Lhoist North America of Alabama, LLC v. National Labor Relations Board

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11791
____________________
LHOIST NORTH AMERICA OF ALABAMA, LLC,
Petitioner-Cross Respondent,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent-Cross Petitioner,
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL &
SERVICE WORKERS LOCAL UNION 563 (“THE UNION”),
Intervenor.
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2 Opinion of the Court 21-11791
____________________
Petition for Review of a Decision of the
National Labor Relations Board
Agency No. 10-CA-221731
____________________
Before JORDAN and ROSENBAUM, Circuit Judges, and SCHLESINGER,*
District Judge.
SCHLESINGER, District Judge:
This review involves a long-term, reliable employee—until
the employee’s union activities caught the ire of the company. The
company targeted the employee until an excuse could be found to
discipline and ultimately terminate his employment. This oppor-
tunity arrived the day the employee participated in a union phone
call on company time.
Desilynn “Floyd” Avery, while on break, participated by
phone call, as the acting union president, in another employee’s
termination hearing. Although the call lasted at least 25 minutes
longer than Avery’s break, he did not clock out for the extra time,
or later report he had overstayed his break. Avery’s employment
was terminated. The question is whether the firing was
* The Honorable Harvey Schlesinger, United States District Judge for the Mid-
dle District of Florida, sitting by designation.
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21-11791 Opinion of the Court 3
appropriate. Following oral argument and a review of the record,
we affirm the conclusion it was not.
I
A
Lhoist North America of Alabama, LLC (“the Company”)
operates two quarries and three lime manufacturing plants in Ala-
bama that employ over 200 employees. At its Montevallo plant, in
Calera, Alabama, it receives raw materials to produce lime and
lime products and employs around 50 hourly employees, including
Avery.
Since 1987, United Steel, Paper, and Forestry, Rubber, Man-
ufacturing, Energy, Allied Industrial and Service Workers Interna-
tional Union, Local 563 (“the Union”) has represented a bargaining
unit of production and maintenance employees at the Company’s
plants. In the fall of 2016, the parties began negotiations for a new
collective-bargaining agreement to succeed the one due to expire
in December. Senior Human Resources Manager Emily Berkes
characterized the negotiations as “contentious” because the Com-
pany proposed changes to the agreement.
Following an impasse in bargaining, in October 2017, the
Company unilaterally implemented new terms and conditions of
employment. In 2017 and early 2018, the Union filed many charges
with the National Labor Relations Board (“the Board”), some of
which involved the unilateral implementation.
B
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4 Opinion of the Court 21-11791
Avery joined the Company in 1991. He was its sole slurry
operator at the Montevallo plant; a job that entailed mixing hy-
drated lime and water, sampling it, and loading the finished prod-
uct onto a truck. Slurry is usually mixed once or twice each week
and the process takes around 4-6 hours.
Avery typically worked Monday through Friday on the day
shift, from 6:00 a.m. until 2:30 p.m. Like other employees in the
plant, he clocked in when arriving at work and clocked out if leav-
ing the facility. His lunch was a non-paid 30-minute break automat-
ically deducted from his pay. For a regular 8-hour shift, employees
received a 15-minute paid break. Like other employees, and under
the employee handbook, Avery did not clock out for lunch or any
break unless he left the plant. His usual 15-minute morning break
began around 9:00 a.m. and lasted until 9:15 a.m. The supervisors,
whose offices are next to the break room, would normally take
their breaks alongside the employees.
Besides his slurry operator obligations, Avery performed
other duties outside of his job’s requirements. Production Manager
Grant McCallum characterized Avery as someone who “would
typically help out . . . in other areas of the plant.” Avery’s help in-
cluded regularly filling and driving a water truck used to spray the
plant down to limit dust; a task not part of his job description.
Avery also sometimes loaded bags with product and helped stack
them in the bagging shed.
During the relevant time, Stacey Barry was the Company’s
Senior Human Resources Director while Emily Berkes was the
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21-11791 Opinion of the Court 5
Senior Human Resources Manager. Terry Beam was Avery’s direct
supervisor and he reported to Production Manager Grant
McCallum. Barry characterized Avery as an employee who “al-
ways worked” and was unaware of any complaints about his work
performance. McCallum was unaware of any complaints about
Avery’s work the day of his discharge.
