Circus Circus Casinos, Inc. v. NLRB ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 28, 2019 Decided June 12, 2020
No. 18-1201
CIRCUS CIRCUS CASINOS, INC., D/B/A CIRCUS CIRCUS LAS
VEGAS,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 18-1211
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Paul T. Trimmer argued the cause for petitioner. With him
on the briefs was Daniel I. Aquino.
Kellie Isbell, Senior Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Peter B. Robb, General Counsel, David S. Habenstreit,
Assistant General Counsel, and Julie Brock Broido,
Supervisory Attorney.
2
Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge,
and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
Opinion concurring in part and dissenting in part filed by
Chief Judge SRINIVASAN.
RAO, Circuit Judge: This case arises out of an employment
dispute between Circus Circus Casinos, Inc. (“Circus”) and
temporary employee Michael Schramm. The National Labor
Relations Board (“NLRB”) determined that Circus committed
three unfair labor practices: threatening Schramm for
exercising statutory rights under the National Labor Relations
Act (“NLRA”), interfering with his right to union
representation during an investigatory meeting, and suspending
and terminating him because of protected union activity. Circus
petitions for review, arguing the Board’s decision misapplied
governing law and lacked substantial evidence. For the reasons
that follow, we grant Circus’s petition for review in full and
deny the Board’s cross-application for enforcement.
I.
Circus Circus is a hotel and casino in Las Vegas, Nevada.
In September 2013, the company hired journeyman carpenter
Michael Schramm into its engineering department on
a temporary basis to upgrade doorjamb security in the hotel’s
guest rooms. As a carpenter, Schramm was represented by the
United Brotherhood of Carpenters and Joiners of America,
Southwest Regional Council of Carpenters Local #1780 (“the
Union”).
In November or early December 2013, Schramm and
about twelve other employees attended one of the engineering
department’s mandatory weekly safety meetings along with
3
department head Rafe Cordell and several other managers.
During the meeting, an engineer named Fred Tenney brought
up the concern that secondhand exposure to marijuana smoke
in guest rooms could cause employees to test positive for illegal
drugs. Schramm echoed this concern, and a discussion ensued
between Cordell, Schramm, and Tenney. According to
Schramm and Tenney, they repeatedly pressed Cordell for
additional commitments by the company and refused to accept
his assurances that employees’ exposure was insufficient to
produce a positive test result. On their account, Cordell
eventually became angry, turned red, and told Schramm “you
know what, maybe we just won’t need you anymore” before
abruptly leaving the meeting. Testimony from Cordell and
other managers and employees also in attendance reported the
weekly safety meeting proceeded just like any other and
concluded without incident. Although some remember
a discussion about marijuana policy, none remember Cordell
making a threatening statement.
Several weeks later, Circus initiated an investigation into
whether Schramm violated company policy with respect to
a medical exam mandated by the Occupational Safety and
Health Administration (“OSHA”). Pursuant to OSHA
regulations, Circus provides custom-fit respirators to
employees likely to encounter airborne hazards during their
work, including virtually all members of the engineering
department. See 29 C.F.R. § 1910.134(a)–(d). Because
respirators can aggravate certain underlying health conditions,
OSHA requires employers to contract with a medical service
provider to review an employee’s medical history and perform
a medical examination prior to the custom-fitting process. See
id. § 1910.134(e)–(f). To assure compliance with OSHA
regulations, Circus maintains written policies that make
submitting to the testing process a mandatory condition of
employment. The company’s General Rules of Conduct
4
specify that “serious violations,” including “insubordination”
and “[f]ailure or refusal to submit to a physical examination …
ordered by Circus,” “will result in disciplinary action up to and
including immediate termination.”
Schramm arrived at an onsite clinic for his scheduled
testing appointment on December 10. He refused, however, to
complete preliminary paperwork without first speaking with
the contract doctor. Although clinic technicians explained he
could not see the doctor without first completing a preliminary
intake process, Schramm left the appointment and returned to
work. Clinic staff relayed the incident to Cordell, who quickly
suspended Schramm pending investigation into his refusal to
take the medical exam. Over the next three days, Circus
personnel interviewed Cordell and several other managers
about the incident and scheduled Schramm for an investigatory
interview. When a Circus human resources representative
contacted Schramm to set up the interview, she provided
a phone number for the Union in the event Schramm desired to
have a Union representative present at the meeting. The record
indicates Schramm attempted to contact the Union twice by
phone, but to no avail.
Schramm returned to the Circus facility on December 13
for the interview. Cordell and two human resources
representatives attended on behalf of Circus. According to
Schramm, he looked around the hallway for a Union
representative before entering the meeting and began by
stating: “I called the Union three times [and] nobody showed
up, I’m here without representation.” Circus’s witnesses deny
Schramm made this statement at the beginning of the meeting
but acknowledge continuing the interview without offering
Schramm union representation.
5
In late December, Cordell and human resources met once
again with Schramm to terminate his employment; this time he
was accompanied by a Union steward. Circus represented
during the administrative proceedings that it fired Schramm for
violating the company’s rules against insubordination and
refusing to submit to mandatory testing.
Schramm subsequently filed unfair labor practice charges
on his own behalf with the NLRB. After overriding the regional
director’s decision not to pursue the charges, the Board’s
general counsel issued a complaint alleging Circus violated
three standards established under Section 8(a)(1) of the Act.
See 29 U.S.C. § 158(a)(1). The complaint first alleged
Cordell’s comment to Schramm during the weekly safety
meeting interfered with NLRA rights by discouraging
employees from voicing shared concerns about the terms and
conditions of employment. Second, the complaint alleged
Schramm’s statement at the beginning of the investigatory
meeting was a request for union representation under NLRB v.
J. Weingarten, Inc., 420 U.S. 251 (1975), and that Circus
violated the Act by ignoring the request. Finally, the complaint
alleged that under the test for mixed-motive termination in
Wright Line, 251 NLRB 1083 (1980), Circus unlawfully
suspended and terminated Schramm because of activity
protected under the Act and not because of his alleged
workplace misconduct. After a hearing, an administrative law
judge (“ALJ”) issued a recommended decision finding that
Circus committed the unfair labor practices brought by the
general counsel.1
1
Circus does not contest the finding that Schramm engaged in
protected activity under Section 7 of the Act by seconding Tenney’s
marijuana smoke concern during the safety meeting. See 29 U.S.C.
§ 157. The Board must identify protected activity to invoke NLRA
jurisdiction in the first instance. In the absence of an objection by
6
The Board, sitting as a delegated three-member panel, see
29 U.S.C. § 153(b), adopted the ALJ’s decision in all material
respects and rejected a request by Circus to reopen the record
for additional evidence tending to impeach Tenney, Schramm’s
key corroborating witness. See Circus Circus Casinos, Inc.,
366 NLRB No. 110 (June 15, 2018). The Board noted
Chairman Ring dissented as to the Weingarten violation on the
ground that the majority was wrong to find a request for
representation “subsumed” in Schramm’s statement, which
described prior requests to the Union rather than a request to
the company. Id. at *1 n.2. To remedy these unfair labor
practices, the Board ordered Circus to reinstate Schramm with
backpay, cease and desist from similar violations, and post
a workplace notice describing the agency’s findings. Id. at *2.
