Ozburn-Hessey Logistics, LLC v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2016 Decided August 19, 2016
No. 14-1253
OZBURN-HESSEY LOGISTICS, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
UNITED STEEL, PAPER AND FORESTRY, RUBBER,
MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE
WORKERS INTERNATIONAL UNION,
INTERVENOR
Consolidated with 14-1289, 15-1184, 15-1242
On Petitions for Review and Cross-Applications
for Enforcement of Orders
of the National Labor Relations Board
Benjamin H. Bodzy argued the cause for petitioner. With
him on the briefs was Stephen D. Goodwin.
David A. Seid, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the briefs were
2
Richard F. Griffin, General Counsel, John H. Ferguson,
Associate General Counsel, Linda Dreeben, Deputy Associate
General Counsel, and Robert J. Englehart, Supervisory
Attorney.
Katharine J. Shaw argued the cause and filed the briefs
for intervenor. With her on the briefs was Amanda M. Fisher.
Before: PILLARD and WILKINS, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: This appeal is the latest chapter
in an ongoing labor dispute between Ozburn-Hessey
Logistics, LLC (OHL or the Company) and the United Steel,
Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union (the
Union). In 2009, the Union began a campaign to organize
workers at the OHL’s warehouse facilities in Memphis,
Tennessee. That campaign culminated in a July 27, 2011,
representation election, which the Union won by a one-vote
margin. The National Labor Relations Board (the Board)
found that the Company committed multiple unfair labor
practices during the months leading up to the representation
election. OHL violated the National Labor Relations Act, the
Board determined, by threatening, interrogating, and
surveilling employees; creating the impression of such
surveillance; confiscating union-related materials; urging
union supporters to resign; and disciplining two employees
because of their pro-union views. In that same decision, the
Board resolved pending ballot challenges and objections
arising from the July 27, 2011, representation election and
directed the Board’s Regional Director to count six of the
remaining challenged ballots, resulting in a wider margin of
3
victory for the Union. Pursuant to that revised election tally,
the Board’s Regional Director certified the Union as the
exclusive bargaining representative for the Company’s
Memphis employees. The Company nonetheless refused to
bargain with the Union, prompting a separate Board decision
determining that OHL violated the Act.
The Company petitions for review, raising multiple
objections to the Board’s underlying decisions. We have
accorded the Company’s arguments full consideration after
careful examination of the record, but address in detail only
those arguments that warrant further discussion. Having
found no basis to disturb the Board’s well-reasoned decisions,
we deny the petitions for review and grant the Board’s cross-
applications for enforcement of its orders.
I. Background
A. Facts
OHL is a third-party logistics company that provides
transportation, warehousing, and supply-chain management
services for other companies. It operates warehouses
throughout the country, including five in Memphis,
Tennessee. In May 2009, the Union began organizing
employees at OHL’s Memphis warehouses and, later that
year, filed an election petition with the Board to represent
those workers. See Hooks ex rel. NLRB v. Ozburn-Hessey
Logistics, LLC, 775 F. Supp. 2d 1029, 1035-36 (W.D. Tenn.
2011). The Union lost the ensuing representation election in
March 2010 and filed charges against OHL, alleging that the
Company committed multiple unfair labor practices during
the unionization campaign. Id. at 1035-39. The Board found
merit to those allegations and concluded in two separate
decisions that, between June 2009 and March 2010, OHL
4
violated the Act by threatening employees, confiscating union
materials, and disciplining union supporters. See Ozburn-
Hessey Logistics, LLC, 357 N.L.R.B. 1632 (2011) (Ozburn I)
(finding that OHL committed unfair labor practices between
June and October 2009), enforced mem., 609 F. App’x 656
(D.C. Cir. 2015) (per curiam judgment); Ozburn-Hessey
Logistics, LLC, 357 N.L.R.B. 1456 (2011) (Ozburn II) (finding
that Company committed unfair labor practices between
November 2009 and March 2010), enforced mem., 605 F.
App’x 1 (D.C. Cir. 2015) (per curiam judgment). 1
The Company’s challenged misconduct did not end there,
however. Just a few months after the election, OHL
disciplined employees Jennifer Smith and Carolyn Jones, on
the basis of their union-related conduct. On June 9, 2011, the
Company issued a final warning to Smith, a known union
leader who distributed union literature and handbills, solicited
coworkers to support the Union, and openly wore union hats
and shirts to work. The final warning accused Smith of
violating OHL’s anti-harassment and non-discrimination
policy by calling Stacey Williams, a fellow African-
American, a racial slur on June 8 during a heated argument
about certain office supplies. Final Employee Warning
Notice, 14 J.A. 717. Smith denied having made the
derogatory remark and refused to sign the final warning.
A few days later, on June 14, the Company fired Jones, a
known union leader who distributed union handbills and
organizing materials, solicited coworkers to support the
Union, and routinely attended union meetings. The
1
While these cases were awaiting Board review, the Union
sought, and a federal district court granted, a temporary injunction
prohibiting OHL from committing further unfair labor practices and
ordering the Company to make whole several unlawfully
disciplined employees. See Hooks, 775 F. Supp. 2d at 1034, 1053.
