United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 1999 Decided March 28, 2000
No. 98-1522
Mohave Electric Cooperative, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Thomas J. Kennedy argued the cause for petitioner. With
him on the briefs were Gregg J. Tucek, William P. Allen, and
Neil I. Levy.
Preston L. Pugh, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Linda Sher, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, and David
Habenstreit, Supervisory Attorney. John D. Burgoyne, Dep-
uty Associate General Counsel, entered an appearance.
Before: Ginsburg, Henderson, and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Mohave Electric Cooperative, Inc.
petitions for review of a decision and order of the National
Labor Relations Board (NLRB), which concluded that the
company unlawfully discharged employee Richard Michaels
for protected concerted activity in violation of section 8(a)(1)
of the National Labor Relations Act (NLRA), 29 U.S.C.
s 158(a)(1). The NLRB cross-petitions for enforcement of its
order. We deny the petition for review and grant the cross-
petition for enforcement.
I
Mohave is an electric utility operating out of Bullhead City,
Arizona. It has approximately seventy employees, roughly
twenty of whom are represented by the International Broth-
erhood of Electrical Workers, Local 769, AFL-CIO ("the
Union"). The bargaining unit consists of linemen, mechanics,
warehousemen, and between eight and twelve meter readers.
The latter are responsible not only for reading electric me-
ters, but also for meter installation, meter connection and
disconnection, and other related duties. Gene Quinn super-
vises Mohave's meter department and reports to Tom Long-
tin, the operations manager.
Consistent with the terms of its collective bargaining agree-
ment (CBA), Mohave uses several subcontractors to supple-
ment its work force. One subcontractor, Guard Force, has
provided Mohave with additional meter readers since 1993.
Guard Force employees wear uniforms like those of Mohave
meter readers, and they work out of the same room on
Mohave's premises. Although they have their own on-site
supervisor, David Drabek, he reports to Mohave's Gene
Quinn. See Mojave Elec. Coop., 327 N.L.R.B. No. 7, 1998
WL 777462, at *4 (Oct. 30, 1998); Tr. at 74.1 Hence, all
__________
1 Although the Board employs the spelling "Mojave," we use the
spelling employed by the petitioner in this court.
meter readers--whether employed directly by Mohave or by
a subcontractor--come within the scope of Quinn's superviso-
ry responsibility.
Richard Michaels worked as a meter reader for Mohave
from August 1991 until his termination on June 3, 1996. He
was one of two union stewards at the Mohave facility and
served on a number of the Union's committees. His work
history was generally uneventful until May 1996.
The parties dispute the details of the events that began
that month and that ultimately culminated in Michaels' dis-
charge. The Administrative Law Judge (ALJ) who heard the
case found that on the morning of May 8, Michaels called
Drabek, the Guard Force supervisor, to complain that a
Guard Force employee had insisted that Michaels trade
meter-reading routes for the day. Following that conversa-
tion, Drabek reported to Mohave that Michaels had been rude
to him. Michaels denied the allegation, and his supervisor,
Quinn, ended the matter by finding that Michaels "had acted
properly." Mojave Elec., 1998 WL 777462, at *5.
Later that same month, Michaels learned from a friend
that someone wearing a Mohave uniform had been stopped at
a local grocery store for shoplifting. Pursuant to company
policy, Michaels reported this to Quinn, who in turn advised
Longtin, Mohave's operations manager, and Jay Nady, the
owner of Guard Force. According to Nady and Longtin, the
story that reached them was that Michaels had reported that
the person wearing the Mohave uniform was a Guard Force
employee, who had been handcuffed and driven away by the
police. The actual facts were somewhat less dramatic: there
had been no police arrest; the store's own security force had
stopped the Guard Force employee, who claimed to have
"forgotten" to pay for an item he took from the store. Nady
and Longtin concluded that Michaels had exaggerated the
story in order to discredit Guard Force. At the hearing
before the ALJ, however, Michaels testified that he had
merely reported what he had heard--that someone wearing a
Mohave uniform had been stopped for shoplifting--and noth-
ing more. Based on the demeanor of the witnesses, the ALJ
found Michaels' testimony substantially more credible than
that of Nady and Longtin. He therefore credited Michaels'
testimony and concluded that if there had been any exaggera-
tion, it had been by Mohave's supervisors rather than Mi-
chaels.