Circus petitioned for review of the Board’s unfair labor
practice findings and refusal to reopen the record, arguing the
order is inconsistent with the NLRA and the Administrative
Procedure Act (“APA”). The Board cross-petitioned for
enforcement of the order.
II.
Judicial review of the Board’s decisions and orders must
evaluate both the Board’s statements of law and application of
law to the facts. Congress combined within the NLRB the
authority to make rules, enforce rules, and adjudicate whether
rules were violated in individual cases. See 29 U.S.C. § 160(a)–
(c). The Supreme Court upheld the constitutionality of the
NLRB against due process challenges notwithstanding this
combination of functions in part because appellate review
would afford “adequate opportunity to secure judicial
Circus, however, we will not consider this jurisdictional issue and
express no opinion on the Board’s finding.
7
protection against arbitrary action.” NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 47 (1937). Orders of the Board cannot
be enforced without Article III approval, see 29 U.S.C.
§ 160(e)–(f), and reviewing courts “are not to abdicate the
conventional judicial function” because “Congress has
imposed on them responsibility for assuring that the Board
keeps within reasonable grounds,” Universal Camera Corp. v.
NLRB, 340 U.S. 474, 490 (1951). Judicial review ensures that
the Board stays within statutory and constitutional limits.
The Board rarely promulgates regulations through notice
and comment but instead sets standards through adjudication.
The Board, “uniquely among major federal administrative
agencies, has chosen to promulgate virtually all the legal rules
in its field through adjudication rather than rulemaking.”
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
374 (1998) (citing NLRB v. Bell Aerospace Co., 416 U.S. 267,
294–95 (1974)). Thus, an order of the Board might simply
apply an existing standard, or alternatively, it might set forth
a new standard while deciding a particular case. Nonetheless,
as with other administrative agencies, the Board is subject to
the APA’s requirement of “reasoned decisionmaking.” Id.(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 52 (1983)). Legal standards promulgated
by the Board under the NLRA must be “rational and consistent
with the Act,” id. at 364 (citation omitted), and applications of
those standards in individual cases must be “reasonable and
reasonably explained,” Carlson v. PRC, 938 F.3d 337, 343–44
(D.C. Cir. 2019) (citation omitted).
Because Board adjudications may establish new rules or
apply existing rules, “[o]ur standards for arbitrary and
capricious review distinguish between an agency’s burden of
explanation when announcing new rules and when applying
existing rules in individual cases.” Baltimore Gas & Elec. Co.
8
v. FERC, 954 F.3d 279, 286 (D.C. Cir. 2020). New rules set
through adjudication must meet the same standard of
reasonableness as notice and comment rulemaking. See
Allentown Mack, 522 U.S. at 374 (citing State Farm, 463 U.S.
at 52). When the Board seeks to change applicable standards
through an adjudication, the Board must “display awareness
that it is changing position,” demonstrate the rule is
“permissible under the statute,” and show “there are good
reasons for the new policy.” FCC v. Fox Television Stations,
Inc., 556 U.S. 502, 515 (2009). By contrast, Board orders
applying existing policy must be consistent with precedent and
cannot be enforced when the agency “erred in applying
established law to the facts of the case.” Fred Meyer Stores,
Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017) (citation
omitted); see also Rapoport v. SEC, 682 F.3d 98, 104 (D.C.
Cir. 2012) (“[A]gencies must apply their rules consistently.
They may not depart from their precedent without explaining
why. If they do, we have no choice but to remand for a reasoned
explanation.” (citation and internal quotation marks omitted)).
Orders of the Board are arbitrary and capricious when they
“simply disregard rules that are still on the books.” Fox
Television, 556 U.S. at 515. Rule of law principles require that
parties have fair notice and an opportunity to conform their
behavior to legal rules.2 As the Supreme Court has explained,
“the Board must be required to apply in fact the clearly
2
Administrative law’s reasonable explanation requirement balances
the need for definite standards with respect for agency discretion.
Insisting on definite standards recognizes “the basic human claim
that the law should provide like treatment under like circumstances,”
and “a clear statement of the standards the agency is applying is
necessary if administrative adjudication is to be consistent with the
democratic process.” Henry J. Friendly, The Federal Administrative
Agencies: The Need for Better Definition of Standards, 75 HARV. L.
REV. 863, 878, 880 (1962).
9
understood legal standards that it enunciates in principle,” and
“courts are entitled to take those standards to mean what they
say.” Allentown Mack, 522 U.S. at 376–77. Reviewing courts
cannot simply take the Board’s orders in isolation. Instead, we
must identify the standard at issue, examine its application in
prior adjudications, and then determine whether the instant
case is a faithful application of existing law or instead a sub
silentio revision. See, e.g., ABM Onsite Servs.-West, Inc. v.
NLRB, 849 F.3d 1137, 1146 (D.C. Cir. 2017) (“[W]hen the
Board fails to explain—or even acknowledge—its deviation
from established precedent, its decision will be vacated as
arbitrary and capricious.” (citation and internal quotation
marks omitted)).
Two provisions of the NLRA govern this case. Section
8(a)(1) makes it unlawful for employers to “interfere with,
restrain, or coerce employees” in the exercise of protected
rights. 29 U.S.C. § 158(a)(1). Section 7 protects the right of
employees to organize, bargain collectively, and “refrain from”
or “engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.” Id.§ 157. In this case, the Board purported to apply three well
established standards to determine Circus committed unfair
labor practices by unlawfully threatening, investigating,
suspending, and terminating Schramm. Circus contests both
the factfinding and legal analysis supporting the Board’s
findings. We take each alleged violation in turn.
A.
We begin with the Board’s conclusion that Circus violated
the Weingarten rule by denying Schramm’s request for union
representation at the investigatory meeting. In NLRB v. J.
Weingarten, Inc., the Supreme Court approved the Board’s
construction of Section 7 of the Act as guaranteeing an
10
employee the right “to refuse to submit without union
representation to an interview which he reasonably fears may
result in his discipline.” 420 U.S. at 256. The Weingarten right
“arises only in situations where the employee requests
representation,” id. at 257, and leaves employers free to
investigate and discipline pursuant to “legitimate employer
prerogatives” short of compelling unrepresented attendance,
id. at 258. To prove a Weingarten allegation, the general
counsel must show (1) the employee made a valid request for
a union representative to be present during an investigatory
interview; (2) the employee reasonably believed the interview
might result in disciplinary action; and (3) the employer
compelled the employee to attend the interview without union
representation. 420 U.S. at 256–58 (citing Mobil Oil Corp., 196
NLRB 1052, 1052 (1972), and Quality Mfg. Co., 195 NLRB
197, 198–99 (1972)); see also Costco Wholesale Corp., 366
NLRB No. 9, at *1 (Feb. 2, 2018).
