United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 18, 2005 Decided May 31, 2005
No. 04-1261
PALACE SPORTS & ENTERTAINMENT, INC.,
D/B/A ST . PETE TIMES FORUM ,
F/K/A TAMPA BAY ICE PALACE,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
04-1276
On Petition for Review and
Cross-Application for Enforcement of an
Order of the National Labor Relations Board
Robert M. Vercruysse argued the cause for petitioner. With
him on the briefs was Gary S. Fealk.
David A. Fleischer, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. With him on
the brief were Arthur F. Rosenfeld, General Counsel, John H.
Ferguson, Assistant General Counsel, Aileen A. Armstrong,
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Deputy Associate General Counsel, and Meredith L. Jason,
Attorney.
Before: GINSBURG, Chief Judge, and EDWARDS and
GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: Palace Sports & Entertainment,
Inc. (“Palace” or “the Company”) petitions for review of an
order of the National Labor Relations Board (“NLRB” or
“Board”), and the Board cross-applies for enforcement. On
charges filed by the International Alliance of Theatrical Stage
Employees, AFL-CIO (“Union”), the Board held that, in the
months following Palace’s assumption of operations at the St.
Pete Times Forum (“Forum”) in Tampa, Florida, the Company
committed various unfair labor practices in violation of § 8(a)(1)
and (3) of the National Labor Relations Act (“Act”), 29 U.S.C.
§ 158(a)(1), (3) (2000). Specifically, the Board found that
Palace prohibited employees from conversing about the Union,
interrogated employees about their knowledge of union activity
and their communications with the Board, and threatened
employees if they cooperated with the Board or supported the
Union, all in contravention of § 8(a)(1). The Board also
concluded that the Company violated § 8(a)(1) and (3) by
disciplining and subsequently discharging a pro-union
employee, Peter Mullins. The Board issued an order requiring
the Company to cease and desist from its unlawful conduct and
to take certain affirmative remedial action, including the
reinstatement of Mullins with back pay. See St. Pete Times
Forum, 342 N.L.R.B. No. 53, 2004 WL 1701333 (July 27,
2004). The Company does not challenge most of the Board’s §
8(a)(1) findings; accordingly, we grant the cross-application to
enforce the portions of the Board’s order based on these
unchallenged findings of unfair labor practices.
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Palace’s principal claim in this case is that the Board erred
in concluding that the employer’s discipline and later discharge
of Mullins violated the Act. Mullins was issued warnings for
violating the Company’s solicitation and harassment policies
during the course of his discussions with a fellow employee
about whether to join the Union. In evaluating this disciplinary
action, the Board relied on the framework approved in NLRB v .
Burnup & Sims, Inc., 379 U.S. 21, 23 (1964), under which an
employer violates the Act, despite its good faith, by disciplining
an employee for misconduct arising out of a protected activity,
when it is shown that the misconduct did not in fact occur. The
Board concluded that Mullins did not in fact commit the
offenses for which he was disciplined. We conclude that these
findings are supported by substantial evidence.
Months after he received the disciplinary warnings, Mullins
was discharged for making an improper remark during a
conversation with an employee of a vendor located in the
Forum. The Board ostensibly employed the framework set forth
in Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d
899 (1st Cir. 1981), to determine whether protected activity was
the motivating factor in Palace’s decision to fire Mullins. The
Board’s opinion on this point is hopelessly unclear, so we are
unable to discern the precise basis upon which the Board
concluded that Mullins’ discharge was unlawful. We therefore
remand the case to the Board so that it may revisit this issue.
I. BACKGROUND
A. Factual Background
Palace Sports & Entertainment, Inc. owns and operates
various sports and entertainment arenas, including the Palace of
Auburn Hills located near the Company’s headquarters in
Detroit, Michigan. In July 1999, the Company purchased the
Ice Palace in Tampa, Florida, an arena which has since become
known as the St. Pete Times Forum. Palace assumed various
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contractual obligations made by the previous owner, including
a contract with SMG, a company whose employees maintained
the facility and performed the work necessary to effectuate
conversions of the arena floor, e.g., from a hockey rink to a
concert venue. SMG had a labor contract with the Union.
When Palace purchased the Forum, it decided that it would
take control over the maintenance and conversion operations
itself instead of employing subcontractors like SMG. On June
30, 2001, when SMG’s contracts with the Forum and the Union
expired, Palace assumed the maintenance and conversion
operations for the arena. The Company hired some of SMG’s
former employees, including numerous Union officials, but it
did not recognize the Union. One of the employees Palace hired
was Peter Mullins, a mechanical engineer who had been on the
Union’s negotiating committee while he was employed by
SMG. After he was hired, Mullins and other pro-union
employees began soliciting union authorization cards. The
presence of this union activity at the Forum resulted in a number
of incidents involving the management of the Company, which
ultimately resulted in the filing of unfair labor practice charges
in this case.
