pretextual. The ALJ explained that
Sears
had introduced no evidence of any other employee of
comparable seniority, 31 years, who was fired for doing
service checks on a second appliance, or for changing
warranty dates, or selling a maintenance agreement. The
evidence of allegedly consistent discharges upon which
[Sears] relied, those employees interviewed by investi-
gator Gonzalez in the same time period, were dis-
charged for garden variety theft, either of appliance
parts or of money. Respondent introduced no evidence
of any kind or of even minor discipline, much less
discharge, for the same type of alleged infractions on
the basis of which [Iaci] was allegedly discharged.
Except for cases of ordinary theft, and in the cases of
Hepburn and Richardson, [Sears] can point to no other
employees who were interviewed by Gonzalez only,
without any investigation by a service supervisor.
The ALJ attacked two straw men. Sears never argued that
Iaci’s dismissal was for “doing service checks on a second
appliance . . . or selling a maintenance agreement.” It
actually contended that it had fired Iaci for falsifying his
production records by recording service calls he did not
really make and also because Iaci had changed the warranty
date on a product to sell the customer a maintenance
agreement. Furthermore, the ALJ’s conclusion that Sears
“had introduced no evidence of any other employee of
comparable seniority, 31 years, who was fired for doing” the
same thing that Iaci did was simply incorrect. As discussed
above, Sears submitted evidence that it had fired Edwards,
whose seniority was comparable to Iaci’s (23 years versus 31
years), for the same misconduct for which it discharged Iaci:
Nos. 02-2504 & 02-2651 23
falsifying reports of service calls and a warranty date. As
was true of Iaci, Edwards was interviewed by Gonzalez
before he was fired. The ALJ, however, never mentioned
Edwards’s name, much less explained why she was reject-
ing that line of evidence.
We now turn to the second and final reason that the ALJ
gave for rejecting Sears’s affirmative defense: that Iaci did
not repeat the actions for which Sears had given him a “last
chance warning” in February 1997. The ALJ reasoned thus:
The evidence likewise shows that [Iaci] did not repeat
his transgression of February 1997, which consisted of
recording as “complete” [a] service call that had been
cancelled before he had visited the location. The alleged
transgressions upon which [Sears] relied in September
and October 1997 were different, and were shown by
testimony of neutral and reliable witnesses to be com-
mon practices, rather than egregious sins against
[Sears’s] policy. [Sears] could point to no rules specifi-
cally prohibiting these practices. Even assuming that
these practices technically violated a policy of [Sears],
they were not shown to be cause for discipline of any
kind among other service technicians.
The essence of the ALJ’s reasoning was that, because Iaci’s
transgressions of September and October were different
from the conduct to which Iaci had admitted in February
1997 (falsely reporting that he had repaired items that he
had not repaired), and because Iaci’s misconduct of Septem-
ber and October was not serious, the evidence proved that
Iaci “did not repeat his transgression of February 1997.” In
reaching this conclusion, however, the ALJ ignored Smith’s
extensive testimony that, from March through August 1997,
Iaci repeatedly filed false reports, claiming to have fixed
24 Nos. 02-2504 & 02-2651
9
appliances that he had not actually repaired. In other
words, the ALJ ignored evidence that Iaci actually had
repeated the very conduct that had caused Sears to issue its
“last chance warning” in February 1997. This was error,
because the ALJ was obligated to consider all relevant
evidence, not just the evidence that favored her ultimate
conclusion. Clifford v. Apfel, 227 F.3d 863, 871 (7th Cir. 2000).
We therefore hold that the ALJ’s second reason for rejecting
Sears’s affirmative defense, that Iaci “did not repeat his
transgression of February 1997,” was not supported by
substantial evidence. On the contrary, Sears had submitted
ample evidence that Iaci had repeated his transgressions of
February 1997 on several occasions during the summer.
Accordingly, we refuse to enforce the Board’s order as to
John Iaci on the alternate ground that Sears is entitled to the
affirmative defense provided by Wright Line.
