Napleton 1050, Inc. v. NLRB ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2019 Decided October 6, 2020
No. 19-1025
NAPLETON 1050, INC., D/B/A NAPLETON CADILLAC OF
LIBERTYVILLE,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 19-1064
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Tae Y. Kim argued the cause for petitioner. With him on
the briefs was Daniel F. Lanciloti. James F. Hendricks Jr.
entered an appearance.
Jared D. Cantor, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Peter B. Robb, General Counsel, David
Habenstreit, Acting Deputy Associate General Counsel at the
time the brief was filed, and Julie Brock Broido, Supervisory
Attorney.
2
Before: MILLETT, WILKINS, and RAO, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
Opinion concurring in part and dissenting in part filed by
Circuit Judge RAO.
MILLETT, Circuit Judge: The service technicians at
Napleton Cadillac of Libertyville mounted a successful union
drive in 2016 and went on strike in August 2017. The National
Labor Relations Board found that Napleton Cadillac’s response
to both of those actions constituted discrimination against the
employees’ rights to collective action under the National Labor
Relations Act (“Act”), 29 U.S.C. §§ 151 et seq.
Napleton Cadillac petitions for review of the Board’s
decision. Its central objection is that, with respect to the
adverse actions taken against two employees, its open intent to
discriminate against employees for exercising their statutory
right to unionize does not matter because Napleton Cadillac
was intentionally punishing the entire workforce (including
those two employees) for the vote to unionize, rather than
retaliating against those employees because of their individual
union activity.
We hold that the Board properly focused its analysis on the
employer’s discriminatory intent to punish its employees as a
group for their known decision to unionize, rather than on the
employer’s knowledge of the targeted employees’ individual
views about the union. Intentional discrimination against the
statutorily protected collective actions of employees remains
discrimination even when it takes the form of scapegoating.
3
I
A
The National Labor Relations Act makes it “the policy of
the United States” to “encourag[e] the practice and procedure
of collective bargaining[,]” and to “protect[] the exercise by
workers of full freedom of association, self-organization, and
designation of representatives of their own choosing, for the
purpose of negotiating the terms and conditions of their
employment or other mutual aid or protection.” 29 U.S.C.
§ 151.
To those ends, Section 7 of the Act protects employees’
rights “to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection[.]” 29 U.S.C. § 157.
Section 8(a) of the Act enforces those rights by prohibiting
employers from engaging in several types of unfair labor
practices. 29 U.S.C. § 158(a). As relevant here,
Section 8(a)(1) makes it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in [Section 7.]” Id.
§ 158(a)(1). And Section 8(a)(3) makes it an unfair labor
practice for an employer “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[.]” Id. § 158(a)(3).
B
Napleton Auto Group owns at least fourteen vehicle
dealerships in Illinois and neighboring states. In June 2016, the
4
company bought Weil Cadillac, a dealership in Libertyville,
Illinois, and rebranded it as Napleton Cadillac of Libertyville.
At the time that Napleton Auto Group acquired Weil
Cadillac, the dealership was not unionized. But six of Napleton
Auto Group’s other dealerships were. The Napleton Auto
Group dealerships that employed those other unionized
employees were all members of the New Car Dealer
Committee (“Dealer Committee”), a management-side
bargaining association comprising more than 100 dealerships
in the Chicago area.
Napleton Cadillac retained most of Weil Cadillac’s
employees, including all twelve car-servicing employees, who
were lube technicians, semi-skilled technicians, apprentices,
and journeyman mechanics.
One of the journeyman mechanics was David Geisler, who
had worked at the dealership for twenty-two years and was “a
GM world-class technician[.]” Napleton 1050, Inc., 367
N.L.R.B. No. 6, slip op. at 2 & n.5 (Sept. 28, 2018).
Another was Bill Russell, who had worked at the
dealership for nearly thirty years but was on medical leave and
receiving workers’ compensation at the time the dealership was
acquired. Every month after the ownership change, Russell
visited the dealership to provide a work status report from his
doctor. He usually provided the reports to a human resources
employee who reported to the office manager, Pam Griffin. On
each visit, Russell also would stop to talk with the service
manager, Walter “Scott” Inman, and discuss when he expected
to be able to return to work. During Russell’s June 2016 visit,
Inman told him, “We’re really busy. We could use you.”
Napleton, 367 N.L.R.B. No. 6, at 8. In July 2016, Inman again
asked Russell when he could return to work.
5
This case arises out of two events at Napleton Cadillac: a
union drive in 2016 and a strike in 2017.
1
In early August 2016, Local Lodge 701, International
Association of Machinists & Aerospace Workers, AFL–CIO
(“Union”) began a unionization drive at Napleton Cadillac.
During the campaign, the employees neither openly supported
nor discussed the Union at work.
Napleton Cadillac’s management opposed unionization.
As the Board’s administrative law judge (“ALJ”) recounted,
Inman and Tony Renello, Napleton Auto Group’s corporate
manager, led “three captive-audience luncheon meetings” to
“discourage employees from voting for the Union[,]” and
Napleton sent employees a “lengthy letter from Inman just
before the election urging [them] to vote no[.]” Napleton, 367
N.L.R.B. No. 6, at 7, 15.
During Russell’s August 2016 visit—the first one after the
unionization drive started—Inman said to him, “I don’t know
why you guys couldn’t have waited to see how things played
out before you bring the union in.” Napleton, 367 N.L.R.B.
No. 6, at 8. Inman and Russell then discussed when Russell
might be able to come back to work. That same month, Russell
attended a union organizing meeting. He later told Inman
about his attendance there.
Inman brought up the Union again when Russell visited in
September, asking, “Why couldn’t you just wait and see how
things played out?” Napleton, 367 N.L.R.B. No. 6, at 8. As
Russell put it, Inman also said “that with the union coming in,
people were going to get written up who were coming in late[;]
if you punched in late, you would be written up[.]” Id.
6
Despite management’s efforts, the Union won the
representation election on October 18, 2016.
When Russell stopped by the dealership shortly after the
election with an update from his doctor, Inman said to him,
“Well, it looks like you guys had your way. You got the vote
in. You got the union in.” Napleton, 367 N.L.R.B. No. 6, at 8.
Russell recalled: “And then [Inman] said to me * * * it was
kind of shitty and sneaky for me to come in there and vote and
not even say hi to him. I said I didn’t want to make a big deal
of it. I was just coming in to vote and leave. Then we discussed
when I’d be coming back.” Id.
Two days later, Napleton Cadillac sent Russell a letter
terminating his employment.
Russell returned the next week with a truck and trailer to
pick up his tools. While at the dealership, he spoke with Inman,
who said “I’m sorry this happened.” Napleton, 367 N.L.R.B.
No. 6, at 9. During their conversation, Bill Oberg, another
mechanic, walked by, and Inman said, “That’s the guy who
started all this.” Id. Russell told Inman that “there were other
people who got the union in here[,]” and that if Napleton
Cadillac was “going after [Oberg], you’re going after the
wrong person.” Id. Inman did not deny that “all this” meant
the union drive. Instead, he asked, “Really?” to which Russell
replied, “yes.” Id.
About that same time, Napleton Cadillac began the process
of laying off David Geisler, the twenty-two-year-veteran
journeyman mechanic. On October 21, 2016—three days after
the Union won the election—Michael Jopes, Napleton Auto
Group’s chief financial officer, called Napleton Cadillac’s
attorney James Hendricks and told him that “they had to lay off
at least one technician” given the dealership’s insufficient
“productivity.” Napleton, 367 N.L.R.B. No. 6, at 10.
7
On October 27, 2016—the same day that Russell was
fired—Hendricks informed the Union that Napleton Cadillac
was “laying off David Geisler, [the] lowest booking tech for
the last 10 weeks.” Napleton, 367 N.L.R.B. No. 6, at 10.
Inman then called Geisler into his office and “told him he was
being ‘laid off for lack of hours.’” Id. Geisler testified that, at
the end of that meeting, Inman said “he asked us not to vote
that way.” Id.
A few months later, Inman contacted Geisler to ask
whether he “would entertain the idea of being rehired because
business had increased.” Napleton, 367 N.L.R.B. No. 6, at 10.
Geisler declined.
Napleton Cadillac provided a competing version of the
events that led to Russell’s termination and Geisler’s layoff.
According to the dealership, Russell was never an employee of
Napleton Cadillac, and Geisler’s layoff was in the works before
the union vote. The ALJ found those claims to be wholly
lacking in credibility and made up. Napleton, 367 N.L.R.B.
No. 6, at 15–18.
More specifically, with respect to Russell, the ALJ found
that Napleton Cadillac’s claim that it had never employed
Russell “simply reek[ed] of fabrication.” Napleton, 367
N.L.R.B. No. 6, at 15. If Napleton Cadillac really had not hired
Russell, the ALJ reasoned, “[s]urely someone [would have]
wondered why he was voting in the representation election, or
why Inman hand-wrote ‘Disabled’ across from his name on the
employee list[.]” Id. at 16.
As for Geisler’s layoff, the ALJ rejected Napleton
Cadillac’s assertion that it had long planned a productivity-
based layoff because of “the complete lack of nonsuspicious
explanation for the timing[,]” especially after Jopes testified to
a “version of events” that was “flatly contradicted by the record
8
evidence and the testimony of Attorney Hendricks.” Napleton,
367 N.L.R.B. No. 6, at 16–17.
2
Just over a month after the unionization election, Napleton
Cadillac and the Union began bargaining for a labor agreement.