On June 27, 2001, the Company posted a policy prohibiting
solicitation by one employee to another “while either is
working.” In response to some complaints from employees
regarding solicitation on behalf of the Union, Palace vice
president Sean Henry reviewed this no-solicitation policy with
employees at a meeting on July 18. He informed the employees
that solicitation in violation of the Company’s policy could
result in termination. During the course of the meeting, Henry
effectively promulgated a rule prohibiting any conversation
about the Union. Specifically, Henry told employees that they
could “talk about virtually anything” so long as they did not
solicit. But by “virtually anything” Henry excluded
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conversations about the Union, because he viewed any
discussion regarding the Union as solicitation.
In mid-July, operations manager Carson Williams asked
employee Thomas Roberts whether anyone had approached him
“about the union organization process.” After Roberts
responded that nobody had, Williams said, “I know if anyone
comes to you, you will let me know.” Also in mid-July,
employee George Freire spoke with a new employee and gave
him a union authorization card. The next day, Williams told
Freire “not to be discussing union issues on the clock or in the
building.”
Around November 20, 2001, Williams approached Roberts
and told him that he “didn’t like rumors” and wanted to clear
one up. He said that he had heard that Roberts had gone to the
NLRB to complain about him, and asked Roberts to explain his
action. Roberts answered that he did not know what Williams
was talking about, that he had not gone to the Board. Williams
then conceded that it might have been another employee with
the same name as Roberts who had complained to the Board, but
that “it would all come out and once it did” Williams “would
take care of it.”
On June 18, 2002, Williams called Mullins to his office to
fix a problem with the building’s automation system. After the
problem was corrected, Williams commented that he would be
“lost” without Mullins, to which Mullins replied that he was not
planning on going anywhere. Williams then told Mullins that if
he “and the rest of the union supporters file for a new election,
then you are going to be terminated.” When Mullins responded
that he could not be fired for “doing something legal,” Williams
stated that the Company would terminate the leader “and then
the rest of you will get in line.” Mullins asked Williams who
had told him that, and Williams replied, “Sean Henry.”
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On July 11, 2002, less than a month after this conversation,
employee James Carpenter arranged to speak with Henry to
complain about Peter Mullins. According to Henry, Carpenter
reported that Mullins would not leave him alone, that he “is
always . . . talking to me and telling me the merits of the Union.”
Carpenter told Henry that initially this happened “three, four,
five times a week,” but that it was now “every time” he saw
Mullins. Carpenter further noted that he had told Mullins to
leave him alone “dozens of times.”
Henry referred the matter to the Company’s human
resources director, Beth Fields, and, the next day, Henry, Fields,
and Williams met with Carpenter. According to a memorandum
summarizing this meeting (signed by Henry, Williams,
Carpenter, and Carpenter’s supervisor), Carpenter reported
being “harassed and solicited” by Mullins. He specifically
reported the most recent incident, which had taken place in the
employee break room at 7:30 a.m. on July 11, before Carpenter
had clocked in but after Mullins began work at 7:00 a.m.
Carpenter related that he and another employee went to the
break room, where Mullins asked him why he would not join the
Union. Carpenter explained that he liked working for Palace
and that the Company had been good to him. Mullins told
Carpenter that the Union could negotiate a better raise for him,
but Carpenter responded that he was not interested and then left.
Carpenter reported that Mullins was always “‘antagonizing’”
him about joining the Union and confronts him “at least 3-5
times per week,” and that it was interfering with his work.
Following this meeting, Carpenter prepared a written
statement, dated July 17, 2002, in which he stated that, “[f]or the
past couple of weeks,” he had been “stopped in the hallways”
and “inside the breakroom” by Mullins “about hav[ing] the
union back into this building,” and that he was “getting t[ir]ed”
of it. Carpenter’s statement recounted the July 11 break room
7
incident, adding that he told Mullins before walking away, “I
don’t want to hear about it any more.”
There is no evidence that Carpenter again complained about
Mullins after July 11. On July 18, Fields, Henry, and Williams
interviewed Mullins regarding Carpenter’s complaints. Henry
testified that, at that meeting, Mullins stated that he had no idea
what Carpenter was talking about. Mullins asserted that
Carpenter was already a member of the Union and that he talked
to Carpenter about the Union only to answer Carpenter’s
questions. Henry also recalls that when he confronted Mullins
with Carpenter’s claim that he asked Mullins to stop “countless
times,” Mullins replied, “I don’t recall him ever asking me to
stop.”