The Board maintains Schramm triggered Weingarten by
stating at the beginning of the meeting: “I called the Union
three times [and] nobody showed up, I’m here without
representation.” As the Board explained, “[s]ubsumed in the
statement is a reasonably understood request to have someone
present at the meeting.” Circus Circus, 366 NLRB No. 110, at
*1. Further, the Board concluded Circus unlawfully compelled
Schramm when the company failed to offer him the choice
between continuing unassisted or foregoing the interview
altogether. Id. at *2 n.10; see also Bellagio, LLC v. NLRB, 854
F.3d 703, 708 (D.C. Cir. 2017) (“[O]nce an employee validly
requests a union representative, an employer has three paths
open to it: it may grant the request, end the interview, or offer
the employee the choice between having an interview without
a representative or having no interview at all.”). Noting his
dissent, Chairman Ring would have concluded Schramm’s
statement fell short of a valid request for representation under
11
any formulation previously recognized by the Board. Circus
Circus, 366 NLRB No. 110, at *1 n.2. Circus argues the
Board’s conclusion that Schramm made a valid request is
a serious departure from the Weingarten rule. We agree, and
conclude the Board acted in an arbitrary and capricious manner
by significantly altering the test for valid Weingarten requests
to cover the facts of this case.
The Weingarten allegation should have been dismissed
because Schramm did not make an affirmative request for
union representation. To invoke the Weingarten right, an
employee’s utterance must be “reasonably calculated” to put
the employer “on notice of the employee’s desire for union
representation.” Houston Coca Cola Bottling Co., 265 NLRB
1488, 1497 (1982); Consol. Edison Co. of N.Y., 323 NLRB
910, 916 (1997). Under the reasonably calculated notice
standard, the Board has long required an employee to
affirmatively request representation in order to invoke the
protections of the Act. Valid requests may take the form of
straightforward demands, see, e.g., Consol. Edison, 323 NLRB
at 914 (“I need a Union Steward.”); questions about the need
for assistance, see, e.g., NLRB v. N.J. Bell Tel. Co., 936 F.2d
144, 145 (3d Cir. 1991) (“[S]hould [I] have a union
representative present[?]”); or requests for delay or an
alternative representative, see, e.g., Montgomery Ward & Co.,
273 NLRB 1226, 1227 (1984). In this case, Schramm merely
recited facts about his past communication with the Union and
the circumstances of his attendance at the meeting: “I called the
Union three times [and] nobody showed up, I’m here without
representation.” Any affirmative request by Schramm was
made to the Union rather than to a Circus representative—there
was no valid request here to trigger Weingarten’s requirements.
None of the Board’s prior decisions construe Weingarten’s
reasonably calculated notice standard broadly enough to cover
12
mere statements of fact, and we were unable to find a precedent
accepting similar remarks as an affirmative request. Nor was
our dissenting colleague. See Dissenting Op. 2. Instead,
affirmative requests have always taken the form of demands
for representation, questions, or related requests. See, e.g., Gen.
Die Casters, Inc., 358 NLRB 742, 742 (2012) (finding request
where employee asked twice if he should “get somebody in
here”); Bodolay Packaging Mach., Inc., 263 NLRB 320, 325
(1982) (finding request where employee asked if he “needed
a witness”). In the absence of an affirmative request, the Board
must dismiss Weingarten charges because there is no protected
concerted activity by the employee and the NLRA does not
apply. See, e.g., Costco Wholesale, 366 NLRB No. 9, at *1
(dismissing unfair labor practice charge for lack of employee
request); USPS, 360 NLRB 659, 660 (2014) (same); Kohl’s
Food Co., 249 NLRB 75, 78 (1980) (same).
The text and structure of the NLRA demonstrate why an
affirmative request is an indispensable element of a Weingarten
violation. As the Supreme Court explained in Weingarten, the
affirmative request requirement “inheres in [Section] 7’s
guarantee of the right of employees to act in concert for mutual
aid and protection.” 420 U.S. at 256. Employee requests for
union representation trigger an employer’s duty to respond
under Section 8(a)(1) when they amount to protected “other
concerted activities” under Section 7. The phrase “other
concerted activities” must be read in context and is preceded
by a series of affirmative rights: “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.” 29 U.S.C. § 157. Under the ejusdem
generis canon, an enumerated list of specific, affirmative
actions preceding the general term “other concerted activities”
13
creates an inference that the catch-all phrase is similarly limited
to affirmative acts. See Wash. Dep’t of Soc. & Health Servs. v.
Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003)
(“[W]here general words follow specific words in a statutory
enumeration, the general words are construed to embrace only
objects similar in nature to those objects enumerated by the
preceding specific words.” (quoting Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 114–15 (2001))). As there was no
affirmative request on these facts, Circus was not required to
offer Schramm representation or to take any other action under
the Weingarten rule.
By deviating from established practice in this case, the
Board expanded the reach of Weingarten without accounting
for employee choice, a central policy of the NLRA. Cf. Colo.
Fire Sprinkler, Inc. v. NLRB, 891 F.3d 1031, 1040–41 (D.C.
Cir. 2018) (emphasizing the importance of employee choice in
the selection of a union representative under Section 9(a)).
Weingarten’s emphasis on affirmative employee requests
serves not only to notify the employer that the employee is
invoking statutory rights, but also to protect the employee’s
choice not to invoke the right when he believes doing so would
be against his interests. Union representatives serve the union’s
interest rather than those of any single member, and
representatives may be called upon to testify on behalf of the
employer as well as the employee. See Appalachian Power Co.,
253 NLRB 931, 933 (1980) (emphasizing an employee’s
“choice of deciding whether the presence of the representative
was more or less advantageous to his interests” is “one of the
fundamental purposes of the rule as articulated in
Weingarten”); USPS, 241 NLRB 141, 152–53 (1979)
(contrasting role of union representative to that of a criminal
attorney). Thus, one consequence of the Board’s finding that
14
Schramm’s request was “subsumed” in a simple statement of
fact would be to limit employee choice.3
If “requests” were interpreted as broadly as the Board
elected to do here, the Weingarten right would transform from
one that must be invoked by an employee to one that cautious
employers must assume automatically applies to all covered
investigatory meetings. Yet nothing in Weingarten or the
Board’s subsequent application of the rule obligates employers
prophylactically to inform employees of their right to
representation. See El Paso Healthcare Sys., 358 NLRB 460,
467 (2012) (“The employee’s right to the assistance of a union
representative arises only upon the request of the employee; the
employer has no duty to inform the employee of the right.”);
USPS, 241 NLRB at 152 (“[T]he Weingarten class of cases
implicitly hold that the employer is under no obligation
affirmatively to advise the employee of his Weingarten
rights.”).