B. Corliss Hepburn
As we discussed above, for us to enforce the Board’s order
as to each individual employee, substantial evidence must
support the Board’s conclusion that the decisionmaker who
discharged the employee knew that the fired employee was
involved in protected activities. As to Corliss Hepburn, the
Board adopted the ALJ’s opinion regarding this element of
9
Inexplicably, the ALJ wrote that “Christine Smith testified that
she had no problems with [Iaci] during the several months prior
to August 1997.” The transcript of Smith’s testimony, as we have
discussed at length, shows otherwise. Smith’s testimony was that,
during the several months before August 1997, she had docu-
mented numerous instances in which Iaci had filed false reports.
Smith also testified that she had told Iaci “[t]hat he needed to
make sure that doing the ethical thing” was the way that he
improved his performance record.
Nos. 02-2504 & 02-2651 25
the prima facie case. We therefore look to the ALJ’s decision
in search of substantial evidence that the decisionmaker,
who in this case was Ralph Graettinger, knew that Hepburn
was involved with the Union before he decided to discharge
her. The ALJ provided three reasons for concluding that the
element of knowledge existed: (1) Hepburn’s attendance
and remarks at the meeting held during the week of Febru-
ary 23, 1998; (2) the “widespread belief” that Hepburn was
the author of the unsigned letter that Joe Fowler had written
and circulated in late February 1998, just before the union
election; and (3) “Graettinger’s reaction to Hepburn’s
mention of the Union after her discharge.” We begin by
emphasizing again that the dispositive inquiry is whether
substantial evidence supports the view that the decisionmaker
knew of the employee’s union activities.
Regarding the ALJ’s first reason for finding the element of
knowledge, Hepburn’s remarks at the meeting held during
the week of February 23, 1998, the ALJ wrote that “[t]he fact
that Hepburn made remarks at the mid-February 1998
meeting called by Respondent [i.e., Sears] and addressed by
Charlie Young which would be construed as critical of
Respondent is sufficient to show that Respondent had notice
of her pro-union sentiments. . . . In addition, the fact that she
and Richardson were both assigned to attend the
Respondent-called meeting at which all the employees were
Union supporters is also persuasive [sic] that Respondent
knew that they were both Union supporters.” Hepburn’s
remarks are relevant to the issue of knowledge only to the
extent that they show that the decisionmaker, Graettinger,
was aware of Hepburn’s protected activities. Vulcan, 219
F.3d at 685. For the ALJ to focus simply on the question of
whether “Respondent,” i.e., Sears, knew of Hepburn’s
comments was therefore not a reasonable application of the
statute. For purposes of the prima facie case under
§§ 158(a)(1) and (a)(3), an employer can only be said to
26 Nos. 02-2504 & 02-2651
know of the employee’s protected activities through the
decisionmaker. See id. As to Graettinger, the decisionmaker
who fired Hepburn, nothing in the ALJ’s opinion (or the
record, as far as we can tell) provides any indication that he
knew that Hepburn made any pro-union comments at the
meeting. Hepburn’s testimony was that Graettinger made
an appearance at the meeting only after she had finished
speaking. Hepburn’s comments at the meeting, therefore,
cannot constitute substantial evidence that Graettinger
knew that she had engaged in protected acts.
We also observe that no evidence cited in the ALJ’s
opinion suggests that Graettinger was aware of the fact that
employees attending the meeting were, ipso facto, in favor
of the Union. Moreover, even if Graettinger had known that
employees attending the meeting were sympathetic to the
Union, that knowledge alone would not constitute substan-
tial evidence that Graettinger knew that Hepburn was
engaged in a protected activity. Sections 158(a)(1) and (a)(3)
protect, as we discussed earlier, employees’ rights to engage
in union activities. Van Vlerah Mechanical, Inc., 130 F.3d at
1262. There is no evidence that any employee’s attendance
at the meeting was such an activity. Rather, as the General
Counsel himself characterizes it, the meeting was a “man-
datory anti-union meeting.” An employee’s compelled
attendance at an antiunion meeting is not an activity that
§§ 158(a)(1) and (a)(3) protect. Because Hepburn’s com-
pelled attendance at the meeting was not protected activity,
Graettinger’s ostensible knowledge of her attendance and of
the pro-union sympathies of the employees present is
irrelevant.