5
Company’s termination letter gave two reasons for Jones’s
discharge. First, the Company accused Jones of violating the
Company’s “guidelines regarding failure to cooperate with an
internal investigation” by fabricating a witness statement
about a heated verbal exchange that occurred on May 26,
2011. See Jones Termination Letter, 14 J.A. 558. On that
day, Jones had attended a meeting during which OHL
management disseminated information to employees about
union dues. Afterward, Jones went to a break room and told
her coworkers that the President supported their right to
unionize and that it was “stupid” for employees not to want a
union. ALJ Decision of May 15, 2012, 14 J.A. 740-41.
According to Jones, OHL Director of Operations Phil Smith
suddenly appeared behind her and said, “[I] just had two . . .
employees . . . sa[y] they were called stupid. . . . Well, you all
are the ones that are stupid because you’re trying to get a
union in here.” Hearing Transcript, 14 J.A. 25. Jones asked
if Phil Smith was referring to her, to which he replied, “[i]f
the shoe fits, then you wear it.” Id. When Jones explained to
Phil Smith that she did not call anybody “stupid” and tried to
end their conversation, id. at 26, Phil Smith warned her, “you
better watch your back,” id. at 26-27.
Jones soon prepared a witness statement documenting her
encounter with Phil Smith and asked her coworkers to sign it.
Four OHL employees signed the statement, which Jones then
submitted to OHL’s Human Resources Department. After
investigating the incident, OHL determined that Phil Smith
was innocent of any wrongdoing and that Jones had asked her
coworkers to sign a blank sheet of paper before she filled in
the witness statement about Phil Smith’s threatening
comment—conduct the Company characterized as fraudulent.
Second, the Company claimed that Jones was fired
because she violated the Company’s Anti-Harassment Policy
6
by repeatedly calling fellow employee Lee Smith a racial
epithet. Jones began calling Lee Smith that epithet in the
spring of 2011, shortly after he had voiced his opposition to
the Union. OHL conducted an internal investigation and
concluded that, despite her repeated denials, Jones in fact had
used the racial epithet on multiple occasions.
On June 14, 2011, the same day as Jones’s discharge, the
Union petitioned the Board for a second election to represent
workers at OHL’s Memphis warehouses. The Board held the
representation election on July 27, pursuant to a Stipulated
Election Agreement between OHL and the Union. The
parties agreed that “office clerical and professional
employees” would be excluded from the voting unit and
further stipulated that two administrative assistants would
vote subject to challenge by the Union. The Union won the
election by a vote of 165 to 164. The election tally reflected
fourteen ballot challenges, including the Company’s
challenge to Jones’s ballot and the Union’s challenge to
ballots of the two administrative assistants. OHL and the
Union thereafter each objected to the second election on
several grounds.
B. Decisions Below
1. The Unfair Labor Practice Case
Between June and September 2011, the Union filed a
series of unfair labor practice charges against OHL
challenging the Company’s conduct during the months
preceding the second representation election, including its
punishment of Jennifer Smith and Carolyn Jones. Based on
the Union’s charges, the Acting General Counsel issued a
consolidated complaint alleging, among other things, that the
Company disciplined Smith and Jones on account of their
7
union-related conduct and support in violation of section
8(a)(3) and (1) of the Act.
On May 15, 2012, the Administrative Law Judge
determined that OHL had committed the charged unfair labor
practices. As relevant here, the ALJ found that, based on
hearing testimony and other evidence, the Company violated
section 8(a)(3) of the Act by issuing a final warning to
Jennifer Smith and terminating Carolyn Jones because of their
pro-union activities and views. 2 Applying the Board’s two-
part analysis from Wright Line, 251 N.L.R.B. 1083 (1980), the
ALJ determined that anti-union animus motivated the
Company’s punishment of Smith and Jones and that the
Company’s putative justifications for meting out those
disciplinary measures were pretextual. Because the
Company’s proffered reasons for disciplining Smith and
Jones were “mere pretext[s],” ALJ Decision of May 15, 2012,
14 J.A. 746, the ALJ explained, it “fail[ed] by definition to
show that it would have taken the same [disciplinary] action
for those reasons, absent the protected conduct,” id. (quoting
Rood Trucking Co., 342 N.L.R.B. 895, 898 (2004)). The ALJ
therefore directed the Company to post an appropriate
remedial notice regarding its violations of the Act and
imposed three additional remedies. The ALJ ordered OHL
(1) to distribute electronically the remedial notice to all unit
employees; (2) to have the notice read aloud to the Memphis
employees by a Board representative in the presence of two
designated OHL managers; and (3) to cease and desist from
committing the charged unfair labor practices and from
otherwise violating the Act.
2
The ALJ also found that the Company violated section
8(a)(1) by threatening and interrogating employees, surveilling
employees, creating the impression of surveillance, confiscating
union materials, and telling pro-union employees to resign.
8
In the same decision, the ALJ resolved the pending ballot
challenges and objections arising from the second
representation election. After ruling on the parties’ electoral
disputes largely in the Union’s favor, the ALJ issued a
recommended order to count six of the remaining ten
challenged ballots. The ALJ further recommended that, if the
Union did not prevail after those six votes were counted, the
Regional Director should invalidate the second election so
OHL employees could vote in a third, untainted election.