Consistent with the Board’s precedents, we hold
Weingarten requires an employee to affirmatively request
union representation in a manner reasonably calculated to put
3
Our dissenting colleague believes the Board’s decision here would
not disturb Weingarten’s treatment of employee choice. See
Dissenting Op. 3. It is true that after a valid request, the employer
may offer the employee a choice between formally waiving
representation or forgoing the interview. See Weingarten, 420 U.S.
at 258–59; Bellagio, 854 F.3d at 708. Yet a rule that requires such
a choice after any type of open-ended statement would in practice
change the Weingarten right from one invoked by the employee to
a choice framed by the employer and requiring an affirmative waiver
by employees. Such a standard is wholly different from the
Weingarten framework and would impose a distinct set of burdens
on employees and employers not contemplated by longstanding
precedent.
15
the employer on notice. See USPS, 360 NLRB at 660 (“Even
assuming [an employee] had an objectively reasonable basis to
fear discipline, the right to Weingarten representation is
triggered when the employee requests it.” (citing 420 U.S. at
257)); Consol. Edison, 323 NLRB at 916 (requests “need only
be sufficient to put the employer on notice”); Houston Coca
Cola Bottling, 265 NLRB at 1497 (language must be
“reasonably calculated to apprise the [e]mployer”). Under the
reasonably calculated notice standard, valid requests may take
the form of demands, questions, or related requests for delay or
for a specific representative. On this record, Schramm’s
statement of fact standing alone was insufficient to trigger the
protections of the Act. Because the Board erred by concluding
otherwise, we set aside this unfair labor practice finding and
vacate the corresponding part of the Board’s order. See
Midwest Div.-MMC, LLC v. NLRB, 867 F.3d 1288, 1297 (D.C.
Cir. 2017) (granting review for misapplication of Weingarten);
Bellagio, 854 F.3d at 709 (same).4
B.
Next, we review the Board’s conclusion under Wright Line
that Circus violated Section 8(a)(1) of the Act by suspending
4
Even if Schramm’s statement could be construed as an affirmative
request, the general counsel must also show Circus compelled his
attendance at the interview. “[T]he mere fact that an employee’s
request for union representation is not met does not, without more,
mean that the employer has committed an unfair labor practice.”
Bellagio, 854 F.3d at 708–09. The Weingarten right gives an
employee the choice to “forgo his guaranteed right and … participate
in an interview unaccompanied by his union representative.” 420
U.S. at 256–57. Because Circus rested its petition for review on other
grounds, however, we express no opinion on whether the record
suggests that Schramm elected not to participate in the interview but
was compelled to do so by his employer.
16
and terminating Schramm because of protected activity.
Employers violate Section 8(a)(1) when they terminate or
otherwise discipline an employee because of conduct protected
by the Act. See Inova Health Sys. v. NLRB, 795 F.3d 68, 80
(D.C. Cir. 2015).5 At the same time, “employers retain the right
to discharge workers for any number of other reasons unrelated
to the employee’s union activities.” NLRB v. Transp. Mgmt.
Corp., 462 U.S. 393, 394 (1983); see also Jones & Laughlin,
301 U.S. at 45–46 (“The [A]ct does not interfere with the
normal exercise of the right of the employer to select its
employees or to discharge them. … [T]he Board is not entitled
to make its authority a pretext for interference with the right of
discharge.”). When an employer asserts a legitimate basis for
its disciplinary decision, the line between employer prerogative
and unlawful infringement of employees’ rights is a question
of motive.
In Wright Line, the Board adopted the Supreme Court’s
burden-shifting framework from Mt. Healthy City School
District Board of Education v. Doyle, 429 U.S. 274, 286–87
(1977), to accommodate “the legitimate competing interests
inherent in dual motivation cases.” 251 NLRB at 1088. Under
the Wright Line standard, the general counsel must first
establish a prima facie case that animus against protected
activity was “a motivating factor” in the employer’s decision.
Inova, 795 F.3d at 80; Wright Line, 251 NLRB at 1090.
Second, the burden of persuasion shifts to the employer to
show it “would have taken” the same action even in the absence
of protected conduct. Inova, 795 F.3d at 80 (citation omitted);
Wright Line, 251 NLRB at 1091; see also Transp. Mgmt., 462
5
Employer discipline violates Section 8(a)(1) and (3) when the
protected activity at issue is union participation. Section 8(a)(3) bars
employers from discriminating in order “to encourage or discourage
membership in any labor organization.” 29 U.S.C. § 158(a)(3).
17
U.S. at 403–04 (approving Wright Line as a valid interpretation
of the Act).
Purporting to apply Wright Line to the facts of this case,
the Board concluded Circus acted with animus against
Schramm’s exercise of NLRA rights and rejected the
company’s explanation that it would have fired Schramm
regardless because he refused to comply with the medical
examination requirement. The Board reasoned that if Circus’s
“true concern” was that Schramm undergo testing, “he would
have been allowed to speak to the doctor prior to testing or, at
a minimum, sent back for testing” before discipline. See Circus
Circus, 366 NLRB No. 110, at *4. Circus disputes the Board’s
legal analysis under both prongs of Wright Line, arguing the
Board accepted the general counsel’s prima facie case despite
an absence of evidence and, further, that the Board short
changed the company’s rebuttal case. Pointing to our decision
in Sutter East Bay Hospitals v. NLRB, 687 F.3d 424 (D.C. Cir.
2012), Circus argues the Board failed to assess whether the
company reasonably believed Schramm committed
misconduct that the company consistently disciplines with
similar severity. We assume without deciding that the general
counsel satisfied his burden in the first prong and instead focus
on Wright Line’s second prong. We agree with Circus that the
Board misapplied Wright Line by failing to consider the
company’s rebuttal case in line with our decision in Sutter East
Bay.
As we have explained, Wright Line’s second prong
requires the Board to examine first, whether the employer
“reasonably believed” the employee committed the acts
supporting discipline, and second, whether the decision was
consistent with the company’s “policies and practice.” Sutter
East Bay, 687 F.3d at 435. In Wright Line, the Board analyzed
whether the employer had “reason to believe” the terminated
18
employee violated company policy, and also whether the
employee’s asserted misconduct was “commonplace and
generally resulted in no discipline whatsoever.” 251 NLRB at
1091. The Board has repeatedly recognized that reasonable
belief and consistency in enforcement are important aspects of
the analysis. See, e.g., DTR Indus., Inc., 350 NLRB 1132,
1135–36 (2007) (dismissing unfair labor practice charge where
employer reasonably believed employee produced defective
products on purpose); GHR Energy Corp., 294 NLRB 1011,
1014 (1989) (dismissing unfair labor practice charge where
employer reasonably believed employees violated a policy the
company strictly enforced). We have similarly examined these
factors when assessing the Board’s application of Wright Line
on arbitrary and capricious review. See, e.g., Windsor Redding
Care Ctr., LLC v. NLRB, 944 F.3d 294, 300 (D.C. Cir. 2019)
(refusing enforcement where Board ignored “zero-tolerance”
policy for abuse toward elderly patients and disregarded
evidence of strict enforcement in prior cases); Hawaiian
Dredging Constr. Co. v. NLRB, 857 F.3d 877, 885 (D.C. Cir.
