Slusher, Nick v. NLRB ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3793
NICK SLUSHER,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
____________
On Application for Review of an Order of
The National Labor Relations Board.
No. 13-CA-40976
____________
ARGUED JUNE 6, 2005—DECIDED DECEMBER 23, 2005
____________
Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. Exxon Mobil Corporation (“Exxon
Mobil” or the “Company”) suspended and then terminated
union steward Nick Slusher after he gave certain co-
workers copies of a court record showing that an Exxon
Mobil truck driver previously had been fined, placed under
supervision, and ordered to participate in a remedial
education program for driving under the influence of alcohol
(“DUI”). Exxon Mobil viewed circulation of the record as a
violation of the Company’s anti-harassment policy; it also
concluded that Slusher lied about his conduct in the course
of the Company’s investigation. Slusher filed a charge with
the National Labor Relations Board (“NLRB” or the
“Board”) contending that his suspension and discharge
2 No. 04-3793
amounted to an unfair labor practice. Slusher claimed that
he had distributed the driver’s court record in connection
with a disparate treatment grievance he was pursuing on
behalf of another union member. Whereas the driver whose
DUI record he showed to others was still driving for the
Company, other drivers with prior DUIs on their records
had been suspended from driving duties and reassigned.
Slusher averred that he distributed the record not to harass
the driver in question but rather to demonstrate to union
members that Exxon Mobil was not applying the Company’s
drug and alcohol policy in an evenhanded manner and to
explain why the union was pursuing a disparate treatment
grievance. Given that purpose, Slusher asserted that his
distribution of the record was protected by the National
Labor Relations Act (“NLRA” or the “Act”) and that Exxon
Mobil could not lawfully punish him for it. Following an
evidentiary hearing, an Administrative Law Judge (“ALJ”)
agreed, finding that Slusher’s motive in distributing the
abstract was legitimate. On review, however, a divided
panel of the NLRB found that Slusher’s motive was to
harass the truck driver whose abstract he distributed and
that, consequently, Slusher’s conduct was not protected by
the Act. Based on that finding, the Board ordered that
Slusher’s complaint be dismissed. Exxon Mobil Corp., 343
NLRB No. 44, 2004-05 NLRB Dec. (CCH) ¶ 16,808, 2004
WL 2245467 (Sep. 30, 2004). Slusher petitions for review of
the Board’s decision, contending that it is not supported by
substantial evidence. We grant the petition, reverse the
Board’s order, and direct the reinstatement of the ALJ’s
decision.
I.
Exxon Mobil came into being as the result of the Novem-
ber 30, 1999, merger between Exxon and Mobil Corpora-
tions. Slusher was employed by Mobil and its successor
No. 04-3793 3
Exxon Mobil for a total of about 14 years prior to his
discharge in 2003; Slusher was a truck driver who delivered
gasoline to Mobil, and later Exxon Mobil stations in the
Chicago metropolitan area. Local 705 of the International
Brotherhood of Teamsters, AFL-CIO (“Local 705,” the
“Local,” or the “Union”) had represented fuel truck drivers
and product technicians at the Mobil facilities in (or near)
Des Plaines and Lockport, Illinois since 1996, and it
continued to represent these employees after the merger:
Exxon Mobil executed a new collective bargaining agree-
ment (“CBA”) with the Union effective May 17, 2000
through April 30, 2002.
Slusher, who had been elected chief Union steward of the
Local in January 1998, continued in that capacity until
April 11, 2003. As the chief steward, Slusher was responsi-
ble for enforcing the terms of the CBA, a job which included
the investigation, filing, and processing of grievances on
behalf of Union members. Slusher was known to be an
“extremely aggressive” advocate for the Union who enforced
the CBA “to a T.” Tr. 196. Slusher estimated that he filed at
least 15 to 20 grievances in the two years preceding his
discharge. Steven Matter, the Union representative for the
Lockport and Des Plaines facilities, thought that Slusher
had filed more grievances than most other stewards. In
Matter’s view, Slusher “was very good at what he did.” Tr.
197.
In the wake of the merger between the two companies,
Exxon Mobil decided to implement Exxon’s pre-merger drug
and alcohol policy, which barred employees with drug or
alcohol dependencies or who had drug or alcohol related
incidents in their pasts from performing certain designated
safety-sensitive jobs, including driving fuel tanker trucks.
Upon implementation of this policy, every employee work-
ing in such a position was required to file an initial “State-
ment of Compliance for Designated Positions” in which the
employee disclosed any participation in a drug or alcohol
4 No. 04-3793
rehabilitation program and any prior “DUI incident,” a term
defined (at that time) to include not only convictions but
also arrests for alcohol or drug related traffic violations.1 On
a going-forward basis, employees were again required to
disclose any and all arrests for drug or alcohol related
traffic violations, as well as convictions. According to Exxon
Mobil, if an employee disclosed a current DUI charge, the
employee would be suspended with pay and then reassigned
to a different, non-“designated” position within the Com-
pany pending the resolution of that charge. New charges
that resulted in a conviction, as well as prior DUI convic-
tions less than five years old, would bar the employee from
working as a tanker driver. But, according to the Company,
a single conviction or other incident more than five years
old would not necessarily bar the employee from that
position; rather, Exxon Mobil would exercise its discretion
on a case-by-case basis. In the event the Company discov-
ered that an employee had failed to disclose a conviction or
other DUI incident that should have been reported, the
employee would be terminated.
The Union opposed implementation of this policy because
it was more onerous for employees than Mobil’s pre-merger
policy. Evidently, Mobil had not asked its drivers about
prior incidents or previous participation in rehabilitation
programs; moreover, a single DUI charge, even if it resulted
in a conviction, would not necessarily bar an employee from
working as a driver for Mobil so long as he or she had no
other history of drug or alcohol abuse, agreed to participate
in the Company’s rehabilitation program, and did not re-
offend. Exxon’s policy, by contrast, was described by Matter
as a “zero tolerance” policy. Tr. 237. The Union, believing
that the new policy amounted to a unilateral change in the
terms of employment for drivers, filed an unfair labor
1
The Company’s policy was subsequently revised to require
the disclosure of prior convictions only.
No. 04-3793 5
practices charge challenging the policy. However, the
NLRB’s regional director declined to issue a complaint.
When the new policy was implemented in 2001, two
members of Local 705—Rick Moreno and Dan Wal-
lace—were suspended from driving duties and reassigned
based on their disclosure of prior drug or alcohol related
matters that the Company considered disqualifying.