In his own testimony, Mullins claimed that he never
initiated any conversations about the Union with Carpenter, but
rather that Carpenter would bring up the subject and was
“confused,” “afraid that . . . he was going to lose his job if he
supported the Union.” Mullins maintained that he never
intimidated or harassed Carpenter during these conversations.
Regarding the specific incident on July 11, Mullins recalled that
Carpenter “brought up the subject about how his father-in-law
had told him that he didn’t need a union.” Mullins responded,
“Well, James, you know, in a perfect world you don’t need a
union . . . [but we are] already making a lot less money since
Palace . . . eliminated the contract and, you know, we’re not
getting overtime after eight.”
For his part, Carpenter testified that Mullins had spoken to
him about bringing the Union back, and that he replied that he
wanted to give the Company a chance. Mullins replied, “Okay.”
A couple of weeks later, Mullins spoke with him again, and he
replied, “No. I don’t want it yet.” Carpenter testified that
Mullins continued to approach him “on several occasions.” He
explained that when he was in the break room before clocking
in and “when I’m going from one job to another job . . . he
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approaches me and stops and asks me about the Union.” On
those occasions, Carpenter told Mullins, “I don’t want to discuss
it right at this moment.” Carpenter denied initiating the
conversations as Mullins has claimed.
On July 25, 2002, Mullins was issued two disciplinary
warnings. The first was a written warning for violating the
Company’s solicitation policy on July 11, 2002. The warning
states that, while on work time, Mullins “asked an employee
why he would not join a labor union.” The second warning, a
final written warning, was for violation of the Company’s policy
against harassment. It explains that “[d]uring the months of
June and July 2002,” Mullins harassed an employee “in various
work areas at least 3 to 5 times a week even after the employee
being harassed asked [Mullins] to stop. The employee states
that [Mullins] has stopped him in his work area and in his
words, ‘intimidated’ him about joining a labor union while he
was on work time. The employee repeatedly asked [Mullins] to
stop talking to him about joining a labor union, but [Mullins]
continued.”
On October 2, 2002, Carpenter signed a union authorization
card. Mullins testified that Carpenter requested the card.
Carpenter admitted signing the card, but denied requesting it.
There is no evidence that Carpenter made any complaint on this
occasion. About three weeks later, the Union filed a petition for
a representation election.
On October 23, Mullins initiated a conversation with Alice
Castillo, an employee of a vendor located in the Forum. The
two were discussing a newspaper article regarding wages in
Florida when the conversation turned to whether wages in
Florida were lower than those paid in northern states.
According to Castillo, she asked Mullins what wages were in
other southern states like Alabama and Mississippi, in response
to which Mullins loudly called her a “Yankee bitch.” Mullins
denies making the remark. Castillo prepared a statement for her
9
supervisor recounting the incident, and the statement was
ultimately forwarded to Palace officials.
Upon learning of the incident, Fields spoke with Castillo,
who repeated her allegation regarding the incident and stated
that “it had been going on for a long time and that she had just
had enough.” Mullins heard from a fellow employee that
Castillo was upset with him over something, and went to her to
apologize for anything he may have said that offended her.
On October 31, Henry, Fields, and Williams met with
Mullins. Mullins stated that he did not recall calling Castillo a
“Yankee bitch”; he also explained that he had apologized to her
for anything he may have said. Fields testified that she believed
Castillo, because Mullins had only stated that he “did not recall”
making the offensive statement. On November 3, Mullins was
discharged. Fields testified that the Company fired Mullins
because he “made inappropriate comments and his conduct was
inappropriate.”
B. The Board’s Decision
On the basis of the above evidence, a NLRB Administrative
Law Judge (“ALJ”) concluded that Palace violated § 8(a)(1) by:
(1) prohibiting conversations about the Union while permitting
conversations relating to other matters; (2) interrogating
employees about their knowledge of employee interest in the
Union and directing them to report the union activities of their
coworkers; (3) interrogating employees about their
communications with the NLRB and threatening reprisals if
employees cooperated with the Board; and (4) threatening
employees with discharge because of their support for the
Union.