2017) (refusing enforcement where Board failed to recognize
employer’s good faith belief that misconduct occurred); Fort
Dearborn Co. v. NLRB, 827 F.3d 1067, 1075 (D.C. Cir. 2016)
(concluding employer acted inconsistently with policy and past
practice when discharging employee).
Contrary to this longstanding precedent, the Board
rejected Circus’s rebuttal case without addressing evidence
relevant to Wright Line’s second prong. First, the Board failed
to assess whether Circus reasonably believed Schramm
committed the misconduct in question. The company decided
to suspend and discharge Schramm based on reports by
medical personnel that Schramm failed to take a required
medical exam. Circus’s subsequent investigation did not reveal
any contrary facts. Rather than assess whether it was
reasonable for Circus to believe Schramm committed the
19
misconduct in question, the Board adopted factual findings
about what happened at the clinic. What actually happened is
immaterial, however, because Circus had no reason to doubt
the reports of medical personnel and was therefore entitled to
rely on them. See Sutter East Bay, 687 F.3d at 436 (“Whether
the ALJ believes the reports are accurate or whether [the
employee] actually engaged in the tirade is largely immaterial
to whether [the employer] reasonably believed she did.”).
Further, the Board devoted significant attention to the finding
that Schramm offered to retake the medical exam at the time of
his suspension and again at the investigatory meeting with
Cordell and human resources. Yet an employee’s offer to
correct misconduct does not disturb Circus’s reasonable belief
that a terminable offense had been committed.
Second, the Board failed to assess whether Circus’s
decision to terminate Schramm was consistent with company
policy and practice. The company’s written policies make
“insubordination” and “refusal to submit to a physical
examination” terminable offenses. Without addressing whether
these rules covered Schramm’s conduct, the ALJ instead
analyzed OSHA regulations and Circus’s testing policy to
conclude Schramm had a right to discuss the content of the
OSHA medical questionnaire with the doctor before submitting
the form. We fail to see the relevance of this observation,
however, given Schramm’s testimony that he sought to obtain
an exemption from wearing a respirator, not an exemption from
the basic medical intake information clinic personnel requested
(and Schramm refused to provide) before allowing him to
speak with the doctor. Circus also presented testimony that no
employee had ever refused to submit to an OSHA medical
exam and identified three prior instances in which the company
terminated employees for refusing to submit to a mandatory
drug test. We need not decide whether this evidence would
suffice to meet Circus’s rebuttal burden under Wright Line’s
20
second prong. It is enough to conclude the Board failed to
engage with this record evidence and thereby acted arbitrarily
and without substantial evidence on the record as a whole. See
id. at 437 (“The ALJ’s conclusions leave that crucial second
step of the Wright Line test unexamined and unanswered.”).
Finally, we reject the alternative reasoning supplied by the
Board that Circus “should have” been satisfied by Schramm’s
offers to retake the medical exam if his refusal was the
company’s “true concern.” Circus is entitled to a policy of strict
enforcement of its rules related to insubordination and
compliance with testing policies. The Board cannot second
guess an employer’s legitimate and consistently enforced
policies for safety and discipline in the workplace. To do so
exceeds the Board’s expertise and authority under the Act. See
Cellco P’ship v. NLRB, 892 F.3d 1256, 1262 (D.C. Cir. 2018)
(“It is clear that [the employer] has made a legitimate business
judgment—a not unusual one—that an employee lying during
an investigation is a serious threat to management of the
enterprise. The Board has no warrant to challenge that
decision.”). “It is well recognized that an employer is free to
lawfully run its business as it pleases. This means that an
employer may discharge an employee for a good reason, a bad
reason, or no reason, so long as it is not for an unlawful reason.”
Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1105
(D.C. Cir. 2001) (citing Transp. Mgmt., 462 U.S. at 394).
The Board suggests it was not required to analyze the
employer’s rebuttal under Wright Line and Sutter East Bay
because its finding of “pretext” rendered reasonable belief and
consistency in practice irrelevant. We reject this argument as
a fundamental misstatement of Wright Line. Determining an
employer’s explanation to be pretext is a legal conclusion that
follows from the Wright Line analysis, not an upfront finding
that short circuits consideration of the whole record. The Board
21
adopted Wright Line to obviate distinctions between pretext
and dual-motive cases by creating a uniform standard for “all
cases alleging violation[s] of Section 8(a)(3) or violations of
Section 8(a)(1) turning on employer motivation.” 251 NLRB
at 1089 & n.13; see NLRB GC Memorandum 80-58, 1980 WL
19306, at *1 (1980) (“The Wright Line test will be applied to
both pretext and mixed motive cases.”). This framework
governs regardless of whether an employer’s defense is
meritorious or unmeritorious. Before determining the outcome
of a case, the Board must examine whether the employer had
a reasonable belief misconduct occurred and a prior consistent
practice of enforcing rules against such misconduct. See Frank
Black Mech. Servs. Inc., 271 NLRB 1302, 1302 n.2 (1984)
(“Wright Line analysis applies to all 8(a)(3) and (1) discharge
cases regardless of the Board’s ultimate conclusion as to
motive.” (citing Transp. Mgmt., 462 U.S. at 393)). Nor will we
simply accept the Board’s application of Wright Line in this
case as an authoritative interpretation. Courts do not defer to an
agency’s arbitrary and capricious interpretation of its own
standard. See Kisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019);
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126
(2016) (“An arbitrary and capricious regulation of this sort is
itself unlawful and receives no Chevron deference.”).
To defend its reasoning, the Board cites our decision in
Ozburn-Hessey Logistics, LLC v. NLRB, 833 F.3d 210 (D.C.
Cir. 2016), for the proposition that compelling evidence of
pretext precludes the need to consider Circus’s reasonable
belief. But we have never excused the Board from its duty to
consider whether an employer’s reasonable belief justifies
a termination decision. In Ozburn-Hessey, our court considered
whether the Board misapplied Wright Line by accepting pretext
as a substitute for analyzing an employer’s rebuttal case. We
did not endorse this analytical approach, but instead concluded
the Board had “rejected each of the reasons the [c]ompany
22
claimed to have relied on in taking those disciplinary actions”
and, “after considering them in light of the record, concluded
that they were ‘mere pretext[s].’” 833 F.3d at 219. We
explained that previous Board decisions also analyzed facts
under both prongs of Wright Line, despite some dicta that
might suggest an employer’s rebuttal need not be considered
on the whole record. See id. (quoting Rood Trucking Co., 342
NLRB 895, 898 (2004)). The approach in Ozburn-Hessey
reflects our court’s commitment to “uphold a decision of less
than ideal clarity if the agency’s path may reasonably be
discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys.,
Inc., 419 U.S. 281, 286 (1974). That path is unavailable to us
here, however, because the Board’s reasoning “entirely fail[ed]
to consider an important aspect of the problem.” Fred Meyer
Stores, 865 F.3d at 638 (quoting State Farm, 463 U.S. at 43).