By August 2017, the Union concluded that negotiations had
stalled.
Meanwhile, on August 1, 2017, the Union began a strike
against the Dealer Committee’s 129 member dealerships.
While Napleton Cadillac was not part of the Dealer Committee
targeted by the strike, Napleton Auto Group’s six other
unionized dealerships were.
On July 31st, the day before the Dealer Committee strike,
Napleton Cadillac convened a meeting of its employees.
Napleton Auto Group’s corporate manager, Tony Renello, told
the employees that they had an opportunity to take advantage
of the strike. He explained that Napleton Auto Group would
“funnel the work” from its nearby dealerships, the employees
could work as many hours as they wanted, Napleton Cadillac
would “feed [them] steaks,” and they could “make as [much]
money as [they] want[ed].” Napleton, 367 N.L.R.B. No. 6, at
12. Renello testified that the employees’ response—“smiles
and head shakes, yeah, yeah, yeah, yeah”—indicated to him
that they were on board with his plan. Id.
But on the morning of August 1st, Napleton Cadillac’s
employees joined the strike. According to Renello, the
employees’ decision to strike “caught us totally off guard.”
Napleton, 367 N.L.R.B. No. 6, at 12.
That day, Renello and Jopes hand-delivered a letter to the
employees while they were picketing in front of the Napleton
9
Cadillac dealership. The letter was meant “to let [the
employees] know the consequences of [their] strike[,]” one of
which was that Napleton Cadillac would “[m]ake arrangements
to have your tool boxes removed from the shop, as we do not
want to be responsible for your tools when you are not
working.” J.A. 328. The letter concluded: “It is unfortunate
that you have chosen to strike, but that is the choice you have
made.” J.A. 328.
Renello testified that, while he and Jopes were distributing
the letters, he told the striking employees that they had to
remove their toolboxes in two days. Renello also told the
employees that they were welcome to return to work, in which
case Napleton Cadillac would treat them as if the strike had
never happened.
Consistent with industry practice, Napleton Cadillac’s
mechanics owned their own tools and toolboxes and kept them
at the dealership even when they were not working. Just to be
clear: These are not ordinary, hand-carried toolboxes. Rather,
they are “large metal tool cabinets, some up to 15 feet long,
some up to 6–7 feet high, mounted on retractable wheels, [and]
that can weigh thousands of pounds. They are normally moved
with tow trucks or other such loading vehicles.” Napleton, 367
N.L.R.B. No. 6, at 7.
10
One of the employees’ toolboxes looked like this:
J.A. 330.
On the second day of the strike, Renello again told the
striking mechanics that they could “just go back to work,” and
that Napleton Cadillac would “act like this never even
happened[.]” Napleton, 367 N.L.R.B. No. 6, at 13. But if they
continued to strike, “tomorrow we are going to start pushing
[the toolboxes] out.” Id.
At the same time, Renello, Hendricks, and the Union were
in talks about the deadline for removing the toolboxes, given
how difficult it was for employees to arrange tow trucks or
similar equipment to move the massive toolboxes on such short
notice. Hendricks originally gave the employees until
August 4th to move their toolboxes. But on the morning of
August 3rd, Hendricks told the Union that his client was angry
about the August 4th deadline, and that the toolboxes would
have to be removed that day.
11
So it was that, on the third day of the strike, Renello, Jopes,
Inman, and two employees from another Napleton Auto Group
dealership rolled the employees’ toolboxes “outside the fenced
gates of the dealership onto the service access driveway[,]”
where they left the toolboxes and their “expensive” contents
“uncovered and unattended[.]” Napleton, 367 N.L.R.B. No. 6,
at 6, 13. That afternoon, there was a “torrential downpour.” Id.
at 13. In response, Napleton Cadillac pushed the toolboxes
back inside, but not before two employees’ toolboxes were
damaged. The Union and the employees hired a towing service
to pick up the toolboxes the next day.
Napleton Auto Group did not demand that the striking
employees at its other dealerships remove their toolboxes.
Renello said that was because, unlike the voluntary choice to
strike made by Napleton Cadillac employees, “most of” the
“technicians and the other stores wanted to work through the
strike. They just weren’t allowed to.” Napleton, 367 N.L.R.B.
No. 6, at 19.
Jopes offered a different explanation at trial, claiming that
Napleton Cadillac ordered the toolboxes removed because its
“insurance company informed [it] that there would be a lack of
coverage should there be damage” because the employees
“were not working employees at that point.” Napleton, 367
N.L.R.B. No. 6, at 19. The ALJ did not believe Jopes, pointing
out that the insurance policy expressly applied to “loss of or
damage to tools and equipment owned by your employees and
used by them in your business.” Id. When Jopes asserted that
the strikers “were not using the tools in [Napleton Cadillac’s]
business,” the ALJ found that to be as nonsensical as saying
that the tools are not covered when employees go home at night
or take a vacation. Id.
12
C
The Union and Russell timely filed unfair labor practice
charges against Napleton Cadillac. 29 U.S.C. § 160(b). The
Board’s General Counsel consolidated the cases and issued a
complaint.
After a three-day hearing, the ALJ found that Napleton
Cadillac committed several unfair labor practices. He found
that Napleton Cadillac terminated Russell and laid off Geisler
in “retaliation” for its employees’ voting to unionize, which
violated Sections 8(a)(3) and 8(a)(1) of the National Labor
Relations Act. J.A. 75. The ALJ also found four more
violations of Section 8(a)(1): (i) Inman telling Geisler that he
was being laid off because the employees voted to unionize;
(ii) Inman creating the impression in his conversation with
Russell about Oberg that Napleton Cadillac was surveilling its
employees’ union activity; (iii) Napleton Cadillac ordering—
and carrying out—the removal of the toolboxes in retaliation
for the strike; and (iv) Napleton Cadillac implicitly threatening
in the August 1, 2017 letter that employees would lose their
jobs for striking.
Napleton Cadillac and the General Counsel both timely
filed exceptions to the ALJ’s findings. Neither party disputed
that Napleton Cadillac violated Section 8(a)(1) by telling
Geisler that he was being laid off because the employees voted
to unionize.
The Board reversed as to the implied threat of job loss,
concluding that Napleton Cadillac’s August 1, 2017 letter did
not amount to such a threat. The Board affirmed all of the other
violations, and then amended the ALJ’s recommended order by
requiring Napleton Cadillac to reimburse the employees for the
cost of towing their toolboxes and for the rain damage to two
13
of the toolboxes. Finally, the Board rejected Napleton
Cadillac’s evidentiary and procedural challenges.
Napleton Cadillac petitioned for review, and the Board
cross-applied for enforcement.
II
We have jurisdiction to review the Board’s decision under
29 U.S.C. § 160(e) and (f). “[W]e will uphold the Board’s
decision if its ruling is not arbitrary, capricious, or founded on
an erroneous application of the law, and if its factual findings
are supported by substantial evidence.” Advanced Life Sys.
Inc. v. NLRB, 898 F.3d 38, 43 (D.C. Cir. 2018); see also 29
U.S.C. § 160(e) (“The findings of the Board with respect to
questions of fact if supported by substantial evidence on the
record considered as a whole shall be conclusive.”).
“Substantial evidence ‘means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.’” NLRB v. Ingredion Inc., 930 F.3d 509, 514 (D.C.
Cir. 2019) (quoting Universal Camera Corp. v. NLRB, 340
U.S. 474, 477 (1951)). Our review “is generally deferential in
light of the Board’s claim to expertise in the area of labor
relations.” Constellium Rolled Products Ravenswood, LLC v.
NLRB, 945 F.3d 546, 550 (D.C. Cir. 2019). That said, “[a]n
unexplained divergence from [Board] precedent would * * *
render a Board decision arbitrary and capricious.” Id. (internal
quotation marks omitted).
We review the Board’s procedural rulings for abuse of
discretion. See Salem Hosp. Corp. v. NLRB, 808 F.3d 59, 67
(D.C. Cir. 2015); see also Veritas Health Servs., Inc. v. NLRB,
895 F.3d 69, 87 (D.C. Cir. 2018) (“We review the Board’s
affirmance of an ALJ’s discretionary judgments * * * for abuse
of discretion.”). We reverse only if the petitioner establishes
that “‘prejudice resulted from’ the Board’s [procedural]
14
lapses.” Salem Hosp., 808 F.3d at 67 (quoting Desert Hosp. v.
NLRB, 91 F.3d 187, 190 (D.C. Cir. 1996)).
III
A
The Board’s ruling that Napleton Cadillac violated
Sections 8(a)(3) and 8(a)(1) by terminating Russell and laying
off Geisler to punish its employees for their pro-union vote is
reasoned, consistent with the statutory text and precedent, and
supported by substantial evidence.
1
To establish a violation of Section 8(a)(3), the Board had
to find that Napleton Cadillac “encourage[d] or discourage[d]
membership in” the Union in a particular way: “by
discrimination in regard to hire or tenure of employment or any
term or condition of employment[.]” 29 U.S.C. § 158(a)(3).