We turn next to the second reason the ALJ gave for
finding the element of knowledge regarding Hepburn: the
“widespread belief” that Hepburn was the author of the
unsigned letter that Joe Fowler had written and circulated
Nos. 02-2504 & 02-2651 27
in late February 1998, just before the representation election.
The ALJ points to no direct evidence that Graettinger
himself shared this belief; instead, she implicitly imputed to
Graettinger the “widespread belief” that others at the plant
held. However, the only evidence to which the ALJ points
in support of her conclusion is the testimony of Sandra
Smith. The ALJ wrote that “Sandra Smith testified that she
believed at the time that Corliss Hepburn was the author of
the letter, and that she believed this opinion was wide-
spread throughout Plantation.” After a thorough review of
the transcript of Sandra Smith’s testimony, however, it is
apparent that Smith said nothing of the kind. In reality,
Smith testified that (1) she did not know who wrote the
letter and (2) “there was a whole lot of gossip going . . . “, at
which point her testimony was interrupted. Her earlier
reference in her testimony about “gossip” referred to
rumors about the letter and union organization in general.
Smith said nothing about any “gossip” that Hepburn was
supposedly the letter’s author. It is perplexing that the ALJ
concluded that Sandra Smith had testified that there was a
“widespread belief” that Hepburn wrote the unsigned letter.
That finding was not supported by any evidence, much less
substantial evidence.
We now turn to the third and final reason that the ALJ
found the element of knowledge regarding Hepburn:
“Graettinger’s reaction to Hepburn’s mention of the Union
after her discharge.” The ALJ reasoned as follows:
Graettinger’s reaction to Hepburn’s mention of the
Union after her discharge, his lack of any expression of
surprise or any denial, and especially his smile, all
support the finding that he was well aware of her union
activities. The fact that a manager would smile at an
employee whom he had just discharged and who was
obviously very upset is inexplicable unless it is inter-
28 Nos. 02-2504 & 02-2651
preted as a smile of triumph responding directly to
Hepburn’s remark that she was being fired because of
the Union. I find that Graettinger’s smile was, in fact, a
response to Hepburn’s accusation that she had been
fired because of her union activities. I find, furthermore,
that this reaction was an indication that not only was
Graettinger well aware of Hepburn’s union activities,
but also that he was delighted with the accomplishment
of his unlawful action.
In short, the ALJ reasoned that Graettinger’s smile, in
conjunction with his failure to react or protest in the face of
Hepburn’s remark that he fired her because of her union
activities, leads inexorably to the inference that Graettinger
knew of Hepburn’s protected acts. The problem with this
reasoning is that it has no evidentiary support. Only
Hepburn and Graettinger were in on this conversation.
Hepburn’s version of the discussion was that the two spoke
at the back door of the Plantation facility, as Graettinger was
escorting Hepburn from the building. According to Hep-
burn’s testimony, she said “Ralph, I know why you’re doing
this. It’s because of my involvement with the Union.” As
Hepburn recounted the situation, Graettinger then “said, no,
the Union has nothing to do with it, with a smile on his
face.” Graettinger, by contrast, testified that Hepburn had
not accused him of firing her for union activities and that he
had not smiled at her. There are thus two permissible views
of the evidence: (1) Graettinger smiled and denied Hep-
burn’s accusation that he discharged her for protected
activities; or (2) Hepburn did not make the accusation and
Graettinger did not smile. Although she supposedly
credited Hepburn’s testimony, the ALJ came up with a third
scenario, that Hepburn made the accusation and that
“Graettinger did not answer, but smiled at Hepburn.” No
evidence, let alone substantial evidence, supports that
factual conclusion.