C
Avery was a member of the Union for his entire employ-
ment, serving as Union Steward and then as vice-president since
2010. Avery was the acting president for part of 2018. In his role as
vice-president, Avery attended all arbitrations. He also participated
in the most recent, and prior, collective-bargaining negotiations.
Avery was a vocal opponent of the implemented terms, according
to Berkes. McCallum also considered Avery a strong employee ad-
vocate who often challenged management.
During work time, Avery, and Union president Jon Wilson
received phone calls from Barry and Berkes to discuss union mat-
ters. Wilson and Avery were not given notice and did not notify
their supervisor about the calls or have their time docked. The
Company also called Avery and Wilson to represent employees in
meetings on the “spur of the moment” without prior notification
and without providing notice to their supervisors. Before his dis-
charge, Avery was never disciplined for taking a cell phone call at
work.
D
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6 Opinion of the Court 21-11791
On January 5, 2017, Avery received his first discipline; a final
written warning for a no call, no show on January 3. The warning
suggested a second no call, no show “may result in termination.”
The incident stemmed from Avery’s confusion about his work
schedule following a vacation. The Company issued the final warn-
ing despite the highest ranking official at the plant, Plant Manager
Craig Gordinier, recommending the Company withhold Avery’s
pay for the New Year’s holiday and charge him with one occur-
rence. Under the Company’s attendance policy, a single occurrence
does not result in any discipline.
The Company’s attendance policy and its employee hand-
book address disciplinary action for a no call, no show differently.
The attendance policy states:
Not reporting to work or not calling to report the ab-
sence properly is considered No Call/No Show. The
first instance of a no call/no show will result in a Final
Written Warning. The second offense may result in
termination of employment without additional inter-
ventions. Consistent with the Labor Agreement, Sec-
tion 12.11(i), an employee who is absent from work
without notification to the Company for 2 consecu-
tive work days without excuse satisfactory to the
Company will lose their Seniority Rights.
While the handbook provides, “[t]he first instance of a ‘no call/no
show’ will typically result in a written/formal reminder. The sec-
ond separate offense may result in progressive disciplinary action
leading up to and including termination of employment.”
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The Company also has General Conduct and Safety Rules
every employee must follow. These rules established a “Policy for
Disciplinary Action” that provided, “[t]he records for disciplinary
actions on an employee will be good for a period of one year. If the
employee then passes a period of one year without further discipli-
nary problems, the record will be reduced so that the employee’s
next offense would be a written warning.”
E
More than a year later, Avery once again found the ire of the
Company, but this time for his union activity. On January 22, 2018,
Avery attended an offsite arbitration hearing in his capacity as un-
ion vice-president and acting president. Barry and Berkes were pre-
sent at the arbitration, as the Company’s representatives, and nei-
ther commented on Avery’s presence. Nor did Beam contact Avery
about his absence from the plant.
Avery did not notify Beam, his supervisor, that he was at-
tending the arbitration and had never done so before. From his ex-
perience, the Company representatives advised Avery’s supervisor
he would attend the arbitration.
The next day, January 23, Avery’s supervisor directed him
to see Grant McCallum, the production manager. McCallum ques-
tioned Avery about his absence from work the previous day. At
McCallum’s request, Avery provided a handwritten statement ex-
plaining why he did not provide advance notice for the arbitration.
In this statement, Avery explained, “I was under the assump-
tion that by me being the acting president of the Union that the
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8 Opinion of the Court 21-11791
company would inform my supervisor and let him or her know
that I would be excused from work. At least that’s how it’s been
done in the past.”