As we held in Sutter East Bay, the Board must analyze an
employer’s reasonable belief that an employee engaged in
misconduct and consider whether the disciplinary decision is
consistent with the employer’s policy and practice. Without
this analysis we cannot ensure the Board correctly applied
established law to the facts of the case, treated like cases alike,
and, consistent with the Act, preserved both employee rights
and employer prerogatives. Here, the Board misapplied Wright
Line by failing to consider the employer’s rebuttal case. This
error is fatal to the Board’s Section 8(a)(1) termination finding,
and we therefore vacate that part of the Board’s order. On
remand the Board may reconsider whether the record supports
an unlawful termination finding under the correct standard. See
Hawaiian Dredging, 857 F.3d at 885 (refusing enforcement for
failure to consider appropriate evidence under Wright Line’s
second prong); Sutter East Bay, 687 F.3d at 436 (same).
23
C.
Finally, we turn to the Board’s finding that Circus violated
Section 8(a)(1) by unlawfully threatening Schramm. Employer
statements “interfere with, restrain, or coerce” employees in
violation of Section 8(a)(1) when they “reasonably tend[] to
interfere” with the exercise of protected rights. Adv. Life Sys.,
Inc. v. NLRB, 898 F.3d 38, 44 (D.C. Cir. 2018). Proof of
employer intent or coercive effect on employees is not required
to establish a violation. See Avecor, Inc. v. NLRB, 931 F.2d
924, 931–32 (D.C. Cir. 1991); Am. Freightways Co., 124
NLRB 146, 147 (1959). As with the other two unfair labor
practice findings in this case, Circus contests the Board’s
factfinding and legal conclusion. Assuming without deciding
that Cordell’s statement could constitute an actionable threat if
made as alleged, we focus on Circus’s challenge to the Board’s
underlying factual finding that Cordell told Schramm “you
know what, maybe we just won’t need you anymore” during
a weekly safety meeting. Although the Board enjoys wide
deference with respect to factfinding, such deference is not
unlimited. We conclude this unlawful threat finding presents
the rare case in which an ALJ’s witness credibility
determinations must be set aside.
Whether Circus committed the relevant conduct is
a question of fact reviewed for “substantial evidence on the
record considered as a whole.” 29 U.S.C. § 160(e)–(f); see
David Saxe Prods., LLC v. NLRB, 888 F.3d 1305, 1311 (D.C.
Cir. 2018). Evidence is substantial when “a reasonable mind
might accept [it] as adequate to support a conclusion.”
Universal Camera, 340 U.S. at 477 (quoting Consol. Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). An ALJ’s credibility
findings contribute to substantial evidence unless “hopelessly
incredible, self-contradictory, or patently insupportable.”
PruittHealth-Virginia Park, LLC v. NLRB, 888 F.3d 1285,
24
1294 (D.C. Cir. 2018) (citation and internal quotation marks
omitted).
Although our standard sets a high bar, ALJ witness
credibility determinations are not immune from judicial
scrutiny and must be reasonable and reasonably explained. See
Stanford Hosp. & Clinics v. NLRB, 325 F.3d 334, 337 (D.C.
Cir. 2003) (“Decisions regarding witness credibility and
demeanor are entitled to great deference, as long as relevant
factors are considered and the resolutions are explained.”
(citation and internal quotation marks omitted)). Our review is
not a rubber stamp, and case law reflects at least three grounds
that may render an ALJ’s credibility decisions unreasonable.
This court will not condone arbitrary resolutions that reflect
a “lack of evenhandedness.” Sutter East Bay, 687 F.3d at 437.
Nor will we uphold credibility decisions resting “explicitly on
a mistaken notion.” Sasol N. Am. Inc. v. NLRB, 275 F.3d 1106,
1112 (D.C. Cir. 2002). When drawing inferences for and
against witness testimony, an ALJ “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.”
King Elec., Inc. v. NLRB, 440 F.3d 471, 475 (D.C. Cir. 2006)
(quoting Allentown Mack, 522 U.S. at 378) (alterations
omitted).
We hold that the ALJ witness credibility determinations
supporting the conclusion that Cordell threatened Schramm are
patently insupportable. See PruittHealth, 888 F.3d at 1294.
Circus presented six witnesses who regularly attended the
weekly safety meeting to rebut testimony from Schramm and
Tenney alleging the threat occurred. The ALJ purported to
evaluate each witness using criteria drawn from the record and
common sense, reasoning that the ability to remember certain
details made testimony more reliable overall. But the ALJ
applied these criteria unevenly, drew unsupported inferences,
25
and failed to draw inferences warranted by the record that
tended to favor the company’s account.
First, the ALJ credited witness testimony with a “lack of
evenhandedness.” Sutter East Bay, 687 F.3d at 437. For
instance, the ALJ reasonably inferred that the ability to
remember the meeting’s date made a witness more credible.
Schramm testified the threat occurred during a meeting
“getting near” Thanksgiving, either November 21 or November
27, while his corroborating witness, Tenney, testified the
meeting occurred “before Thanksgiving,” and “possibly the
21st.” As to testimony favoring Circus, Cordell remembers
a conversation with Schramm and Tenney that occurred on
December 6, while other witnesses recalled a conversation
between these parties at a safety meeting but did not specify
a date. Based on this testimony, the ALJ concluded that
Schramm, Tenney, Cordell, and a fourth witness were
discussing the same meeting, even though they disagreed as to
the date and the contents of the meeting. By contrast, she
discredited four other witnesses who supported Circus’s
account because their testimony did not include a meeting
date.6 The ALJ also emphasized a witness’s ability to recall
6
Our dissenting colleague argues that because Schramm and Tenney
raised their marijuana smoke concern at multiple meetings, the ALJ
reasonably concluded four of Circus’s witnesses described
a different meeting from the one in question. See Dissenting Op. 4.
Yet the ALJ found that Schramm and Tenney raised the marijuana
smoke concern at two meetings: one in early November, and another
in late November or early December. No one testified Cordell
attended the first of the two meetings, and Schramm and Tenney
testified to a single relevant conversation with Cordell at the second.
See Circus Circus, 366 NLRB No. 110, at *4. At least three of the
four Circus witnesses disregarded by the ALJ specifically recalled
a conversation between Schramm, Tenney, and Cordell about
marijuana smoke at a safety meeting, and the record includes
26
specific comments Schramm reported making during the
meeting, including noting that Cordell was not a medical
professional and describing prior experience with marijuana
smoke exposure while employed at another hotel. Yet the ALJ
credited Schramm and Tenney for recalling these details but
discredited three company witnesses who remembered the
same details but also testified Cordell never made a threat.
Legitimate adjudication requires evenhanded assessment of
testimony offered on behalf of the employer and the employee.
