Fort Dearborn Company v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 9, 2016 Decided April 12, 2016
Reissued June 17, 2016
No. 14-1263
FORT DEARBORN COMPANY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
DISTRICT COUNCIL 4, GRAPHIC COMMUNICATIONS
CONFERENCE OF THE INTERNATIONAL BROTHERHOOD OF
TEAMSTERS,
INTERVENOR
Consolidated with 15-1007
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Richard L. Marcus argued the cause and filed the briefs for
petitioner.
Valerie L. Collins, Attorney, National Labor Relations
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Board, argued the cause for respondent. With her on the brief
were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben, Deputy
Associate General Counsel, and Jill A. Griffin, Supervisory
Attorney.
Thomas D. Allison, Jr. and N. Elizabeth Reynolds were on
the brief for intervenor District Council Four, Graphic
Communications Conference of the International Brotherhood
of Teamsters in support of respondent.
Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: In 2010, Fort Dearborn Company
suspended and then fired an employee who was also a chief
steward for District Council Four, Graphic Communications
Conference of the International Brotherhood of Teamsters. Just
weeks earlier, during collective bargaining negotiations, a
manager had threatened to scrutinize closely and find a reason to
fire the employee. The National Labor Relations Board found
that the threat placed the Company in violation of section 8(a)(1)
of the National Labor Relations Act. The Board also found that
the Company violated sections 8(a)(3) and 8(a)(1) of the Act
when it suspended and fired the employee, purportedly for
bringing an unauthorized visitor into one of its label printing
plants and for not cooperating fully during a subsequent
investigation. The Company petitions for review.
Although the Company challenges the Board’s findings and
conclusions, its principal contention is that the Board misapplied
the test in Wright Line, 251 N.L.R.B. 1083 (1980), as articulated
in Sutter East Bay Hospitals v. NLRB, 687 F.3d 424 (D.C. Cir.
3
2012). The Board, the Company maintains, failed to consider
evidence of the Company’s good-faith belief in the existence of
circumstances that would have justified the suspension and
termination of the employee. Sutter East Bay is unhelpful to the
Company, however, because evidence of an employer’s good-
faith belief suffices to meet the employer’s burden under Wright
Line only if the employer acts on that belief as it normally
would. Here, substantial evidence in the record supports the
Board’s finding that the reasons given for suspending and firing
the employee were pretextual because the Company’s conduct
was not consistent with its policy and past practice.
Accordingly, as the Company’s other challenges to the Board’s
decision are unpersuasive, we deny the petition and grant the
Board’s cross-application for enforcement of its order.
I.
The Fort Dearborn Company operates 10 manufacturing
plants in the United States and Canada, which print labels for
cans and plastic bottles. The events at issue occurred at its plant
in Niles, Illinois (“the Plant”). Incorporated into the Plant’s
label-making process are several proprietary techniques that the
Company considers trade secrets, and the Company asks its
employees to sign a confidentiality agreement. In addition,
according to the Company, it has a policy against allowing
unauthorized visitors into the Plant. During the “second shift,”
which runs from 3 p.m. to 11 p.m., however, the Company took
no steps to enforce these policies or shield its proprietary
techniques from the eyes of non-employees. According to three
employees who worked that shift, food deliverymen, truck
drivers, the family members of employees, and former
employees often walked through the Plant during the evening
shift.
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Prior to his termination, Marcus Hedger had worked at the
Plant for nine years, most recently as a second pressman
installing plates on a printing press and monitoring printing runs.
For six and a half years, Hedger also served as a union steward,
becoming chief steward for two of the Plant’s three bargaining
units — the Bindery, Shipping, and Sheeting Unit and the
Lithography Unit. His union duties included negotiating
collective-bargaining agreements with Company management as
a member of the union’s bargaining committee. For most of his
tenure with the Company, Hedger maintained an exemplary
disciplinary record, accruing only a single verbal warning for
tardiness. Then, in June 2010, Hedger’s relations with
management took a turn for the worse.
During union-management negotiations over a new
collective-bargaining agreement, the union membership, on its
bargaining committee’s recommendation, rejected management’s
contract proposal. At the first meeting after that vote, on June 4,
2010, tension arose between management and the bargaining
committee. After accusing the union of misconduct relating to
use of a copying machine and leafleting in the Plant parking lot,
the Company’s senior vice president for operations, William
Johnstone, issued a “watch, catch, fire” threat to Hedger,
promising to subject his work to closer scrutiny in an effort to
catch him committing an offense that would justify the
termination of his employment. Hedger filed a union grievance
protesting the threat.