Wallace later resigned. Slusher filed grievances on behalf
of both drivers. However, the Union declined to take them
to arbitration and, as a result, both grievances lapsed.
In early August 2002, driver Frank Blommaert disclosed
that he recently had been arrested and charged with DUI.
Exxon Mobil immediately suspended Blommaert with pay
from driving. On November 22, 2002, the Company discon-
tinued Blommaert’s pay based on his failure to cooperate
with its efforts to place him in a non-driving position.
(Blommaert had failed to appear for a test to assess his
qualification for an opening at Exxon Mobil’s Joliet refin-
ery.) On December 20, 2002, Slusher filed a grievance on
Blommaert’s behalf asserting that the Company’s decision
to suspend him without pay pursuant to the drug and
alcohol policy amounted to a “unilateral change in terms of
employment.” GC Ex. 2. On January 10, 2003, while that
grievance remained pending, Exxon Mobil terminated
Blommaert for his failure to cooperate with the Company’s
efforts to reassign him and for his failure to provide the
Company with information regarding the disposition of the
DUI charge. (Evidently Blommaert was not convicted on the
charge.)
In February 2003, during the investigation phase of the
grievance regarding Blommaert’s suspension, Slusher
reviewed the personnel files of other unit employees to look
for any evidence of disparate treatment in enforcement of
Exxon Mobil’s drug policy. Slusher had asked to see the
files after hearing a rumor that driver Dan Breneisen had
6 No. 04-3793
a DUI incident in his past but was permitted to continue
driving. Slusher discovered that Breneisen had indeed
“checked off that box” on his compliance statement, indicat-
ing that he had a prior DUI incident. Tr. 25. On February
10, 2003, the Union’s legal counsel notified Exxon Mobil
that the Union would take the grievance over Blommaert’s
suspension to arbitration. The decision to arbitrate ended
Slusher’s involvement with the grievance.
Meanwhile, the 2000 CBA between the Union and Exxon
Mobil had expired in April 2002, and by mid-February 2003,
negotiations for a new agreement had reached an impasse.
According to Matter, the drug and alcohol policy as well as
the cost of health benefits were two of the primary issues
that the Company and the Union could not agree upon.
The stalemate prompted the Union to schedule a strike
vote among the members of the Local. Some unit members
were opposed to a strike. One such individual, Michael
Ostergaard, distributed flyers urging his fellow employees
to vote against a strike. Slusher, who served on the Union’s
negotiating committee, confronted Ostergaard on February
11, 2003, and warned him that the Union might discipline
him because the Union felt that the no-strike campaign was
undermining its negotiating position with the Company.
That confrontation prompted Ostergaard to complain to
Exxon Mobil Fleet Supervisor Kevin Lozinak that Slusher
had harassed him. Lozinak, who “had a million things going
on at once,” told Ostergaard to put his complaint in writing,
which Ostergaard did on February 21, 2003. Tr. 323. On
February 16, 2003, Local 705 members voted not to go out
on strike.
On February 20, 2003, Slusher asked Breneisen whether
he had a prior DUI. Breneisen acknowledged that he did.
Slusher would later testify that he told Breneisen that he
was interested in the DUI because he believed that the
Company was enforcing its drug policy unevenly. Later that
No. 04-3793 7
same day, Breneisen complained about Slusher’s inquiry to
Lozinak. On Lozinak’s advice, Breneisen put his complaint
in writing.
On February 26, 2003, Breneisen filed a petition with the
Board seeking to decertify the Union as the representative
of Exxon Mobil employees at the Des Plaines and Lockport
facilities. A vote on the decertification petition was sched-
uled for April 11, 2003.
In anticipation of the decertification vote, Tom Kaukialo,
Exxon Mobil’s Area Manager, met with Slusher on March
10 and engaged in a “give and take” regarding the parame-
ters for decertification elections. Tr. 96. During that
meeting, Kaukialo informed Slusher that he had “heard
some complaints” that Slusher was harassing drivers with
warnings that they would lose their jobs if the Union was
decertified. Tr. 33.
On or about March 3, Slusher telephoned Matter and
advised him of Breneisen’s DUI. Matter instructed Slusher
to “go do his research” and confirm the DUI through public
records. Tr. 199. “[W]e don’t want to make allegations that
are not true,” Matter would later testify. “[W]e wanted to be
positive . . . .” Tr. 203. The Union subsequently asked
Blommaert, who lived in the same town as Breneisen, to
check the records at the local county courthouse.
On March 12, Matter met with 10 to 12 unit employees to
discuss the status of contract negotiations and the upcom-
ing decertification election. The subject of Exxon Mobil’s
drug and alcohol policy was broached, Matter would later
recall, “because during negotiations it was such a heavy
issue.” Tr. 205. Breneisen was among the employees
present at that meeting, and when the subject came up,
Breneisen “got upset,” informed the others that he had had
a DUI, and advised them that “[i]t’s nobody’s business but
my own.” Tr. 205.
8 No. 04-3793
On April 5, Matter again met with Slusher and other unit
members regarding the decertification election. Blommaert
attended the meeting and produced to Slusher and Matter
a copy of court record regarding Breneisen’s prior DUI
incident (the “abstract”). The abstract showed that
Breneisen had been charged with driving under the influ-
ence of alcohol on September 24, 1995. Pursuant to an order
entered on October 17, 1995, Breneisen had been placed on
one year of supervision, fined in the amount of $995,
required to attend a DUI school for six months, and also to
participate in a victim-impact program. GC Ex. 4.2
Blommaert asked Slusher why he had been fired and yet
Breneisen was still driving. After reviewing the abstract,
Matter instructed Slusher to pursue a new claim of dispa-
rate treatment on Blommaert’s behalf. “Let’s file our
grievance on it,” Matter told him. Tr. 213. The purpose of
that grievance, Matter testified, “wasn’t to take Dan
[Breneisen] off the truck. It was to put Frank [Blommaert]
back to work.” Tr. 204. “[O]ur goal was to set preceden[ts],”
he added. Tr. 204.
The following day, Sunday April 6, was Slusher’s day off.
Slusher went to the Des Plaines facility that morning
looking for other drivers to talk with about the decertifica-
tion election and to hand out materials concerning the
competing proposals that the Company and the Union had
made in the stalemated contract negotiations. While there,
he gave copies of Breneisen’s DUI abstract to unit members
Rich Moreno and Roy Moscinski. Slusher would later testify
that he showed the abstract to Moreno because he, like
Blommaert, had been removed from driving duties due to a
2
The charge apparently was resolved by agreement between
the parties, although that is not entirely clear. The abstract
makes reference to a “nolle prosequi bench trial,” GC Ex. 4, which
we gather was an alternative to resolution by way of a full-blown
trial.