Considering next the disciplinary warnings issued to
Mullins, the ALJ credited Mullins’ version of the events on July
11 and, accordingly, found that he did not solicit Carpenter. The
ALJ alternatively found that, even if Mullins did solicit
10
Carpenter, Mullins did not violate the Company’s solicitation
policy, because Mullins talked with Carpenter while engaged in
nonwork activity. With respect to the harassment warning, the
ALJ credited Mullins’ assertion that he never approached
Carpenter and found that, even if he had, the encounters to
which Carpenter testified did not constitute harassment. Finding
that Mullins was disciplined while engaging in protected activity
for misconduct he did not commit, the ALJ concluded that
Palace violated § 8(a)(1) under the Burnup & Sims framework.
Without any further explanation, the ALJ found that Mullins
was warned for engaging in union activity, and thus concluded
that the warning also violated § 8(a)(3).
Turning to Mullins’ conversation with Castillo, the ALJ
credited Mullins’ testimony that he did not make any offensive
statement, finding that Castillo either misheard or
misunderstood his remark. The ALJ noted, however, that
because Mullins was not engaged in protected activity when he
committed the alleged misconduct, the Burnup & Sims
framework was inapplicable and, accordingly, the Company was
entitled to rely on its good-faith belief in Castillo’s version of
the incident.
Applying the Wright Line test for determining the
relationship, if any, between employer action and protected
employee conduct, the ALJ concluded that the General Counsel
had carried his burden of showing that Mullins’ union activity
was a substantial and motivating factor in Palace’s decision to
discharge Mullins. The ALJ next considered whether the
Company had carried its burden of showing that it would have
taken the same disciplinary action even in the absence of
Mullins’ protected activity. Evaluating the Company’s written
policies regarding “indecent conduct or language,” as well as the
only other documented incident in the record regarding such
behavior, the ALJ found that Palace had not satisfied its burden.
11
The ALJ accordingly concluded that Mullins’ discharge violated
§ 8(a)(3).
After considering exceptions filed to the ALJ’s decision, the
Board affirmed the ALJ’s findings and conclusions. The Board,
however, specifically addressed Mullins’ discharge. The Board
ostensibly applied the Wright Line framework, agreeing first
with the ALJ that the General Counsel “made the required initial
showing that Mullins’ union activity was a substantial or
motivating factor in his discharge.” Proceeding to the question
of whether Palace had established that it would have discharged
Mullins even in the absence of his protected activity, the Board
noted that the Company had argued that “Mullins’ angry
outburst at Castillo created sufficient concern for Title VII
liability that it discharged him.” The Board then concluded that
Palace had “failed to show that it would have discharged
Mullins even in the absence of his union activity in order to
avoid the imposition of Title VII liability.” See generally Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000e et seq. (2000).
In reaching this judgment, the Board suggested that it would
have been “unreasonable” for Palace to discharge Mullins in
order to avoid Title VII liability. The Board reasoned as
follows:
The Supreme Court has held that a single, isolated comment
generally is not sufficient to justify the imposition of Title
VII liability. Clark[] County Sch. Dist. v. Breeden, 532
U.S. 268, 271 (2001). Moreover, even where an employee
has been shown to have sexually harassed a co-worker,
Title VII does not necessarily require the employee’s
discharge, so long as the employer takes reasonable action
to protect the complainant from further harassment.
Baskerville v. Culligan International Co., 50 F.3d 428, 432
(7th Cir. 1995).
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Based on this understanding of Title VII law, the Board
concluded:
We recognize that employers have a legitimate interest in
preventing workplace sexual harassment and a correlative
obligation to respond when such incidents occur. In this
case, however, we find that the [Company] has not
established that it had reasonable grounds for determining
that it had to remove or discipline Mullins in order to avoid
liability under Title VII.
On this basis, the Board found that Palace’s “asserted Title VII
concerns” were pretextual.
In light of these conclusions, the Board ordered Palace to
cease and desist from engaging in the unlawful conduct it was
found to have committed or, in any like manner, interfering
with, restraining, or coercing employees in the exercise of their
rights under the Act. The Board also ordered Palace to offer
Mullins full reinstatement to his former job or a substantially
equivalent position, make him whole for any loss of earnings or
other benefits, and expunge any records of his disciplinary
warnings and discharge.
II. ANALYSIS
A. The Unchallenged Findings of § 8(a)(1) Violations
Palace does not challenge the Board’s conclusions that it
engaged in unfair labor practices in violation of § 8(a)(1) in
prohibiting employee conversations about the Union while
permitting conversations relating to other matters, interrogating
employees about their knowledge of employee activity in
support of the Union and directing them to report the union
activities of their coworkers, interrogating employees about their
communications with the NLRB and threatening reprisals if
employees cooperated with the Board, and threatening
employees with discharge because of their support for the
13
Union. Accordingly, we grant the Board’s application to
enforce the portions of its order that correspond to these
findings. Titanium Metals Corp. v. NLRB, 392 F.3d 439, 445
(D.C. Cir. 2004).