On May 2, 2013, the Board affirmed the ALJ’s rulings,
findings, and conclusions, rejected all of OHL’s exceptions to
the ALJ’s decision, and adopted the ALJ’s remedial order,
with one modification. 3 Ozburn-Hessey Logistics, LLC, 359
NLRB No. 109, at *1-4 & n.2 (2013) (Ozburn III). The
Board “agree[d]” with the ALJ’s findings that OHL
“discharged employee Carolyn Jones for engaging in
protected activity” and “unlawfully issued employee Jennifer
Smith a written final warning in retaliation for her prounion
activity.” Id. at *1-2. “[A]dditional circumstances,” the
Board emphasized, supported the ALJ’s conclusion that
Jennifer Smith’s discipline was unlawful. Id. at *2. The
Board found that, based on the credited evidence, OHL’s
“purported belief that Smith used a racial slur was not
reasonable.” Id. The Board also determined that OHL “was
highly inconsistent in its response to racial slurs,” noting that
the Company readily applied its Anti-Harassment Policy
against pro-union employees Jones and Smith, while
overlooking grossly offensive statements by OHL supervisor
Phil Smith. Id. That uneven treatment, the Board concluded,
3
The Board’s amended remedy afforded OHL the option to
have its own managers read the notice aloud to employees in the
presence of a Board representative.
9
suggested that OHL “was using its antiharassment policy to
target union supporters, further corroborating the [ALJ’s]
finding of pretext.” Id. Finally, the Board adopted the ALJ’s
resolution of the parties’ election objections and ballot
challenges and thus directed the Regional Director to count
six of the challenged ballots. Id. at *3-5. OHL petitioned for
review of the Board’s May 2013 Decision.
In compliance with the Board’s May 2013 Decision, the
Regional Director issued a revised election tally of 169-166 in
the Union’s favor and, on May 24, 2013, certified the Union
as the exclusive bargaining representative for the designated
employee unit. In June 2013, OHL refused the Union’s
request to bargain, prompting the Union to file charges under
the Act. Pursuant to those charges, the Acting General
Counsel filed a complaint alleging that OHL’s refusal to
bargain with the Union violated section 8(a)(5) and (1) of the
Act.
The following year, the Supreme Court decided NLRB v.
Noel Canning, 134 S. Ct. 2550 (2014), which invalidated the
appointments of two Board members on the panel that had
issued the Board’s May 2013 Decision on the unfair labor
charges. On June 27, 2014, the Board set aside that decision
in light of Noel Canning and retained the case on its docket.
On November 17, 2014, upon de novo review of the
ALJ’s decision, a lawfully constituted panel of the Board
affirmed the ALJ’s rulings, findings, and conclusions and
adopted with modification the recommended remedial order
“to the extent and for the reasons stated” in its May 2013
Decision, which the Board expressly incorporated by
reference. Ozburn-Hessey Logistics, LLC, 361 NLRB No.
100, at *1 (2014) (Ozburn IV). Although the Board found
that the Regional Director lawfully certified the Union based
10
on an accurate, revised tally of the representation election, it
nevertheless issued a new Certification of Representative “in
an abundance of caution.” Id. at *1. Shortly thereafter, OHL
petitioned for review of the Board’s November 2014
Decision, and the Board cross-applied for enforcement of the
same. The two unfair-labor-practice cases were consolidated,
and the Union intervened.
2. The Refusal To Bargain Case
Meanwhile, in December 2014, the Union sent another
letter to OHL requesting that the Company bargain, and OHL
once more refused. The following month, with the Board’s
permission, the General Counsel amended its complaint to
allege that the Company in 2014 had again refused to bargain
in violation of section 8(a)(5) and (1) of the Act. OHL
admitted that it had refused to bargain with the Union, but
asserted that it was not obligated to do so because the Board
had erred in resolving the ballot challenges, overruling the
Company’s election objections, and certifying the Union.
OHL also sought dismissal of the General Counsel’s
complaint on the ground that the Union never filed a new
charge following the Board’s 2014 Certification of
Representative.
On June 15, 2015, the Board issued a Decision and Order
finding that OHL’s refusal to bargain with the Union was
unlawful under section 8(a)(5) and (1) of the Act. See
Ozburn-Hessey Logistics, LLC, 362 NLRB No. 118, at *1-5
(2015) (Ozburn V). The Board rejected the Company’s
efforts to relitigate the ballot challenges and election
objections previously adjudicated in the Board’s November
2014 Decision and found no merit to the Company’s
contention that the General Counsel’s amended complaint
was procedurally infirm for want of a separately filed charge
11
after the Board certified the Union in 2014. See id. at *2.
OHL petitioned for review of the Board’s 2015 Decision, and
the Board cross-applied for enforcement. The two refusal-to-
bargain cases were consolidated, and the Union intervened.
After briefing was completed, we granted the Company’s
request to consolidate the refusal-to-bargain cases with the
unfair-labor-practice cases. We have jurisdiction over the
consolidated appeals under 29 U.S.C. § 160(e) and (f).
II. Analysis
A. Standard of Review
We “accord[] a very high degree of deference to
administrative adjudications by the [Board]” and reverse its
findings “only when the record is so compelling that no
reasonable factfinder could fail to find to the contrary.”
Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C.
