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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Submitted September 25, 2003 Decided October 21, 2003
No. 02-1278
SHAMROCK FOODS COMPANY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
02–1323
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
Scott V. Kamins was on the brief for petitioner.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Charles Donnelly, Supervisory Attorney, and Jeffrey L.
Horowitz, Attorney, National Labor Relations Board, were on
the brief for respondent.
Before: HENDERSON, TATEL and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Shamrock Foods Company peti-
tions for review of a decision and order of the National Labor
Relations Board (NLRB), and the Board cross-applies for
enforcement of its order. The Board found that Shamrock
violated section 8(a)(1) of the National Labor Relations Act
(NLRA), 29 U.S.C. § 158(a)(1), by, among other things, dis-
charging an employee for allegedly committing misconduct in
the course of soliciting his co-workers for the union. For the
reasons set forth below, we deny Shamrock’s petition for
review and grant the Board’s cross-application for enforce-
ment.1
I
Shamrock is a wholesale distributor and seller of food
products that maintains offices nationwide. We are con-
cerned here with activities that took place at Shamrock’s
Phoenix, Arizona facility, which employs some 500 warehouse
workers and drivers. In April 1998, Teamsters Local Union
No. 104 began a campaign to organize the Phoenix employees.
In pursuit of that goal, the union filed a petition for a
representation election on June 16, 1998. Four months later,
the union charged Shamrock with committing unfair labor
practices in connection with the organizing campaign. Based
on that charge, the NLRB’s General Counsel issued a com-
plaint against Shamrock. The complaint alleged, inter alia,
multiple violations of section 8(a)(1), which makes it unlawful
for an employer ‘‘to interfere with, restrain, or coerce employ-
ees in the exercise of’’ their rights to join or assist a labor
organization. 29 U.S.C. § 158(a)(1); see id. § 157.
1This case was considered on the record from the NLRB and on
the briefs submitted by the parties. See Fed. R. App. P. 34(a)(2);
D.C. Cir. Rule 34(j).
3
After a two-day hearing, an Administrative Law Judge
(ALJ) sustained the General Counsel’s complaint in part.
With one exception, the Board affirmed. See Shamrock
Foods Co., 337 N.L.R.B. No. 138 (July 30, 2002). In its
petition for review, Shamrock raises multiple objections to the
NLRB’s decision. The standard of review we apply to such
objections is one we have stated many times before: ‘‘We
must uphold the judgment of the Board unless, upon review-
ing the record as a whole, we conclude that the Board’s
findings are not supported by substantial evidence, TTT or
that the Board acted arbitrarily or otherwise erred in apply-
ing established law to the facts of the case.’’ Pioneer Hotel,
Inc. v. NLRB, 182 F.3d 939, 942 (D.C. Cir. 1999) (internal
quotation marks and citation omitted).
In the following parts, we examine Shamrock’s challenges
to two of the NLRB’s determinations: (1) that Shamrock
unlawfully discharged employee Vincent D’Anella; and (2)
that it unlawfully interrogated employee David Trujillo.
Shamrock’s other challenges to the NLRB’s determinations
require no elaboration by this court, and we deny them for
the reasons set forth by the Board and its ALJ.
II
We begin our discussion with Shamrock’s discharge of
Vincent D’Anella, a widely acknowledged leader of the 1998
unionization effort. At the time of his October 8, 1998,
discharge, D’Anella had been working for Shamrock for al-
most five years and had a spotless record. See Shamrock
Foods Co., 337 N.L.R.B. No. 138, at 7 (ALJ Op.). Although
Shamrock admits that it discharged D’Anella during the
organizing campaign, it maintains that it did so not for his
unionization efforts, but because he physically threatened
fellow workers Chris Hargenrader and Daniel Brooks in
connection with soliciting them for union authorization cards.