On January 26, Avery was called to another meeting about
the arbitration, but this time Avery was joined by Barry, Berkes,
McCallum, and a union steward. Barry explained the “higher-ups”
wanted Avery discharged, but he did not. So McCallum presented
Avery with a last chance agreement. Avery objected, asserting he
had never provided notice to a supervisor before attending an arbi-
tration. But Barry read Section 16.3 of the unilaterally implemented
collective-bargaining agreement, which required union officials to
give the Company a week’s advance notice if they needed unpaid
union leave to attend “third step grievance meetings, arbitration
hearings, and labor negotiations” and “union conventions or meet-
ings.”1
Based on Barry’s warning, a failure to sign the last-chance
agreement would be considered a voluntarily resignation, so Avery
signed. The agreement included a one-day suspension and required
Avery to notify his supervisor of an absence at least one hour be-
fore the scheduled start time. It also stated that Section 16.3 of the
implemented terms and conditions of employment required Avery
“to provide the Company in writing a one (1) weeks’ notice in
1
Unlike under the expired collective-bargaining agreement, the Company had
required advance notice only for union conventions or meetings, and it would
notify employees’ direct supervisors of planned attendance at meetings be-
tween the Company and the Union.
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21-11791 Opinion of the Court 9
advance of the need for leave for union officials or other employees
attending union conventions or meetings, including third step
grievance meetings, arbitrations hearings and labor negotiations.”
The agreement noted, “If you are required to be off on un-
ion business leave, as a union official you will agree to provide the
Company one (1) weeks’ notice in advance of your need for union
leave in accordance with Article 16, section 16.3.” By its terms, the
agreement remained in effect for the next 12 months and provided
that another “no show” or any violation of the Company’s policies,
rules, or regulations would result in termination. In response, the
Union filed an unfair-labor-practice charge with the Board regard-
ing the last-chance agreement.
F
The matter reached a turning point less than six months
later, on June 1, 2018. That morning Avery began his break at about
9:12 a.m. in the break room. At 9:21 a.m., while still on break,
Avery received a call from a hearing officer with the Alabama Un-
employment Office. To hear better, Avery stepped outside the
break room. The unemployment hearing officer stated that he was
calling Avery about a case involving a discharged coworker, Willie
May, and asked whether Avery was “potentially going to be serv-
ing as a representative.” Avery replied, “Yes.” Avery also had a
pending grievance regarding May’s discharge, with a meeting
scheduled for June 7.
After contacting Avery, the hearing officer brought the
other parties onto the call and officially started the unemployment
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10 Opinion of the Court 21-11791
hearing. He introduced the parties on the call as claimant May, his
representative Union vice-president Avery, company representa-
tive Kellen Anderson, and company witness Barry. All the other
participants, except Avery, called into the hearing.
Avery agreed to participate in the call, which he did not con-
sider a personal call, because he believed he needed to cooperate
with a governmental agency. He had not expected the call and re-
ceived no earlier written notification from the unemployment of-
fice. Nor had Avery discussed with May being a witness or repre-
sentative.
Avery’s portion of the call lasted 31 minutes. During the call
Avery walked to the water truck and stood outside it. The plant
was already watered down, and the grounds were wet. During the
call, no slurry was running, and Avery had no trucks to load.
Avery’s participation was limited to asking one question to Barry
and making a statement on May’s behalf. After the call, at 9:52 a.m.,
Avery retrieved diesel fuel from the maintenance shop, topped off
the slurry machine, and resumed his work activities with the water
truck.
Barry said nothing to Avery during the hearing and raised
no concerns or objections to Avery’s presence on the call. Avery
did not report the time to anyone because he thought the call was
work-related, particularly with Barry on the line, and because the
Company knew he was on the call. Neither Joey Hemphill, acting
as Avery’s supervisor that day, nor any other supervisor said any-
thing to Avery while he was on the call. Nor did anyone ask him
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21-11791 Opinion of the Court 11
where he was after the call ended or object to management about
Avery’s work that day.
After the unemployment hearing call concluded, Barry noti-
fied Berkes that Avery was on the unemployment hearing call and
asked her to investigate whether he was present at work that day.
Human Resources directed McCallum, the plant manager, to speak
with Avery about the call and determine whether Avery alerted
anyone about it.
Four days later, on June 5, McCallum questioned Avery
whether he let anyone know of his participation in the unemploy-
ment hearing. Avery showed his phone log to McCallum and ex-
plained the call was unexpected and came in during his break.
On June 6, in a follow up conversation, McCallum asked
Avery to provide a written statement. The statement, submitted
on June 7, at 7:30 a.m., detailed:
On Friday June 1, 2018 while on my break I
received a phone call at 9:21 a.m. from an Agent of
the Unemployment Office. The call was in regards
to Willie May filing for unemployment. The Agent
said that [May] told him to call me. [The Agent] then
told me that he had [May], Stacey Barry and some-
one else from the company . . . waiting to be confer-
enced in for a hearing on the matter of [May’s] un-
employment. I assumed that I was supposed to par-
ticipate being that Human Resources was involved
and that I was called. I’ve never been involved in this
before.