On May 21, angry about the alleged exaggeration, Nady
went to Mohave's facility "to confront and straighten out
Michaels." Id. at *6 (internal quotation omitted). Unable to
find him, Nady instead located Stuart Douglas, another Mo-
have meter reader whom Nady had often seen with Michaels.
Although the parties dispute the details of the encounter, it
appears that Nady asked Douglas about Michaels' where-
abouts and that there was a brief physical confrontation
between them.2
The next day, when Michaels returned to work, Douglas
told him that he had been physically and verbally assaulted
by Nady, and that Nady had been "looking for" Michaels
when this occurred. Michaels promptly told his supervisor
that he felt threatened, and he asked the company for protec-
tion. Quinn told him to "give it a couple of days" and took no
further action, although later Longtin did advise Nady that
Mohave "reserved to itself any issues of supervision or disci-
pline of its employees." Id. at *7. Concerned about their
physical safety, Michaels and Douglas met with their co-
workers and discussed their options. They described Nady's
alleged assault on Douglas and stated that they were consid-
ering turning to the courts for protection. Michaels gave
uncontradicted testimony that the other employees agreed
with and supported such action. See Tr. at 189-90.
On May 23, in Bullhead City municipal court, Michaels and
Douglas filed petitions for injunctions against harassment,
citing their need for protection from "verbal and mental
abuse and possibly physical violence" by Nady and Drabek.
App. at 139-43. The petitions requested that Nady and
__________
2 Douglas claimed "that he'd been physically and verbally as-
saulted by Nady, with Nady grabbing him by the shirt and shaking
him." Mojave Elec., 1998 WL 777462, at *6. Nady claimed "that
any contact was merely incidental to being bumped as both were
leaving the meter reading room." Id.
Drabek have no contact with Douglas and Michaels, and that
they be enjoined to stay away from the petitioners' homes
and place of employment.
On May 29, Nady received copies of the petitions and
immediately contacted Longtin. He told Longtin that, if the
injunctions were granted, neither he nor Drabek would be
allowed on Mohave property. This, he said, would prevent
them from performing their duties as subcontractors. There-
after, Longtin decided to terminate Michaels. According to
Longtin's testimony, he did so because Michaels had filed the
petition, exaggerated the shoplifting incident, spoken rudely
to Drabek in the telephone conversation of May 8, and called
Guard Force employees "scabs." Mojave Elec., 1998 WL
777462, at *8. Longtin conceded, however, that when he told
Michaels that he was being terminated, he told him "of no
other reason besides his having filed the petition." Id. On
July 22, the municipal court denied both Michaels' and Doug-
las' petitions.
The ALJ concluded that the filing of the petitions was
protected conduct under the NLRA, and rejected Mohave's
contention that the filing was rendered unprotected because it
constituted "disloyalty." Applying the familiar Wright Line
test,3 the ALJ found that a prima facie violation of section
8(a)(1) had been established because Mohave "admittedly
fired [Michaels], at least in part, because of his having filed
the petition," id. at *11, and because Mohave did not show
that it would have fired Michaels in the absence of that
protected conduct, see id. at *9-11. The NLRB affirmed.4
__________
3 See Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d
899 (1st Cir. 1981); see also NLRB v. Transportation Management
Corp., 462 U.S. 393, 399-401 (1983) (approving Wright Line test).
4 The ALJ also concluded that Michaels had been discharged
because of anti-union animus in violation of NLRA s 8(a)(3), 29
U.S.C. s 158(a)(3). In light of its conclusion that Michaels was
unlawfully discharged in violation of section 8(a)(1) for filing the
civil injunction petition, the Board found "no need to rely on the
judge's conclusion that the discharge also violated Section 8(a)(3)."
Thereafter, Mohave petitioned this court for review, and the
Board cross-petitioned for enforcement.
II
As we have noted many times before, our role in reviewing
an NLRB decision is limited. See, e.g., Pioneer Hotel, Inc. v.