The ALJ and the Board analyzed D’Anella’s discharge
utilizing the framework approved by the Supreme Court in
NLRB v. Burnup & Sims, 379 U.S. 21 (1964). Under
Burnup & Sims, ‘‘§ 8(a)(1) is violated if it is shown that the
4
discharged employee was at the time engaged in a protected
activity, that the employer knew it was such, that the basis of
the discharge was an alleged act of misconduct in the course
of that activity, and that the employee was not, in fact, guilty
of that misconduct.’’ 379 U.S. at 23; see Cadbury Beverages,
Inc. v. NLRB, 160 F.3d 24, 29 (D.C. Cir. 1998). In this case,
the first three parts of the Burnup & Sims inquiry are easily
satisfied: it is clear that D’Anella was engaged in protected
activity when he solicited his co-workers for the union; there
is no doubt that Shamrock knew that such activity was
protected; and the express basis for the discharge was
D’Anella’s alleged misconduct in the course of that otherwise
protected activity. See Shamrock Foods Co., 337 N.L.R.B.
No. 138, at 7 (ALJ Op.) (‘‘Respondent charges that D’Anella
threatened two employees TTT with ‘violent repercussions
related to his efforts to secure their support for the Team-
stersTTTT’ ’’ (quoting Shamrock’s NLRB Reply Br. at 2)
(emphasis added)).
The only remaining question is whether D’Anella did, in
fact, threaten the two employees. The evidence that he did
rested largely on the testimony of Hargenrader and Brooks.
D’Anella, however, denied making the threats; indeed, he
testified that he did not even know Brooks and that he had
never solicited Brooks’ union card. D’Anella’s testimony on
the latter point was corroborated by employee Luigi Baratta,
who testified that it was he who solicited Brooks’ card and
that D’Anella was not present at the time. In light of this
clash of testimonies, ‘‘the case turn[ed] primarily on credibili-
ty resolutions by the trier of fact as to the various accounts
provided concerning the purported threats.’’ Shamrock
Foods Co., 337 N.L.R.B. No. 138, at 8 (ALJ Op.). Based both
on the ‘‘testimonial demeanor’’ of the company’s witnesses,
and on their behavior subsequent to the allegedly threatening
conversations, the ALJ concluded that ‘‘the accounts of
threats and intimidation attributed to D’Anella by Hargen-
rader and Brooks lack any credible quality.’’ Id. at 10. The
ALJ thus determined that D’Anella had not engaged in the
alleged misconduct, and, following Burnup & Sims, concluded
that Shamrock violated section 8(a)(1) by discharging him.
5
Shamrock disputes the NLRB’s determination on a number
of grounds. First, it argues that the Board’s finding that
D’Anella did not threaten his co-workers is unsupported by
substantial evidence. That contention cannot be sustained,
however, as the Board’s finding was supported by the testi-
mony of both D’Anella and Baratta. Although Hargenrader
and Brooks testified to the contrary, the ALJ did not find
them credible. And while Shamrock urges us to set that
finding aside, ‘‘we do not reverse the Board’s adoption of an
ALJ’s credibility determinations unless, unlike here, those
determinations are ‘hopelessly incredible,’ ‘self-contradictory,’
or ‘patently unsupportable.’ ’’ Cadbury Beverages, Inc., 160
F.3d at 28 (quoting Capital Cleaning Contractors, Inc. v.
NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998)); see Vico Prod-
ucts Co., Inc. v. NLRB, 333 F.3d 198, 209 (D.C. Cir. 2003).
Second, Shamrock contends that the Board misapplied the
Burnup & Sims test by refusing to give the company an
opportunity to demonstrate that, even if the threats were
never made, it had a good faith belief that they were. This
argument, however, misapprehends Burnup & Sims. As the
Supreme Court made clear in that case, the employer’s good
faith is simply not relevant if the misconduct did not occur:
‘‘Over and again the Board ha[s] ruled that § 8(a)(1) is
violated if the employee is discharged for misconduct arising
out of a protected activity, despite the employer’s good faith,
when it is shown that the misconduct never occurred.’’ Burn-
up & Sims, 379 U.S. at 23 (emphasis added).2 The Court
explained the rationale for that rule as follows:
2 See Cadbury Beverages, 160 F.3d at 29 (‘‘In cases involving
employee discipline for alleged misconduct in the course of a
protected activity that the employer knew was protected, an em-
ployer violates section 8(a)(1) if it is proven that the alleged
misconduct did not occur, whether or not the employer acted in
good faith.’’); Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1222
(6th Cir. 1990) (same); Allied Indus. Workers, AFL–CIO Local
Union No. 289 v. NLRB, 476 F.2d 868, 880 (D.C. Cir. 1973) (same).