The finding of a violation of Section 8(a)(3) would also
trigger a violation of Section 8(a)(1), which prohibits
employers from “interfer[ing] with, restrain[ing], or coerc[ing]
employees in the exercise of [their Section 7] rights[,]” 29
U.S.C. § 158(a)(1). See Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 698 n.4 (1983); Ozburn–Hessey Logistics, LLC v.
NLRB, 833 F.3d 210, 217–218 (D.C. Cir. 2016); see also
Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 480 n.5
(D.C. Cir. 2020) (“Employer discipline violates Section 8(a)(1)
and (3) when the protected activity at issue is union
participation.”).
Because the central question in the case was Napleton
Cadillac’s motive for firing Russell and laying off Geisler—
whether those decisions were intended to punish or
15
discriminate against union activity—the Board adjudicated the
retaliation claims by applying its well-established Wright Line
burden-shifting framework. See Wright Line, 251 N.L.R.B.
1083 (1980); see also NLRB v. Transportation Mgmt. Corp.,
462 U.S. 393, 400–404 (1983) (upholding the Wright Line
framework), abrogated in other part by Director, Office of
Workers’ Comp. Programs, Dep’t of Labor v. Greenwich
Collieries, 512 U.S. 267 (1994); Novato Healthcare Ctr. v.
NLRB, 916 F.3d 1095, 1100–1101 (D.C. Cir. 2019).
The Board designed the Wright Line test to determine
whether an unlawful motive underlay an adverse action taken
by an employer. See Wright Line, 251 N.L.R.B. at 1083
(describing the decision as “set[ting] forth formally a test of
causation for cases alleging violations of Section 8(a)(3)”); see
also Tasty Baking Co. v. NLRB, 254 F.3d 114, 125 (D.C. Cir.
2001) (Under Sections 8(a)(3) and 8(a)(1), “[t]he central
question is the employer’s motivation for taking the adverse
action, and to make that determination the [Board] employs the
so-called Wright Line test.”).
The Wright Line inquiry requires, first, that the General
Counsel “make a prima facie showing sufficient to support the
inference that protected conduct was a motivating factor in the”
adverse employment action. Novato Healthcare, 916 F.3d at
1100–1101 (formatting modified); accord Wright Line, 251
N.L.R.B. at 1089. If the General Counsel meets that initial
burden, then “the burden of persuasion shifts to the [employer]
to show that it would have taken the same action in the absence
of the unlawful motive.” Novato Healthcare, 916 F.3d at 1101
(formatting modified).
2
This case turns on the first prong of the Wright Line test—
whether the General Counsel made a prima facie showing that
16
Napleton Cadillac’s overt anti-union animus motivated
Russell’s termination and Geisler’s layoff. The record amply
supports the Board’s conclusion that such a showing was made.
To make out a prima facie case, the Board held that the
General Counsel “need not prove” the employer’s knowledge
of each affected employee’s individual union activity if the
employer “takes adverse action against employees, regardless
of their individual sentiments toward union representation, ‘in
order to punish the employees as a group to discourage union
activity or in retaliation for the protected activity of some.’”
Napleton, 367 N.L.R.B. No. 6, at 14 (quoting Electro-Voice,
Inc., 320 N.L.R.B. 1094, 1095 n.4 (1996)); see id. at 14 n.20
(collecting cases). See also Novato Healthcare, 916 F.3d at
1105; Birch Run Welding & Fabricating, Inc. v. NLRB, 761
F.2d 1175, 1180 (6th Cir. 1985).
That is so, the Board has long held, because “general
retaliation by an employer against the workforce can
discourage the exercise of [S]ection 7 self-organization and
collective bargaining rights just as effectively as adverse action
taken against only known union supporters.” Davis
Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169 (D.C. Cir.
1993) (alteration in original) (quoting Birch Run, 761 F.2d at
1180); cf. Thompson v. North American Stainless, LP, 562 U.S.
170, 172–175 (2011) (holding that “third-party reprisals” can
amount in some circumstances to retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq.); id. at 178 (“Hurting him was the unlawful act by which
the employer punished her.”).
Here, the Board properly found a prima facie case that
Napleton Cadillac violated the Act by discharging Russell and
laying off Geisler “in retaliation for the unit employees’
decision to unionize.” Napleton, 367 N.L.R.B. No. 6, at 1 n.2,
17
14–16. That decision faithfully followed a long line of Board
and judicial precedent, and fully comports with both the
relevant statutory text and Wright Line itself.
First, courts and the Board have long recognized that
Section 8(a)(3) outlaws punishing the workforce as a whole for
its union activity just as strongly as it outlaws punishing
particular union supporters. The central focus of the Wright
Line analysis is on “the employer’s motivation,” not on the
affected employee’s union sentiments. NLRB v. Frigid
Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991).
Of course, the employer’s awareness of a targeted
employee’s union activity is the most common way of proving
an employer’s “actual discriminatory intent.” Advanced Life
Sys. Inc. v. NLRB, 898 F.3d 38, 49 (D.C. Cir. 2018). But such
individualized knowledge is not always necessary for a
violation to be found. See Frigid Storage, 934 F.2d at 510. As
long as the employer is taking adverse action against an
employee or employees for the specific purpose of punishing
or discouraging known union activity in the workplace, the
employer “cannot cleanse an impure heart with ignorance of
individual employee sentiments.” Id.
At least as reflected in Board decisional law, the most
common way employers have taken their anti-union animus out
on a workforce rather than a specific union-supporting
employee has been through “extensive” or “mass” layoffs, e.g.,
Davis Supermarkets, 2 F.3d at 1168–1169; Birch Run, 761 F.2d
at 1180, or attempts to cover up targeted retaliation against
union supporters by sweeping in employees whose union views
were unknown, e.g., Novato Healthcare, 916 F.3d at 1105.
But those are not the only ways. Employers have also
vented their discriminatory animus by scapegoating a few
employees to send a message of anti-union hostility and anger
18
over collective action to the larger workforce. For example, in
Frigid Storage, the day after the union petitioned for a
representation election, the company’s manager gathered his
fifteen employees, went on an “anti-union tirade,” and
threatened to fire two employees that day and possibly one
more the coming Monday. 934 F.2d at 507–508, 510. He
followed through by firing two known union supporters the
same day. Then, on Monday, the employer fired a third
employee whose union views were unknown. Id. at 508–510.
The Board found that each of the three firings
independently violated Section 8(a)(3). Frigid Storage, Inc.,
294 N.L.R.B. 660, 661 (1989). When the employer petitioned
for review, the Fourth Circuit rejected its claim that firing the
third employee could not be unlawful discrimination because
the employer did not know whether the third employee was a
union supporter. Frigid Storage, 934 F.2d at 509–510. The
court of appeals held that, “[t]hough employer knowledge” of
an employee’s union views “is obviously relevant, it is not
dispositive, especially in a multiple-employee discharge.” Id.
at 510. What mattered was “that [the] discharge was motivated
by anti-union animus,” as evidenced by the connection
between the firing and the employer’s threat, and by the
“pretextual” excuse for termination that the employer cooked
up. See id.
The Board has likewise held that an employer violated
Section 8(a)(3) by implementing a retaliatory wage freeze that
affected only one employee, even though it did not know
whether that particular employee was a union supporter. See
W.E. Carlson Corp., 346 N.L.R.B. 431, 432–433 (2006). In
the face of a dissent that would have required knowledge of the
affected employee’s union views, id. at 437 (Battista,
Chairman, dissenting in part), the Board unequivocally held
that it was “immaterial that the [employer] lacked knowledge
19
of union activity specifically by” that particular employee
because it was retaliating against “the organizing effort” by
employees generally, id. at 433 (majority opinion) (citing Birch
Run, 761 F.2d at 1180).
Similarly, we said just last year that “the Board has long
held” that “an employer’s discharge of uncommitted, neutral,
or inactive employees” either to cover up for discrimination
against a targeted union-supporting employee “or to
discourage employee support for the union” violates
Section 8(a)(3). Novato Healthcare, 916 F.3d at 1105
(emphasis added) (quoting Dawson Carbide Indus., Inc., 273
N.L.R.B. 382, 389 (1984)); see generally Circus Circus
Casinos, 961 F.3d at 480 (“[T]he line between employer
prerogative and unlawful infringement of employees’ rights is
a question of motive.”).
To that same point, every case on which the Board relied
here focused its analysis on the employer’s unlawful motive,
not on the particular union views of the employees affected by
its actions and not on whether the action targeted many rather
than a few employees. See, e.g., Birch Run Welding &
Fabricating, Inc., 269 N.L.R.B. 756, 764–765 (1984) (holding
that an employer violated Section 8(a)(3) by “engag[ing] in a
general retaliation against its employees because of the union
activities of some of its employees in order to frustrate all union
activities”), enforced, 761 F.2d 1175 (6th Cir. 1985); J.T.
Slocomb Co., 314 N.L.R.B. 231, 241 (1994) (noting that “the
focus of” the discrimination theory approved in Birch Run “is
upon an employer’s motive in discharging its employees rather
than upon the antiunion or prounion status of particular
20
employees”) (internal quotation marks omitted). 1 Napleton
Cadillac’s effort to distinguish these cases as “all requir[ing] a
mass layoff” (Br. 35) mistakes their facts for the Board’s
reasoning.
Tellingly, Napleton Cadillac has not identified—and we
have not found—a single case to support its view that
discrimination in this form only counts when the employer’s
action hits some numerosity or workplace-wide threshold.