NLRB, 182 F.3d 939, 942 (D.C. Cir. 1999); Time Warner
Cable v. NLRB, 160 F.3d 1, 3 (D.C. Cir. 1998). "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." International Union of Elec.,
Elec., Salaried, Mach. & Furniture Workers v. NLRB, 41
F.3d 1532, 1536 (D.C. Cir. 1994) (internal quotations and
citation omitted). We are also required to give "substantial
deference to the inferences drawn by the NLRB from the
facts." Time Warner Cable, 160 F.3d at 3. Moreover, absent
exceptional circumstances, we must accept the agency's deter-
minations regarding the credibility of witnesses. See Elastic
Shop Nut Div. v. NLRB, 921 F.2d 1275, 1281 (D.C. Cir. 1990)
(stating that "the Court must uphold Board-approved credi-
bility determinations of an ALJ unless they are 'hopelessly
incredible' or 'self-contradictory' ").
Mohave seeks to overturn the Board's finding that it com-
mitted an unfair labor practice on two principal grounds.
First, it contends that Michaels' conduct in filing the injunc-
tion petition was unprotected because it was "disloyal." Sec-
ond, it contends that Michaels' activity was unprotected be-
cause it was inconsistent with the collective bargaining
agreement. In addition, Mohave argues that even if it did
discharge Michaels for protected activity, the remedy should
be limited because the company would have fired him in any
event based on evidence of unrelated misconduct it discover-
__________
Mojave Elec., 1998 WL 777462, at *1. Accordingly, that issue is not
before us.
ed after his termination.5 We consider each of these argu-
ments below.
A
Section 7 of the NLRA guarantees employees the "right to
self-organization, to form, join, or assist labor organizations,
... and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion." 29 U.S.C. s 157. Section 8(a)(1) of the Act imple-
ments that guarantee by declaring that "[i]t shall be an unfair
labor practice for an employer ... to interfere with, restrain,
or coerce employees in the exercise of the rights guaranteed
in [section 7]." Id. s 158(a)(1); see PHT, Inc. v. NLRB, 920
F.2d 71, 73 (D.C. Cir. 1990). Thus, an employer violates
section 8(a)(1) if it discharges an employee for engaging in
concerted activity for the purpose of mutual aid or protection.
See, e.g., Prill v. NLRB, 835 F.2d 1481, 1483 (D.C. Cir. 1987).
Moreover, the Supreme Court has confirmed that "the 'mutu-
al aid or protection' clause protects employees from retalia-
tion by their employers when they seek to improve working
conditions through resort to administrative and judicial fo-
rums." Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 & n.15
(1978) (citing with approval Walls Mfg. Co., 137 N.L.R.B.
1317 (1962), enforced, 321 F.2d 753 (D.C. Cir. 1963), and
Socony Mobil Oil Co., 153 N.L.R.B. 1244 (1965), enforced, 357
F.2d 662 (2d Cir. 1966)).
__________
5 In the Statement of Facts section of its brief, Mohave suggests
that Michaels was not fired solely for the filing of the petition, but
rather due to a continuing "pattern" of disloyal actions including,
inter alia, exaggerating the shoplifting incident, speaking rudely to
Drabek, and calling Guard Force employees names. See Mohave
Br. at 5-6; see also id. at 14. Even if this were true, there is
substantial evidence to support the ALJ's conclusion that Mohave
failed to overcome its Wright Line burden of showing it would have
fired Michaels absent the filing of the petition. See Transportation
Management Corp., 462 U.S. at 401-03 (holding that where protect-
ed activity is at least a "motivating factor," employer must show it
would have taken same action in its absence). Moreover, as dis-
cussed below, there is substantial evidence to support the ALJ's
finding that Michaels did not engage in the purported pattern of
disloyal activity.
Mohave does not dispute the ALJ's conclusion that the
filing of a judicial petition--supported by fellow employees
and joined by a co-employee--constitutes concerted action
under the NLRA.6 Nor does Mohave dispute that concerted
action to ensure greater workplace safety through petitioning
for injunctive relief may constitute protected conduct. In-
stead, it contends that Michaels' conduct was unprotected
here because it was "disloyal," in that if granted, the injunc-
tion would have interfered with the business relationship
between Mohave and Guard Force.