Cir. 2011) (internal quotation marks omitted). Under that
very deferential standard, we “must uphold the judgment of
the Board unless, upon reviewing the record as a whole, we
conclude that the Board’s findings are not supported by
substantial evidence, or that the Board acted arbitrarily or
otherwise erred in applying established law to the facts of the
case.” Tenneco Auto., Inc. v. NLRB, 716 F.3d 640, 646-47
(D.C. Cir. 2013) (quoting Wayneview Care Ctr. v. NLRB, 664
F.3d 341, 348 (D.C. Cir. 2011)). We also “owe substantial
deference to inferences drawn by the Board from the factual
record,” Tenneco, 716 F.3d at 647 (internal quotation marks
omitted), and “[o]ur review of the Board’s conclusion as to
discriminatory motive is even more deferential, because most
evidence of motive is circumstantial,” Fort Dearborn Co. v.
NLRB, --- F.3d ---, 2016 WL 3361476, at *3 (D.C. Cir. Apr.
12, 2016) (reissued June 17, 2016) (internal quotation marks
12
omitted); see also Citizens Inv. Servs. Corp. v. NLRB, 430
F.3d 1195, 1198 (D.C. Cir. 2005). Furthermore, we “will
uphold the Board’s adoption of an ALJ’s credibility
determinations unless those determinations are hopelessly
incredible, self-contradictory, or patently unsupportable.”
United Servs. Auto. Ass’n v. NLRB, 387 F.3d 908, 913 (D.C.
Cir. 2004) (internal quotation marks omitted).
B. Section 8(a)(3) Violations
OHL first challenges the Board’s determination that it
violated section 8(a)(3) and (1) of the Act by issuing a final
warning to Jennifer Smith and terminating Carolyn Jones on
account of their union-related activity.
Under section 8(a)(3), it is “an unfair labor practice for an
employer . . . to encourage or discourage membership in any
labor organization” by “discriminati[ng] in regard to hire or
tenure of employment or any term or condition of
employment.” 29 U.S.C. § 158(a)(3). An employer violates
section 8(a)(3) “by taking an adverse employment action,
such as issuing a disciplinary warning, in order to discourage
union activity.” Tasty Baking Co. v. NLRB, 254 F.3d 114,
125 (D.C. Cir. 2001); see Fort Dearborn, 2016 WL 3361476,
at *3. And an employer that violates section 8(a)(3)
derivatively violates section 8(a)(1)’s prohibition on
“interfer[ing] with, restrain[ing], or coerc[ing] employees in
the exercise of the rights guaranteed in section [7 of the Act],”
29 U.S.C. § 158(a)(1). See Metro. Edison Co. v. NLRB, 460
U.S. 693, 698 n.4 (1983).
Where, as here, an employer purports to have disciplined
or discharged an employee for reasons unrelated to protected
union activity, the Board applies the so-called Wright Line
test. Fort Dearborn, 2016 WL 3361476, at *3; Shamrock
13
Foods Co. v. NLRB, 346 F.3d 1130, 1135 (D.C. Cir. 2003).
Under that test, the General Counsel “must first make a prima
facie showing sufficient to support the inference that
protected [i.e., union-related] conduct was a motivating factor
in the . . . adverse action.” Tasty Baking, 254 F.3d at 125
(alteration and omission in original) (internal quotation marks
omitted). “Relevant factors” in determining an employer’s
motive “include ‘the employer’s knowledge of the
employee’s union activities, the employer’s hostility toward
the union, and the timing of the employer’s action.’” Fort
Dearborn, 2016 WL 3361476, at *3 (quoting Vincent Indus.
Plastics, Inc. v. NLRB, 209 F.3d 727, 735 (D.C. Cir. 2000));
see Fortuna Enters., LP v. NLRB, 665 F.3d 1295, 1303 (D.C.
Cir. 2011). “Once a prima facie case has been established, the
burden shifts to the company to show that it would have taken
the same action in the absence of the unlawful motive.” Tasty
Baking, 254 F.3d at 126.
OHL does not seriously dispute the Board’s conclusion
that the General Counsel met his initial burden, at the first
step of the Wright Line analysis, to show that union animus
motivated the Company’s decisions to issue a warning to
Jennifer Smith and discharge Carolyn Jones. Nor could it.
Substantial evidence in the record supports the Board’s
findings that Smith and Jones were active supporters of the
Union, that OHL had knowledge of their union-related
conduct, and that OHL harbored animus toward the Union
and its supporters. See Fort Dearborn, 2016 WL 3361476, at
*3; Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994).
OHL instead contends that the Board misapplied the
Wright Line test by denying the Company a meaningful
opportunity to show, at the second step of the Wright Line
analysis, that it would have issued a final warning to Smith
and discharged Jones even in the absence of the allegedly
14
unlawful motive. The Board further erred, OHL claims, by
concluding arbitrarily and without any basis in the record that
the Company’s proffered justifications for disciplining Smith
and discharging Jones were pretextual.
1. The Board’s Application of the Wright Line Test
We first consider OHL’s argument that the Board erred
by affirming what OHL characterized as the ALJ’s
misapplication of the Wright Line test. According to OHL,
the ALJ sidestepped the full Wright Line analysis by
concluding that, “[i]f the employer’s proffered defenses are
found to be a pretext, i.e., the reasons given for its actions are
either false or not, in fact, relied on, the employer fails by
definition to show that it would have taken the same action
for those reasons,” rendering it unnecessary “to perform the
second part of the Wright Line analysis.” ALJ Decision of
May 15, 2012, 14 J.A. 746. OHL argues that the ALJ’s
approach, which the Board subsequently affirmed and
adopted, impermissibly skipped over the second step of
Wright Line and thus abridged the Company’s opportunity to
rebut the General Counsel’s prima facie showing that it
disciplined Smith and Jones for unlawful reasons.