No. 04-3793 9
DUI incident and Moreno had a pending grievance chal-
lenging his reassignment. Slusher said that he showed the
document to Moscinski to demonstrate why, from the
Union’s perspective, Exxon Mobil was applying its drug and
alcohol policy in an uneven manner; indeed, according to
Slusher, Moscinski asked to see the abstract. However,
after looking at the abstract, both of the men told Slusher
that they thought it was a confidential record, and Moreno
actually returned his copy to Slusher. Slusher later ac-
knowledged that he may also have given a copy of the
abstract inadvertently to Michael Schaeffer, to whom he
had handed a collection of papers regarding contract
negotiations. Finally, Slusher also gave a copy of the
abstract to Fleet Foreman Heisen, and he left a copy under
Fleet Superviser Lozinak’s door. Slusher later testified that
he wanted them to be aware of Breneisen’s record but did
not want Breneisen removed from his driving position.
On April 7, Matter called Human Resources director Ellis
and asked her if she was aware that Breneisen had a DUI
in his history. Ellis said she was not aware of that. “If that
[is] the case,” Matter testified that he asked Ellis, “then
why isn’t Frank [Blommaert] put back to work[?] You have
one fellow working with a DUI, yet another one’s been
suspended for it.” Tr. 214. Ellis replied that she would get
back to him.
On April 10, four days after Slusher circulated copies of
Breneisen’s abstract, Breneisen filed a complaint with
Lozinak and Heisen alleging that Slusher had disclosed
personal and confidential information about him to cowork-
ers.
Nick Slusher has taken personal and confidential
records about me and has passed out photocopies to my
fellow co-workers. This information was not given to
him by me. This has caused me a great deal of stress
because now co-workers are questioning my employ-
10 No. 04-3793
ment with Exxon Mobil. Nick has created a hostile work
environment. He is trying to use this information to get
me fired. I also believe his actions are a direct result of
me filing for decertification from Local 705. Nick has
made a point of bashing me both professionally and
personally.
GC Ex. 11, Attach. 5. On the same day, Lozinak prepared
a letter to Slusher formally notifying him that the Company
had received “another complaint of harassment” but that,
in order to avoid disrupting the forthcoming decertification
vote, the Company would postpone its investigation into the
complaint until after the election. GC Ex. 6. When he
handed the letter to Slusher, Lozinak told him that
Breneisen’s complaint had been triggered by Slusher’s
circulation of the abstract.
On the following day, April 11, Slusher filed a second
grievance on Blommaert’s behalf. The grievance charged
Exxon Mobil with “d[i]sp[a]rate treatment, unequal punish-
ment, [and] bias.” GC Ex. 5.
April 11 was also the date of the decertification vote. The
members of the unit voted to decertify the Union as their
representative. On April 14, the Board certified the result
of the vote and thereby terminated the Union’s representa-
tional status.
On April 14, Lozinak and Heisen met with Slusher to ask
him about the distribution of Breneisen’s abstract. There is
a conflict in the testimony about what precisely Lozinak
and Heisen asked him about distribution of the abstract
and, more to the point, what Slusher said in reply. Lozinak
testified that Slusher was twice asked whether he gave
copies to anyone other than the two supervisors, and
Slusher had replied that he did not. Slusher, on the other
hand, testified that he was asked to name the individuals
to whom he had given copies of the abstract, and that in
response he said that he had given copies of the abstract to
No. 04-3793 11
Moreno and Moscinski in addition to both Lozinak and
Heisen. Slusher also testified that he denied having
distributed any copies of the abstract at the Lockport
facility (where, according to Lozinak, a copy had been
found). Slusher was told at the interview that the Company
was suspending him pending the outcome of the investiga-
tion. Actually, by that point, the investigation was essen-
tially complete: Lozinak already had obtained affidavits
from both Moscinski and Schaeffer averring that Slusher
had given them copies of the abstract. In the aftermath of
the interview, Lozinak proposed that Slusher be terminated
for lying about the persons to whom he had distributed
Breneisen’s abstract. All that remained is for the Com-
pany’s Legal and Human Resources Departments to sign off
on his recommendation, which they subsequently did.
Lozinak spoke by telephone with Slusher on April 23 and
informed him that the Company was firing him for distrib-
uting the DUI abstract. Slusher’s termination was con-
firmed in a letter that Lozinak issued that same day. The
letter indicated that Exxon Mobil considered his circulation
of Breneisen’s abstract to be a violation of the Company’s
anti-harassment policy:
Your mass distribution of personal information regard-
ing a co-worker was designed to embarrass and humili-
ate him; to affect his employment opportunities; and to
create a hostile work environment in violation of the
policy. . . .
GC Ex. 7. In addition to harassment, the letter identified a
second reason for Slusher’s discharge, namely “lying in a
Company investigation”:
[D]uring our official Company investigation, on April
14, 2003, you denied distributing the criminal abstract[
] in question. Based on your statements, the Company
has concluded that you lied during a Company investi-
gation. As you know, lying in a Company investigation
12 No. 04-3793
is a serious, terminable offense and a violation of the
Company ethics policy.
Id. At the subsequent hearing before the ALJ, both Lozinak
and Ellis testified that lying was the sole reason for the
Company’s decision to discharge Slusher. “He lied, that’s it,”
Lozinak testifed. Tr. 378.
Slusher filed a charge on April 16 alleging that his
suspension amounted to an unfair labor practice. He later
amended the charge to cover his termination as well. On
June 3, 2003, the Board’s General Counsel issued a com-
plaint alleging that Exxon Mobil had suspended and fired
Slusher for filing, investigating, and otherwise processing
grievances on behalf of the Company’s employees and that
because these are protected concerted activities under
section 7 of the NLRA,3 the Company had violated section
8(a)(1) and (3) of the Act.4 The ALJ conducted a hearing on
3
In relevant part, section 7 of the NLRA provides:
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 en-
gage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection . . . .
29 U.S.C. § 157 (emphasis added). The pursuit of a grievance
in accordance with the provisions of a collective bargaining
agreement is one of the concerted activities protected by section 7.
NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 836, 104 S. Ct.
1505, 1513 (1984). “Naturally, this protection extends to a union
steward or official who aids another employee in filing a griev-
ance.” Roadmaster Corp. v. NLRB, 874 F.2d 448, 452 (7th Cir.
1989) (citing Caterpillar Tractor Co. v. NLRB, 638 F.2d 140, 141
(9th Cir. 1981)).