It is true that an employer may discharge an employee for
disloyalty without committing an unfair labor practice.7 But
the fact that an employee's actions may cause some harm to
the employer does not alone render them disloyal. See
NLRB v. Knuth Bros., Inc., 537 F.2d 950, 953 (7th Cir. 1976).
The activity at issue here involves the filing of a petition for
judicial relief, and, as Mohave itself recites, the "rule [is] that
filing a 'civil action by a group of employees is protected
activity unless done with malice or in bad faith.' " Mohave
Reply Br. at 5 (quoting Trinity Trucking & Materials Corp.,
221 N.L.R.B. 364, 365 (1975)) (emphasis added).8 Moreover,
__________
6 See, e.g., Prill, 835 F.2d at 1483 (noting that complaint of
single employee is deemed concerted action when taken "with the
actual participation or on the authority of his co-workers"); Inter-
national Ladies' Garment Workers' Union v. NLRB, 299 F.2d 114,
115-16 (D.C. Cir. 1962) (finding concerted action where complaint
letter written by single employee was "approved in advance by
several other employees").
7 See, e.g., NLRB v. Local Union No. 1229 (Jefferson Standard
Broad. Co.), 346 U.S. 464, 471 (1953) (upholding discharge where
employees publicly disparaged quality of employer's product, with
no discernible relationship to pending labor dispute); George A.
Hormel & Co. v. NLRB, 962 F.2d 1061, 1064 (D.C. Cir. 1992)
(stating that employee violates duty of loyalty by supporting boycott
of employer's product, unless boycott is non-disparaging and related
to ongoing labor dispute).
8 Accord Leviton Mfg. Co. v. NLRB, 486 F.2d 686, 689 (1st Cir.
1973); Socony Mobil Oil Co., 357 F.2d at 663-64; cf. Walls Mfg.
Co., 321 F.2d at 754 (holding that complaint to state health depart-
that the petition "was later dismissed on the pleadings would
not in itself make the activity unprotected or establish bad
faith." Trinity Trucking & Materials Corp., 221 N.L.R.B. at
365 (citing Walls Mfg. Co., 137 N.L.R.B. at 1317).9
Mohave contends that Michaels' petition was in fact filed
"with malice and in bad faith" because it was intended not to
protect employees but rather to disrupt Mohave's relationship
with Guard Force. Mohave Br. at 19. The ALJ, however,
found to the contrary, and we affirm that finding as sup-
ported by substantial evidence. As the ALJ stated, "whether
or not one regards Michaels' fears as totally realistic," it is
not possible to conclude that they were baseless. Mojave
Elec., 1998 WL 777462, at *11. Testimony supported the
ALJ's finding that "Nady did behave toward Michaels in an
angry fashion, and did seek to find him for some sort of
confrontation." Id. at *10; see Tr. at 80-81; General Counsel
Ex. 10. Moreover, the ALJ observed that "Nady's imposing
size and evident state of fitness would strike a disturbing
chord in virtually any man who learned as Michaels did that
Nady had come onto [Mohave's] premises seeking a confron-
tation with him." Mojave Elec., 1998 WL 777462, at *10.
And as the ALJ also noted, "Michaels sought assurances for
his safety" from Mohave, and "resorted to the filing of a
petition only after such assurances were not given." Id.
The ALJ's observations are fully supported by Michaels'
testimony, which the ALJ found to be of "superior" credibili-
ty--a determination to which we defer. Michaels testified
without contradiction that he "felt very threatened" when he
__________
ment was protected conduct given lack of evidence that "the allega-
tions were made with intent to falsify or maliciously injure the
[employer]").