B. The Board’s Conclusion That the Warnings Were
Unlawful
Palace challenges the Board’s conclusion that it committed
unfair labor practices in violation of § 8(a)(1) and (3) by issuing
the disciplinary warnings to Mullins on July 25, 2002. Because
we conclude that the Board’s § 8(a)(1) finding is supported by
substantial evidence, and because Palace offers no persuasive
reason to believe that the additional finding under § 8(a)(3) had
any material effect on the order, we have no occasion to address
the latter finding. See Burnup & Sims, 379 U.S. at 22 (“We find
it unnecessary to reach the questions raised under § 8(a)(3) for
we are of the view that in the context of this record § 8(a)(1) was
plainly violated . . . .”); see also Wal-Mart Stores, Inc., 341
N.L.R.B. No. 111, 2004 WL 963353, at *1 n.2 (Apr. 30, 2004)
(“[W]e agree with the judge that [the] discharge violated Sec.
8(a)(1) of the Act. We therefore find it unnecessary to pass on
the judge’s finding that the discharge violated Sec. 8(a)(3),
because this additional finding would be essentially cumulative
with no material effect on the remedy.”), enforced, No. 04-1219,
U.S. App. LEXIS 6731 (D.C. Cir. Apr. 19, 2005) (per curiam).
Section 8(a)(1) of the Act makes it an unfair labor practice
for an employer “to interfere with, restrain, or coerce employees
in the exercise of” their rights to organize, bargain collectively,
and engage in concerted activities. 29 U.S.C. § 158(a)(1).
Under the framework approved by the Supreme Court in Burnup
& Sims, an employer violates § 8(a)(1) by disciplining an
employee “if it is shown that the [disciplined] employee was at
the time engaged in a protected activity, that the employer knew
it was such, that the basis of the [discipline] was an alleged act
of misconduct in the course of that activity, and that the
14
employee was not, in fact, guilty of that misconduct.” 379 U.S.
at 23. In such circumstances, the employer’s good-faith belief
that the misconduct occurred is no defense, for “[a] protected
activity acquires a precarious status if innocent employees can
be discharged while engaging in it, even though the employer
acts in good faith.” Id. In this case, the Board found that the
warnings violated § 8(a)(1) because Mullins did not in fact
engage in the misconduct for which he was disciplined.
The Board’s findings of fact are “conclusive” if “supported
by substantial evidence on the record considered as a whole.”
29 U.S.C. § 160(e)-(f) (2000). Because “[s]ubstantial evidence
means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion,” we will reverse for lack of
substantial evidence “only when the record is so compelling that
no reasonable factfinder could fail to find to the contrary.”
Resort Nursing Home v. NLRB, 389 F.3d 1262, 1270 (D.C. Cir.
2004) (internal quotation marks omitted). In making this
inquiry, we will not disturb 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).
Applying these standards, it is clear that substantial evidence
supports the Board’s findings that Mullins did not engage in the
misconduct for which he was warned.
The Board, adopting the ALJ’s credibility determinations,
credited Mullins’ testimony regarding his encounters with
Carpenter in general, and their July 11 conversation in
particular. Accordingly, the Board found that, on July 11,
Mullins did not ask Carpenter “why he would not join a labor
union.” Rather, the Board accepted Mullins’ account that
Carpenter approached Mullins, mentioning that his father-in-law
had told him that employees did not need a union, and that
Mullins merely responded by giving reasons why the employees
15
did need a union, referring to reductions in wages and benefits
since the Company became their employer. The Board also
accepted Mullins’ claim that he never approached Carpenter to
talk about the Union, but only discussed the subject when
Carpenter brought it up.
In crediting Mullins, the Board observed that there was “no
evidence contradicting” Mullins’ assertion that Carpenter was
already a union member, and also noted that Carpenter, though
called as a witness by the Company, did not testify about the
July 11 conversation, and thus failed to contradict Mullins’
account of it. St. Pete Times Forum, 2004 WL 1701333, at *16.
The Board further cited numerous inconsistencies in Carpenter’s
statements, id. at *17-*18, and concluded that the fact that
Carpenter eventually signed a union authorization card in
October 2002 “casts serious doubt upon [Carpenter’s] assertion
that he informed Mullins that he was not interested in the Union
and supports Mullins’ testimony that Carpenter was ‘confused,’”
id. at *16.