Nos. 02-2504 & 02-2651 29
Hepburn did indicate that Graettinger smiled, but the ALJ
did not reason that the smile, by itself, proved Graettinger’s
knowledge; she found that a smile in the context of
Graettinger’s silent response to Hepburn’s accusation
established knowledge. But it was not a silent response.
Hepburn quoted Graettinger as saying, “No, the union has
nothing to do with it . . . .” Still, the ALJ concluded he
lacked any expression of surprise “or denial.” (Emphasis
added.) After ignoring his reported denial, the ALJ then
concentrated on a motive for the smile. As the attorney for
the General Counsel conceded during oral argument, the
smile was “not at all critical to her [the ALJ’s] finding.” We
nonetheless note that Graettinger’s smile, by itself, would
have been too slender a reed upon which to find either
knowledge or animus. See Staats and Staats, Inc., 254 NLRB
888, 894-95 (1981) (holding that the fact that a manager saw
an employee smile at a notice for a representation election
was not sufficient evidence of that manager’s knowledge of
the employee’s pro-union sentiment).
Yet, somehow, the ALJ concluded that “especially his
smile” supported the finding that Graettinger was well
aware of Hepburn’s union activities. The ALJ characterized
it as “a smile of triumph,” indicating that “he was delighted
with the accomplishment of his unlawful action.” The ALJ
injected all of this psychoanalysis into Hepburn’s simple
statement that Graettinger “had a smile on his face.” It is a
stretch of the ALJ’s imagination, however, to find that
Graettinger’s smile can only be explained by the inference
that he knew of Hepburn’s union activities and was
“delighted” to have fired her for those acts. People smile for
many reasons. In Graettinger’s case, his smile may have
reflected consternation that Hepburn had accused him of
breaking the law. Or perhaps Graettinger did smile in
triumph, because he was happy to be discharging an
employee who, in his mind, was a thief. Or maybe he was
30 Nos. 02-2504 & 02-2651
just nervous, or relieved that the incident was over. See
Paradise Post, 297 NLRB 876, 877 (1990). Since he smiled,
according to Hepburn, while saying “No, the union has
nothing to do with it,” perhaps he was showing some
empathy for the predicament she had created. The fact is,
we do not know why Graettinger smiled when Hepburn
accused him of violating the law (if, indeed, he smiled at
all), and neither does the ALJ. We are certain, however, that
the ALJ was incorrect when she reasoned a manager’s smile
in such circumstances compels the inference that the
manager was aware of union activities. See id. (reasoning
that “[t]he fact that Brown was smiling does not compel the
inference that Brown was not upset”).
There is an alternate reason that substantial evidence does
not support the element of knowledge regarding Hepburn.
All three factual predicates upon which the ALJ found
knowledge share one determinative flaw: the ALJ did not
rely upon substantial evidence indicating that any one of
them had occurred before Graettinger decided to fire Hep-
burn. Knowledge of union activities is relevant only insofar
as it allows the factfinder to conclude that the employer’s
adverse decision could have been motivated by that knowl-
edge. See NLRB v. Advance Transp. Co., 965 F.2d 186, 191 (7th
Cir. 1992) (reasoning that the court must determine “if there
is substantial evidence to support the Board’s conclusion
that the General Counsel met his burden of showing by a
preponderance of the evidence that Advance’s decision to
terminate Tuffs and Bauldry was motivated in any way by
animus toward their protected activity”). Thus, where
substantial evidence shows that the decisionmaker learned
of the employee’s union activities on Monday, and decided
to fire that employee on Tuesday, the ALJ could find that
the element of knowledge existed; conversely, where the
decisionmaker decided to fire the employee on Monday, but
substantial evidence shows that he did not learn of that
Nos. 02-2504 & 02-2651 31
worker’s union activities until Tuesday, the element of
knowledge could not be met, because a decisionmaker
cannot be motivated by what he has yet to learn. This case
is analogous to the latter scenario.