9 See Walls Mfg. Co., 321 F.2d at 754 (upholding finding of lack
of malice "notwithstanding the inaccuracy" of the complaint); see
also Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1351 n.12 (3d
Cir. 1969) ("We are not concerned in this case with the merit or lack
of merit of [the employee's] grievance.... [I]t is clear that Sec. 7
protects his right to utter it as a matter of concerted activity with
other employees for mutual aid.").
heard Nady had come looking for him, that he felt "the
physical altercation between [Nady] and Douglas was actually
directed towards [him]," and that he and Douglas filed their
petitions to protect themselves from further harassment. Tr.
at 184-90. Mohave officials conceded that Michaels commu-
nicated his safety concerns to the company both before and
after the petitions were filed, see id. at 92-93, 337, and that he
asked the company to take "some action to protect" him, id.
at 85--a request Mohave initially put off with the suggestion
to "give it a couple of days," Mojave Elec., 1998 WL 777462,
at *7; Tr. at 185. Although Mohave later "advised" Nady to
leave any disciplining of its employees to the company, Mi-
chaels was not required to accept that admonition as provid-
ing him with sufficient protection.
Mohave contends that the filing of the petitions should not
be considered in isolation, and that Michaels' bad faith is
evidenced by the fact that the filing was part of a long-term
campaign to discredit Guard Force and sever its contractual
relationship with Mohave. Other elements of this asserted
campaign were Michaels' alleged exaggeration of the shoplift-
ing incident, his allegedly rude telephone conversation with
Drabek on May 8, his purported practice of calling Guard
Force employees "scabs," and the fact that after the May 21
incident with Nady, Michaels filed a union grievance seeking
the removal of Guard Force from Mohave's property. The
ALJ readily disposed of each of these claims, see Mojave
Elec., 1998 WL 777462, at *4 n.6, and we find those disposi-
tions reasonable. The ALJ determined based on witness
demeanor that it was Mohave's supervisors rather than Mi-
chaels who had exaggerated the shoplifting incident. Super-
visor Quinn concluded that Michaels had behaved properly in
the May 8 telephone conversation with Drabek. The ALJ
credited Michaels' denial that he had ever called Guard Force
employees scabs, finding Longtin's contrary testimony to be
internally "inconsistent[ ]" and a "makeweight." Id. at *8
n.12. Finally, the filing of the union grievance in connection
with the same conduct for which Michaels sought a civil
injunction is itself a protected activity. See, e.g., Illinois
Ruan Transp. Corp. v. NLRB, 404 F.2d 274, 284 (8th Cir.
1968); Walls Mfg. Co., 321 F.2d at 753.
We conclude that substantial evidence supports the Board's
finding that Michaels did not file his petition out of bad faith
or malice. Accordingly, we reject Mohave's contention that
Michaels' conduct was "disloyal" and therefore unworthy of
NLRA protection.
B
Mohave also contends that the filing of Michaels' judicial
petition was unprotected because it was "contrary to the
express terms of the collective bargaining agreement between
[Mohave] and Michaels' union." Mohave Br. at 20. That
agreement, the company argues, not only "permit[ted] [Mo-
have] to contract with Guard Force, it specifically prohibited
Michaels from interfering with that and other aspects of
[Mohave's] operations." Id. at 20-21. Thus, the company
contends, by seeking an injunction that would have impaired
Guard Force's ability to fulfill its contract with Mohave,
Michaels breached the CBA.
Mohave is correct that conduct in breach of a collective
bargaining agreement is one of "the normal categories of
unprotected concerted activities." NLRB v. Washington Al-
uminum Co., 370 U.S. 9, 17 (1962). But its claim that
Michaels breached the agreement at issue here is truly
breathtaking in its scope. The company does not contend
that the filing of the petition breached the agreement; rath-
er, Mohave's contention is that the breach would occur if the
petition were granted. "If granted," the company argues, an
order directing Guard Force's owner and supervisor to stay
away from Michaels' place of business would limit Mohave's
ability "to enjoy the benefits of [its] contractual relationship"
with Guard Force. Mohave Br. at 16. In essence, Mohave's
contention is that if an employee asserts a right under state
law to be free of physical harassment, and if a judge deter-
mines on the merits that a stay-away order is necessary to
vindicate that right, the employee has violated the collective
bargaining agreement struck between Mohave and the Union.
Mohave is not dissuaded by the implications of this position.