6
Th[e] rule seems to us to be in conformity with the policy
behind § 8(a)(1). Otherwise the protected activity would
lose some of its immunity, since the example of employ-
ees who are discharged on false charges would or might
have a deterrent effect on other employees. Union
activity often engenders strong emotions and gives rise
to active rumors. A protected activity acquires a precar-
ious status if innocent employees can be discharged while
engaging in it, even though the employer acts in good
faith. It is the tendency of those discharges to weaken
or destroy the § 8(a)(1) right that is controlling.
Id. at 23–24.
It is true that there is a burden-shifting element to the
Burnup & Sims test that involves proof of the employer’s
good faith: ‘‘If the employer establishes its honest belief [that
the discharged employee was guilty of the misconduct], the
burden shifts to the General Counsel to show that the miscon-
duct did not occur.’’ TCI Cablevision of Montana, Inc. v.
NLRB, 2002 WL 31818246, at *1 (D.C. Cir. 2002); see Burn-
up & Sims, 379 U.S. at 23 n.3.3 But in a case like this one, in
which the ALJ imposed the burden of proof on the General
Counsel from the outset, proof of good faith — which does
nothing more than place the burden on the General Coun-
sel — is unnecessary and irrelevant.
Third, Shamrock protests that the ALJ did not, in fact,
impose the burden of proof on the General Counsel as re-
quired by Burnup & Sims. There is no question, however,
that the ALJ properly assigned the burden. Indeed, his
opinion states both that ‘‘the General Counsel has the burden
of showing that the employee did not, in fact, commit the
misconduct,’’ Shamrock Foods Co., 337 N.L.R.B. No. 138, at
10, and that the ‘‘General Counsel has sustained his burden of
proving that Respondent violated Section 8(a)(1) by suspend-
3 See also Dallas Gen. Drivers v. NLRB, 389 F.2d 553, 554–55
(D.C. Cir. 1968); Pepsi-Cola Co., 330 N.L.R.B. 474, 474–75 (2000).
7
ing and discharging D’Anella,’’ id.4 Shamrock complains that,
despite what he said, the ALJ effectively shifted the burden
of proof to the company by basing his decision on his disbelief
of the company’s witnesses, rather than on affirmative evi-
dence that the alleged misconduct did not occur. But wheth-
er or not disbelief in the testimony of one party’s witnesses
can be sufficient to satisfy the opposing party’s burden of
proof in an NLRB proceeding,5 there was more than just
disbelief here. Rather, the ALJ relied on D’Anella’s direct
testimony that he neither threatened nor harassed his fellow
employees, testimony that was corroborated in important part
by both Baratta and another employee, Frank Meza.
Finally, Shamrock argues that the Board erred by using
the Burnup & Sims test in the first place, rather than
applying the better-known Wright Line formula. See Wright
Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st
Cir. 1981); see also NLRB v. Transportation Mgmt. Corp.,
462 U.S. 393, 399–401 (1983). Under Wright Line, the Gener-
al Counsel must first show that the employee’s ‘‘protected
conduct was a ‘motivating factor’ in the employer’s decision’’
to take an adverse employment action. Wright Line, 251
4 As Shamrock notes, at one point the ALJ referred to, and
rejected, what he characterized as Shamrock’s ‘‘affirmative de-
fense’’ — a reference that Shamrock interprets as requiring it to
bear the burden of proof. Shamrock Foods Co., 337 N.L.R.B. No.
138, at 10 (ALJ Op.). In context, however, it is clear that the ALJ’s
reference was not to the burden of proof under Burnup & Sims,
but to Shamrock’s claim that the company was entitled to an
affirmative defense of good faith under the Wright Line test. The
Board itself disavowed the ALJ’s entire discussion of good faith,
correctly concluding — as we discuss below — that Wright Line is
inapplicable here. See id. at 1.