The ALJ found as a matter of fact that Graettinger
“immediately sought permission to discharge” Hepburn
and Richardson as soon as he learned about Richardson’s
incorrect report that a service flash covered Hepburn’s
refrigerator. The ALJ did not make a finding as to the
particular day on which Graettinger “immediately” decided
to fire the two. The evidence, which the ALJ did not ad-
dress, shows that Graettinger almost certainly learned of the
service-flash incident by February 19, 1998. Richardson’s
supervisor, Pat McLaughlin, testified that he had discovered
Richardson’s false report on “either the 18th or 19th, more
than likely” and that he and support manager Horacio
Villazon then reported the problem to Graettinger on the
same day that he uncovered it. Villazon, for his part,
testified that McLaughlin had alerted him about Richard-
son’s false report on February 19 and that they had reported
the matter to Graettinger on the same day. There is, as far as
we discern, no contrary evidence in the record. We now turn
to the dates on which, according to the ALJ, Graettinger
learned of Hepburn’s protected activity.
First, there is the company-mandated antiunion meeting
at which Hepburn spoke in favor of the Union. Without
discussing any of the evidence as to the meeting’s date, the
ALJ found that meeting occurred in “mid-February.” “Mid-
February” is an elastic term that does not really tell us
whether the meeting occurred before February 19. Most of
the witnesses who testified as to the meeting’s date, how-
ever, recalled it as having been within one week of the
representation election, which was held on Friday, February
27. Hepburn testified that the meeting “was the week before
32 Nos. 02-2504 & 02-2651
the election.” Graettinger testified that the meeting that
Hepburn attended was held “about mid week” during the
week of February 27. Joe Hofer, a co-worker of Hepburn’s
and a fellow supporter of the Union, testified that the
meeting was held within a week before the election. The
only evidence to the contrary, as far as our own review of
the record indicates, is that of Cordy Richardson. Richard-
son testified that the meeting was in early to mid-February.
Had the ALJ explained why she found credible the part of
Richardson’s testimony that placed the meeting in mid-
February and, arguably, before February 19 (as opposed to
the part of his testimony suggesting that the meeting was in
early February), and why she found incredible the testi-
mony of Hepburn, Hofer, and Graettinger that the meeting
was held no more than a week before the election (and thus
after February 19), we would likely hold that substantial
evidence supported the conclusion that the antiunion
meeting happened in mid-February, and prior to
Graettinger’s decision to fire Hepburn. As we stated earlier,
the ALJ’s credibility determinations are entitled to particular
deference. The ALJ, however, never explained why she
rejected the weight of the evidence and found that the
antiunion-meeting happened early enough to have influ-
enced Graettinger’s decision to fire Hepburn. That is not
good enough. Even when the record contains some evidence
that could conceivably have supported an ALJ’s finding, the
substantial evidence standard is not met if the ALJ does not
discuss, or even provide a citation to, that evidence. Scivally
v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992) (holding that
“the ALJ must minimally articulate his reasons for crediting
or rejecting” evidence). We hold that no substantial evi-
dence supports the ALJ’s implicit finding that the February
meeting occurred early enough to have influenced
Graettinger’s decision to discharge Hepburn.
Nos. 02-2504 & 02-2651 33
We next consider the unsigned letter that Joe Fowler
circulated. Although the letter is dated February 20, the ALJ
found that it was “widely circulated at Plantation in mid-
February.” The only evidence the ALJ mentions regarding
this conclusion is Fowler’s testimony that he had drafted the
letter “a few weeks before the election.” That Fowler drafted
the letter a few weeks before the election (which was held
on February 27), however, does not lead to the conclusion
that the letter was necessarily distributed before Graettinger
decided to fire Hepburn (by February 19). The evidence, as
far as we can discern, supports the contrary conclusion, that
Fowler’s letter was not distributed until the week before the
election (which, as we have discussed, was almost certainly
after Graettinger had made up his mind to terminate
Hepburn’s employment). The letter itself is dated February
20, 1998. Hepburn testified that she received the letter “at or
around the time” of the mandatory antiunion meeting.