Palace argues that the Board erred in crediting Mullins over
Carpenter. In particular, Palace argues that: (1) any
inconsistencies in Carpenter’s statements are at best minor and
based on an overly literal reading of those statements; (2)
Mullins’ statement that Carpenter was already a union member
at the time of alleged solicitations (June and July of 2002) is in
tension with the undisputed facts that Carpenter complained to
management about being solicited and that Carpenter signed an
authorization card in October 2002; and (3) because Carpenter
was undeniably a member of the Union at the time of his
testimony before the Board, he had no motivation to testify
falsely. See Br. of Pet’r at 14-15, 17-19. Although these are
plausible arguments for crediting Carpenter over Mullins, they
surely do not demonstrate that the Board’s contrary
determinations crediting Mullins are “hopelessly incredible,”
“self-contradictory,” or “patently unsupportable,” as our cases
16
require. In short, we have no basis to overturn the Board’s
credibility determinations.
Moreover, the Board alternatively found that even if it were
not to credit Mullins’ testimony, Mullins’ conduct nevertheless
would not have constituted violations of Palace’s solicitation
and harassment policies. Regarding the warning for soliciting
Carpenter on July 11, the Board concluded that even if Mullins
had solicited Carpenter during their conversation, this would not
have violated the solicitation policy because “he was engaged in
a nonwork activity.” St. Pete Times Forum, 2004 WL 1701333,
at *16-*17.
The Company’s solicitation policy prohibits solicitation by
one employee to another only “while either is working.” Id. at
*9. The policy further explains:
Working time is when an employee’s duties require that
he/she be engaged in work tasks. Working time does not
include an employee’s own time, such as meal periods,
scheduled breaks, time before and after a shift and personal
cleanup time. We believe that you should not be disturbed
or disrupted in the performance of your job.
Id. It is undisputed that Carpenter was not on working time
during his conversation with Mullins. Although Mullins began
work at 7:00 a.m. and the incident occurred at 7:30 a.m., the
Board found that Mullins’ duties “did not require that he be
engaged in work during the brief interval that he obtained
coffee.” Id. at *16. Palace argues that this finding was
erroneous because it is undisputed that Mullins was not on a
“scheduled break” at that time. Br. of Pet’r at 15-17. But, as the
Board noted, operations manager Williams testified that
employees like Mullins were permitted to “go into the break
room and get coffee and keep on going.” Tr. of NLRB
Proceedings at 527, reprinted in J.A. 134, 287. Moreover, the
Board noted that the disputed conversation consumed no more
17
than 15 seconds, well within the amount of time it would take to
get a cup of coffee. St. Pete Times Forum, 2004 WL 1701333,
at *16. Accordingly, there is substantial evidence in the record
to support the Board’s conclusion that Mullins was engaged in
nonwork activity during his conversation with Carpenter.
With respect to the second warning, for harassment of
Carpenter during June and July of 2002, the Board found that,
even if Mullins did initiate conversations with Carpenter to the
extent alleged by Carpenter, Carpenter’s testimony before the
Board did not establish that he was “harassed,” “intimidated,” or
approached after telling Mullins to stop the conduct cited by the
warning. This alternative finding is also supported by
substantial evidence.
As the Board noted, Carpenter made it clear that he did not
fear that Mullins would hurt him. Tr. at 416, J.A. 237.
Carpenter also testified that when Mullins approached him,
Mullins never physically restrained him; Carpenter would
simply tell Mullins that he did not want to discuss the matter and
would walk away. Id. at 415-16, J.A. 236-37. Indeed, neither
Carpenter nor any other witness cited any conduct by Mullins
that could reasonably be thought to constitute “intimidation.”
Regarding the warning’s only specific example of “harassment”
– the continued solicitation of Carpenter after he asked Mullins
to stop – the Board found that Carpenter made no such
unequivocal request until July 11. Carpenter’s July 17 written
statement and the notes of the July 11 meeting between
Carpenter and management refer only to one occasion after the
July 11 conversation on which Carpenter told Mullins that he
did not want to talk about the Union any further. See Summary
of 07/11/02 Meeting, reprinted in J.A. 97; 07/17/02 Statement
of Carpenter, reprinted in J.A. 98. In his testimony before the
Board, Carpenter stated that he told Mullins, “I don’t want [the
Union] yet,” “I don’t want to discuss it now,” and “I don’t want
to discuss it right at this moment.” Tr. at 409-10, J.A. 230-31.
18
Carpenter never corroborated Henry’s assertion that Carpenter
reported telling Mullins to stop “dozens of times.” Accordingly,
the Board reasonably found that Carpenter did not tell Mullins
until July 11 not to talk to him about the Union. Thus, in light
of Mullins’ undisputed testimony that, after July 11, he did not
speak to Carpenter again until October 2002 (when Carpenter
signed the authorization card), substantial evidence supports the
Board’s finding that the harassment asserted as the ground for
the second warning never occurred.