At oral argument, its counsel agreed this would mean that if
an employee were sexually harassed by Mohave's president, it
would be a breach of contract for the employee to seek a
judicial restraining order. The employee's only recourse,
counsel suggested, would be to sue the Union for having
"shackled" the employee with a CBA that barred access to
the courts.
It is doubtful that a collective bargaining agreement could
waive an employee's statutory rights10 in the manner claimed
by Mohave.11 But even if this were the kind of right that a
CBA could waive, the Supreme Court has held that such a
waiver must be "clear and unmistakable." Wright v. Univer-
sal Maritime Serv. Corp., 119 S. Ct. 391, 396 (1998) (holding
that general arbitration clause in CBA did not waive employ-
ee's right to judicial forum for claim of employment discrimi-
nation). "We will not infer from a general contractual provi-
sion," the Court said, "that the parties intended to waive a
statutorily protected right unless the undertaking is explicitly
stated. More succinctly, the waiver must be clear and unmis-
takable." Id. (internal quotations omitted).
Nothing in the collective bargaining agreement at issue
here even approaches this "clear and unmistakable" standard
for waiver. The provision upon which Mohave relies bears
the title "NO STRIKE" and reads as follows:
During the terms of this Agreement, under no circum-
stances will the Union or the employees engage in,
instigate, cause, permit, encourage, or take part in any
__________
10 Michaels' petition was based on Ariz. Rev. Stat. s 12-1809,
which authorizes courts to grant injunctions against harassment.
11 See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S.
728, 745 (1981) (holding that employees' rights under Fair Labor
Standards Act are not waivable through collective bargaining);
Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974) (holding
that CBA cannot prospectively waive employees' statutory rights
under Title VII); cf. Hawaiian Airlines, Inc. v. Norris, 512 U.S.
246, 260 (1994) (holding that Railway Labor Act does not preempt
state-law causes of action that are independent of CBA).
strike, boycott, work stoppage, slowdown, cessation of
work, interruption of work, sympathy strike, unfair labor
practice strike, picket, curtailment of work, reduction of
production, or interference of any kind with the opera-
tions of the Employer.
App. at 123 (emphasis added). As is immediately apparent,
the provision does not mention the exercise of statutory
rights or the filing of lawsuits at all. Rather, as its title
makes clear, it is principally a no-strike provision, and the
specific prohibitions it sets forth are all against work stoppag-
es of one form or another. Although Mohave contends that
the phrase we have italicized above, "or interference of any
kind," gives the prohibition a wider scope, the canon of
ejusdem generis ("of the same kind or class") counsels against
our reading that general phrase to include conduct wholly
unlike that specified in the immediately preceding list of
prohibited acts. In any event, given the Supreme Court's
admonition that we should not infer waivers of statutory
rights unless they are "clear and unmistakable," we see
nothing in this CBA to justify inferring a waiver of the
proportions claimed by Mohave.12
C
Having rejected Mohave's arguments that Michaels' con-
duct was unprotected, we turn now to its alternative argu-
ment: that evidence acquired after Michaels' termination
should limit his remedy. The NLRB awarded Michaels full
reinstatement and backpay from the time of his discharge.
See Mojave Elec., 1998 WL 777462, at *1. Mohave disputes
__________
12 This case is therefore completely different from Emporium
Capwell Co. v. Western Addition Community Org., 420 U.S. 50
(1975), urged upon us by petitioner. There, the Court held that
conduct was unprotected by the NLRA where a group of employees
attempted "to bypass the grievance procedure" set forth in their
CBA, "in favor of attempting to bargain with their employer"
separately and without their union. Id. at 67. Michaels endeav-
ored neither to bypass the CBA's grievance procedure, nor to
bargain separately with Mohave.
that award, contending that one week after it fired Michaels,
it came upon evidence that would have resulted in his termi-
nation irrespective of the injunction petitions. That evidence
was a statement by Guard Force employee Tammy Bauguess
that, on a single occasion nine to ten months before his
discharge, Michaels paid her five dollars to take part of his
meter route. Mohave's operations manager, Tom Longtin,
"testified unequivocally that he would have discharged Mi-
chaels for this action" as soon as he discovered it. Mohave
Reply Br. at 9.