Just over two months later, on August 12, 2010, Peter
Schmidt, a union member and printer by trade, turned up at the
Plant with his bicycle during the “second shift.” Schmidt asked
for Hedger, who at 8:40 p.m. left his work station to meet him.
Hedger then walked with Schmidt through the Plant and, at 8:51
p.m., saw him out, an exit captured by a Plant security camera.
After management viewed the security camera footage, the Plant
5
manager, Robert Kester, initiated an internal investigation of the
bicycle incident. On August 18, Kester and two other
management officials interviewed Hedger. In response to
management’s questions about the incident, Hedger said he did
not recall anything about those events, and afterward he was
suspended with pay. On August 23, Kester and another manager
interviewed Hedger again. This time Hedger answered most of
management’s questions but at the instruction of his union
representative, he declined to give Schmidt’s name. Hedger did
say that he and the bicyclist were together in the Plant for only
a matter of minutes. During management’s interview on August
30, another Plant employee, Robert Schmitt, who was working
the “second shift” on August 12, said that Hedger and Schmidt
were together for 10 to 15 minutes at most. By letter of
September 7, 2010, the Company informed Hedger that he was
being fired because he “brought an unauthorized person into the
plant on August 12, 2010,” and he “did not respond truthfully to
the Company’s questions regarding events on that date of which
[he] w[as] fully aware.”
The union filed an unfair labor practice charge with the
Board. After an evidentiary hearing, the Administrative Law
Judge (“ALJ”) ruled that Hedger’s termination violated Sections
8(a)(3) and 8(a)(1) of the Act, but that the June 4 threat and
Hedger’s suspension did not violate the Act. ALJ Decision
(“ALJ Dec.”) at 3–11 (Nov. 30, 2011). The Board agreed with
the ALJ’s conclusion about Hedger’s termination, but otherwise
reversed, finding that the June 4 threat violated Section 8(a)(1)
of the Act and in light of that threat that Hedger’s suspension
violated Sections 8(a)(3) and 8(a)(1). Fort Dearborn Co. (“2012
Decision”), 359 N.L.R.B. No. 11 (2012). After the appointments
of two Board Members were invalidated, see NLRB v. Noel
Canning, 134 S. Ct. 2550 (2014), a new three-Member Board,
upon de novo review, adopted the 2012 Decision, Fort Dearborn
Co. (“2014 Decision”), 361 N.L.R.B. No. 109 (2014), with one
6
Member concurring, id. at *2 (Member Miscimarra concurring).
The Company petitions for review.
II.
Section 8(a)(1) provides that it is “an unfair labor practice
for an employer . . . to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in [section 7
of the Act].” 29 U.S.C. § 158(a)(1). Section 7 grants employees
“the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection.” Id. § 157. An employer violates Section 8(a)(1)
when its statement to an employee, “considering the totality of
the circumstances, . . . has a reasonable tendency to coerce or to
interfere with those rights.” Tasty Baking Co. v. NLRB, 254 F.3d
114, 124 (D.C. Cir. 2001); see also Dover Energy, Inc. v. NLRB,
No. 14-1197, 2016 WL 1104732, at *4 (D.C. Cir. Mar. 22,
2016). “Section 8(a)(1) prohibits coercive statements that
threaten employees with job loss . . . in retaliation for protected
union activities.” Progressive Elec., Inc. v. NLRB, 453 F.3d 538,
544 (D.C. Cir. 2006). Under Board precedent, threats to subject
employees to closer scrutiny because of union activity also
violate Section 8(a)(1). See Oldfield Tire Sales, 221 N.L.R.B.
1275, 1276 (1975).
Section 8(a)(3) provides that it is “an unfair labor practice
for an employer . . . by discrimination in regard to . . . tenure of
employment or any term or condition of employment to . . .
discourage membership in any labor organization.” 29 U.S.C.
§ 158(a)(3). Discharge of a worker because of union activity
violates Section 8(a)(3), NLRB v. Transp. Mgmt. Corp., 462 U.S.