5 Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
147 (2000) (noting, in a Title VII case, that ‘‘[i]n appropriate
circumstances, the trier of fact can reasonably infer from the falsity
of the explanation that the employer is dissembling to cover up a
discriminatory purpose’’); United States v. Zeigler, 994 F.2d 845,
848–50 (D.C. Cir. 1993) (highlighting problems that this issue poses
for appellate review of jury verdicts).
8
N.L.R.B. at 1089. ‘‘Once this is established, the burden TTT
shift[s] to the employer to demonstrate that the same action
would have taken place even in the absence of the protected
conduct.’’ Id.; see Tasty Baking Co. v. NLRB, 254 F.3d 114,
125–26 (D.C. Cir. 2001). Wright Line is the test the Board
uses when an employer has discharged (or disciplined) an
employee for a reason assertedly unconnected to protected
activity — for example, poor performance. In such cases, the
central question is whether the discharge was motivated by
anti-union animus, and the Board uses variations on Wright
Line’s burden-shifting framework to test the veracity and
sufficiency of the employer’s explanation. See Wright Line,
251 N.L.R.B. at 1083–84 (discussing pretext and dual motive
cases); see also Transportation Mgmt. Corp., 462 U.S. at
398–400; Southwest Merchandising Corp. v. NLRB, 53 F.3d
1334, 1339 n.7 (D.C. Cir. 1995).
As the Board explained below, however, and as this court
has explained before, Wright Line is inapplicable to cases —
like this one — in which the employer has discharged the
employee because of alleged misconduct ‘‘in the course of’’
protected activity. Shamrock Foods Co., 337 N.L.R.B. No.
138, at 1; see Cadbury Beverages, 160 F.3d at 29 n.4 (reject-
ing the applicability of Wright Line to such cases); E.W.
Grobbel Sons, 322 N.L.R.B. 304, 304–05 (1996) (same), en-
forcement denied on other grounds, 149 F.3d 1183 (6th Cir.
1998). In such cases, Burnup & Sims makes clear that the
employer’s ‘‘motive is not at issue,’’ and that the only question
is whether the alleged misconduct actually occurred. Sham-
rock Foods Co., 337 N.L.R.B. No. 138, at 1; see Cadbury
Beverages, 160 F.3d at 29 (holding that ‘‘Burnup & Sims
explicitly obviates the need to inquire into intent’’). Accord-
ingly, the Wright Line test — the function of which is to
ferret out the motives for a discharge — is inapplicable. As
we explained in Cadbury Beverages, the Wright Line analysis
‘‘is generally appropriate in the sort of case in which the
general counsel’s charge is based on an unlawful motive — it
gives the employer the opportunity to prove that, despite any
unlawful motive, the same action would have occurred pursu-
ant to some additional, lawful motive.’’ 160 F.3d at 29 n.4.
9
‘‘But since Burnup & Sims imposes liability for an employ-
ment action erroneously taken because of alleged misconduct,
regardless of motive, TTT it is plainly irrelevant whether [the
employer’s] proffered reason for acting was pretextual’’ or
whether it would have taken the same action for a lawful
reason. Id.
Shamrock contends that, the above notwithstanding, this
case cannot be distinguished from Frazier Industrial Co.,
Inc. v. NLRB, 213 F.3d 750, 757 (D.C. Cir. 2000), in which we
applied Wright Line to similar facts. But Frazier is not
inconsistent with the Burnup & Sims framework. Unlike
Shamrock, the employer in Frazier gave not one but two
rationales for discharging a union organizer. First, as in this
case, the employer contended that it fired the employee
because he had engaged in unprotected harassment in the
course of his otherwise protected efforts to persuade co-
workers to sign union authorization cards. Frazier Indus.