Finally, there is no merit to Palace’s suggestion that,
because the Board concluded that Mullins did not solicit
Carpenter, Mullins therefore could not have engaged in
protected activity, a necessary element of a § 8(a)(1) violation
under the Burnup & Sims framework. See Br. of Pet’r at 14
n.11. There is no question that “employees’ right to discuss
self-organization among themselves” is protected under the Act,
see NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 113 (1956),
and remains so regardless of who approaches whom and whether
the conversation constitutes “solicitation.”
On this record, the Board reasonably concluded that Palace
violated § 8(a)(1) of the Act by issuing the disciplinary warnings
to Mullins.
C. The Board’s Conclusion That the Discharge Was
Unlawful
Because Mullins’ conversation with Castillo did not itself
constitute protected activity, the Burnup & Sims framework for
finding § 8(a)(1) violations is inapplicable. It is therefore
irrelevant that the Board credited Mullins’ testimony that he did
not make any offensive remark to Castillo, unless the record
otherwise indicates that the employer acted pursuant to anti-
union animus in firing Mullins. In other words, the issue here
is whether, by discharging Mullins, Palace “discriminat[ed] . . .
19
to encourage or discourage membership in any labor
organization.” 29 U.S.C. § 158(a)(3).
In addressing the § 8(a)(3) charge, the Board treated this
case as one involving a question of “dual motivation,” i.e., a
case in which the employer defends against a § 8(a)(3) charge
by arguing that, even if an invalid reason might have played
some part in the employer’s motivation, the employer would
have taken the same action against the employee for a
permissible reason. The Board analyzes such claims under the
framework set forth in Wright Line, 251 N.L.R.B. at 1089. We
have explained that framework as follows:
Under the Wright Line test, the general counsel must first
show that the protected activity was a motivating factor in
the adverse employment decision. If this prima facie
showing is made, the burden shifts to the employer to
demonstrate that it would have made the adverse decision
even had the employee not engaged in protected activity.
Int’l Union of Operating Eng’rs, Local 470 v. NLRB, 350 F.3d
105, 110-11 (D.C. Cir. 2003) (internal quotation marks and
citations omitted).
The ALJ clearly applied this framework in evaluating
Mullins’ discharge. After finding that the General Counsel had
made out a prima facie showing, the ALJ proceeded to evaluate
whether Palace had established that it would have discharged
Mullins even in the absence of his protected activity. St. Pete
Times Forum, 2004 WL 1701333, at *22. The ALJ noted that,
although Palace characterized Mullins’ remark as “sexual
harassment,” “there is no evidence of any sexual advance by
Mullins.” Id. at *23. The ALJ then discussed the Company’s
written policies prohibiting “indecent conduct or language,”
noting that the policies include a progressive disciplinary system
whereby “‘[t]ermination is the last step’” in the disciplinary
progression. Id. Finally, the ALJ found that, in the only other
20
comparable disciplinary incident in the record, another
employee who used “vulgar and profane language towards
customers” was only warned after his first offense. This
employee was not fired until after a repeat offense. On this
record, the ALJ held that the Company had not met its burden
under Wright Line. Id.
The Board, at the outset of its decision, announced that it
had “decided to affirm the judge’s rulings, findings, and
conclusions.” Id. at *1 (footnoted omitted). The Board then
went on to render its own opinion, employing a rationale to
support the finding of a § 8(a)(3) violation that is entirely
different from the rationale offered by the ALJ. It is therefore
unclear whether the Board opinion is intended to supplement or
displace the ALJ’s rationale in sustaining the § 8(a)(3) charge.
The Board agreed with the ALJ that the General Counsel had
made out a prima facie case. Id. That conclusion was justified:
the ALJ found that Mullins’ supervisors had threatened to fire
him if the Union filed for a new election, and Mullins was
indeed fired shortly after the Union filed. The Board also agreed
that Palace had failed to establish that it would have discharged
Mullins even in the absence of his union activity. Id. at *2.
However, in considering whether the Company had met its
burden under Wright Line, the Board focused almost exclusively
on Palace’s claim that it would face potential liability under
Title VII if it did not dismiss Mullins for his alleged offensive
statement to Castillo.
In following this approach, the Board stated that the ALJ’s
decision rested on a finding that Palace “failed to show that it
would have discharged Mullins even in the absence of his union
activity in order to avoid the imposition of Title VII liability.”