393, 394 (1983), and “a violation of § 8(a)(3) constitutes a
derivative violation of § 8(a)(1),” Metro. Edison Co. v. NLRB,
7
460 U.S. 693, 698 n.4 (1983). Where the employer purports to
have disciplined the employee for reasons unrelated to protected
Section 7 conduct, the Board applies the test in Wright Line, 251
N.L.R.B. at 1089. See Transp. Mgmt., 462 U.S. at 394–95.
First, the General Counsel must “make a prima facie showing
sufficient to support the inference that protected [i.e., union-
related] conduct was a motivating factor” behind the discipline.
Tasty Baking, 254 F.3d at 125 (alteration in original) (quoting
TIC-The Indus. Co. Se. v. NLRB, 126 F.3d 334, 337 (D.C. Cir.
1997)). Relevant factors 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.” Vincent
Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 735 (D.C. Cir. 2000)
(quoting Power, Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir.
1994)). Second, “[o]nce a prima facie case has been established,
the burden [of persuasion] shifts to the company to show that it
would have taken the same action in the absence of the unlawful
motive.” Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935
(D.C. Cir. 2011) (second alteration in original) (quoting Tasty
Baking, 254 F.3d at 126).
The court will uphold the Board’s findings so long as they
are “supported by substantial evidence on the record considered
as a whole.” 29 U.S.C. § 160(e). Under the substantial evidence
standard, “the Board is to be reversed only when the record is so
compelling that no reasonable factfinder could fail to find to the
contrary.” Inova Health Sys. v. NLRB, 795 F.3d 68, 80 (D.C.
Cir. 2015) (quoting Bally’s Park Place, 646 F.3d at 935). Our
review of the Board’s conclusions as to discriminatory motive is
even more deferential, “because most evidence of motive is
circumstantial.” Id. (quoting Traction Wholesale Ctr. Co. v.
NLRB, 216 F.3d 92, 99 (D.C. Cir. 2000)). The court accepts the
ALJ’s credibility determinations as adopted by the Board,
“unless they are patently insupportable.” Tasty Baking, 254 F.3d
at 124 (quoting Gold Coast Rest. Corp. v. NLRB, 995 F.2d 257,
8
265 (D.C. Cir. 1993)). Where the Board disagrees with the ALJ,
our standard of review remains unchanged. Local 702, Int’l Bhd.
of Elec. Workers, AFL-CIO v. NLRB, 215 F.3d 11, 15 (D.C. Cir.
2000). The Board is free to disagree with the ALJ, but it must
explain the basis of its disagreement. Id.A.
The Board found that Johnstone’s threat during the June 4
collective bargaining negotiations to watch, catch, and fire
Hedger constituted a Section 8(a)(1) violation. Although
Johnstone and Kester, the management representatives at the
June 4 bargaining session, denied that Johnstone threatened
Hedger, the ALJ credited the contrary testimony of Hedger and
David Ishac, a Plant employee and union member present at the
session. The ALJ gave particular weight to Ishac’s version of
events because Ishac testified adversely to the Company for
which he still worked at the time. Nevertheless, the ALJ found
no Section 8(a)(1) violation because the record left unclear
whether Johnstone meant he would catch and fire Hedger for
activity protected by the Act or for unprotected activity. ALJ
Dec. at 3. The Board did not disturb the ALJ’s credibility
determinations, but it disagreed with his legal analysis. In the
Board’s view, the ALJ “missed the point.” 2012 Decision, 359
N.L.R.B. No. 11 at *1. Where the ALJ relied on Johnstone’s
subjective motivation, the Board noted, he should instead have
considered, from an objective vantage, the effect of Johnstone’s
threat on the employee. Id. (citing Am. Freightways Co., 124
N.L.R.B. 146, 147 (1959)). Applying the proper standard, the
Board found that “Johnstone appeared to” threaten Hedger
“because of his protected union activity” and so the threat
“tended to interfere with Hedger’s exercise of his Section 7
rights.” Id. (emphasis in original).
Substantial evidence supports the Board’s finding.
Johnstone uttered the threat at the first bargaining session after
9
the union membership had rejected management’s proposal for
a new collective-bargaining agreement. Ishac testified that
“Johnston[e] was very upset” about the union membership’s
vote. ALJ Hr’g Tr. at 98 (Oct. 13–14, 2011). Johnstone, for his
part, admitted that he was “frustrated” at the bargaining session.