4
Section 8 of the NLRA provides, in relevant part:
It shall be an unfair labor practice for an employer—
(continued...)
No. 04-3793 13
the complaint on October 20 and 21, 2003.
Based on the evidence, the ALJ concluded that Slusher’s
conduct in showing and distributing copies of Breneisen’s
DUI abstract to members of the bargaining unit was in
furtherance of his duties as a steward, was properly
undertaken in a manner consistent with the NLRA, and
was therefore a concerted activity protected by section 7
of the Act. Consequently, Exxon Mobil’s suspension and
discharge of Slusher (whether based on the notion that
Slusher was harassing Breneisen and/or that he was not
candid in answering the Company’s questions about his
distribution of the abstract) violated section 8(a)(1) of the
Act. Underlying this conclusion was the ALJ’s factual
determination that Slusher distributed the abstract not to
harass Breneisen but in order to demonstrate to Union
members that the Company was not applying the drug and
alcohol policy consistently and that the Union therefore had
a meritorious claim of disparate treatment, the very type of
claim that Slusher subsequently filed on behalf of
Blommaert. Among other things, the ALJ found that:
(a) Slusher was a dedicated steward who “was punctilious
in enforcing the [CBA].” Exxon Mobil, 2004 WL 2245467, at
*9. The ALJ noted that the Union had opposed the applica-
tion of Exxon’s pre-merger drug and alcohol policy to Mobil
4
(...continued)
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section [7 of the
NLRA, 29 U.S.C. § 157];
...
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor
organization . . . .
29 U.S.C. § 158(a).
14 No. 04-3793
facilities on the ground that this was a change in working
conditions that should have been negotiated between the
Union and the Company. Slusher had filed at least three
grievances challenging the enforcement of the drug policy
vis-à-vis drivers in the bargaining unit. Id. at *8.
(b) Slusher had become aware of Breneisen’s DUI incident
in February 2003 while investigating Blommaert’s first
grievance. Once the incident had been confirmed, through
public records as well as by Breneisen’s own acknowledg-
ment, Slusher concluded that the incident was evidence
that the Company was treating some drivers like Breneisen
more favorably under the drug and alcohol policy than it
was Blommaert and other members of the bargaining unit.
Id. at *10-*11.
(c) Once Slusher had obtained a copy of the abstract,
“there was sufficient evidence to file the [disparate treat-
ment] grievance, if not to oblige Slusher to pursue it.” Id. at
*24.
(d) The fact that Slusher distributed copies of the abstract
after Breneisen moved to decertify the union, and the
additional fact that it was a number of days after Slusher
received and circulated the abstract before he filed the
disparate treatment grievance, did not suggest that Slusher
was out to harm Breneisen rather than to help Blommaert.
Slusher had waited until he had proof of Breneisen’s DUI
incident before he disclosed it to other union members; and,
at the same time, he filed the grievance within one week of
receiving the abstract. “Thus, timing points more toward a
proper, protected . . . purpose rather than a retaliatory
purpose.” Id.
(e) Slusher’s motive in distributing the abstract was, in
fact, legitimate rather than invidious. “In distributing the
abstract, Slusher was not motivated by an intent to retali-
ate against or harm Breneisen, but rather to properly
No. 04-3793 15
pursue a claim of disparate treatment on behalf of a
bargaining unit member.” Id.
(f) Other employees, in the ALJ’s view, had a right to
know that the Company might be applying the drug and
alcohol policy in a disparate manner. Those employees
included not just individuals who, like Moreno, had pending
grievances regarding the policy, but all members of the
bargaining unit. Id. at *12.
(g) “Slusher had no reason to lie about whether he
distributed the abstract to his bargaining unit members”
and “Slusher did not lie when he was asked by Lozinak to
name the persons to whom he had given the abstract, and
he replied that he had given it to Moreno, Machinski [sic],
Lozinak, and Heisen.” Id. at *14 (footnote omitted). Slusher
credibly testified that, inadvertently, he also may have
given a copy of the abstract to Schaeffer. Id. However, the
most that could be said with respect to his failure to name
Schaeffer during the interview with Lozinak and Heisen
was that he was simply mistaken. Id. at *14 & *26 n.10.
(h) “Slusher was a credible witness and his testimony on
this matter was given in a candid, forthright manner.” Id.
at *14.
(i) By contrast, Lozinak, whose termination letter to
Slusher had said that the discharge was based in part on
the “mass distribution” of Breneisen’s abstract, gave “con-
trived and incredible” testimony of what he meant by
that description and, ultimately, “was not worthy of belief.”
Id. at *15.
(j) Exxon Mobil had changed its position as to the reason
or reasons for Slusher’s discharge. When Lozinak tele-
phoned Slusher to inform him of his termination, he told
Slusher that he was being fired for circulating Breneisen’s
abstract. The official termination letter that Lozinak
subsequently wrote to Slusher then added lying as a second
reason for the discharge. By the time of the hearing,
16 No. 04-3793
however, the Company was insisting that lying was the only
reason for the discharge. “These shifting explanations
undercut any claim of a lawful basis for Slusher’s discharge,
and make incredible the differing explanations put forward
by the Respondent.” Id. at *23.
By a 2 to 1 vote, the Board reversed the ALJ and ordered
the dismissal of the General Counsel’s complaint, conclud-
ing that Slusher had intended to harass Breneisen. The
Board majority acknowledged the ALJ’s finding that
Slusher did not distribute Breneisen’s abstract with the
intent to harass Breneisen but rather to share with other
members of the bargaining unit the basis for the disparate
treatment grievance Slusher was pursuing on Blommaert’s
behalf. However, the majority believed that “[t]he record .
. . supports a different interpretation.” Id. at *1. In its view,
the chronology of events indicated that Slusher’s motive in
distributing the abstract was to harm Breneisen. The
majority emphasized the following sequence of events:
(1) On April 10, Breneisen filed a complaint with Exxon
Mobil regarding Slusher’s distribution of a personal and
confidential record among his coworkers; and on that
same day, the Company notified Slusher that it had re-
ceived another complaint of harassment against him that it
would investigate following the decertification election.
(2) On April 11, just prior to that election, Slusher filed
the disparate treatment grievance.
(3) Slusher had learned of Breneisen’s DUI by February
20 (when he asked Breneisen about it), yet he “took no steps
to file a grievance until nearly 2 months later on the date of
the decertification election.” Id. at *2. The substantial delay
“shows that Slusher’s object in circulating the DUI record
was to harass Breneisen, who he knew was subject to
discharge under [Exxon Mobil’s] strict drug and alcohol
policy if it was determined by the [Company] that
Breneisen had failed to disclose the DUI-incident.” Id.