To preclude reinstatement and limit backpay on the basis
of after-acquired evidence, the employer has the burden of
proving that the evidence reveals misconduct for which it
"would have discharged any employee," not simply for which
it could have done so. Marshall Durbin Poultry Co., 310
N.L.R.B. 68, 70 (1993) (emphasis added), aff'd in relevant
part, 39 F.3d 1312 (5th Cir. 1995); see also John Cuneo, Inc.,
298 N.L.R.B. 856, 856-57 (1990).13 The NLRB affirmed the
ALJ's determination that Mohave had not met that burden.
See Mojave Elec., 1998 WL 777462, at *1. Because the Board
has "broad discretion" in fashioning remedial orders, ABF
Freight Sys., Inc. v. NLRB, 510 U.S. 317, 325 (1994), we will
uphold its decision as long as there is substantial evidence in
the record to support it.
There is such substantial evidence here. The ALJ conclud-
ed that "even if [he] had found the events to have occurred as
testified to by Bauguess,"14 he could not credit Longtin's
__________
13 Cf. McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352,
362-63 (1995) (holding in age discrimination suit that "[w]here an
employer seeks to rely upon after-acquired evidence of wrongdoing,
it must first establish that the wrongdoing was of such severity that
the employee in fact would have been terminated on those grounds
alone if the employer had known of it at the time of the discharge").
14 The ALJ also concluded that the alleged payment to Bau-
guess had not been made, stating that Michaels denied he had ever
paid anyone to take his meter route. See Mojave Elec., 1998 WL
777462, at *14. We have been unable to find that denial in the
record before us.
testimony that this kind of misconduct would alone have
resulted in Michaels' discharge. Mojave Elec., 1998 WL
777462, at *14. The "claimed seriousness" of the single
alleged five-dollar bribe, the ALJ said, was substantially
undercut by "Longtin's benign attitude" toward Bauguess,
who purportedly had taken the bribe. Id. at *15. As Long-
tin admitted, he had "made no request or demand that
[Bauguess] be disciplined by Guard Force." Id.; see Tr. at
385 (testimony of Longtin) (agreeing that it was "against the
rules for [Bauguess] to accept the money," but conceding that
he had not recommended that she be disciplined). "The fact
that Longtin has taken absolutely no action against" her, the
ALJ concluded, spoke "volumes" as to whether the five dollar
bribe was an offense for which Michaels really would have
been fired, Mojave Elec., 1998 WL 777462, at *15, and
"belied" Longtin's testimony that it was, id. at *12.
The inference drawn by the ALJ is a reasonable one. See
John Cuneo, Inc., 298 N.L.R.B. at 861 n.10 (noting that
treatment of similarly situated employees carries great
weight in evaluating whether employer would have terminat-
ed employee for act of misconduct); Axelson, Inc., 285
N.L.R.B. 862, 866 (1987) (holding that, to terminate backpay
on basis of after-acquired evidence, employer must demon-
strate that discovered misconduct "is not conduct of a sort
that it has tolerated in the past").15 Against it Mohave offers
nothing more than Longtin's testimony, which the ALJ was
entitled to reject as self-serving. See Import Body Shop,
Inc., 262 N.L.R.B. 1188, 1188 (1982) (viewing "with skepti-
cism" rationale for discharge based on post-discharge evi-
dence, since employer "already had manifested its intention to
discharge [employee] for unlawful reasons"). Indeed, Mo-
have does not even attempt to explain why Bauguess escaped
discipline for engaging in the same transaction for which the
company claims it would have fired Michaels. Accordingly,
__________
15 Although Bauguess was technically an employee of Guard
Force rather than Mohave, Mohave exercised ultimate supervision
over all meter readers. See Tr. at 269-70. Longtin specifically
testified that he could demand the discharge of a Guard Force
employee for misconduct. See id. at 365-66.
we have no warrant for rejecting the Board's conclusion that
Michaels should be awarded full reinstatement and backpay.
III
For the foregoing reasons, Mohave's petition for review is
denied, and the Board's cross-petition for enforcement is
granted.
So ordered.