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Avery told McCallum he was willing to have his pay docked
for the telephone call. McCallum had the power to change Avery’s
time but did not do so.
Around 9:00 a.m. on June 7, McCallum explained the Com-
pany had “looked over everything” and Avery was being sus-
pended pending an investigation. Avery told McCallum he thought
he was supposed to take the call and asked why he was being sus-
pended. McCallum’s response was Avery performed “[u]nion busi-
ness on company time.”
Later that morning, after Avery left the facility, Berkes called
Avery and asked him to meet with her. At the meeting, with the
Union president Wilson in attendance, Avery told Berkes he did
not know about the call from the unemployment office in advance,
he had received nothing in the mail about the hearing, the hearing
officer called him, and he was not sure if he was May’s representa-
tive at the hearing. He added May called him about 3 days before
the hearing about the status of his pending termination grievance
and his job search. Avery also provided Berkes with a screenshot of
the phone call, which confirmed the unemployment office called
him at 9:21 a.m. and the call lasted 31 minutes.
Avery asked Berkes what all the questionings were about.
She suggested Avery had performed “[u]nion business on company
time” when he participated in the phone call. Avery again ex-
plained he thought he was supposed to take the call, and suggested
that if the concerns centered on his time, then his pay should be
reduced. Berkes rejected Avery’s suggestion, and countered that
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21-11791 Opinion of the Court 13
Avery claimed the same lack of knowledge when confronted about
the January 2018 arbitration.
On June 11, Berkes met with Avery and told him the Com-
pany terminated his employment. Avery was given a termination
letter, which Berkes drafted. The letter referenced the last-chance
agreement Avery signed and his awareness of the Company’s poli-
cies in its handbook. The letter also specified:
Based on our investigation, it appears that
you failed to properly notify your leadership of your
intentions of participating in an unemployment
hearing call on June 1, 2018 while still on work time.
You admitted that you never made an effort prior to
or immediately after the call to notify your supervi-
sor that you were on this call when you were sup-
posed to be working.
***
You claimed that you were not sure if you
were called as a witness or a representative. How-
ever, our Investigation indicates that you were not
sworn in as a witness, did not act as a witness, and
instead acted as a representative for Willie May dur-
ing the hearing.
***
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14 Opinion of the Court 21-11791
You clearly had no intentions of ever notify-
ing management about falsely reporting your time
while getting paid for this time off the job.
The termination letter mentioned Avery acting as May’s
representative rather than a witness because, according to Berkes,
as a representative “he should have requested time off as union
business[,]” and he should have asked the hearing officer to wait
until he obtained supervisory approval to continue on the call.
On November 20, 2018, the Company issued a memoran-
dum entitled “Important Cellphone and Returning from Break
Timely Memo.” It stated:
In support of some recent labor charges, the
Union has alleged that the Company does not uni-
formly enforce its guidelines and policies prohibiting
the use of cellphones during working time and re-
quiring employees to return to work from breaks in
a timely manner. The Company wants to make sure
everyone fully understands expectations related to
cellphone use at the plants and the need to follow
break policies. In addition, the Company wants to
make sure these guidelines and policies are enforced
in a consistent manner.
The memo provided guidelines explaining cell phones
should be used only during scheduled work breaks in certain areas
and that employees would face disciplinary action for failing to
timely return to work after breaks.
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21-11791 Opinion of the Court 15
Employees, including Wilson, continued to use their cell
phones for personal use without receiving discipline.
II
The Union filed with the Board unfair labor practice charges
against the Company because it suspended and ultimately termi-
nated Avery for engaging in protected activity, union activity, or
both. After an investigation, the Board’s General Counsel issued a
consolidated complaint alleging the Company violated Section
8(a)(3) and (1) of the Act, 29 U.S.C. § 158(a)(3) and (1), by suspend-
ing and discharging Avery for engaging in union activity when he
participated in an unemployment hearing on behalf of a discharged
former coworker.