Neither the ALJ nor the Board deviated from the
analytical approach set forth in Wright Line. Applying that
test, the ALJ determined that the Company’s decisions to
punish Smith and Jones were motivated by anti-union animus
and rejected each of the reasons the Company claimed to have
relied on in taking those disciplinary actions. In doing so, the
ALJ did not, as OHL contends, deny it the opportunity to
present its affirmative defenses: the ALJ allowed the
Company to advance its defenses but, after considering them
in light of the record, concluded that they were “mere
pretext[s].” ALJ Decision of May 15, 2012, 14 J.A. 746.
15
Nothing in Wright Line forecloses that approach and,
indeed, the Board’s precedent interpreting and applying
Wright Line expressly authorizes it. In Rood Trucking, for
example, the Board clarified that:
[a] finding of pretext defeats any attempt by the
[company] to show that it would have discharged the
discriminate[e]s absent their union activities . . .
because where “the evidence establishes that the
reasons given for the [company’s] action are
pretextual—that is, either false or not in fact relied
upon—the [company] fails by definition to show that
it would have taken the same action for those reasons,
absent the protected conduct, and thus there is no
need to perform the second part of the Wright Line
analysis.
342 N.L.R.B. at 898 (quoting Golden State Foods Corp., 340
N.L.R.B. 382, 385 (2003)); see also Limestone Apparel Corp.,
255 N.L.R.B. 722 (1981) (“[W]here an administrative law judge
has evaluated the employer’s explanation for its action and
concluded that the reasons advanced by the employer were
pretextual, that determination constitutes a finding that the
reasons advanced by the employer either did not exist or were
not in fact relied upon.”). Accordingly, the ALJ’s articulation
of the legal standard comported with the Board’s guidance in
Rood Trucking.
The Company insists that even if Rood Trucking
countenances the ALJ’s approach here, that decision
“contravenes Wright Line” by “preclud[ing] the burden from
ever shifting” to the Company, resulting in the Board
“mak[ing] a premature declaration of pretext without ever
considering the employer’s justification for the disciplinary
16
decision.” 14 Petitioner’s Reply Br. 15-16. To the extent that
OHL asserts that the ALJ failed to consider the Company’s
defenses, it has mischaracterized the ALJ’s decision, which
considered OHL’s proffered reasons and found them to be
pretextual. To the extent that OHL claims legal error, we
decline its invitation to overturn Rood Trucking. To begin,
that decision constitutes the Board’s well-reasoned
“interpretation of its own precedent” in Wright Line and
therefore “is entitled to deference.” Ceridian Corp. v. NLRB,
435 F.3d 352, 355 (D.C. Cir. 2006) (internal quotation marks
omitted). Even absent such deference, however, we perceive
no conflict between Rood Trucking and the Wright Line test.
To be sure, Wright Line dictates that an employer may
rebut the General Counsel’s initial showing of union animus
by establishing that it “would have taken the same [adverse]
action [against the employee] in the absence of” the unlawful
motive. 251 N.L.R.B. at 1091. Rood Trucking’s logic is not to
the contrary. If the Board concludes, as it did here, that the
employer’s purported justifications for adverse action against
an employee are pretextual, then the employer fails as a
matter of law to carry its burden at the second prong of
Wright Line. See Rood Trucking, 342 N.L.R.B. at 898. Indeed,
the Board has articulated the Wright Line framework in
similar, if not identical, terms in numerous decisions both
before and since Rood Trucking. See, e.g., Ozburn II, 357
N.L.R.B. at 1456 n.3 (“We agree with the judge that the
[Company’s] proffered reason for terminating [the employee]
was shown to be pretextual, and that the [Company] therefore
failed to rebut the Acting General Counsel’s initial case by
showing it would have terminated [the employee] in the
absence of her union support.”); U-Haul of Cal., 347 N.L.R.B.
375, 388-89 (2006), enforced mem., 255 F. App’x 527 (D.C.
Cir. 2007) (judgment); Golden State Foods, 340 N.L.R.B. at
385; In re Sanderson Farms, Inc., 340 N.L.R.B. 402, 402
17
(2003). Courts, too, have formulated the Wright Line burden-
shifting test consistently with both Rood Trucking and the
ALJ’s decision here. See, e.g., USF Red Star, Inc. v. NLRB,
230 F.3d 102, 106 (4th Cir. 2000) (“If the Board believes the
employer’s stated lawful reasons are non-existent or
pretextual, the [employer’s affirmative] defense fails.”); cf.
NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 398 (1983),
abrogated on other grounds by Dir., Office of Workers’
Comp. Programs, Dep’t of Labor v. Greenwich Collieries,
512 U.S. 267 (1994). Because the ALJ correctly adhered to
the Board’s decisions in Wright Line and Rood Trucking, the
Board did not err in affirming and adopting the ALJ’s
articulation of the controlling legal standard.