Id. at 348, 351–53. According to Hedger and Ishac, during the
June 4 session, Johnstone accused the union of malfeasance for
misusing the Plant’s photocopier and illegally placing flyers on
car windshields in the Plant parking lot. In addition, Hedger
testified that Johnstone objected to the union “circus,” id. at 30,
374–75, and, according to Hedger, either shortly before or
shortly after the “circus” comment, Johnstone told him:
“[W]e’re watching you, Marcus, and we’re going to catch you
and we’re going to fire you and many people are going to laugh
at you.” Id. at 30; see also id. at 374–75. Hedger testified his
contemporaneous notes of the June 4 bargaining session recorded
the words “Watching you — fired.” Id. at 374. Ishac’s
testimony was to the same effect. He testified that, after
accusing the union of misconduct, Johnstone told Hedger: “[W]e
are watching you, we’re going to catch you, we will fire you and
70 people will be laughing at you.” Id. at 99. This evidence
supports the Board’s finding that, in view of the context and
timing, a reasonable employee in Hedger’s position would have
understood Johnstone to be threatening him in retaliation for his
role in the collective-bargaining process.
The Company’s challenges to the Board’s Section 8(a)(1)
determination lack merit. First, the Company maintains that the
Board improperly relied on Hedger’s union “circus” testimony
because the ALJ did not mention it. But “the Board is the
agency entrusted by Congress with the responsibility for making
findings under [the Act],” Local 702, 215 F.3d at 15 (quoting
Carpenters Local No. 33 v. NLRB, 873 F.2d 316, 319 (D.C. Cir.
1989)), and it is not restricted to the evidence cited by the ALJ.
Nothing in the ALJ’s decision suggests that he disbelieved
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Hedger’s “circus” testimony. To the contrary, the ALJ generally
credited Hedger’s account of the June 4 negotiations over
management’s. Second, nor does it matter whether Hedger’s
protected activity was “the source of [Johnstone’s] frustration.”
Pet’r’s Br. 21. The Company, like the ALJ, focuses on the
wrong facts as it is not the subjective motivation of the speaker
that matters but the statement’s effect, viewed objectively, on the
listener. See Dover Energy, 2016 WL 1104732, at *4. Third, the
answer to the Company’s question — “What Section 7 rights did
Johnstone’s statement ‘reasonably tend to interfere with’?”
Pet’r’s Br. 22 — lies in the Board’s emphasis on the context and
timing of the threat. Johnstone issued the threat during a
contentious round of collective bargaining shortly after union
bargainers — including Hedger — had successfully urged its
membership to reject management’s proposal. See 2012
Decision, 359 N.L.R.B. No. 11 at *1. Collective bargaining falls
well within the ambit of Section 7 protected activity. See 29
U.S.C. § 157.
B.
With respect to Hedger’s suspension and firing, the
Company maintains chiefly that the Board’s application of the
test established in Wright Line, 251 N.L.R.B. 1083, was flawed
because the Board ignored evidence supporting Company
management’s good-faith belief in facts justifying the discipline
it meted out. It necessarily follows under this court’s application
of Wright Line in Sutter East Bay, 687 F.3d at 434–37, the
Company maintains, that it did not violate Sections 8(a)(3) and
8(a)(l). Although the court will defer to the Board’s
interpretation of the Act, Stanford Hosp. & Clinics v. NLRB, 325
F.3d 334, 337 (D.C. Cir. 2003), an unexplained divergence from
its precedent would render a Board decision arbitrary and
capricious, see Teamsters Local Union Nos. 822 & 592 v. NLRB,
956 F.2d 317, 320 (D.C. Cir. 1992). Neither the Sutter East Bay
argument nor the Company’s other contentions, however,
11
demonstrate Board error or adjudication inconsistent with Wright
Line.