An administrative law judge (“ALJ”) heard evidence on
these charges and issued a decision finding the Company’s actions
were unlawful under both grounds alleged. The ALJ determined
Avery’s participation in the unemployment hearing was protected
concerted activity and there was direct evidence Avery’s employ-
ment was terminated because of his union activity. The ALJ also
found circumstantial evidence of “unlawful animus” in the Com-
pany’s investigation and shifting explanations for its adverse ac-
tions.
In reaching her decision, the ALJ explained, besides basing
her credibility rulings on the observation of witness demeanor, she
relied “on a variety of factors, including, but not limited to, the con-
text of the witness testimony, the weight of the respective evi-
dence, established or admitted facts, inherent probabilities, and
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16 Opinion of the Court 21-11791
reasonable inferences that may be drawn from the record as a
whole.” The ALJ gave specific reasons for discrediting certain testi-
mony, including the Company’s repeated use of leading questions
and its reliance on hearsay and contradictory statements and incon-
sistencies between witness testimony and the Company’s own doc-
uments.
For example, in discrediting Barry, the ALJ found his testi-
mony misleading, contrary to documentary evidence, and “exter-
nally inconsistent” with Berkes’ admissions that she included cer-
tain statements in the discharge letter based on Avery’s union ac-
tivity. Similarly, in discrediting McCallum, the ALJ found his “tes-
timony was frequently generalized and incorrect.” But in crediting
Avery’s testimony that McCallum told him he was suspended for
conducting union business, while discrediting McCallum’s denial,
the ALJ noted the latter’s “weak” denial was “externally incon-
sistent with Berkes’ admissions regarding the termination letter.”
Given Berkes’ admissions about the termination letter, the ALJ
found it “difficult to believe Berkes’ testimony that the group meet-
ing [to discuss Avery’s status] did not consider Avery’s role at the
unemployment hearing.”
On review, the Board affirmed the ALJ’s rulings, findings,
and conclusions, and adopted the recommended Order with mod-
ifications. The Board agreed with the ALJ that the Company vio-
lated Sections 8(a)(3) and (1) of the Act by suspending and discharg-
ing Avery for engaging in union activity. But the Board passed on
the ALJ’s recommended finding of a Section 8(a)(1) violation for
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21-11791 Opinion of the Court 17
the Company “suspending and discharging Avery for engaging in
protected concerted activity and based upon an overbroad applica-
tion of Sec. 16.3 of the collective-bargaining agreement.”
The Board agreed with the ALJ “that Sec. 16.3 was inappli-
cable to Avery’s cell phone participation in the hearing while at
work, and that the Respondent’s reliance on that provision and on
an alleged cell phone policy that did not exist at the time of the
events at issue was pretextual.” The Board explicitly found:
General Counsel met his initial burden of proving
that the suspension and discharge were motivated by
animus against Avery’s union activity, we first note
that Avery, the Charging Party Union’s vice presi-
dent, was engaged in union activity when he partici-
pated in the hearing, and that the Respondent knew
as much because its director of human resources was
also on the call. As further evidence of knowledge and
direct evidence of animus, we rely on the statements
by two of the Respondent’s officials, Senior Human
Resources Manager Emily Berkes and Production
Manager Grant McCallum, that Avery was suspended
and discharged for engaging in “union business.” As
the [ALJ] correctly stated, “[t]hese statements alone
are ‘independently sufficient to demonstrate unlaw-
ful discrimination,’” quoting from Tito Contractors,
Inc., 366 NLRB No. 47, slip op. at 5 (2018), enfd. 774
Fed. Appx. 4 (D.C. Cir. 2019). Although the [ALJ]
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18 Opinion of the Court 21-11791
discussed several additional circumstantial evidence
factors as further supporting an inference of unlawful
antiunion motivation, we rely only on evidence of the
Respondent’s pretextual defenses and its disparate
treatment of Avery, who was suspended and dis-
charged for using his cell phone for doing “union
business” on company time, whereas the Respondent
generally permitted other employees to use their cell
phones for personal calls on working time.