2. Final Warning of Jennifer Smith
We next turn to OHL’s contention that the Board
arbitrarily found that the Company’s asserted justification for
issuing a final warning to Jennifer Smith—namely, that she
violated OHL’s Anti-Harassment Policy by calling her
coworker Stacey Williams a racial slur—“was a mere
pretext.” ALJ Decision of May 15, 2012, 14 J.A. 746. That
challenge misses the mark.
The ALJ determined, and the Board agreed, that Smith
never used that racial epithet. In reaching that determination,
the ALJ credited Smith’s testimony that she never called
Williams any such name because he “found her to be an
honest [and cooperative] witness.” Id. at 741. Smith’s
account, the ALJ emphasized, was consistent with the
accounts of other credible witnesses who observed the
altercation. Jennifer Smith’s co-worker, Jerry Smith, testified
that he would have heard the racial slur if Smith had actually
said it because he was “focused enough on what was going
on,” but that he did not hear it. Testimony of Jerry Smith, 14
18
J.A. 266-67. Likewise, Sheila Childress, a co-worker who
witnessed the altercation from about thirty feet away, stated
that she did not hear Smith utter the epithet. The ALJ
expressly discredited Stacey Williams’s testimony that
Jennifer Smith addressed him with a racial slur because he
“was a confusing, hostile, and argumentative witness,” whose
testimony was “disjointed.” ALJ Decision of May 15, 2012,
14 J.A. 741. The ALJ also found that OHL employee Shirley
Milan, who corroborated Williams’s account of events, was
“a biased witness, who previously made an unsubstantiated
claim that Smith threatened her with a knife, and who also
conceded that she dislikes Smith.” Id. We decline to disturb
the Board’s adoption of those credibility findings, which rest
on substantial record support and are certainly not reversible
as “hopelessly incredible, self-contradictory, or patently
unsupportable.” United Servs. Auto. Ass’n, 387 F.3d at 913
(internal quotation marks omitted); see Monmouth Care Ctr.
v. NLRB, 672 F.3d 1085, 1091-92 (D.C. Cir. 2012) (declining
to overturn administrative law judge’s credibility
determination “based on a combination of testimonial
demeanor and a lack of specificity and internal
corroboration”).
OHL nevertheless maintains that, even accepting the
Board’s factual finding that Jennifer Smith did not use a racial
slur against Stacey Williams, OHL reasonably believed that
she did based on the evidence at its disposal, and punished her
accordingly. Its reasonable belief, OHL claims, was
sufficient to rebut the General Counsel’s prima facie case of
anti-union motive at the second prong of the Wright Line
analysis. In support of that contention, OHL invokes our
decision in Sutter East Bay Hospitals v. NLRB, 687 F.3d 424
(D.C. Cir. 2012), where we held that “[i]f [a company’s]
management reasonably believed [the employee’s] actions
occurred, and the disciplinary actions taken were consistent
19
with the company’s policies and practice, then [a company]
could meet its burden under Wright Line regardless of what
actually happened.” Id. at 435-36; see also Fort Dearborn,
2016 WL 3361476, at *6.
Sutter East Bay is of little aid to OHL because, as the
Board concluded, “the record establishes that [OHL’s]
purported belief that Smith used a racial slur was not
reasonable.” Ozburn III, 359 NLRB No. 109 at *2 (emphasis
added), incorporated by reference in Ozburn IV, 361 NLRB
No. 100. The Board found that the credited testimony of
Jennifer Smith, Childress, and Jerry Smith, outlined above,
severely undercut the reasonableness of the Company’s belief,
which was based on the accounts of biased and incredible
witnesses. Id. In fact, the day before the Company issued
Jennifer Smith the final warning, Childress furnished to the
Company a signed statement explaining that she did not hear
Smith use any racial epithet during the verbal altercation with
Williams, giving the Company a significant reason to doubt
Williams’s allegation.
The Board also determined that “credited evidence in the
record” established “that [OHL] did not believe that the use of
racial slurs merited discipline.” Id. Most tellingly, that
record evidence showed that OHL supervisor Phil Smith was
not disciplined at all after hurling highly offensive racial and
homophobic slurs at employees in front of other managers
and employees. And several other witnesses testified that use
of racial slurs was commonplace among the workers at
OHL’s Memphis warehouses. Based on that and other
credited record evidence, the Board reasonably inferred that
OHL acted “inconsistent[ly] in its response to racial slurs”
and “was using its antiharassment policy to target union
supporters.” Ozburn III, 359 NLRB No. 109 at *2; see also
infra 23-25. Consequently, the Company cannot avail itself
20
of Sutter East Bay’s safe harbor, because, as the Board found,
it has not shown that it reasonably believed Jennifer Smith
used a racial epithet or that “it parceled out discipline as it
normally would when confronted with the same kind of
employee misconduct that its managers reasonably believed
had occurred.” See Fort Dearborn, 2016 WL 3361476, at *6.
The Board reasonably concluded, consistent with the
evidence, that, “even assuming [OHL] reasonably believed
that Smith had used a racial epithet,” the Company “could not
and did not establish that it would have disciplined her in the
absence of the union activity.” Ozburn III, 359 NLRB No.