The Board concluded that the Company violated Sections
8(a)(3) and 8(a)(1) by suspending and firing Hedger, in part
reversing the ALJ, who had found that the suspension did not
violate the Act. The Board explained its reversal: the suspension
constituted an unfair labor practice “[i]nasmuch as the
suspension was one of the steps taken” by the Company to
unlawfully fire Hedger. 2012 Decision, 359 N.L.R.B. No. 11 at
*2. In affirming the ALJ’s decision that Hedger’s termination
violated the Act, the Board relied on the ALJ’s factual findings,
although not all of them. On Wright Line’s first step, the Board
described some found facts as “unnecessary” to its decision and
explained that “[i]n affirming the [ALJ’s] finding” that Hedger’s
firing was motivated by anti-union animus, it “additionally
rel[ied] on” Johnstone’s June 4 threat to “watch, catch, and fire”
Hedger for his union activity. Id. at *2 n.5. On the second step
of Wright Line, the Board affirmed the ALJ’s finding that the
Company’s first reason for firing Hedger — his walk with
Schmidt through the Plant — was pretextual, adopting “the
reasons given by the [ALJ].” Id. Likewise, the Board affirmed
the ALJ’s finding that the Company’s second reason for firing
Hedger — his failure to cooperate fully during August 18 and 23
interviews — was pretextual, emphasizing that the Company
took no disciplinary action against other employees who refused
to cooperate with the investigation into the August 12 incident.
The Board declined to rely on two grounds on which the ALJ
based his pretext findings, but the remaining evidence amply
supports the Board’s determination that the Company’s stated
reasons for firing Hedger were pretextual.
Substantial evidence supports the Board’s determination, on
Wright Line’s first step, that the General Counsel established a
prima facie case that Hedger’s union activity was a motivating
12
factor in his suspension and termination. The Company does not
dispute that Hedger served as a chief union steward and a
member of the union’s bargaining committee or that
management knew this. There is ample record evidence that
Johnstone issued the “watch, catch, and fire” threat to Hedger,
and the Board was entitled to draw an inference of anti-union
motivation from that threat. See Vincent Indus., 209 F.3d at 735.
Further, Johnstone’s threat is not the only evidence of anti-union
animus on which the Board relied. The Company’s insistence to
the contrary overlooks the Board’s statement that it was
“affirming the [ALJ’s] finding” as to Wright Line’s first step,
save for the ALJ’s reliance on enumerated pieces of evidence the
Board found “unnecessary” to its decision. 2012 Decision, 359
N.L.R.B. No. 11 at *2 n.5. By setting aside that “unnecessary”
evidence, the Board did not eliminate “all of the findings of
animus made by the ALJ,” Reply Br. 12, because it adopted the
ALJ’s reliance on evidence that the Company provided
pretextual reasons for firing Hedger.
A finding of pretext may support an inference of unlawful
motive, see Pioneer Hotel, Inc. v. NLRB, 182 F.3d 939, 947–48
(D.C. Cir. 1999); Citizens Inv. Servs. Corp., 342 N.L.R.B. 316,
330 (2004), and it does so here. Testimony before the ALJ
established that prior to Hedger’s suspension and firing, the
Company had never taken steps to enforce its confidentiality
policy or its policy against unauthorized visitors on the “second
shift,” when the Plant’s doors were often open and there was no
way to sign in at the front desk. Further, Kester testified that the
Company had a progressive discipline policy, yet, for
unexplained reasons, the Company failed to apply that policy to
Hedger, despite what Kester described as Hedger’s “very good”
nine-year record of only one verbal warning for tardiness. ALJ
Hr’g Tr. at 262–63. And Hedger faced disparate treatment.
Kester and Ishac testified that after Hedger was fired, two
13
employees who allowed a former employee into the Plant each
received a one-day suspension.
Substantial evidence also supports the Board’s
determination, on Wright Line’s second step, that the Company
failed to show that it would have suspended and fired Hedger
regardless of anti-union animus. In addition to the evidence that
it did not enforce its confidentiality or visitor policy on the
“second shift” and failed to explain why it did not follow its
progressive discipline policy, the Company’s stated reasons for
firing Hedger were undermined by evidence that food
deliverymen, truck drivers, employees’ family members, and
former employees regularly entered the Plant during the “second
shift.” Indeed, Kester acknowledged that prior to Hedger’s
suspension and termination, the Company had never disciplined
an employee for allowing a non-employee into the Plant.