The Board rejected the Company’s claimed defense that it
would have discharged Avery because he did not explain to his su-
pervisor the call and have his time corrected. Instead, the Board
concluded the Company “generally permitted employees to take
personal calls on working time, and it did not show that it has re-
quired other employees to notify their supervisor or correct their
time record after doing so.” As support for this finding, the Board
accepted that the Company discharged “one temporary employee
for multiple instances of using a cell phone on working time, but it
introduced no evidence that it has ever discharged anyone for a
single instance—except Avery, who was suspended and discharged
expressly for using a cell phone to do ‘union business.’”
The Board’s Order required the Company to cease and de-
sist from the unfair labor practices, and in any like or related man-
ner interfering with, restraining, or coercing employees in the ex-
ercise of their statutory rights.
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21-11791 Opinion of the Court 19
Affirmatively, the Order directed the Company to offer
Avery reinstatement and make him whole for any loss of earnings
because of his unlawful discharge, including by reimbursing his
search-for-work and interim employment expenses. The Order
also required the Company to post a remedial notice.
III
We affirm the Board’s Order when “its findings with respect
to questions of fact are supported by substantial evidence on the
record considered as a whole.” NLRB. v. Gimrock Const., Inc., 247
F.3d 1307, 1309 (11th Cir. 2001) (citing 29 U.S.C. § 160(e)). But
“[s]ubstantial evidence is more than a mere scintilla of evidence,”
instead it is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” NLRB v. Allied Med.
Transp., Inc., 805 F.3d 1000, 1005 (11th Cir. 2015) (quoting NLRB v.
Contemp. Cars, Inc., 667 F.3d 1364, 1370 (11th Cir. 2012)). See also
Northport Health Servs., Inc. v. NLRB, 961 F.2d 1547, 1550 (11th Cir.
1992) (stating that we will not simply “rubber stamp” the Board’s
Order). When reviewing a conclusion by the Board that a “discrim-
inatory motive” existed, we “are even more deferential” since
“most evidence of motive is circumstantial.” NLRB v. Goya Foods of
Fla., 525 F.3d 1117, 1126 (11th Cir. 2008) (quoting Vincent Indus.
Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000)).
As for an ALJ’s credibility determinations, “[a]s a general
rule courts are bound by the credibility choices of the ALJ, even if
they ‘might have made different findings had the matter been be-
fore [them] . . . de novo.’” Goya Foods of Fla., 525 F.3d at 1126
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20 Opinion of the Court 21-11791
(quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir.1984)). But
a credibility finding “will not bind the Court when they are inher-
ently unreasonable or self-contradictory or when they are based on
an inadequate reason, or no reason at all.” Id. (internal citations and
quotations omitted).
IV
In its petition for review, the Company raises four chal-
lenges to the Board’s Order. First, the Company contends the
Board’s Order is flawed because the ALJ misunderstood or misap-
plied the law, the testimony, and the evidence. Second, the Com-
pany argues the Board misapplied the Wright Line analysis. Wright
Line, a Division of Wright Line, Inc., 251 NLRB 1083, 1088-89 (1980),
enforced on other grounds, 662 F.2d 889 (1st Cir. 1981), cert. denied,
455 U.S. 989 (1982). Third, the Company alleges the Board misap-
plied the second stage of the Wright Line analysis because it simply
concluded, with no analysis, the Company did not reasonably be-
lieve Avery engaged in misconduct and its decision was not based
on Company policy and practice. And fourth, the Company claims
the Board failed to analyze whether its finding of pretext supported
a finding of unlawful discrimination.
The Company’s contentions can be summed up this way—
the Board misunderstood the facts and misapplied the law. After a
careful review of the record, however, we conclude the Board’s
finding that Avery’s discharge was motivated by anti-union animus
is well supported by substantial evidence in the record.
A
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21-11791 Opinion of the Court 21
The National Labor Relations Act prohibits terminating or
otherwise disciplining an employee because of union activity. 29
U.S.C. §§157, 158(a)(l). But “employers retain the right to discharge
workers for any number of other reasons unrelated to the em-
ployee’s union activities.” NLRB v. Transp. Mgmt. Corp., 462 U.S.
393, 394 (1983), abrogated on other grounds by Dir., Off. of Workers’
Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 276-77 (1994).