No. 04-3793 17
(4) “The grievance filing itself came only after Slusher
was told of [Exxon Mobil’s] investigation of the harass-
ment complaint against him, and as the Union was being
decertified.” In that context, “the April 11 grievance filed by
Slusher was a cloak to provide cover for the circulation of
the DUI report.” Id.
(5) Finally, although Slusher filed the disparate treat-
ment grievance purportedly on Blommaert’s behalf, the
CBA required that a grievance be filed within 30 days of the
underlying occurrence. Yet Blommaert had been discharged
on January 10, and Slusher did not file the disparate
treatment grievance until more than 90 days later. Slusher
as a veteran steward surely knew that the grievance was
beyond the deadline established by the CBA.
The dissenting member of the Board, having in mind the
credibility assessments and factual findings rendered by the
ALJ, believed that the majority had gone astray in ascrib-
ing an improper motive to Slusher. “The majority’s depic-
tion of steward Slusher’s protected grievance activity as
unprotected harassment of Breneisen is simply unfounded.”
Id. at *5. The dissent pointed out that the ALJ had consid-
ered the timing of Slusher’s conduct and rejected the notion
that it bespoke retaliation on Slusher’s part.
The record fully explains, and the judge specifically
addressed, the chronology the majority posits as sus-
pect. Slusher waited to file the grievance until he
received confirmation of Breneisen’s DUI incident. He
did not obtain that confirmation via the court abstract
until April 5, and he filed the grievance within 1 week
of his receipt of it, and showed the abstract within that
same week. As the judge found, “timing points more to
a proper, protected purpose than a retaliatory purpose.”
The fact that Slusher filed the grievance on the date of
the decertification election is easily explained; there is
no dispute that Slusher was an extremely aggressive
steward who would continue representing employ-
18 No. 04-3793
ees—and filing grievances—until the very minute that
representation ceased. And that is what he did.
Id. The dissent noted further that the ALJ had expressly
credited Slusher’s testimony that his intent in circulat-
ing the abstract was not to harass Breneisen for his anti-
union stance but to pursue relief on behalf of Blommaert
and to force Exxon Mobil to treat employees equitably. “The
majority’s speculation that Slusher sought to have
Breneisen fired is baseless, and ignores that Slusher
initiated the entire sequence of events—by asking
Breneisen whether he had a DUI—before Breneisen had
even filed the decertification petition.” Id. (emphasis in
original).
II.
This court will uphold the Board’s dismissal of a com-
plaint so long as its factual findings are supported by
substantial evidence and its legal conclusions have a
reasonable basis in law. NLRB v. Int’l Bhd. of Elec. Work-
ers, Local Union 16, 425 F.3d 1035, 1039 (7th Cir. 2005); 29
U.S.C. § 160(e). By “substantial evidence,” we mean such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. NLRB v. Erie Brush &
Mfg. Corp., 406 F.3d 795, 801 (7th Cir. 2005); NLRB v.
Midwestern Pers. Servs., Inc., 322 F.3d 969, 976 (7th Cir.
2003); Kopack v. NLRB, 668 F.2d 946, 951 n.3 (7th Cir.
1982). Where the record evidence is susceptible of different
interpretations, it is not our province to decide which of
them is correct. Thus, we cannot “ ‘displace the Board’s
choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the
matter been before it de novo.’ ” NLRB v. United Ins. Co. of
Am., 390 U.S. 254, 260, 88 S. Ct. 988, 991-92 (1968) (quot-
ing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71
S. Ct. 456, 465 (1951)); Midwestern Pers. Servs., 322 F.3d at
No. 04-3793 19
976. A party challenging the Board’s factual assessments
thus bears the burden of showing that they are not sup-
ported by substantial evidence. Erie Brush & Mfg. Co.; 406
F.3d at 801; NLRB v. Tom Wood Datsun, Inc., 767 F.2d 350,
352 (7th Cir. 1985).
As the Board’s order makes plain, the key issue in this
case is Slusher’s motive in distributing copies of Breneisen’s
abstract. Whereas the ALJ found that Slusher circulated
the abstract in order to demonstrate to other members of
the bargaining unit the basis for pursuing a disparate
treatment grievance against Exxon Mobil, the Board
majority found that he did it in order to harass Breneisen
for opposing and seeking to decertify the Union.
The nature of a party’s motivation in committing a
particular act is, of course, a question of fact. E.g., SCA
Tissue N.A. LLC v. NLRB, 371 F.3d 983, 988 (7th Cir.
2004); E & L Transp. Co. v. NLRB, 85 F.3d 1258, 1268 (7th
Cir. 1996); Central Transp., Inc. v. NLRB, 997 F.2d 1180,
1191 (7th Cir. 1993). Like other aspects of a person’s state
of mind, one’s motive is rarely proved directly. See, e.g.,
Mannie v. Potter, 394 F.3d 977, 983 (7th Cir. 2005); Justak
Bros. & Co. v. NLRB, 664 F.2d 1074, 1077 (7th Cir. 1981).
Typically, a mental state is established inferentially based
on the totality of the evidence, including the credibility of
the witnesses who testify before the finder of fact. See,
e.g., Market St. Assocs. Ltd. P’ship v. Frey, 941 F.2d 588,
597-98 (7th Cir. 1991); Thor Power Tool Co. v. Weintraub,
791 F.2d 579, 583-84 (7th Cir. 1986).
As a factual determination, then, the Board’s finding as
to one’s motive is conclusive if it is supported by substantial
evidence on the record considered as a whole. In its
factfinding, however, the Board “is not free to prescribe
what inferences from the evidence it will accept and reject,
but must draw all those inferences that the evidence fairly
demands.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522
20 No. 04-3793
U.S. 359, 378, 118 S. Ct. 818, 829 (1998). “Courts perform-
ing substantial evidence review, therefore, must examine
whether the Board considered all of the reasonable infer-
ences compelled by the evidence in reaching its decision.”
Pirelli Cable Corp. v. NLRB, 141 F.3d 503, 514 (4th Cir.
1998) (citing Allentown Mack Sales & Serv., 522 U.S. at
378-79, 118 S. Ct. at 829).