There is no two-free-bites rule under Section 8(a)(3). Nor have
any of the cases that Napleton Cadillac cites (or that we have
found) treated the number of employees affected as dispositive,
or even analyzed it as doctrinally relevant. To the contrary, the
Board’s and courts’ analysis in workplace-wide discrimination
cases focuses time and again on whether the employer acted
with the unlawful intent of discouraging or punishing union
activity. Creatively or erratically packaging that discrimination
gets no free pass.
So too here: The Board found that Napleton Cadillac
discharged Russell and Geisler for the express, announced, and
prohibited purpose of retaliating against and punishing its
employees’ collective vote for the Union. That is what
Section 8(a)(3) and Board and circuit precedent require to
make out a prima facie case under Wright Line. See Frigid
Storage, 934 F.2d at 510; Birch Run, 761 F.2d at 1180 (“The
courts have held that although the General Counsel must
usually show that the employer knew about individual
employees’ union activities before the Board may conclude
that the employer violated Section 8(a)(3), the General Counsel
may also prevail by showing that the employer [acted] * * * in
1
See also Electro-Voice, 320 N.L.R.B. at 1095 n.4; ACTIV
Indus., Inc., 277 N.L.R.B. 356, 356 n.3 (1985) (citing Birch Run, 761
F.2d at 1180); Pyro Mining Co., 230 N.L.R.B. 782, 782 n.2 (1977).
21
retaliation against its employees because of the union activities
of some.”) (emphasis added). In other words, when the intent
is to punish or discourage union activity, it is no defense to a
Section 8(a)(3) violation that “the employer wield[ed] an
undiscerning axe” in choosing the targets to implement its
illegal objective. Frigid Storage, 934 F.2d at 510 (collecting
cases).
Second, the consistency of precedent is explained by the
plain statutory text, which focuses on the employer’s anti-
union motive, not the views of the affected employees. After
all, Section 8(a)(3) does not prohibit an employer from taking
an adverse action against an individual because of that
individual’s protected activity. Instead, the statute hinges the
employer’s liability on its intent to “discourage” employees’
interest in unionization “by discrimination in regard to * * *
any term or condition of employment[.]” 29 U.S.C. § 158(a)(3)
(emphasis added).
Likewise, Section 8(a)(1) focuses not on which employees
(pro- or anti-union) or how many employees are affected by
adverse employer action, but rather on whether the employer’s
conduct “interfere[s] with, restrain[s], or coerce[s] employees
in the exercise of [their Section 7] rights[.]” 29 U.S.C.
§ 158(a)(1) (emphasis added); see also Advanced Life Sys., 898
F.3d at 44 (“A Section 8(a)(1) violation occurs when,
considering all of the surrounding circumstances, the
employer’s conduct reasonably tended to interfere with an
employee’s exercise of her Section 7 collective action rights.”).
Said another way, “motive is the lynchpin” under the
statute. Dissent Op. 10. Firing employees—union supporters
or not—to intentionally send a message to employees that
union activity will have hurtful consequences falls squarely
within the statute’s prohibitions. And Napleton Cadillac, for
22
its part, makes no argument that the statutory text permits such
intentional discriminatory retribution as long as it comes just a
couple of employees at a time. Discrimination is a “toxin[]
[that] can be deadly in small doses.” Buck v. Davis, 137 S. Ct.
759, 777 (2017).
Third, the Board’s focus on an employer’s intent to
discriminate against known union activity hews to Wright Line
itself. The problem the Board set out to solve in Wright Line
was uncertainty surrounding the correct “test of causation for
cases alleging violations of Section 8(a)(3)[.]” 251 N.L.R.B.
at 1083. Having a “formal[]” test was important, the Board
explained, because “[i]n modern day labor relations, an
employer will rarely” admit “that it has disciplined an
employee because it detests unions or will not tolerate
employees engaging in union or other protected activities.” Id.
So the Board needed a way to sort out when an employer acts
for “a legitimate business reason” and when its action is
instead—or additionally—an unlawful “reaction to its
employees’ engaging in union or other protected activities.”
Id. at 1083–1084.
To that end, the Board devised in Wright Line a burden-
shifting framework designed to “determine the relationship, if
any, between employer action and protected employee
conduct.” 251 N.L.R.B. at 1089. Which is precisely how the
Board employed Wright Line here. J.A. 71.
Applying the Wright Line framework, the Board
reasonably concluded that Napleton Cadillac violated
Sections 8(a)(3) and 8(a)(1) by terminating Russell and Geisler
to punish its employees’ decision to vote for union
representation. Substantial evidence supports the Board’s
factual finding that anti-union animus and a desire to strike
back at employees motivated Napleton Cadillac’s actions.
23
Service Manager Scott Inman openly said as much when he
ended the meeting in which he laid off Geisler by stating that
“he asked the employees ‘not to vote that way.’” Napleton,
367 N.L.R.B. No. 6, at 10, 16. And when Russell came to pick
up his belongings, Inman said he was “sorry this happened”—
and then referred to a suspected unionization leader as “the guy
who started all this.” Id. at 9, 15; see also id. at 15 (ALJ
finding, based on the factual context, “that when Inman
attributed the action against Russell to ‘everything that
happened,’ he was referencing the union drive”).
Through Inman’s comments, Napleton Cadillac all but
admitted that it discharged Russell and laid off Geisler as
retribution for the employees’ collective decision to unionize.
And Napleton Cadillac’s later pretextual explanations for its
actions brought the point home. See Fort Dearborn Co. v.
NLRB, 827 F.3d 1067, 1075 (D.C. Cir. 2016) (“A finding of
pretext may support an inference of unlawful motive[.]”);
Napleton, 367 N.L.R.B. No. 6, at 15–16 (finding that Napleton
Cadillac’s assertion that it never hired Russell was “a pretext”
for retaliation, and summarizing evidence debunking Napleton
Cadillac’s “fantastic claim that it did not notice * * * until
immediately after the election” that it had treated Russell as an
employee who was on disability leave); id. at 16–17 (“There is
no documentation—no notes, no email, no message slips, no
report, nothing—that” supports Napleton Cadillac’s claim that
a layoff was in the works before the union election.).
For those reasons, the Board reasonably concluded that
Napleton Cadillac “wield[ed] an undiscerning axe” against
Russell and Geisler to punish its employees’ collective decision
to unionize. Frigid Storage, 934 F.2d at 510.
24
3
The partial dissenting opinion presses two main objections
to the Board’s decision. But those concerns misunderstand the
Board’s precedent and its application to this case.
First, the dissenting opinion objects that the Board has
departed from prior precedent requiring that the employer have
knowledge specifically of the affected employee’s union
activities. Dissent Op. 2–3.
But prior Board decisions and court precedent had already
held that Wright Line does not strictly require that an employer
always have knowledge of an affected employee’s individual
union activities. The holding that Napleton Cadillac violated
Section 8(a)(3) by firing and laying off two employees as a
means of deliberate retribution against the workforce’s
decision to unionize is all of a piece with Board and circuit
court precedent in Frigid Storage and W.E. Carlson Corp., and
the legal rules applied there.
In Frigid Storage, as here, employer knowledge of the
affected employee’s union views or activities “[wa]s not
dispositive” or even required. 934 F.2d at 510. Even though
the ALJ found that “[t]here is no evidence that anyone on
behalf of the Respondent was aware of” union activity by
employee Franklin or “of any antiunion animus pinpointed
against him,” the Board ruled that the employer violated
Section 8(a)(3) by firing Franklin to strike back at its
employees’ organizing efforts. Frigid Storage, Inc., 294
N.L.R.B. at 661, 668.
Likewise, in W.E. Carlson, the Board held that the denial
of a pay increase for employee Lightfoot violated Section
8(a)(3) even though the employer was “unaware of Lightfoot’s
union sympathies.” 346 N.L.R.B. at 433. What mattered was
25
that the employer “was aware * * * that its service technicians
had engaged in union activity,” and “because of its animus
against that activity, decided to freeze wages,” and the “effect
of that retaliation fell on Lightfoot” alone. Id. 2
The dissenting opinion would chalk those two decisions
up to the “essential” fact that other employees whose union
views were known to the employer were also the object of
retaliation. Dissent Op. 10.
But if that factor were so essential, one would expect it to
play some role in those decisions. Yet it was never mentioned
in the Board’s analysis. In Frigid Storage, the court of appeals
explained that “the Board had substantial evidence to support
its finding that Franklin’s discharge violated § 8(a)(3)” based
only on “the bare timing of Franklin’s discharge on the Monday
following [the employer’s] Friday anti-union tirade, at which
[he] had threatened to discharge an employee on Monday.”
934 F.2d at 510. That is so, the Fourth Circuit explained,
because “[t]he issue is the employer’s motivation, and he
cannot cleanse an impure heart with ignorance of individual
employee sentiments.” Id. Nothing in that holding makes the
2
The dissenting opinion’s reliance (at 11) on Gruma
Corporation is misplaced. There, the Board ruled for the employer
because “the record as a whole does not provide a basis for inferring
knowledge” of union activity by the employee. 350 N.L.R.B. 336,
338 (2007). There was no argument in the case or any facts
suggesting that the employee was discharged as retribution for union
activity by the workforce as a whole, so the Board did not address or
decide the question presented in this case.
26
discharge of known union supporters an essential, or even a
relevant, element.