This case centers on whether the Company had a lawful mo-
tive when it discharged Avery for his participation in the unem-
ployment hearing. The Company insists it did. It had every right to
discharge Avery, the Company suggests, because he significantly
exceeded his break time, did not inform his supervisor, and did not
correct his time record.
In mixed-motive situations for both protected concerted ac-
tivity cases under Section 8(a)(1) and those arising from possible
antiunion animus under Section 8(a)(3), the Board applies the
Wright Line burden shifting test. Wright Line, 251 NLRB at 1089.
This test allows us to “to determine whether an employer violated
the Act . . . .” Ridgewood Health Care Ctr., Inc. v. Nat’l Lab. Rels. Bd.,
8 F.4th 1263, 1279 (11th Cir. 2021). The first step requires the Board
to “show by a preponderance of the evidence that a protected ac-
tivity was a motivating factor in the employer’s [adverse] decision.”
Id. (alteration in original) (quoting Northport Health Servs., Inc. v.
NLRB, 961 F.2d 1547, 1550 (11th Cir. 1992)). The second step asks
whether “the employer can show as an affirmative defense that it
would have discharged the employee for a legitimate reason
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22 Opinion of the Court 21-11791
regardless of the protected activity.” Northport Health Servs., Inc. v.
N.L.R.B., 961 F.2d 1547, 1550 (11th Cir. 1992) (quoting NLRB v.
United Sanitation Serv., 737 F.2d 936, 939 (11th Cir. 1984)). Last, “the
Board ‘may then offer evidence that the employer’s proffered ‘le-
gitimate’ explanation is pretextual.’” Ridgewood Health, 8 F.4th at
1279 (quoting Northport Health Servs., Inc., 961 F.2d at 1550).
As for motive, this “is a question of fact, and the Board may
rely upon direct and circumstantial evidence to infer anti-union
motive.” Ridgewood Health, 8 F.4th at 1279 (quoting NLRB v.
McClain of Ga., Inc., 138 F.3d 1418, 1424 (11th Cir. 1998)). Courts
recognize the unique nature of direct evidence of unlawful motiva-
tion and have treated it as “especially persuasive.” See Turnbull Cone
Baking Co. v. NLRB, 778 F.2d 292, 297 (6th Cir. 1985) (explaining
“where an employer’s representatives have announced an intent to
discharge or otherwise retaliate against an employee for engaging
in protected activity, the Board has before it especially persuasive
evidence that a subsequent discharge of the employee is unlawfully
motivated.”). Our sister court suggests when an employer admits
an employee’s union activity played a part in its decision, the ad-
mission serves to “eliminate[] any question” about its reason for
the adverse action or “other causes suggested as the basis for the
discharge.” L’Eggs Prods., Inc. v. NLRB, 619 F.2d 1337, 1343 (9th Cir.
1980) (quoting NLRB v. Ferguson, 257 F.2d 88, 92 (5th Cir. 1958)).
The Board’s finding that Avery’s discharge was motivated
by anti-union animus is a question of fact. We find substantial evi-
dence supports the Board’s conclusion that the Company violated
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21-11791 Opinion of the Court 23
the Act when it suspended and then discharged Avery for engaging
in union activity. 2
The Board properly relied on the “direct evidence of ani-
mus” consisting of statements by Berkes and McCallum—the
Company’s representatives—that Avery was disciplined for engag-
ing in union business. McCallum told Avery he was being sus-
pended “due to his union activity.” Berkes’ termination letter to
Avery also included statements reasonably construed to demon-
strate Avery’s union activity was the reason for his discipline.
These admissions were sufficient for the Board to reasonably infer
Avery’s union activities were the essence of his suspension and dis-
charge. We agree. These admissions from corporate
2 As an initial matter, the first step of the Wright Line factors requires that the
terminated employee have engaged in protected concerted activity. Union ac-
tivities are protected activities. Section 8(a)(3) of the National Labor Relations
Act prohibits employer “discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage or discourage
membership in any labor organization.” 29 U.S.C. § 158(a)(3). “An employer
violates [that section] by taking adverse employment action or changing the
terms or conditions of employment in retaliation for the union activities of its
employees.” Allied Med. Transp., 805 F.3d at 1007. The Company contends that
the Board erred in concluding that Avery engaged in protected concerted ac-
tivity by participating in the unemployment compensation hearings during
work hours. But the Board contends that Avery’s participation in the unem-
ployment hearing was union activity. We conclude that there is substantial
evidence on the record to support the Board’s finding that Avery was engaged
in union activities, even if the unemployment call occurred during work
hours.