In this case it is the Union that is challenging the Board’s
decision, and so, as we have noted, the Union bears the
burden of convincing us that the Board’s findings lack the
support of substantial evidence. The fact that the Board
assessed the evidence differently than did the ALJ does not
alter that burden, because it is the independent validity of
the Board’s order that we examine. See Universal Camera,
340 U.S. at 496, 71 S. Ct. at 469; U.S. Marine Corp. v.
NLRB, 944 F.2d 1305, 1319 (7th Cir. 1991) (en banc); NLRB
v. Roll & Hold Warehouse & Distrib. Corp., 162 F.3d 513,
517 (7th Cir. 1998); Weather Shield Mfg, Inc., Millwork Div.
v. NLRB, 890 F.2d 52, 57 (7th Cir. 1989). Yet, the Board’s
decision to reject the ALJ’s factual findings does give rise to
“ ‘a special problem of administrative review.’ ” NLRB v.
Stor-Rite Metal Prods. Inc., 856 F.2d 957, 964 (7th Cir.
1988) (quoting Stokley-Van Camp, Inc. v. NLRB, 722 F.2d
1324, 1328 n.8 (7th Cir. 1983)). On consideration of the
record, the Board enjoys the prerogative to make factual
findings independent of and even contrary to those of the
ALJ. E.g., Universal Camera, 340 U.S. at 492, 71 S. Ct. at
467. However, “on matters which the [ALJ], having heard
the evidence and seen the witnesses, is best qualified to
decide, the agency should be reluctant to disturb his
findings unless error is clearly shown.” Id. at 494, 71 S. Ct.
at 468.5 For purposes of our review, the ALJ’s decision
5
The Board itself has a long-established policy “not to over-
(continued...)
No. 04-3793 21
(including his findings of fact) is as much a part of the
record as the evidence put before the ALJ, and we must
consider the ALJ’s views in deciding whether the Board’s
order is supported by substantial evidence. Universal
Camera, 340 U.S. at 493, 71 S. Ct. at 467; see also Stor-Rite,
856 F.2d at 964.
Cognizant of the special concerns raised by the Board’s
rejection of an ALJ’s factual findings, we have articulated
the following “general propositions to guide our review of a
Board decision”:
1. In all cases, the standard of review is the “substan-
tial evidence” standard.
2. Because the ALJ’s report is a part of the record
with independent significance, a factual determina-
tion of the Board that departs from the findings of
the ALJ stands on weaker ground than one that
does not.
3. Because only the ALJ can view the demeanor of the
witnesses, any of the ALJ’s findings that turn on
express or implied credibility determinations take
on particular significance on review.
Weather Shield Mfg., 890 F.2d at 57 (quoting Stor-Rite, 856
F.2d at 964); see also U.S. Marine Corp., 944 F.2d at 1319
n.16. We have added that when the Board has rejected an
ALJ’s credibility assessment (express or implied) in reach-
ing a particular determination, “then the Board’s conclusion
5
(...continued)
rule a hearing officer’s credibility resolutions unless a clear
preponderance of all the relevant evidence convinces [the Board]
they are incorrect.” Robert F. Kennedy Med. Ctr., 336 NLRB
765, 765 n.2 (NLRB 2001) (citing Stretch-Tex Co., 118 NLRB 1359,
1361 (NLRB 1957)); see also Standard Dry Wall Prods., Inc., 91
NLRB 544, 545 & n.3 (NLRB 1950) (coll. cases), enforced, 188 F.2d
362 (3d Cir. 1951) (per curiam).
22 No. 04-3793
is subject to special scrutiny rather than merely the
substantial evidence test.” Weather Shield, 890 F.2d at 58.
See Mobil Exploration & Producing U.S., Inc. v. NLRB, 200
F.3d 230, 261 n.2 (5th Cir. 1999) (Garza, J., dissenting)
(collecting cases holding that court engages in heightened
scrutiny when Board rejects ALJ’s factual findings); see
also, e.g., Pirelli Cable Corp., 141 F.3d at 515 (Board
decision based on credibility determinations different from
those of the ALJ are subject to “closer scrutiny”).
A person’s motive is, as we have said, a factual matter,
and the ALJ’s finding as to Slusher’s motive necessarily
rests in significant part on the judge’s assessment of
Slusher’s credibility. Slusher, of course, testified before the
ALJ that he did not intend to harm Breneisen when he
distributed the abstract, and the ALJ found Slusher
believable in that regard. By contrast, the ALJ found
Lozinak, who had interviewed Slusher on the subject of the
distribution and concluded that Slusher was lying about it,
not credible. So to the extent that the Board’s decision, in
finding that Slusher was motivated by a desire to punish
Breneisen for his anti-Union views, rejected the ALJ’s
credibility assessment, it stands on weaker ground with us
than it otherwise might and we must give it special scru-
tiny. Weather Shield, 890 F.2d at 57-58; see also Universal
Camera, 340 U.S. at 496, 71 S. Ct. at 469 (significance of
hearing officer’s findings depends on extent to which
witness credibility is important).
Initially, in an effort to fend off such scrutiny, the Board’s
General Counsel suggests that the Board did not, in fact,
reject any of the ALJ’s factual findings, including his
credibility assessments. General Counsel Br. 38. As the
General Counsel points out, the Board did not say that it
was rejecting any of the ALJ’s credibility determinations,
and a footnote in its order includes boilerplate language
indicating that the Board was adopting the ALJ’s findings
insofar as they were consistent with the Board’s own
No. 04-3793 23
decision. 2004 WL 2245467, at *1 n.1. But, as the Union is
quick to add, that language makes clear that the Board was
adopting the ALJ’s findings “only” to the extent they were
consistent with the Board’s own order. Id. The ALJ’s finding
as to Slusher’s motive cannot plausibly be described as
being “consistent” with the Board’s decision. It simply is not
possible to reconcile the Board’s finding that Slusher meant
to harass Breneisen with the ALJ’s finding that Slusher’s
testimony disavowing any such motive was forthright,
candid, and ultimately credible. Thus, although it did not
say so expressly, the Board necessarily rejected the ALJ’s
finding that Slusher’s motive was benign and his related
determination that Slusher’s testimony on this point was
credible. See Weather Shield, 890 F.2d at 58-59 (rejecting
contention that Board had accepted ALJ’s credibility
assessments, when in overruling ALJ’s determination,
Board relied on witnesses that ALJ had implicitly discred-
ited and necessarily rejected other testimony that ALJ had
expressly credited); NLRB v. Hawkins Constr. Co., 857 F.2d
1224, 1228 (8th Cir. 1988) (rejecting Board’s effort to
“evade” credibility-based assessment of whether union’s
request for information as to Company’s hiring and subcon-
tracting practices was made in good faith or to harass
Company in retaliation for suit against union); Ewing v.