There is, as far as we can tell, no substantial evidence
showing that Fowler’s letter was circulated early enough in
February to have influenced Graettinger’s decision to fire
Hepburn.
We next address the third and final reason that the ALJ
found knowledge regarding Hepburn: Graettinger’s reac-
tion to Hepburn’s accusation of anti-union animus immedi-
ately after he officially fired her on March 6, 1998. If
Graettinger decided to fire Hepburn “immediately” upon
learning in February of the service-flash incident, then
nothing Hepburn told him about her protected activity in
March could have influenced his decision. To the extent that
Graettinger’s reaction could reasonably be construed as an
admission that he had known of Hepburn’s protected
activities all along, it would constitute substantial evidence
of knowledge. Here, however, there is no evidence that
Graettinger could have known of Hepburn’s union activities
until March 6, which was almost three weeks after he had
34 Nos. 02-2504 & 02-2651
made the decision to terminate her employment, and the
reaction of Graettinger to Hepburn’s accusation is too
amorphous to support the inference that he knew of Hep-
burn’s union activity when he made the decision to termi-
nate in February. As discussed above, Graettinger’s smile
and denial that he had fired Hepburn because of the Union
does not constitute substantial evidence that he knew of
Hepburn’s protected acts when he made his decision on
February 18 or 19.
The ALJ did not make findings of fact, grounded in the
record, as to the chronological relationship between
Graettinger’s decision to fire Hepburn and the events that
(in the ALJ’s mind) showed that Graettinger knew of
Hepburn’s union activities. Had she done so, she probably
would have realized that those three events happened (if
they happened at all) only after Graettinger decided, on
February 18 or 19, to discharge Hepburn “immediately”
upon learning of the service-flash incident. For the purposes
of this appeal, it is enough to say that the ALJ did not rely
on substantial evidence showing that Graettinger knew of
Hepburn’s union activities when he decided to fire her. Our
own review of the evidence indicates that Graettinger
probably was ignorant of Hepburn’s protected acts, or at
least the three ostensibly-protected acts that the ALJ identi-
fied, when he discharged Hepburn. Because Graettinger’s
decision to fire Hepburn could not have been motivated by
what he had yet to discover, none of the three reasons that
the ALJ gave for concluding that Graettinger knew of
Hepburn’s union activities is substantial evidence of the
element of knowledge.
Nos. 02-2504 & 02-2651 35
C. Cordy Richardson
We turn finally to Cordy Richardson, once again focusing
on the element of knowledge. Because the Board adopted
the ALJ’s findings and analysis as to this issue, we review
the ALJ’s opinion. The ALJ found the element of knowledge
for three reasons.
[H]is attendance at the same meeting and his overt
agreement with Hepburn’s remarks there, are direct
evidence that he was believed by Respondent to be a
Union supporter. Charlie Young’s knowledge that
Richardson supported the Union is imputed to Respon-
dent. In addition, his well-known association with Joe
Fowler is circumstantial evidence that Respondent
believed him to be a Union supporter. On this subject,
the General Counsel has urged that the March 1997
surveillance of Fowler, Richardson, and others at the
lunch hour was in fact surveillance of their union
activities. While I find that evidence of the purpose of
McLaughlin’s binocular viewing of the lunch group is
insufficient to find that he was surveying their Union
activities, I find it does establish he knew Richardson
and Fowler, the main Union activist, were associated
together. This is circumstantial evidence which supports
the inference that Respondent believed Richardson
supported the Union, especially when viewed in con-
junction with the other evidence tending to the same
conclusion.
As we discussed above in relation to Hepburn, Richard-
son’s attendance and comments at the mandatory meeting
are not sufficient evidence of knowledge because the ALJ
relied on no substantial evidence that the meeting and
remarks occurred before Graettinger had made up his mind
to discharge Richardson and Hepburn. In fact, as we
discussed above, it is likely that the meeting occurred after
36 Nos. 02-2504 & 02-2651
Graettinger had determined to fire Richardson. Richardson’s
attendance and remarks at the meeting, accordingly, are not
substantial evidence of knowledge.