109 at *2. We owe heightened deference to that well-
reasoned assessment of the Company’s discriminatory motive
and find no basis in the law or record to question the Board’s
determination that OHL’s proffered reason for disciplining
Smith was mere pretext. See Fort Dearborn, 2016 WL
3361476, at *3.
In sum, substantial evidence supports the Board’s
findings that Smith never used the alleged racial slur and that
it was unreasonable for the Company to believe that she did.
We therefore deny OHL’s petition for review, and grant the
Board’s cross-application for enforcement, of the Board’s
decision that OHL’s discipline of Smith violated section
8(a)(3) and (1) of the Act.
3. Discharge of Jones
OHL also challenges the Board’s determination that the
Company’s two putative justifications for terminating Jones
were pretextual. OHL maintains that it fired Carolyn Jones
for two legitimate reasons unrelated to her union support and
activity: (1) she violated the Company’s conduct guidelines
by fabricating a witness statement that supervisor Phil Smith
threatened her with the warning, “watch your back”; and (2)
21
she violated the Company’s Anti-Harassment Policy by
repeatedly using a racial slur against co-worker Lee Smith.
The Board found those reasons to be pretextual. We affirm
that finding.
a. Discharge Reason # 1: OHL Claims Jones
Fabricated Her Witness Statement
Substantial evidence supports the Board’s conclusion that
Carolyn Jones did not fabricate her witness statement
regarding Phil Smith’s alleged threat. All four witnesses who
signed the statement—Annie Ingram, Troy Hughlett, James
Bailey, and Kedric Smith—confirmed that they heard Phil
Smith tell Jones that she had better watch her back. And at
least two of those witnesses, Ingram and Hughlett, credibly
testified that the witness statement prepared by Jones had
some text on it before they had signed it, undercutting the
Company’s suggestion that Jones prepared the witness
statement only after obtaining the signatures. Kedric Smith
testified that Jones handed him a blank page to sign, but the
Board discounted that testimony because it found he had poor
recall of the pertinent issues. We decline to overturn the
Board’s well-reasoned credibility findings, which rested on a
comparison of “testimonial demeanor,” “specificity,” and
“internal corroboration.” Monmouth Care Ctr., 672 F.3d at
1091-92. The Board thus reasonably concluded, based on the
credible evidence, that Jones did not fraudulently manufacture
her witness statement.
Relying once more on our precedent in Sutter East Bay,
687 F.3d at 435-36, OHL insists that it reasonably believed
that Jones falsified her statement because all four witnesses
who signed her statement had given written statements
confirming that Jones handed them a blank page to sign. But
the Board concluded, based on the credible testimony of
22
Ingram, Hughlett, and Bailey, that OHL pressured or deceived
at least the three of them into signing false written statements
to that effect. Ingram testified that that Human Resources
Manager Evangelia Young interviewed her, gave her a blank
piece of paper to sign, and subsequently added false text
about Jones—notably, the very actions of which OHL accuses
Jones. Bailey testified that Young asked him to sign a
prepared statement confirming that Jones had given Bailey a
blank witness statement to sign. Although Bailey admits to
signing Young’s prepared statement, he testified that he did
not closely inspect the document because he assumed Young
was accurately writing “down what [he] said,” and that he
simply signed it because management’s “constant[]”
questioning about the incident “stressed [him] out.”
Testimony of James Bailey, 14 J.A. 139-41. Hughlett
testified that he signed a statement, prepared by Young,
declaring that Jones’s witness statement was blank when he
signed it, but he testified that he did so only because he did
not want to be questioned any more about the incident and felt
“pressure[d]” by management to sign the statement.
Testimony of Troy Hughlett, 14 J.A. 98. Given the ample
testimony suggesting that OHL itself manufactured evidence
to justify Jones’s termination, the Board had a sound basis for
concluding that OHL could not reasonably have believed that
Jones fabricated her witness statement. See Fort Dearborn,
2016 WL 3361476, at *6 (noting that, to rebut prima facie
case of anti-union motive, employer must show that it
“reasonably believed” that misconduct “had occurred”).
Substantial evidence in the record supports the Board’s
determination that OHL’s first reason for firing Carolyn Jones
was pretextual.
23
b. Discharge Reason # 2: OHL Claims Jones
Repeatedly Used a Racial Slur
We reach the same result with respect to the Company’s
second putative reason for Jones’s termination—her
ostensible use of a racial slur against her coworker Lee Smith.
Although the Board determined that Carolyn Jones did in fact
use that epithet, it rejected as pretextual OHL’s assertion that
Jones was fired for that reason. The Board found that OHL
punished Jones’s infraction far more severely than prior,
similar infractions by other employees. It pointed in
particular to the Company’s willingness to overlook racist and
other offensive statements made by supervisor Phil Smith,
which the Board found inconsistent with OHL’s decision to
fire Jones. The Board further concluded that OHL’s
termination of Jones deviated from the Company’s
progressive disciplinary policy, which sets forth lesser initial
penalties for violations like hers. Based on those findings, the
Board concluded that the Company would not have
discharged Jones based on her use of a racial slur absent her
union-related activity. Substantial evidence supports that
conclusion.