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24 Opinion of the Court 21-11791
representatives are clear indications of the true motivations impli-
cated in Avery’s discharge. See L’Eggs Prods., Inc., 619 F.2d at 1343.
Substantial circumstantial evidence also supports the
Board’s finding that the Company was motivated to discharge
Avery because of his union activities. Avery’s discipline came de-
spite other instances when the Company’s representatives con-
tacted Avery, and the union president, about union business yet
without objection or having to account for his time. This is the es-
sence of conducting union business on company time, and without
advance notice—the suggested motivation for Avery’s discipline.
Indeed, Avery was also treated more harshly compared to
other employees who used cell phones on company time; despite
the Company’s lack of a written policy covering cell phone use at
work. The sole instance the Company ever disciplined another em-
ployee for cell phone use stands unlike Avery’s telephonic partici-
pation in the unemployment hearing. In the other situation, the
Company sent a temporary employee back to the employment ser-
vice, but only after what McCallum characterized as “multiple of-
fenses” during work time for being on his cell phone and not per-
forming work, including sitting down in the bagging section and
“surfing the web.” Significantly, the Company gave the temporary
employee multiple chances to correct his conduct. Yet Avery was
given no leniency. Avery was suspended and discharged for his first
offense.
The Board also reasonably relied on a lack of evidence of the
Company’s proffered motives for firing Avery. There was no
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21-11791 Opinion of the Court 25
evidence the Company ever terminated an employee for falsifying
records. To the contrary, the Company threatened other employ-
ees with discharge for violations, like falsely entering truck weights
to appear to be within the legal limits, but did not discharge them.
The Company provided no examples of discharging employees for
falsification of records in its Alabama facilities—even when one
employee falsified records a second time.
We find substantial evidence supports the Board’s conclu-
sion that anti-union animus was the Company’s underlying motive
to suspend and discharge Avery for engaging in union activity. See
Ridgewood Health Care Ctr., Inc., 8 F.4th at 1279.
The Board also concluded the Company’s justifications for
its actions were pretextual and need not be accepted. See Justak
Bros. & Co. v. NLRB, 664 F.2d 1074, 1077 (7th Cir. 1981) (quoting
NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965)) (sug-
gesting the company’s “explanation need not be accepted if there
is a reasonable basis for believing it ‘furnished the excuse rather
than the reason’ (an employer’s) retaliatory action.”). This conclu-
sion is amply supported by the record.
After careful review of the record, we likewise conclude sub-
stantial evidence, both direct and circumstantial, supports the
Board’s finding that Avery’s discharge was motivated by unlawful,
anti-union animus, the Board reasonably rejected the Company’s
affirmative defenses, and the Company’s attempts to justify its ac-
tions were pretext. See Northport Health Servs., Inc., 961 F.2d at 1550;
Ridgewood Health, 8 F.4th at 1279.
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26 Opinion of the Court 21-11791
The Company also faults the ALJ’s creditably findings. We
disagree. The ALJ carefully explained her credibility rulings were
based on: the observation of witness demeanor; the context of the
witness testimony; conflicts in the testimony; the weight of the ev-
idence; and reasonable inferences drawn from the record. The
ALJ’s and the Board’s credibility determinations were not “‘inher-
ently unreasonable,’ ‘self-contradictory,’ or ‘based on an inade-
quate reason,’” so we are bound by their credibility choices. Allied
Med. Transp., 805 F.3d at 1005 (quoting Goya Foods of Fla., 525 F.3d
at 1126).
We now pivot to the Company’s insistence that the Board
misunderstood the Wright Line test. These arguments are mis-
placed. The Board applied the proper legal standards, and its deci-
sion is supported by substantial evidence—direct and circumstan-
tial. We affirm the Board’s ruling that the Company violated Sec-
tion 8(a)(1) of the NLRA by discharging Avery.
IV
For all these reasons, we DENY the Company’s petition and
GRANT the Board’s cross-petition for enforcement of the Order in
full.