Co., 213 F.3d at 756. Although we did not mention Burnup &
Sims, our analysis of this first claim was consistent with our
analysis here: we asked only whether the alleged harassment
actually occurred, and, after determining that it did not, we
did not further inquire into the employer’s good faith. Id. at
756–59.6
Having rejected the employer’s first claimed rationale, we
then turned to its second: that ‘‘even if [the employee’s]
actions constituted protected activities, its termination of [his]
employment was lawful because it would have discharged him
in the absence of protected conduct for his insubordination
and dishonesty.’’ Id. at 756; see id. at 759. This second
rationale was aptly characterized as ‘‘the company’s Wright
Line defense,’’ because the misconduct to which it referred —
insubordination and dishonesty — was not alleged to have
occurred in the course of protected union solicitation, but
rather during a subsequent conversation between the employ-
6That analysis was conducted in connection with the first step in
the Wright Line test, which asks whether ‘‘protected activity’’
motivated the adverse employment action. Frazier Indus. Co., 213
F.3d at 755–56 (citing Wright Line, 251 N.L.R.B. at 1089).
10
ee and his supervisor. Id. at 759–60.7 Shamrock, by con-
trast, did not offer a rationale for firing D’Anella that was
unconnected to his union activity, and the Board therefore
rightly declined to apply Wright Line to this case.
In sum, we conclude that the NLRB properly applied the
Burnup & Sims test to the discharge of D’Anella, and that
the Board’s conclusion that Shamrock violated section 8(a)(1)
is supported by substantial evidence.
III
We next consider the NLRB’s determination that Sham-
rock’s night-shift manager, Bud Shalley, unlawfully interroga-
ted warehouse worker David Trujillo about the union’s orga-
nizing efforts. Trujillo testified that on or about June 4, 1998,
in the midst of the organizing campaign, Shalley approached
him while he was sitting alone in a warehouse office complet-
ing paperwork. After a few moments of small talk, Shalley
asked Trujillo if he had heard anything about the union and
whether D’Anella had asked Trujillo to sign a union card.
When Trujillo answered that he had ‘‘not yet’’ been asked,
Shalley walked out of the office. J.A. at 83. A few days
later, on June 9, Shalley again approached Trujillo in the
warehouse office. This time, Shalley said: ‘‘I can’t believe
Vinnie [D’Anella] hasn’t come to you yet about the union.’’
When that remark failed to evoke a response, Shalley fol-
lowed up with: ‘‘Well, if you find out that Vinnie’s trying to
hand out union cards, let me know.’’ Id. at 83–84. Trujillo
testified that he promised Shalley that he would keep his
‘‘eyes open.’’ Id. at 84; see Shamrock Foods Co., 337
N.L.R.B. No. 138, at 4 (ALJ Op.).
Although Shalley denied that either conversation took
place, the ALJ credited Trujillo’s account and concluded that
7 Applying Wright Line, we went on to hold that the Board
reasonably rejected the employer’s defense because ‘‘[s]ubstantial
evidence support[ed] the Board’s finding that [the plant manager]
decided to terminate [the employee] for the union activities, and not
for insubordination and dishonesty.’’ Frazier Indus. Co., 213 F.3d
at 759.
11
the conversations, as described by Trujillo, violated section
8(a)(1). The Board affirmed. In its petition for review,
Shamrock contends both that the conversations never took
place, and that even if they did, they did not violate the
NLRA.
We first address Shamrock’s fallback argument that even if
the conversations did occur, they were not unlawful. This
argument requires little discussion. The questioning of an
employee about union activities or sympathies constitutes
unlawful interrogation ‘‘if, under all the circumstances, it
reasonably tends to restrain, coerce, or interfere with rights
guaranteed by the Act.’’ Perdue Farms, Inc. v. NLRB, 144
F.3d 830, 835 (D.C. Cir. 1998) (internal quotation marks
omitted). Here, in the midst of a heated union campaign, a
Shamrock manager twice approached Trujillo — who was not
an open union supporter — and questioned him about the
activities of a union organizer, eliciting a promise from the
employee that he would keep his ‘‘eyes open.’’ J.A. at 84.