The record evidence confirms that OHL’s punishment of
Jones was far more severe than the discipline the Company
imposed on other, similar offenders. As the Board explained,
in ten prior disciplinary actions involving racial epithets or
other profane language, OHL issued eight warnings, one
suspension arising from recidivism, and one discharge arising
from recidivism and a connected assault. The only other
employee who was discharged, Ashley Burgess, was a repeat
offender who received a verbal warning for using profanity
against a supervisor in January 2006 and was fired after
hurling racial slurs at another employee during a heated
physical confrontation in September 2010. Unlike Burgess,
24
Jones was not a recidivist, did not assault, threaten, or
otherwise physically confront anyone at work, and had never
before been reported for using vulgar or offensive language.
In addition, OHL’s willingness to turn a blind eye to the racial
slurs and offensive remarks of OHL supervisor Phil Smith
further underscores the unusual harshness of OHL’s discipline
of Jones. As explained above, Phil Smith called an African
American worker a racial slur and another employee a
homophobic epithet. Unlike Jones, who received OHL’s
harshest punishment, however, OHL did not punish Phil
Smith at all.
OHL argues that the disciplinary cases evaluated by the
Board involved employees who committed different offenses
or were otherwise not comparably situated to Jones. But even
if none of those cases involved the exact circumstances or the
same racial epithets involved in Jones’s case, the Board
deemed them materially similar and held that they
demonstrated that no other employee who had engaged in
only verbal misconduct received as severe a punishment for
an initial infraction as she did. The evidence provides
substantial support for the Board’s findings that OHL engaged
in disparate treatment of Jones and that its stated justification
was mere pretext. See, e.g., Southwire Co. v. NLRB, 820 F.2d
453, 460 (D.C. Cir. 1987) (holding that absence of evidence
that employer discharged any other employee for similar
violation supported finding of pretext); La Gloria Oil & Gas
Co., 337 N.L.R.B. 1120, 1124 (2002) (observing that disparate
treatment of employees demonstrates pretext).
The record evidence likewise supports the Board’s
determination that OHL’s termination of Jones deviated from
the Company’s progressive disciplinary system. The
Company’s Handbook identifies four forms of discipline, the
most severe of which is termination. Under the Handbook,
25
termination may be warranted “[i]n cases in which [less
severe] disciplinary action has failed to correct unacceptable
behavior or performance, or in which the performance issue is
so severe as to make continued employment with OHL
undesirable.” OHL Handbook, 14 J.A. 649. The Company
emphasizes that OHL retains discretion under the Handbook
to “apply any level of discipline . . . without resort to prior
disciplinary steps.” Id. at 646. The Handbook makes equally
clear, however, that discipline “will generally be administered
at the lowest level of severity which will effect correction of
the problem.” Id. at 649. Rather than adhere to its general
disciplinary norm of starting out with the least severe penalty
that might accomplish the disciplinary objective, the
Company chose immediately to impose the harshest form of
discipline on Jones for her remarks, even though she was not
a recidivist and had not engaged in any violent conduct.
Accordingly, substantial evidence supports the conclusion
that the Company deviated from its progressive disciplinary
procedure, thus bolstering the Board’s finding of pretext. See
Fort Dearborn, 2016 WL 3361476, at *5 (concluding that
failure to apply progressive disciplinary policy without
explanation supports a finding of pretext).
Because substantial evidence supports the Board’s
determination that OHL’s proffered reasons for firing Jones
were pretextual, and because its decision is not otherwise
arbitrary or unlawful, we deny the Company’s petition for
review, and grant the Board’s cross-application for
enforcement, of the Board’s decision that OHL’s termination
of Jones violated section 8(a)(3) and (1) of the Act.
C. The Company’s Remaining Challenges
OHL challenges the Board’s decisions on several
additional grounds. It contends that the Board’s
26
determinations that the Company committed numerous
section 8(a)(1) violations were unsupported by substantial
evidence or otherwise erroneous; that the Board abused its
discretion by imposing three additional remedies; 4 and that
the Board denied OHL due process by affirming the decision
of an ALJ whom OHL believes harbors pro-union bias. The
Board then compounded those errors, OHL argues, by
mistakenly counting Carolyn Jones’s vote in the second
representation election, failing to count the votes of two
administrative assistants, rejecting OHL’s election objections,
and ruling on an amended complaint in the absence of an
amended unfair labor practice charge. After carefully
reviewing the Company’s remaining arguments in light of the
record and applicable legal authority, we conclude that they
lack merit and warrant no further discussion. See United
States v. McKeever, --- F.3d ---, 2016 WL 3213035, at *13
(D.C. Cir. June 10, 2016). Accordingly, “we grant without
amplification the Board’s cross-application for enforcement”
as to the remaining findings challenged by the Company.
Stephens Media, LLC v. NLRB, 677 F.3d 1241, 1251 (D.C.
Cir. 2012); see also Tenneco, 716 F.3d at 647-48.
4
We lack jurisdiction to consider OHL’s challenges to two of
the Board’s remedies—the cease-and-desist order and the electronic
distribution requirement—because the Company did not object to
those remedies before the Board. See 29 U.S.C. § 160(e); Nova Se.
Univ. v. NLRB, 807 F.3d 308, 313 (D.C. Cir. 2015); W&M Props.
of Conn., Inc. v. NLRB, 514 F.3d 1341, 1345 (D.C. Cir. 2008).
27
* * *
For the foregoing reasons, we deny the Company’s
petitions for review and grant the Board’s cross-applications
for enforcement.
So ordered.