Second, the ALJ found Schramm’s version of events
“more inherently probable” because “[f]or the witnesses called
by [Circus], this was just another weekly safety meeting. For
Teeney [sic] and Schramm, it was a memorable occasion.”
Circus Circus, 366 NLRB No. 110, at *4. This inference by the
ALJ rests “explicitly on a mistaken notion” that none of the
other employees in the safety meeting would remember their
manager turning red and threatening to terminate an employee
for voicing a workplace complaint. Sasol N. Am., 275 F.3d at
1112 (overturning inference from written notes that failed to
stand for the proposition for which the Board cited them); see
also United States ex rel. Exarchou v. Murff, 265 F.2d 504, 507
(2d Cir. 1959) (“We do not think this finding of impossibility
accords with the facts of human life.”); NLRB v. Universal
Camera Corp., 190 F.2d 429, 430 (2d Cir. 1951) (“[A]s to
matters of common knowledge we are to use a somewhat stiffer
standard.”). Glaringly absent from this analysis are contrary
inferences of equal or greater probative value that “the
evidence fairly demands,” including the possibility that six
evidence of only one meeting at which all three had such
a discussion. See id. Thus, the ALJ lacked a basis in the record to
conclude Circus’s witnesses described a phantom third meeting at
which Schramm, Tenney, and Cordell discussed marijuana smoke
without resorting to threats.
27
witnesses failed to remember the threat because none occurred.
King Elec., 440 F.3d at 475 (quoting Allentown Mack, 522 U.S.
at 378) (alterations omitted). The ALJ’s reasoning again
demonstrated “a lack of evenhandedness”: she determined that
the inherent memorability of a threat favored Tenney’s
testimony even though he was not threatened, and favored one
of the company’s witnesses to the extent he remembered
a heated exchange, but not to the extent that he also testified
the exchange ended without a threat by Cordell. Sutter East
Bay, 687 F.3d at 437.
Third, of particular concern is the ALJ’s failure to draw an
adverse inference against Tenney, Schramm’s only
corroborating witness, based on a fair consideration of record
evidence that materially impeached part of his testimony. At
the hearing, Tenney testified that he created
a contemporaneous record of Cordell’s threat on his mobile
device by entering the note “[Cordell] threatened carpenter”
into the company’s electronic work order system known as
“HotSOS.” Schramm testified that Tenney told him the exact
log number of the HotSOS entry created after the threat. Circus
immediately produced complete HotSOS records for the date
on which Tenney said the meeting occurred. The records
showed Tenney made several entries on that day but none that
referenced Cordell’s conduct toward Schramm or any other
threatening conduct. Nevertheless, the ALJ concluded Tenney
merely misremembered the date or the substance of the entry
and, in any event, that “his testimony was inherently credible
and entitled to greater weight than that of witnesses presented
by [Circus].” Circus Circus, 366 NLRB No. 110, at *4. In
reaching this conclusion, the ALJ failed to consider evidence
that was certainly a “relevant factor[]” bearing on the
credibility determinations at issue. Stanford Hosp., 325 F.3d at
337.
28
Although the ALJ did not purport to rely on the HotSOS
record to credit Tenney, the inconsistency in his testimony
“fairly demand[ed]” an adverse inference against the remainder
of his account. King Elec., 440 F.3d at 475 (quoting Allentown
Mack, 522 U.S. at 378). The ALJ’s explanations for not
discounting the remainder of Tenney’s testimony are
inadequate. To conjecture that Tenney misremembered a date
smacks of the “speculation without a jot of evidentiary support
in the record” we have criticized in the past. Jackson Hosp.
Corp. v. NLRB, 647 F.3d 1137, 1142 (D.C. Cir. 2011). An
ALJ’s introduction of new reasons to credit testimony is
particularly troubling where, as here, agency procedures tightly
limited Circus’s ability to respond by reopening the record. See
29 C.F.R. § 102.48(c)(1) (limiting reopening of the record to
“newly discovered evidence” that “would require a different
result”).7 Further, describing testimony favoring one party as
“inherently credible” notwithstanding a material gap in the
witness’s account fails to provide a rationale on which to
sustain the ALJ’s reasoning.
The Board argues that even if the ALJ’s analysis is flawed,
we should still uphold the Board’s finding based on the ALJ’s
favorable assessment of Schramm’s testimonial demeanor
7
As counsel noted at oral argument, the NLRB’s limited discovery
procedures meant Circus learned of Tenney’s alleged HotSOS entry
for the first time during the hearing before the ALJ. See Oral Arg. at
3:42–4:20. In response, Circus produced Tenney’s HotSOS entries
for November 21, the date on which he repeatedly claimed to have
recorded Cordell’s threat against Schramm. See id. at 4:41–5:15. It
was only after the ALJ issued a recommended decision crediting
Tenney that thousands of other November HotSOS entries became
relevant as a potential means of rebutting the ALJ’s rationale. See id.at 5:24–6:00. Circus could not have foreseen this development, and
the Board’s refusal to reopen the record left the ALJ’s error
unremarked and unremedied.
29
during the hearing. Witness demeanor can be valid evidence
favoring a given outcome. Here, however, testimonial
demeanor is too thin a reed to sustain the ALJ’s conclusion.
Schramm’s testimony is materially contradicted by six
witnesses, union members and non-members alike, who
remember only an ordinary discussion that concluded without
any threats. Schramm’s testimonial demeanor alone cannot
overcome this strong record evidence. Contrary to the Board’s
assertions, deference to agency factfinding does not stretch so
far. Cf. Shamrock Foods Co. v. NLRB, 346 F.3d 1130, 1135
(D.C. Cir. 2003) (finding substantial evidence where the ALJ
disbelieved company witnesses and testimony of aggrieved
employee was corroborated by a coworker); Parsippany Hotel
Mgmt. Co. v. NLRB, 99 F.3d 413, 425–26 (D.C. Cir. 1996)
(finding substantial evidence where documentary evidence
corroborated employee’s testimony and employer witness
discredited herself through contradictory statements).
While we do not lightly overrule factual determinations,
under these circumstances we conclude there was insubstantial
evidence to support the finding that Cordell threatened
Schramm at a workplace safety meeting. Accepting the ALJ’s
determinations here would be inconsistent with the role set out
for us by Congress and the Court. See Universal Camera, 340
U.S. at 490; Jones & Laughlin, 301 U.S. at 47. Accordingly,
we vacate this unfair labor practice and need not reach the
Board’s refusal to reopen the record for additional evidence
tending to impeach Tenney’s corroborating account.
* * *
As with other agencies, the Board must apply existing
regulatory standards unless and until it provides a reasoned
explanation for a new standard. Here, the Board engaged in
unreasoned decisionmaking by finding unfair labor practices
30
without substantial evidence on the record as a whole and by
departing from announced standards in an arbitrary and
capricious manner. For the foregoing reasons, we grant the
petition for review in full and vacate the Board’s order. With
respect only to the unlawful termination finding, we remand for
further proceedings consistent with this opinion.