Similarly, the Board noted that the Company did not discipline
employees besides Hedger who failed to cooperate with its
investigation into the events of August 12. Kester testified that
several of the employees he approached as part of his
investigation “clearly didn’t want to get involved,” ALJ Hr’g Tr.
at 178, and so, for example, he had not interviewed Tony Sass,
who was working on the same press as Hedger on August 12,
because Sass “said that he did not want to get involved,” id. at
246–47. There is no record evidence any of these other
employees were subject to discipline for failure to cooperate with
the investigation.
Upholding the Board’s findings and conclusions is
consistent with our precedent. The court has upheld Board
determinations that employers have violated Sections 8(a)(3) and
8(a)(1) on facts similar to those present here. See, e.g., Inova
Health Sys., 795 F.3d at 84–85; Bally’s Park Place, 646 F.3d at936–39; Tasty Baking, 254 F.3d at 126–27; Parsippany Hotel
14
Mgmt. Co. v. NLRB, 99 F.3d 413, 425 (D.C. Cir. 1996). The
Company’s challenges to the Board’s Wright Line analysis are
unpersuasive.
The Company’s principal contention relies on this court’s
opinion in Sutter East Bay, 687 F.3d 424. In that case, the court
noted that, when assessing an employer’s disciplinary action, the
Wright Line inquiry asks not what an employee actually did but
what the employer in good faith believed the employee did.
Sutter E. Bay, 687 F.3d at 435. The Company maintains that the
ALJ and the Board failed to evaluate whether its managers held
a good-faith belief in the existence of five facts that would have
justified suspending and firing Hedger: (1) Hedger left his work
station at a crucial moment, the start of “wash-up” after finishing
a production run around 7:45 p.m.; (2) Hedger and Schmidt were
in the Plant for about an hour; (3) Hedger did not have
permission to leave his work station or escort Schmidt through
the Plant; (4) Hedger’s “guided tour” could have compromised
confidential company information; and (5) Hedger lied during
the August 23, 2010, interview with management. Pet’r’s Br. 26,
30–31. But the Company has overlooked a key component of
Sutter East Bay’s gloss on the Wright Line test. Whether an
employer’s disciplinary action was justified turns on what the
employer “believed, whether [the] beliefs were reasonable, and
whether [its] actions based on those beliefs were consistent with
[its] policies and past practice.” Sutter E. Bay, 687 F.3d at 436
(emphasis added). That is, an employer meets its burden to rebut
the General Counsel’s prima facie case of anti-union motive only
if it can show 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 id. at
435–37. A good-faith belief, therefore, is of little aid to an
employer where the discipline imposed by the company departs
from its policy or practice.
15
Here, the Board found that the Company acted in a manner
not consistent with its policies and past practices, and as
discussed, substantial evidence supports this finding. The
Company inexplicably did not apply its progressive discipline
policy to Hedger. Before suspending and firing Hedger, the
evidence showed, the Company had never taken steps to enforce
its confidentiality or visitor policies on the “second shift.”
Neither did the Company discipline employees who violated
those policies as harshly as it punished Hedger. Nor did it
punish employees who, like Hedger, declined to cooperate fully
with the investigation into the events of August 12. So even if
the Company’s managers had believed in good faith what it
claims they believed, Sutter East Bay provides it no safe harbor.
The Company’s other challenges to the Board’s findings of
anti-union motive and pretext merely reflect the Company’s
preferred interpretation of the record evidence and do not
demonstrate the Board lacked substantial evidence to support its
findings. “[W]e may not reject [the Board’s findings] simply
because other reasonable inferences may also be drawn.” Tasty
Baking, 254 F.3d at 125. To the extent the Company maintains
that the lies Hedger told at the August 18 interview justify
suspending him, this is non-responsive to the Board’s conclusion
that the suspension violated Sections 8(a)(3) and 8(a)(1) of the
Act “[i]nasmuch as the suspension was one of the steps taken as
part of the [Company’s] unlawfully motivated efforts to
discharge Hedger.” 2012 Decision, 359 N.L.R.B. No. 11 at *2.
Even if suspension alone was warranted, it is the suspension’s
place in the context of the Company’s overall efforts to fire
Hedger that renders it an unfair labor practice. See Beverly Calif.
Corp., 326 N.L.R.B. 153, 154 (1998), enf’d in relevant part, 227
F.3d 817, 838–39 (7th Cir. 2000).
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Accordingly, we deny the Company’s petition and grant the
Board’s cross-application for enforcement of its 2014 Decision
and Order.