The Board in Frigid Storage, for its part, overturned an
ALJ decision that (like the dissenting opinion here) focused on
the employer’s knowledge of the affected employee’s union
views. See 294 N.L.R.B. at 661 (disagreeing with ALJ’s
finding that Franklin’s discharge did not violate the act); id. at
668 (ALJ dismissing complaint as to Franklin because there
was “no evidence that anyone on behalf of the [employer] was
aware” of Franklin’s union activity). The Board ruled that
Franklin’s termination by itself violated Section 8(a)(3)
because “[t]he evidence clearly shows” that his firing was
“precipitated by the Respondent’s awareness of union activity,
its contempt for unions, and a determination to retaliate against
employees for mounting an organizational campaign.” Id. at
661. The separate termination of union supporters days earlier
is not mentioned anywhere in that list of factors.
The Board’s decision in W.E. Carlson was similarly
devoid of any tie between the adverse employment action and
known union supporters. In response to a dissent that (again,
like the dissenting opinion here) would have required employer
knowledge of Lightfoot’s union views for liability to attach, the
Board said that knowledge of Lightfoot’s union activity was
“immaterial.” 346 N.L.R.B. at 433. All that mattered to the
Board was that the employer “knew that its service technicians
were seeking to organize,” and it was “because of its animus
against that activity” that it “decided to freeze wages pending
the union election, resulting in the denial of Lightfoot’s wage
increase.” Id. Contrary to the dissenting opinion’s view (at
10), the Board’s analysis had nothing to do with other
employees whose union views were known, and whether they
might or might not eventually have fallen victim to that
temporary wage freeze. The Board did not even discuss that
27
prospect. Presumably because the established timeframe for
the wage freeze affected only Lightfoot and no one else. W.E.
Carlson, 346 N.L.R.B. at 432 (“Lightfoot was the only
employee whose anniversary date fell during the period
between the filing of the representation petition and the holding
of the election.”). 3
In short, the Board’s holding here was on all fours with
Board and circuit precedent. The Board relied on compelling
record evidence to show what its decisions have always
required: evidence that the adverse action at issue was
substantially motivated by the employer’s intent to punish and
discourage known union activity. Wright Line, 251 N.L.R.B.
at 1089 (“[W]e shall require that the General Counsel make a
prima facie showing sufficient to support the inference that
protected conduct was a ‘motivating factor’ in the employer’s
decision.”) (emphasis added).
Second, the dissenting opinion reasons that the Board here
abandoned the Wright Line requirement of employer
knowledge of union activity, and now “requires showing only
animus by the employer[.]” Dissent Op. 6.
3
The dissenting opinion’s effort to shoehorn that precedent into
the cover-up exception is simply wishful thinking. Compare Dissent
Op. at 10 n.4, with W.E. Carlson, 346 N.L.R.B. at 433 (holding that
the General Counsel showed “a compelling case that animus against
its employees’ union activities was a motivating factor in the denial
of Lightfoot’s wage increase”), and Frigid Storage, 294 N.L.R.B. at
661 (holding that each individual discharge was “precipitated by the
Respondent’s awareness of union activity, its contempt for unions,
and a determination to retaliate against employees for mounting an
organizational campaign”). Scapegoating is its own exception to the
general reliance on an employer’s knowledge of the targeted
employee’s union activities to establish motive.
28
Not so. The Board has always required evidence both that
the employer knew of its employees’ union activity, and that
its adverse action at issue was substantially motivated by its
intent to punish and discourage that activity. W.E. Carlson,
346 N.L.R.B. at 433 (“The Respondent contends it was
unaware of Lightfoot’s union sympathies when it decided
against giving Lightfoot a wage increase in his January 31
paycheck. The Respondent was aware, however, that its
service technicians had engaged in union activity.”); Frigid
Storage, 294 N.L.R.B. at 661 (“All three discharges were
precipitated by the Respondent’s awareness of union
activity[.]”).
So too here. The Board expressly found that Napleton
Cadillac knew of its employees’ union activity—including
their decision to unionize—and that management’s anger over
that activity was precisely what motivated the discharge and
layoff. Napleton, 367 N.L.R.B. No. 6 at 1 n.2 (affirming ALJ’s
finding of a violation of Section 8(a)(3) “because of their and
their coworkers’ union activity”); id. (Russell’s discharge was
in “retaliation for the employees’ selection of union
representation.”); id. (Napleton Cadillac “specifically linked
Geisler’s layoff to the union vote.”). Napleton Cadillac, for its
part, has never denied that it had full knowledge of protected
union activity and, in particular, the employees’ decision to
unionize at the time of the discharge and layoff. So the Board
found what the dissenting opinion describes as the required
elements of a Section 8(a)(3) violation: “‘discrimination’ on
the part of an employer and a motive of encouraging or
discouraging union membership.” Dissent Op. 13 (quoting 29
U.S.C. § 158(a)(3)).
In other words, the Board nowhere adopted the
knowledge-less general retaliation standard that the dissenting
opinion fears. And the dissenting opinion’s agreement with the
29
application of Wright Line to the mass-layoff and cover-up
scenarios, see Dissent Op. 3–4, 7, shows that knowledge of the
targeted employee’s individual views is not necessary to
establish a violation of Section 8(a)(3). While the dissenting
opinion would forgo the requirement of individualized
knowledge only when the employer’s discriminatory actions
against known union members also happen to “sweep[] in
neutral employees,” no case has ever adopted that limitation.
And the independent imposition of employer liability for the
retaliatory actions aimed at Franklin and Lightfoot in Frigid
Storage and W.E. Carlson, respectively, establishes that
intentional scapegoating itself violates Section 8(a)(3).
Compare Frigid Storage, 294 N.L.R.B. at 661, with id. at 668
(Board reverses ALJ decision that discharge of Franklin did not
violate Section 8(a)(3) because the ALJ improperly relied on
the employer’s absence of knowledge about Franklin’s
individual union activities); compare W.E. Carlson, 346
N.L.R.B. at 433 (rejecting dissenting Member’s view that
knowledge of individual employee’s union views was
necessary under Wright Line), with id. at 437 (Battista,
Chairman, dissenting in part) (stating that dismissal of the
complaint was appropriate because General Counsel did not
prove “that the Respondent knew of Lightfoot’s union activity
at the time it decided not to grant him an annual wage
increase”).
The dissenting opinion worries that, by prohibiting
employers from deliberately making an individual employee
the fall guy for the workforce’s union activity, knowledge of
union activities or anti-union animus alone will trigger liability
for adverse employment actions. See Dissent Op. 9–12. But
that concern forgets that, under Wright Line, the Board always
bears the burden “to ‘make a prima facie showing sufficient to
support the inference that protected conduct was a “motivating
factor” in the employer’s decision to take adverse action.’”
30
Chevron Mining, Inc. v NLRB, 684 F.3d 1318, 1327 (D.C. Cir.
2012) (quoting Wright Line, 251 N.L.R.B. at 1089).
So the “ultimate inquiry is whether there is a ‘link, or
nexus, between the employees’ protected activity and the
adverse employment action.’” Chevron Mining, 684 F.3d at
1328 (quoting Tracker Marine, LLC, 337 N.L.R.B. 644, 646
(2002)). A showing of general animus (let alone mere
knowledge) unconnected to the challenged employment action
will not suffice. See id.; see also Amber Foods, Inc., 338
N.L.R.B. 712, 714 (2002) (finding that, in the absence of any
nexus between the employer’s general knowledge of union
activity and the affected employee’s discharge, no Section
8(a)(3) violation was shown).
In other words, correlation is not enough. The prima facie
case must demonstrate a nexus between the employer’s anti-
union sentiments and the precise adverse action taken. Such
evidence of deliberate scapegoating is usually hard to come by.
Most employers will not announce or otherwise evidence their
intent to sacrifice an employee or two on the altar of their
hostility to collective action. But as in Chevron Mining, 684
F.3d at 1328, in this case that link was easily established by the
employer’s virtual admissions that the discharge and layoff
were taken in response to the employees’ decision to unionize,
Napleton, 367 N.L.R.B. No. 6, at 9–10, 15–16.
In other words, the only question here is whether evidence
of deliberate scapegoating can support a prima facie case of a
Section 8(a)(3) violation. The employer will still avoid liability
if the General Counsel cannot establish a nexus between the
employer’s union hostility and the challenged action, or if the
employer demonstrates that its employment action rested on a
legitimate ground. Wright Line, 251 N.L.R.B. at 1087. But
when (to borrow from the dissenting opinion), “[i]mproper
31
motivation * * * [is] combined with an act intentionally taken
against known protected activity,” “discrimination” under
Section 8(a)(3) exists, Dissent Op. 14. That is this case.
The Board’s application of its “labor law expertise,”
Dissent Op. 7, in this way fully comports with Wright Line and
the plain statutory text it implements. To conclude otherwise,
as the dissenting opinion proposes, would mean that the law
allows an employer to fire a randomly chosen worker for the
express and announced purpose of punishing its employees for
unionizing—to “teach them a lesson.” Yet that form of direct
retribution and punishment of employees is the very type of
“discrimination” against and “discourage[ment]” of
“membership in any labor organization” that Section 8(a)(3)
proscribes. In the context of Section 8(a)(3)’s broadly worded
prohibition on discrimination, “such retaliation is intentional
discrimination[.]” Jackson v. Birmingham Board of Educ., 544
U.S. 167, 173–179 (2005) (interpreting similarly broad ban on
discrimination in Title IX of the Civil Rights Act, 20 U.S.C.