So ordered.
SRINIVASAN, Chief Judge, concurring in part and
dissenting in part: I join my colleagues’ decision in Part II.B
of the court’s opinion to remand for the Board to reassess
whether Circus terminated Schramm because of his protected
activity or instead for valid reasons. I respectfully disagree,
though, with my colleagues’ decision to set aside the Board’s
distinct determinations that: (1) Circus violated Schramm’s
right to union representation during the investigatory meeting
with him; and (2) Schramm’s supervisor unlawfully threatened
him in response to his exercise of statutory rights. Because I
would sustain the Board’s decision in those respects, I do not
join Parts II.A and II.C of the court’s opinion.
1. Under the Board’s Weingarten rule, an employee is
entitled “to refuse to submit without union representation to an
interview which he reasonably fears may result in his
discipline.” NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256
(1975). That right “arises only in situations where the
employee requests representation.” Id. at 257. Under the
Board’s precedents, an employee will be treated as having
requested union representation so as to invoke Weingarten “if
the language used by the employee is reasonably calculated to
apprise the Employer that the employee is seeking such
assistance.” Houston Coca Cola Bottling Co., 265 NLRB
1488, 1497 (1982). “No magic or special words are required
to satisfy this element of the Weingarten rationale.” Id.My colleagues agree with that understanding of the
triggering condition for the Weingarten rule. See Maj. Op. 11.
The sole issue here is whether Schramm’s statements at the
outset of his investigatory meeting satisfied that condition—
i.e., whether his statements qualify as reasonably calculated to
apprise Circus that he desired union assistance in the meeting.
According to my colleagues, the Board arbitrarily departed
from its precedents in concluding that Schramm’s statements
met that standard. In my view, however, the Board permissibly
2
determined, consistent with its precedents, that Schramm
adequately conveyed his desire for union representation.
Before the meeting, Schramm had been advised by Airth
Colin, a human resources representative for Circus, to bring a
union steward if he desired representation in the meeting.
Circus Circus Casinos Inc., 366 NLRB No. 110, at *1 (June
15, 2018). When Schramm arrived at the meeting, he
explained to those present: “I called the union three times [and]
nobody showed up, I’m here without representation.” Id. at *4.
Schramm thereby conveyed to Circus’s representatives at the
meeting (including Colin) that he had attempted to do precisely
what he had been advised to do if he desired union
representation. In that context, the Board reasonably held
Schramm’s statements adequate to apprise Circus of his
interest in representation. Id. at *1.
It is true, as my colleagues observe, that the statements at
issue here related facts about past efforts to enlist union
assistance. Maj. Op. 11–12. But an employee’s statements can
both describe recent efforts to secure union representation and
simultaneously convey a continuing interest in that
representation. The Board reasonably held that to be the case
here. After all, why would Schramm relate to Circus’s
representatives at the outset of the meeting that he had
unsuccessfully tried to secure union representation if not
because he still desired that assistance, especially given that
Circus had advised Schramm to make those very efforts if he
desired representation? The Board’s precedents hold that an
employee’s questions such as “Do I need to get somebody in
here?” and “Do I need a witness?” qualify as statements
reasonably calculated to apprise an employer of a desire for
union representation, even absent any reference to a union as
such. See General Die Casters, Inc., 358 NLRB 742, 742
(2012); Bodolay Packaging Mach., Inc., 263 NLRB 320, 325
3
(1982). Schramm’s statements here, which specifically
referenced union representation, evince a desire for such
representation no less clearly. At the least, the Board did not
arbitrarily depart from its decisions in so concluding.
My colleagues express a concern that, if Schramm’s
statements are treated as sufficient to invoke Weingarten, he
would effectively be denied the choice to proceed without
union representation. Maj. Op. 13. I do not understand why
that would be the case. When an employee’s statements trigger
Weingarten, the employer can: (i) grant union representation;
(ii) deny representation and discontinue the interview; or (iii)
deny representation and give the employee the option to
continue unrepresented or forgo the interview. Weingarten,
420 U.S. at 258–59. The last option specifically recognizes and
preserves an employee’s ability to choose to go forward
without union assistance.
For these reasons, I would sustain the Board’s
determination that Schramm’s statements at the outset of the
meeting reasonably apprised Circus of his interest in union
assistance so as to trigger the Weingarten rule.
2. The Board separately held that Schramm’s supervisor,
Rafe Cordell, unlawfully threatened Schramm for exercising
his statutory rights when Cordell said to Schramm, “maybe we
just won’t need you anymore,” after Schramm raised certain
concerns about workplace conditions. Circus Circus, 366
NLRB No. 110, at *4. My colleagues overturn the Board’s
factual finding (specifically, the Board’s adoption of the ALJ’s
finding) that Cordell made that statement. Maj. Op. 23. While
my colleagues acknowledge that we review the Board’s factual
findings under a highly deferential standard, they conclude that
this is the rare case in which a finding should be set aside.
Respectfully, I disagree.
4
Schramm testified that Cordell made the contested
statement following a discussion about secondhand marijuana
smoke during a safety meeting sometime in late November.
Those safety meetings were held every Thursday at four
different times. Cordell, meanwhile, testified that the relevant
discussion occurred at a shift change meeting in early
December. Circus produced six witnesses who testified about
a meeting touching on the issue of secondhand marijuana
smoke. But that was a recurring topic of discussion among
employees. Schramm and another Circus employee, Tenney,
had raised it during at least two meetings. Consequently, the
ALJ first had to determine which Circus witnesses were talking
about the relevant meeting before assessing whether Cordell in
fact threatened Schramm during it.
In making that determination, the ALJ focused on one
detail about which Schramm, Tenney, Cordell, and one other
Circus witness all testified: that when Cordell dismissed
Schramm’s concern about potentially failing a drug test due to
secondhand exposure to marijuana smoke, Schramm
responded that Cordell was not a medical professional qualified
to make that judgment. Because none of the other four
witnesses recalled that detail, the ALJ could not definitively
conclude that they were discussing the pertinent meeting. In
addition, none of Circus’s witnesses, aside from Cordell, had
been asked about Cordell’s statement that Circus may no
longer need Schramm’s services.
The upshot is that the ALJ faced four Circus witnesses
whom she could not definitively conclude were discussing the
relevant meeting, and in any event, none of those witnesses had
specifically testified about whether Cordell threatened
Schramm. The ALJ then concluded that Schramm’s and
Tenney’s testimony about Cordell’s threat outweighed the only
5
directly contradictory testimony: that of Cordell himself. In
my view, the ALJ’s credibility determinations in that regard,
adopted by the Board, were not “hopelessly incredible, self-
contradictory, or patently insupportable.” PruittHealth-
Virginia Park, LLC v. NLRB, 888 F.3d 1285, 1294 (D.C. Cir.
2018) (internal quotation marks omitted).