NLRB, 732 F.2d 1117, 1122 (2d Cir. 1984) (rejecting Board’s
attempt to divorce trial examiner’s credibility assessment
from analysis of evidence and derivative inferences as to
whether Company’s failure to recall employee from layoff
was motivated by suspicion that employee had reported
Company to regulators and triggered inspection); Leviton
Mfg. Co. v. NLRB, 486 F.2d 686, 690 (1st Cir. 1973) (revers-
ing Board in case turning on whether ousted union officials
had filed suit against Company, union and their officers in
good faith or for purpose of harassment, where Board’s
decision did “not respond[ ] at all to the credibility aspect of
the trial examiner’s findings and . . . seemingly rejected out
24 No. 04-3793
of hand the testimony which he credited as to the employ-
ees’ continued harassment activities”).
Unavoidably, then, this is a case where we must give the
Board’s decision the special scrutiny we alluded to in
Weather Shield. As always, the ultimate question is
whether the Board’s decision, including its finding as to
Slusher’s motive, is supported by substantial evidence; but
in answering that question, we must consider whether the
Board had a plausible basis for rejecting the ALJ’s own
finding as to Slusher’s motive and his subsidiary assess-
ment of Slusher’s credibility. The ALJ’s decision constitutes
an important part of the record that we look to in deciding
whether the Board’s own decision is supported by substan-
tial evidence, and to the extent that the ALJ evaluated the
evidence differently than the Board did, the Board cannot
simply ignore his findings.
Notably, the Board did not, in its decision, recount the
evidence, derivative inferences, and credibility assessments
that led the ALJ to conclude that Slusher’s motive in
distributing Breneisen’s abstract was a proper, protected
motive. After acknowledging the ALJ’s finding, the Board
simply said that “the record . . . supports a different conclu-
sion.” 2004 WL 2245467, at *1. So the Board did not
articulate a basis for its decision to reject the ALJ’s reason-
ing on this subject. The General Counsel, in his brief, has
made some effort to reconcile the Board’s decision with the
evidence that led the ALJ to reach a different assessment
of Slusher’s motive. On its face, however, the Board’s order
reflects no such effort, and it is the Board’s decision alone
that we review. See Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168-69, 83 S. Ct. 239, 246 (1962) (“The
courts may not accept appellate counsel’s post hoc rational-
izations for agency action; . . . an agency’s discretionary
order [may] be upheld, if at all, on the same basis articu-
lated in the order by the agency itself . . . .”); S.E.C. v.
Chenery Corp., 318 U.S. 80, 87-88, 63 S. Ct. 454, 459 (1943);
No. 04-3793 25
NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 517-18 &
n.16 (7th Cir. 1991).
What the Board focused on in its order was the chronol-
ogy of events surrounding Slusher’s distribution of the
abstract. In the Board’s view, it was significant that Slusher
was aware no later than February 20 that Breneisen had a
DUI incident in his past, yet nearly two months passed
before Slusher filed the disparate treatment grievance on
Blommaert’s behalf. By that point, the Board believed, any
grievance related to Blommaert’s discharge in January was
untimely. The Board also thought it significant that Slusher
filed the grievance on April 11, the day after he was notified
that the Company had received another complaint of
harassment against Slusher and that it would be investigat-
ing his circulation of Breneisen’s abstract following the
decertification vote. This sequence of events suggested to
the Board that Slusher’s real purpose in circulating
Breneisen’s abstract was to penalize Breneisen for seeking
to decertify the union, and that Slusher filed the disparate
treatment grievance in an effort to provide cover for his
harassment of Breneisen.
As the timing of events is the sole reason identified by the
Board for its finding as to what Slusher’s motive was, and
the Board gave no independent reasons for rejecting the
ALJ’s contrary assessment of Slusher’s motive, we must
consider whether the chronology cited by the Board is so
compelling as to permit the Board to reject the ALJ’s
evaluation of the evidence (including his credibility assess-
ments) without further explanation. Having considered the
record as a whole, we conclude for the following reasons
that the chronology of events is not so compelling as to
relieve the Board of this obligation.
It is undisputed on this record that Exxon Mobil’s drug
and alcohol policy was a subject of interest to both Slusher
and other members of the Union. The merger between
26 No. 04-3793
Mobil and Exxon had resulted in the extension of Exxon’s
stricter pre-merger policy to Mobil’s workforce and had
resulted in the reassignment and discharge of Union
members. Slusher, who was an aggressive Union advocate,
had filed multiple grievances involving the policy. The
policy was an issue in the stalemated negotiations between
Local 705 and the Company over a new CBA. Against that
backdrop, evidence that Exxon Mobil might be applying the
drug and alcohol policy inconsistently—particularly in a
manner that might favor drivers like Breniesen who were
opposed to the Union—was of genuine interest to Union
members. Slusher’s testimony on this point is supported by
the testimony of both Matter (who instructed Slusher to
obtain proof of Breneisen’s DUI and, after seeing the
abstract, to file a grievance) and Blommaert (who said that
he wanted the disparate treatment grievance pursued on
his behalf).
Slusher’s actions could be viewed as consistent with
pursuing a disparate treatment grievance in good faith,
notwithstanding the sequence of events that the Board
chose to highlight in its order. Although Slusher learned
that Breneisen had a DUI incident in February 2003, he
was instructed by Matter to obtain proof of that incident by
checking public records, and Slusher did not have that proof
in hand until April 5. The desire for documentation is not
inherently suspicious; on the contrary, the record suggests
that the court abstract may have provided a number of
details about the incident that Slusher did not otherwise
learn from reviewing Company records and speaking with
Breneisen. On Matter’s instruction, Slusher filed the
grievance six days after he received the abstract from
Blommaert, with two of those days being a weekend
(Slusher received the grievance on a Saturday). Like the
ALJ, we cannot see anything inherently suspicious in
Slusher’s failure to file the grievance more quickly. It is
easy to imagine any number of innocent explanations for
the short delay, particularly in view of the impending
No. 04-3793 27
decertification vote. There certainly was no emergency at
that juncture: Blommaert, as the Board majority pointed
out, had been discharged in January, so waiting a few more
days was not going to make a difference in terms of the
relief available to Blommaert. And although the Board
majority suggested that Slusher must have appreciated the
likelihood that any grievance filed in April challenging
Blommaert’s discharge in January would be deemed
untimely in view of the CBA’s 30-day time limit on griev-
ances, the Board itself abstained from judgment as to
whether the grievance was contractually time-barred. 2004
WL 2245467, at *2 n.4. It appears at least arguable that it
was not, as the Board dissenter pointed out, given that the
Union did not learn of Breneisen’s DUI history until
February (possibly after the 30-day period had already
expired) and did not have proof of the incident until April.