§ 1681 et seq.).
B
Napleton Cadillac argues that the Board’s separate finding
that it retaliated against striking employees by removing their
toolboxes from the work area “makes no logical or rational
sense” because Napleton Auto Group allowed striking
employees at its other dealerships to keep their toolboxes at
work during the strike. Napleton’s Br. 42.
Napleton Cadillac’s argument actually proves the Board’s
point. The key decisionmaker at Napleton Auto Group,
Corporate Manager Tony Renello, explained that the company
treated the striking employees at Napleton Cadillac adversely
precisely because “[m]ost of our—the other technicians and the
32
other stores wanted to work through the strike. They just
weren’t allowed to.” Napleton, 367 N.L.R.B. No. 6, at 19.
That testimony is a straightforward “admission that it was
the Napleton [Cadillac] technicians’ choice to exercise their
right to strike—a choice freely made and thus, in Napleton
[Cadillac]’s view, deserving of punishment—that prompted the
demand to remove the toolboxes[.]” Napleton, 367 N.L.R.B.
No. 6, at 19 (emphasis added). The fact that Napleton Cadillac
leveled its punitive response only against those employees who
voluntarily and willingly chose to exercise their statutory right
to strike proves its retaliatory, discriminatory motive.
C
Napleton Cadillac next challenges the Board’s finding that
it unlawfully created an impression of surveillance of union
activities when Inman told Russell that he thought a certain
employee had started the union drive. On this front, Napleton
Cadillac’s only argument to this court is that, because Russell
was no longer an employee at the time of the conversation,
Inman’s statement could not have “coerce[d] or restrain[ed]
Russell from engaging in protected union activity.” Napleton’s
Br. 32. Because Napleton Cadillac did not present that
argument to the Board, we lack jurisdiction to consider it.
Absent extraordinary circumstances (which Napleton
Cadillac does not argue exist here), our jurisdiction is confined
to objections that parties have first presented to the Board. 29
U.S.C. § 160(e); First Student, Inc. v. NLRB, 935 F.3d 604, 614
(D.C. Cir. 2019). “[T]he critical question is whether the Board
received adequate notice of the basis for the objection.”
Pennsylvania State Corr. Officers Ass’n v. NLRB, 894 F.3d
370, 376 (D.C. Cir. 2018) (quoting Camelot Terrace, Inc. v.
NLRB, 824 F.3d 1085, 1090 (D.C. Cir. 2016)). As to the
33
surveillance finding, Napleton Cadillac did not preserve its
argument.
In the list of exceptions that Napleton Cadillac filed with
the Board, it identified its general disagreement with the
impression-of-surveillance finding. But it never argued that
Russell’s employment status precluded the finding of an unfair
labor practice. Napleton Cadillac’s vague and very general
exception was not enough to put the Board on notice of every
possible argument it might later choose to advance.
That is not to say that each “ground for [an] exception”
must “be stated explicitly in the written exceptions filed with
the Board[.]” Camelot Terrace, 824 F.3d at 1090 (internal
quotation marks omitted). Instead, the problem here is that
Napleton Cadillac did not even cross the minimum threshold
of ensuring that “the ground for the exception [would] be
evident by the context in which the exception is raised.” Id.
(formatting modified).
Case in point is Napleton Cadillac’s brief in support of its
exceptions. See Pennsylvania State Corr. Officers, 894 F.3d at
376. That brief put the Board on notice of just one objection to
the impression-of-surveillance finding: that Inman’s statement
was too ambiguous to create an improper impression of
surveillance. See Respondent’s Brief in Support of Exceptions
to the Decision and Recommended Order of the Administrative
Law Judge at 13, Napleton, 367 N.L.R.B. No. 6 (Nos. 13-CA-
187272 et al.). Napleton Cadillac does not pursue that
argument here. See Oral Arg. Tr. 11:13–12:2 (conceding that
the argument “is not in” its brief to this court). And the
argument it does pursue—that Inman’s statement could not
have violated the Act because Russell had already been fired—
is nowhere to be found in its arguments to the Board, as
34
Napleton Cadillac conceded at oral argument, see Oral Arg.
Tr. 12:2–23.
IV
Finally, Napleton Cadillac asks this court to overturn the
Board’s affirmance of three of the ALJ’s procedural rulings.
First, Napleton Cadillac objects to the ALJ’s application of the
witness sequestration rule to exclude one of its attorneys, James
Hendricks, from the hearing because Napleton Cadillac
planned to call him as a witness.
Second, Napleton Cadillac takes exception to the ALJ’s
order to return witnesses’ affidavits after its cross-examination
concluded, rather than at the conclusion of the hearing.
Third, Napleton Cadillac complains that the ALJ declined
to sanction a witness for failing to comply with its subpoena
directing the witness to bring his toolbox to the hearing.
We need not address the merits of those challenges
because, even assuming they were valid, Napleton Cadillac
cannot prevail unless it can also “show that ‘prejudice resulted
from’ the Board’s [procedural] lapses.” Salem Hosp., 808 F.3d
at 67 (quoting Desert Hosp., 91 F.3d at 190). “Whether an
error is prejudicial depends on a number of factors, including
the closeness of the case, the centrality of the issue in question,
and the effectiveness of any steps taken to mitigate the effects
of the error.” 800 River Rd. Operating Co. v. NLRB, 846 F.3d
378, 386 (D.C. Cir. 2017) (internal quotation marks omitted).
Napleton Cadillac has not come close to making the
required showing of prejudice for any of its objections. With
respect to witness sequestration, Napleton Cadillac’s briefs do
not say what more it could have done in its defense had
Hendricks been at counsel table or how his absence otherwise
35
impaired its ability to present its case. Napleton Cadillac’s
attempt to argue prejudice for the first time at oral argument
was too little, too late. See Save Jobs USA v. Department of
Homeland Sec., 942 F.3d 504, 511 (D.C. Cir. 2019)
(“Generally, arguments raised for the first time at oral
argument are forfeited.”) (internal quotation marks omitted).
In any event, Napleton Cadillac acknowledged that Hendricks
was not planning to serve as lead counsel at the hearing. And
although Napleton Cadillac suggested that it was at some type
of disadvantage because it had only one attorney present, it
failed to offer anything concrete or to explain what Hendricks
would have done that could not have been handled by counsel
at the hearing or any other attorney who was not designated to
testify as a witness in the case.
Nor does Napleton Cadillac explain how its cross-
examination or presentation of its case was impaired by having
to return witnesses’ affidavits after they left the stand.
Finally, Napleton Cadillac does not say what it would have
gained from having a witness haul his more than a thousand-
pound toolbox to the eighth-floor hearing room in the federal
courthouse. In fact, at oral argument, Napleton Cadillac
(wisely) conceded that there was “no way [the witness] could
have brought the toolbox” into the hearing room. Oral Arg.
Tr. 8:19–20. Notably, the ALJ repeatedly offered Napleton
Cadillac the opportunity to inspect the toolbox in a more
appropriate location. But it ignored those offers. For present
purposes: No harm, no foul.
Having entirely failed to demonstrate prejudice, Napleton
Cadillac’s procedural objections all fail.
36
V
For all of those reasons, we dismiss Napleton Cadillac’s
petition for review as to the impression-of-surveillance finding,
deny the petition in all other respects, and grant the Board’s
cross-application for enforcement.
So ordered.
RAO, Circuit Judge, concurring in part and dissenting in
part: Napleton Cadillac discharged mechanics William Russell
and David Geisler shortly after a majority of their fellow
employees voted to unionize. The National Labor Relations
Board found that the discharges constituted unlawful
discrimination. While I join the majority in enforcing the
finding nts.
Employer knowledge , or a
proxy for employer knowledge, is an essential element of a
discrimination charge under the National Labor Relations Act
Because the General Counsel did not attempt to
demonstrate that Napleton had knowledge of whether Russell
or Geisler participated in union activity, and none of the
established exceptions to the employer knowledge element
applies here, the finding of discrimination departs
from its announced standards. The Board neither acknowledges
nor explains this departure, which requires vacating its
decision.
discrimination only by glossing over longstanding standards
s
action. Because this approach runs afoul of our precedents and
fundamental principles of administrative law, I respectfully
dissent from Part II
I.
The NLRA bars employers from terminating employees
. Fort Dearborn Co. v. NLRB, 827
F.3d 1067, 1072 (D.C. Cir. 2016) (citing NLRB v. Transp.
Mgmt. Corp., 462 U.S. 393, 394 (1983)). Section 8(a)(3)
prohibits certain unfair labor practices, including
discrimination
encourag[ing] or discourag[ing] membership in any labor
organization. 29 U.S.C. § 158(a)(3). Such adverse actions also
with, restrain, or coerce employees in the exercise of
2
the NLRA in violation of section
8(a)(1). Id. § 158(a)(1). The Board analyzes adverse
employment actions under the burden shifting framework set
out in Wright Line, 251 N.L.R.B. 1083 (1980), which first
requires that the General Counsel establish a prima
facie case of discrimination, and then allows the employer to
rebut this evidence by showing that it would have taken the
same action regardless s protected union
activity, id. at 1089.