Id. (emphasis added). The Board’s characterization of the ALJ’s
decision is perplexing, because, although the ALJ did conclude
that there was “no evidence of any sexual advance by Mullins,”
the ALJ’s holding that Palace had violated § 8(a)(3) rested on
21
findings that neither the Company’s “progressive disciplinary
system” nor the Company’s handling of “other documented
incident[s] regarding indecent conduct or language” could
explain Palace’s decision to fire Mullins. Id. at *23. The ALJ’s
analysis and concluding findings say nothing about Title VII.
Id. at *22-*23. Indeed, there is nothing in the ALJ’s opinion
even to suggest that Palace argued that the employer fired
Mullins in order to avoid the imposition of Title VII liability.
And Palace does not contend here that this affirmative defense
was specifically raised in the hearing before the ALJ.
Ignoring the ALJ’s stated grounds for finding a § 8(a)(3)
violation, the Board concluded that Palace had “not established
that it had reasonable grounds for determining that it had to
remove or discipline Mullins in order to avoid liability under
Title VII.” Id. at *2. The basis for this conclusion was the
Board’s view that Title VII liability would not arise from
Mullins’ single, isolated remark. Id. at *2 n.8.
The problem here is that, in focusing on Title VII, the Board
misapplied Wright Line. The question under Wright Line is
whether the Company has established in fact that it would have
taken the same action in the absence of any anti-union animus.
It is not whether the Company has established that its actions
were “reasonable.” See Epilepsy Found. of Northeast Ohio v.
NLRB, 268 F.3d 1095, 1105 (D.C. Cir. 2001) (“[A]n employer
may discharge an employee for a good reason, a bad reason, or
no reason, so long as it is not for an unlawful reason.”); Meco
Corp. v. NLRB, 986 F.2d 1434, 1438 (D.C. Cir. 1993) (same).
The Board’s view that Palace was unreasonable in assuming that
failure to sanction Mullins might result in Title VII liability does
not, without more, indicate that Palace would not have fired
Mullins in the absence of anti-union animus.
As noted above, the Board stated that it meant to affirm the
ALJ’s rulings, findings, and conclusions. But the Board’s
Wright Line analysis focuses solely on the Title VII issue and
22
never addresses the ALJ’s evaluation of the Company’s written
policies and disciplinary practices. Therefore, we cannot be sure
to what extent the Board meant to incorporate the ALJ’s analysis
in those respects while merely rejecting any implication in the
ALJ’s decision that sexual harassment arises only in connection
with comments containing sexual advances.
In sum, we are unable to discern the precise basis upon
which the Board rested in reaching its conclusion that Mullins’
discharge violated the Act. The Board’s decision can be read in
at least three ways: (1) as concluding that the discharge was
unlawful because it was unnecessary to avoid the potential for
Title VII liability, and therefore substantively unreasonable; (2)
as finding that, because Palace’s Title VII concerns are so
unreasonable, and thus implausible, they must be a pretext for
discrimination; or (3) as adopting the ALJ’s finding that, in light
of Palace’s written policies and disciplinary practices, the
Company has not established that it would have discharged
Mullins even in the absence of his protected activity. Or, the
Board might have meant to say something else altogether. The
point is, we cannot tell. Because it is axiomatic that we may
review an agency’s order only on the reasoning supplied by the
agency in the order, see Williams Gas Processing - Gulf Coast
Co., L.P. v. FERC, 373 F.3d 1335, 1345 (D.C. Cir. 2004) (citing
SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)), meaningful
judicial review requires us to remand the case to the Board for
clarification of its position on the § 8(a)(3) issue.
On remand, the Board should explain the precise reasoning
on which it means to rest its conclusion that Mullins’ discharge
violated the Act. The Board should specifically state which
portions of the ALJ’s analysis it adopts and which parts it
rejects. We also note that, although the ALJ appeared to
evaluate Mullins’ discharge solely under § 8(a)(3), using the
Wright Line framework, see St. Pete Times Forum, 2004 WL
1701333, at *23, the Board, without explanation, stated that it
23
“agree[d] with the judge that [Palace] violated Section 8(a)(1)
and (3) when it discharged employee Peter Mullins,” id. at *1
(emphasis added). It is unclear whether the Board really meant
to find that Palace violated § 8(a)(1) when it fired Mullins and,
if so, on what grounds. The Board can address this issue on
remand.
III. CONCLUSION
For the foregoing reasons, we grant in part the Board’s
application for enforcement. We remand the case to the Board,
however, for clarification of its conclusion that Palace violated
the Act by discharging Mullins.
So ordered.