Id. at *6 n.8.
In gross respects, at least, the abstract of Breneisen’s DUI
incident arguably did suggest that the Company might not
be applying its drug and alcohol policy in an evenhanded
fashion. The abstract revealed that Breneisen, pursuant to
the disposition of the 1995 DUI charge, was ordered to pay
a substantial fine and to participate in a remedial DUI
“school.” The abstract’s description of the proceeding
suggests that this may not have been a conviction in the
usual sense, as Slusher thought it was, but rather an
alternative disposition. See supra n.2. Moreover, as the
General Counsel points out, the incident was more than five
years old, and as such the policy would have left it to the
Company’s discretion whether to reassign Breneisen rather
than automatically bar him from driving tankers. But the
record contains no evidence as to what Exxon Mobil’s
rationale actually was in dealing with Breneisen’s incident.
In fact, when Matter contacted Ellis after seeing the
abstract and asked her if she was aware of the incident, she
said (according to Matter) that she was not. On this record,
28 No. 04-3793
one cannot say that Slusher had no good faith basis for
pursuing a disparate treatment grievance.
The facts are also consistent with the possibility that
Slusher, in circulating copies of Breneisen’s DUI abstract,
meant not to harass Breneisen for his opposition to the
Union but rather to alert members of the bargaining unit,
and in addition Exxon Mobil management, that the Com-
pany might be enforcing its drug and alcohol policy in
an inconsistent manner. Slusher testified that he was
initially able to confirm the rumor that Breneisen had a
DUI history because Breneisen himself had “checked off
that box” on his compliance statement, indicating that he
had a DUI incident in his past. Tr. 25. The record admit-
tedly does not tell us how much detail Breneisen had
provided about the incident on that statement—whether,
for example, he disclosed his participation in a DUI school.
See 2004 WL 2245467, at *11.6 And according to Matter,
Ellis had expressed ignorance when he raised Breneisen’s
DUI with her. But the record is uncontradicted on the point
that Breneisen had disclosed the fact of his prior DUI on
the compliance statement and that Breneisen himself had
acknowledged the DUI to Slusher. So there is no reason to
think, as the Board majority apparently did, that this was
an entirely undisclosed incident and that Slusher’s circula-
tion of the abstract might expose Breneisen to discharge for
a lack of candor. Moreover, while insisting that the incident
was no one’s business but his own, Breneisen himself had
acknowledged the incident not only to Slusher but also to
6
Breneisen’s compliance statement is not in the record, and
because Breneisen himself was not called as a witness, we do
not have the benefit of his testimony as to precisely what he
said about the DUI incident on his compliance statement. See
2004 WL 2245467, at *11. Slusher’s testimony discloses only
that Breneisen checked the box indicating that he had a prior
DUI.
No. 04-3793 29
the 10 or 12 persons present at the March 12 meeting of the
bargaining unit, so the incident was by no means a secret
by the time Slusher circulated the abstract. The abstract
itself was a public record, and in view of the discontent
among members of Local 705 regarding the Company’s drug
and alcohol policy, the stalemated contract negotiations,
and the upcoming decertification vote, the possibility of
disparate treatment under the policy, particularly as
between pro and anti-Union drivers, was (at least arguably)
of interest to members of the Union other than Slusher and
Blommaert. And the fact that two of the people to whom
Slusher circulated copies of the abstract—Lozinak and
Heisen—were members of management reasonably could be
viewed as evidence that Slusher’s aim was indeed to
challenge Company policy rather than to harm Breneisen.
We certainly agree with the Board that the evidence does
not foreclose the possibility that Slusher’s actual motive in
distributing the abstract was to harass Breneisen; but
neither does it preclude the ALJ’s contrary finding. And as
this was a case where there was no smoking gun that
supplied definitive proof of what Slusher’s motive was,
Slusher’s own testimony as to his state of mind and, in
turn, his credibility as a witness, were crucial, along with
the testimony and credibility of other individuals (such as
Matter and Blommaert) who were involved in the investiga-
tion of Breneisen’s DUI history and pursuit of the disparate
treatment grievance.
The credibility component of this case, in short, cannot be
ignored. Of all the adjudicators who have considered the
evidence in this case, the ALJ has the distinct advantage of
being the only one to have heard these witnesses and
observed their demeanor on the witness stand. His credibil-
ity assessments were inextricably intertwined with his
finding that Slusher’s motive in circulating the abstract was
benign. The Board has supplied us with no reason to
question (let alone reject) the ALJ’s credibility-based
30 No. 04-3793
findings, and having reviewed the record ourselves, we have
discerned none. Instead, the Board’s decision reads as if,
given the sequence of events, there is only one plausible
answer as to what Slusher’s motive was, regardless of what
Slusher and the other witnesses had to say about his
motive. For the reasons we have discussed, however, that
chronology leaves room for the conclusion that Slusher
distributed Breneisen’s abstract for a lawful and protected
purpose. Because the Board articulated no other basis on
which to reject the ALJ’s credibility-based finding that
Slusher did not mean to harass Breneisen, we can only
conclude that the Board’s contrary assessment of Slusher’s
motive lacks the support of substantial evidence on the
record as a whole.
The Board’s sole basis for reversing the ALJ’s decision
and ordering the dismissal of Slusher’s complaint was that
Slusher’s distribution of the abstract was not activity that
fell within the protection of NLRA section 7, a conclusion
dependent on the Board’s finding that Slusher’s motive was
illicit. For the reasons we have discussed, the Board’s
finding as to Slusher’s motive cannot stand. The ALJ, who
permissibly found that Slusher was not motivated by a
desire to harass Breneisen, concluded that Slusher’s
conduct was protected by section 7 and that Exxon Mobil
had suspended and discharged Slusher based on that
protected conduct in violation of section 8(a)(1) of the Act.
The Board did not otherwise address, let alone find fault
with, those aspects of the ALJ’s decision. Notably, the ALJ’s
assessment of the Company’s reason for discharging
Slusher was also based on the judge’s assessment of the
credibility of the witnesses. Having been given no reason to
question the balance of the ALJ’s decision, the order of the
ALJ granting relief to Slusher must be reinstated.
No. 04-3793 31
III.
Because the Board’s order lacks the support of substantial
evidence on the record as a whole, we grant the petition for
review, reverse the Board’s order, and direct that the ALJ’s
order be reinstated.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-23-05