, however,
are the well-established elements of the General C
prima facie burden. Antiunion discrimination on the part of an
employer is unlawful under sections 8(a)(3) and (1) only when
supported by Adv.
Life Sys. Inc. v. NLRB, 898 F.3d 38, 49 (D.C. Cir. 2018).
Because an employer must have knowledge
union activity to discriminate intentionally on that basis, [a]
discharge cannot stem from an improper motivation where the
Avecor,
Inc. v. NLRB, 931 F.2d 924, 931 (D.C. Cir. 1991). To establish
a prima facie case of unlawful discrimination,
Counsel for the Board must demonstrate that (i) the employee
was engaged in an activity protected by 29 U.S.C. § 157, (ii)
the employer was aware of that protected activity, and (iii) the
protected activity wa
Inova Health Sys. v. NLRB,
795 F.3d 68, 80 (D.C. Cir. 2015) (cleaned up).
provide
circumstantial evidence that the employer had individualized
knowledge of an , Montgomery
Ward & Co., 316 N.L.R.B. 1248, 1253 (1995), but standing alone
it does not satisfy the individual knowledge requirement.
3
therefore remains necessary to conclude that protected activity
was a motivating factor in the discharge. 1
T in this case is arbitrary and
capricious for a simple reason: the Board excused the
requirement that the General Counsel prove either that
Napleton discharged employees Russell and Geisler with
or that
discriminatory intent could be imputed to Napleton through the
longstanding mass-layoff or cover-up exceptions to the actual
knowledge requirement. Napleton 1050, Inc., 367 NLRB No.
6, at *1 n.2, *8 (Sept. 28, 2018). Indeed, as the ALJ recognized,
the General Counsel oes not include
an argument that Geisler and Russell were discharged in
Id.
Neither the Board nor the majority suggests that Napleton
had any knowledge of specific union activity;
instead, they
Wright Line knowledge requirement. In the
decision below, the ALJ asserted that the General Counsel
any protected activity
by any discharged employees if the terminations were meant
1
The Board has consistently treated employer knowledge as a
fundamental prerequisite in establishing discriminatory motive.
, 288 N.L.R.B. 1082, 1101 (1988) (quoting
Bayliner Marine Corp., 215 N.L.R.B. 12, 12 (1974)); Electrolux Home
Prods., Inc., 368 NLRB No. 34, at *3 (Aug. 2, 2019). For example,
in Jo-Del, Inc., management knew of general union activity among
employees, but the Board did not find that sufficient to establish a
discrimination charge. 324 N.L.R.B. 1239, 1241, 1243 (1997)
absence of evidence establishing knowledge by Respondent of any
union activity or affiliation by [the employee] precludes the finding
of a violation of [s] .
4
Id.
(cleaned up). The ALJ found that the terminations violated
sections 8(a)(3) and (1) because Napleton knew of and
drive and took adverse action against Russell and Geisler to
punish the entire shop. Id. The Board provides no additional
analysis on this score, and the majority begins not with the
basic test for discrimination claims, but with various statements
about general retaliation and punishment. See, e.g., Maj. Op.
outlaws punishing the workforce as a
whole for its union activity just as strongly as it outlaws
punishing .
there is no
exception to the employer knowledge requirement of an unfair
labor practice under sections 8(a)(3) and (1). And we cannot
enforce decisions of the Board that ignore elements of an unfair
labor practice charge. See Adv. Life Sys., 898 F.3d at 49;
Avecor, Inc., 931 F.2d at 931. As the Board conceded at oral
argument, no prior decision of the Board found discrimination
on similar facts. See Oral Arg. Tr. 21:18 , Your Honor.
I was not able to uncover a situation exactly like the one at
bar id. at
None of the cases cited by the Board has excused the
employer knowledge element when not a single adversely
treated worker was known to have engaged in protected
activity. Cf. Napleton, 367 NLRB No. 6, at *8 & n.20; NLRB
Br. 21 22. contain only two
ways around the employer knowledge requirement as to
specific individuals. Neither fits the circumstances of this case.
First, - exception excuses the requirement
of proving the employer knew about each
protected activity when the discharge was (1) part of a
and (2)
5
Davis Supermarkets, Inc. v. NLRB, 2 F.3d
1162, 1168 (D.C. Cir. 1993) (quoting Birch Run Welding &
Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1180 (6th Cir.
1985)). As we explained in Davis Supermarkets, a
occurs when an employer dismisses a class of
employees that includes both known union sympathizers and
others of unknown sympathies. Id. at 1168 69. The mass-
layoff exception allows imputing employer knowledge of
union activity by one member of the class to others subject to
the same adverse action. So long as the employer knew that
some class members engaged in protected activity and the
employer acted to discourage further union activity, a mass
termination can erode statutory rights just as
effectively
Id. at 1169 (quoting Birch Run, 761 F.2d at 1180).
Courts have accordingly upheld a prima facie case of
discrimination when the adversely treated class includes at
least some known union supporters and the adverse treatment
was unlawfully motivated. See id. at 1168 69 (employer
the people with
attit
union activity); Birch Run, 761 F.2d at 1179 81 (at least two
and up to six of thirteen terminated employees were known
union advocates); NLRB v. Frigid Storage, Inc., 934 F.2d 506,
510 (4th Cir. 1991) (two of three terminated employees were
known union advocates, but all three were subject to the
). The Board has always
required proof that the employer knew of protected activity by
at least some members of the adversely treated class, even
when the employer lacked knowledge as to each individual
member.2 Thus, the mass-layoff exception recognizes that the
2
See, e.g., Electro-Voice, Inc., 320 N.L.R.B. 1094, 1095 n.4, 1110
(1996) (
6
Board need not demonstrate knowledge as to each impacted
employee; however, this does not create a genera
standard that requires showing only animus by the employer,
rather than knowledge of protected activity. The majority errs
general
motivation to harm unions rather than specific motivation to
punish an individual s union activity sufficient to make out a
discrimination claim. See Maj. Op. 17 21. And in any event, it
is far-fetched that laying off only two employees could
constitute a mass layoff.
The second exception excuses proof of knowledge as to
each wronged employee when an employer adversely treats
neutral employees along with known union supporters in order
to cover up evidence of discriminatory motive. Novato
Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1105 (D.C. Cir.
2019); see also Bay Corrugated Container, 310 N.L.R.B. 450,
the discharge of a
neutral employee in order to facilitate or cover up
discriminatory conduct against a known union supporter is
violative of [s]ection[s] 8(a)(3) and (1 . The Board
need not prove the knowledge of union activity by
the neutral employees because they were treated adversely as
union supporters. As with mass-layoff cases, the cover-up
exception allows the Board to sanction intentional
activity and conducted a
J.T. Slocomb Co., 314 N.L.R.B. 231, 241 43
(1994) (direct and circumstantial evidence employer knew members
of terminated class supported the union); ACTIV Indus., Inc., 277
N.L.R.B. 356, 356 n.3, 373 74 (1985) (circumstantial evidence
revealed employer targeted some employees because of their
[t
7
discrimination in the form of actions and policies that sweep in
neutral employees. . Pool, Inc. v. NLRB,
323 F.3d 1051, 1057 (D.C. Cir. 2003) (R
very purpose of excluding applicants who had recently been
operation of the rule excluded nonunion applicants as well.
In this situation, the Board retains the burden of proving the
employer knowledge of union support by employees targeted
by the discriminatory scheme.3
Both the mass-layoff and cover-up exceptions reflect
evidentiary inferences grounded in labor law
expertise. When an antiunion employer adversely treats a
known union supporter through an action that impacts multiple
employees, the Board infers that the other employees are also
victims of discrimination. In other words, one tainted apple
spoils the barrel. Yet the Board must still prove employer
knowledge as to at least one adversely treated employee
prima facie case. Although the Board is permitted to make
and intentions,
the inferential chain must begin with an actual evidentiary
activities. See Avecor, 931 F.2d at 931 (noting that inferences
necessary to impute knowledge but do[] not wholly
3
See, e.g., Metro-West Ambulance Serv., Inc., 360 N.L.R.B. 1029,
1055 56 (2014) (employer was aware of protected activity by
employee fired at the same time as neutral employee); Bay
Corrugated Container, 310 N.L.R.B. at 451 (same); Dawson Carbide
Indus., 273 N.L.R.B. 382, 389 (1984) (same).
8
While the mass-layoff and cover-up exceptions obviate the
burden of demonstrating knowledge as to
all impacted employees, they do not create the general
implicitly adopted by the Board (and
justified by the majority). Rather, these narrow exceptions
allow the Board to establish that a particular employee of
a cover
up or mass layoff intended to target those with known union
sympathies. These two exceptions are consistent with the
General Counsel satisfy the three elements of
the traditional prima facie case.
Here, the General Counsel never argued that Napleton
knew of protected activity by Russell or Geisler, and no known
union supporter was subject to the same adverse employment
action. See Napleton, 367 NLRB No. 6, at *8. With no showing
of individualized knowledge, t
discrimination allows the exceptions to swallow the rule. This
is not a straightforward application of the law; it is a sea
change. Agencies may announce new policies within the scope
of their statutory authority while deciding individual cases, but
they must do so explicitly and explain why the policy is
reasonable and consistent with the Act. See FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009). In a case
like this, where the Board neither acknowledged nor justified
its novel retaliation exception, we must vacate the
discrimination finding and remand for additional reasoning.
II.