The questioning was unaccompanied by any assurance against
reprisal, took place when Trujillo was alone, and had no
apparent legitimate purpose. Recognizing the Board’s
‘‘ ‘competence in the first instance to judge the impact of
utterances made in the context of the employer-employee
relationship,’ ’’ Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d
99, 106 (D.C. Cir. 2003) (quoting NLRB v. Gissel Packing Co.,
395 U.S. 575, 620 (1969)), we find nothing unreasonable in the
Board’s conclusion that these conversations, if they occurred
as alleged, were sufficiently coercive to violate the Act. See,
e.g., Perdue Farms, 144 F.3d at 835–36; Avecor, Inc. v.
NLRB, 931 F.2d 924, 931 (D.C. Cir. 1991); Timsco Inc. v.
NLRB, 819 F.2d 1173, 1176–80 (D.C. Cir. 1987); Midwest
Reg’l Joint Bd. v. NLRB, 564 F.2d 434, 443 (D.C. Cir. 1977).
Shamrock’s principal contention is that substantial evidence
does not support the ALJ’s finding that the conversations
between Shalley and Trujillo took place at all. But there
plainly is such evidence: namely, Trujillo’s own testimony.
And while, as the ALJ recognized, ‘‘Shalley flatly denied
Trujillo’s assertions,’’ Shamrock Foods Co., 337 N.L.R.B. No.
12
138, at 4 n.6, we must defer to the judge’s assessment that
Shalley’s testimony was not credible, id.
Shamrock argues that Shalley’s claim, that he did not talk
to Trujillo about the union on June 4 or 9, is proven by the
fact that he did not even know about the union’s organizing
efforts until later that month. Although the ALJ acknowl-
edged Shalley’s claim of ignorance, he also noted that Frank
Meza, a warehouse employee and union supporter, had testi-
fied to the contrary. According to Meza, an ‘‘upset’’ Shalley
spoke to him about unionization around June 1, 1998, saying
‘‘[w]e really don’t need a union unless you’re mistreated’’ and
‘‘[t]hey don’t need a union here.’’ Id. at 3 (quoting J.A. at 98).
After evaluating both Shalley’s and Meza’s testimony, the
ALJ concluded: ‘‘[Shalley] claims that he first learned of the
union drive and D’Anella’s activity later in June. However,
as Meza’s account of an earlier conversation is uncontradict-
ed, I do not credit Shalley’s denials here.’’ Id. at 4 n.6.
Shamrock seizes on the word ‘‘uncontradicted’’ in the pre-
ceding quotation, insisting that it demonstrates that the ALJ
was unfamiliar with the factual record. Meza’s account was
not ‘‘uncontradicted,’’ Shamrock points out, because Shalley
himself contradicted it by denying that he had ever spoken
with Meza about the union. According to Shamrock, the
ALJ’s ‘‘ignorance of the record’’ on this point means that his
decision rests on a ‘‘mistaken notion,’’ and hence that it
cannot be sustained. Shamrock Reply Br. at 21.
But Shamrock is grasping at straws. There is no doubt
that the ALJ knew full well that Shalley had denied speaking
with Meza, because the ALJ expressly said so at the outset of
the same section of his opinion. See Shamrock Foods Co.,
337 N.L.R.B. No. 138, at 3 (‘‘Shalley denied that he made the
statements attributed to him by employees Frank Meza and
David Trujillo detailed below.’’). It is clear, then, that the
ALJ was fully conversant with the record and simply conclud-
ed that Meza’s testimony was uncontradicted by credible
evidence. And as the ALJ’s decision to credit the testimony
of Meza and Trujillo rather than that of Shalley is not
‘‘patently unsupportable,’’ we must and do defer to it. Tasty
13
Baking, 254 F.3d at 124 (internal quotation marks omitted).
Accordingly, we have no cause to set aside the Board’s
conclusion that Shamrock, through Shalley, unlawfully inter-
rogated David Trujillo in violation of section 8 (a)(1).
IV
For the foregoing reasons, we deny Shamrock’s petition for
review and grant the Board’s cross-application for enforce-
ment of its order.