We turn next to the second reason that the ALJ found
knowledge as to Richardson, her conclusion that “Charlie
Young’s knowledge that Richardson supported the Union
is imputed to Respondent.” We emphasize again that Sears’s
knowledge of Hepburn’s protected conduct or speech, for
purposes of the prima facie case, can only be imputed
through the decisionmaker, Graettinger. The question then
is whether Young’s knowledge of Richardson’s protected
comments could be imputed to Graettinger. The ALJ
mentioned no evidence that would lead to the conclusion
that Young told Graettinger about Richardson’s “overt
agreement with Hepburn’s remarks” at the meeting; all we
are left with is her conclusory decision to impute Young’s
knowledge to “Respondent.” Accordingly, we hold that
substantial evidence does not support the imputation of
Young’s knowledge to Graettinger.
We turn to the final reason that the ALJ found knowledge:
Richardson’s “well-known association with Joe Fowler.”
This reason is deficient on two counts. First, the relevant
knowledge, as we discussed above, is knowledge that the
employee engaged in protected activities. The ALJ discussed
no evidence showing that, when Richardson ate lunch with
Fowler, the two were involved in conduct within the ambit
of § 157. As far as we can tell from our review of the ALJ’s
opinion, they were just eating lunch. Even if Graettinger had
been aware of that rather unremarkable behavior, therefore,
it could not be said that he knew that Richardson was
involved in protected activities.
The second reason that knowledge may not be based on
this evidence is that, even if the mere act of dining with a
union activist could somehow be considered protected
Nos. 02-2504 & 02-2651 37
conduct, the ALJ discusses no evidence that Graettinger was
aware of that behavior. The ALJ mentions “McLaughlin’s
binocular viewing” of the restaurant where Richardson and
Fowler dined. However, she discusses no evidence showing
that: McLaughlin saw Richardson with Fowler; Richardson
was even present on the day of McLaughlin’s surveillance;
or, that McLaughlin had ever told Graettinger of Richard-
son’s association with Fowler. Although there is substantial
evidence that Richardson often ate lunch with Fowler, there
is no substantial evidence that Graettinger was aware of that
fact when he decided to end Richardson’s employment.
The ALJ identified no substantial evidence showing that
Graettinger knew of Richardson’s protected activities before
he decided to fire Richardson. We therefore deny enforce-
ment of the Board’s order as to Richardson as well.
III.
The primary lesson of this case is that facts matter. In
many instances, the Board or ALJ made important findings
of fact that were unsupported by substantial evidence or
were clearly incompatible with the record. In still other
instances, the Board or ALJ simply ignored strains of
evidence that did not mesh with their ultimate conclusions.
On yet other occasions, the Board or ALJ failed to make
crucial findings of fact. It is difficult, in light of these
discrepancies, to avoid the conclusion that the Board and
ALJ were striving to reach a predetermined result. For our
part, having viewed the record in its entirety—including the
body of evidence opposed to the Board’s view—we cannot
conscientiously find that the evidence supporting the
Board’s decision is substantial. We therefore grant Sears’s
petition for review and deny enforcement of the Board’s
order.
38 Nos. 02-2504 & 02-2651
RIPPLE, Circuit Judge, dissenting. In my view, the outcome
determinative factor in this case, as in so many NLRB
matters, is the applicable standard of review. There is
certainly evidence of record to support either view in this
close case. In such situations, Congress has vested in the
Board the responsibility to utilize its expertise in labor-
management relations and to assess the record as a whole in
making a determination as to whether there has been a
violation of the Act. See Beth Israel Hosp. v. NLRB, 437 U.S.
483, 501 (1978); U.S. Marine Corp. v. NLRB, 944 F.2d 1305,
1314 (7th Cir. 1990) (en banc). In this case, the Board per-
formed that function and, in the process, made crucial
credibility judgments. I believe that, under the standard of
review, the record supports the Board’s determination, and
I therefore would enforce the Board’s order. Accordingly, I
respectfully dissent.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-17-03