With no further explanation from the Board, the majority
exception is consistent with judicial precedent, the text of
sections 8(a)(3) and (1), and the Wright Line standard. See Maj.
Op. 14 23. rectify
9
exception. See SEC v. Chenery Corp., 318 U.S. 80, 88 89
(1943); Baltimore Gas & Elec. Co. v. FERC, 954 F.3d 279,
283, 286 87 (D.C. Cir. 2020). The Board, and not this court, is
tasked with developing and applying expert judgment to
implement the Act. statutory
interpretation when
we
are left without a reasoned explanation. Allentown Mack Sales
& Serv., Inc. v. NLRB, 522 U.S. 359, 364 (1998) (cleaned up).
Nor is this a situation wher
because its Circus Circus
Casinos, Inc. v. NLRB, 961 F.3d 469, 483 (D.C. Cir. 2020)
(quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc.,
419 U.S. 281, 286 (1974)). Rather, here the Board has
fail[ed]
excusing an essential element of an unfair labor practice charge
without acknowledgement or justification. Id. at 483 (quoting
Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir.
2017)).
Even if courts had the authority to administer the NLRA
justification for a
scapegoating would fail on its own terms. Maj. Op.
27 n.3. Relevant precedents and the text of sections 8(a)(3) and
(1) cannot support such a sweeping limitation on the employer
knowledge requirement. The majority relies on generalized
employer intent or animus, but bad acts of the employers are
not sufficient to make out a case for discrimination under the
Act, which requires intentional adverse action against an
employee because of The
broad retaliation standard amounts to a rule that, so
long as some employees are engaged in protected activity with
adverse action taken against any employee. But this court and
10
the Board have always required that the employer have
knowledge that at least one adversely treated employee
engaged in protected activity before holding the employer
liable for discrimination against an employee not engaged in
protected activity. See, e.g., Davis Supermarkets, 2 F.3d at
1168.
In filling in for the Boar , the majority
misconstrues precedents applying the mass-layoff and cover-
up exceptions described above. I agree that motive is the
lynchpin in discrimination cases, not the number of
employees affected by actions. Maj. Op. 20.
But this does not excuse the General Counsel from proving that
some member of the terminated class was known by the
employer to be a union supporter and then subjected to
intentional discrimination. The court in Frigid Storage, for
example, found the termination of two known union supporters
alongside a third neutral employee to permit
inference of knowledge as to all three employees. 934 F.2d at
508
striking the neutral employee, but it was nevertheless essential
that the axe was directed in part at known union supporters.4 Id.
4
Frigid Storage is misplaced, Maj. Op.
24 26, because Frigid Storage is a garden variety cover-up case.
After establishing that the discharge of a known union supporter was
unlawful, the Board then considered the discharge of the neutral
employee. Econ. Foods, 294 N.L.R.B. 660, 661 62 (1989),
nom. Frigid Storage, 934 F.2d 506 (4th Cir. 1991). In other words,
the Board followed the typical process in cover-up cases, using the
discharge of pro-union employees to support an evidentiary
inference that the neutral employee was also discharged illegally.
This is reinforced by the fact that the cases cited by the court in
Frigid Storage involved an employer who knew of the pro-union
sympathies of at least one of the adversely treated employees. See
Birch Run Welding & Fabricating, 761 F.2d at
11
at 510; accord Novato Healthcare, 916 F.3d at 1105; Birch
Run, 761 F.2d at 1179 81.
The majority likewise expands
W.E. Carlson Corp., 346 N.L.R.B. 431 (2006), reading it to
abrogate the employer knowledge requirement. Maj. Op. 18
19, 24 26. Yet the Board did no such thing. Rather, in that case,
the employer froze wage increases to discourage further
organizing efforts by several known union supporters. The
impact of the freeze first fell exclusively on an employee of
the known union supporters and would have soon impacted
them as well. 346 N.L.R.B. at 432 34, 442. The Board simply
recognized that a facially neutral policy can be unlawfully
discriminatory where the facts demonstrate that the employer
had knowledge that its actions would impact union supporters.
See, e.g., . Pool, 323 F.3d at 1057. The Board
could rationally have determined that these facts fell within the
typical cover-up exception, in which the employer intends to
hurt neutral employees along with known union supporters. It
makes no difference that a neutral employee was hurt first, for
as the majority and I agree, the focus
is on the s knowledge and motive.5
-union sentiments before the lay- Merchants
Truck Line, Inc. v. NLRB
25, Patterson discharged the five junior emp
Majestic Molded
Products, Inc. v. NLRB
display in the form of a mass lay-
§ 8(a)(3) to the letter even if some white sheep suffer along with the
5
Contrary to the majority, interpret
W.E. Carlson as eliminating the employer knowledge requirement.
12
Because some cases have murky reasoning, the majority
infers that we may do away with the individual knowledge
requirement in discrimination claims. Maj. Op. 17 21, 27 29.
Yet the majority can cite no case for this proposition, which is
directly at odds with the basic framework of discrimination
claims. Employer knowledge union activity is
, and the
failure to reiterate this in every case does not eviscerate the
individual knowledge requirement. After all, why have mass-
layoff or cover-up exceptions if general knowledge of union
activity suffices?
Prior to this case, the Board consistently required
employer knowledge and rejected reliance on employer animus
drawn from circumstantial evidence. Indeed, the majority
today propounds a rule that the Board has numerous times
declined to create or enforce. For instance, in In re Amber
Foods, Inc.
Respondent believed or, at the very least, even suspected that
[the discharged employee] was engaged in union activity at the
time she was warned and discharged, although the Respondent
knew generally, by March 31, that its employees had contacted
the Union. 338 N.L.R.B. 712, 714 (2002); see also Gruma Corp.,
For example, in Gruma Corporation, decided the year after Carlson,
the Board dismissed allegations of a section 8(a)(3) violation
because the employer had no knowledge of the discharged
union activities in general. 350 N.L.R.B. 336, 338 (2007). The majority
tries to distinguish Gruma because it did not involve an argument
that the employee was discharged as retribution for union activity by
the workforce as a whole. Maj. Op. 25 n.2. But that is precisely the
point. All the facts were in place for such a retaliation argument, and
for a holding of discrimination based on it, but the Board did not even
explore the argument presumably because it is not the law.
13
350 N.L.R.B. 336 (2007) (finding no § 8(a)(3) violation because
the employer had no
protected activity, despite knowing of union activity
generally).
Furthermore, the general animus test runs
against the statutory text. On its face, section 8(a)(3) requires
employer and a motive of encouraging or discouraging union
membership. 29 U.S.C. § 158(a)(3).
Discrimination
International Dictionary (2d ed. 1954); see also
Discrimination
ment; esp., a failure to treat all persons
equally when no reasonable distinction can be found between
violate section 8(a)(3) unless it targets employees for an
impermissible reason: that they have participated in union-
related activities. This obviously requires the employer to
know that the employee participated in such activities, as the
case law amply demonstrates. See, e.g., Goldtex, Inc. v. NLRB,
ase, the Board has
failed to demonstrate the most basic element of an unlawful
discharge namely, that the employer was even aware of the
Moreover, reading of section
8(a)(3) eliminates longstanding differences between
intentional discrimination charges under sections 8(a)(3) and
(1) and other unfair labor practices under section 8(a)(1).
Unlawful threats, for example, can be found based on any
employer conduct that [s] with, restrain[s], or
coerce[s] , even if unintentional. 29 U.S.C.
§ 158(a)(1); Adv. Life Sys., 898 F.3d at 44 45. By contrast, the
14
Board has always required employer intent to make out a
charge of discrimination.
Finally, the majority reads
Wright Line that is absent from the
standard. See Maj. Op. 16 17. The Board in Wright Line
determine the relationship, if any,
251 N.L.R.B. at 1089. In doing so, however, the Board explicitly
understood that the potentially unlawful actions were those
taken against the employee engaged in protected activity and
not against other employees. See id. at 1083
cases involving alleged violations of [s]ection 8(a)(3) and, in
certain instances, [s]ection 8(a)(1), it must be determined, inter
alia, whether an employee s employment conditions were
adversely affected by his or her engaging in union or other
protected activities. ; id. at
Improper motivation does not
become discrimination until combined with an act intentionally
taken against known protected activity.
As explained in Part I, t
rather than frankly acknowledges a change in the legal
standard. The majority tries to connect the dots, but in doing so
this anomalous decision ing both consistent
application of the law by [ALJs] and effective review of the
Allentown Mack, 522 U.S. at 375. The
majority also undercuts a foundational principle of
administrative law, which requires a reasoned explanation from
the agency for a change in legal standards.
to
punish ision to vote for union
15
those
union activity knowledge
of it. The General Counsel did not even argue that Napleton had
Napleton 1050, Inc.,
367 NLRB No. 6, at *8 (Sept. 28, 2018). Under the precedents
of the Board, and of this court until today, that lapse constitutes
a per se failure to make out a retaliatory discharge claim. The
ma e of these
precedents and creates new legal standards absent any reasoned
decisionmaking from the Board.
* * *
The Board failed to hold the General Counsel to the prima
facie burden of proving discriminatory animus was a
Geisler. Further, the Board departed from precedent by
excusing this failure under a novel legal theory for which it
offered no justification. Because our court cannot fill in the
blanks left by the agency, I would vacate the discrimination
finding and remand to the Board for further consideration.