Detroit Newspaper Agency v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2005 Decided January 20, 2006

No. 04-1366

DETROIT NEWSPAPER AGENCY, D/B/A DETROIT NEWSPAPERS,
PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,
RESPONDENT

Consolidated with
04-1403

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 were William E. Altman and Gary S. Fealk.

Fred B. Jacob, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
John H. Ferguson, Associate General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, and William M.
Bernstein, Senior Attorney.
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Before: HENDERSON, Circuit Judge, and EDWARDS* and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Dissenting opinion filed by Circuit Judge HENDERSON.
EDWARDS, Senior Circuit Judge: Detroit Newspaper
Agency d/b/a Detroit Newspapers (“Company” or “Detroit
News”) petitions this court for review of an order of the
National Labor Relations Board (“Board” or “NLRB”), and the
Board cross-applies for enforcement. On charges filed by the
Detroit Mailers Union No. 2040, International Brotherhood of
Teamsters, AFL-CIO (“Union” or “Local 2040"), a divided
panel of the Board held that Detroit News committed an unfair
labor practice in violation of §§ 8(a)(1) and (3) of the National
Labor Relations Act (“Act” or “NLRA”), 29 U.S.C. § 158(a)(1),
(3) (2000), by discharging Union member and former striker
Thomas Hydorn. Detroit Newspaper Agency, D/B/A Detroit
Newspapers v. Detroit Mailers Union No. 2040, Int’l Bhd. of
Teamsters, AFL-CIO, 342 N.L.R.B. No. 125, 2004 WL 2203014
(Sept. 28, 2004) (“Detroit News”). The Board specifically found
that, despite Hydorn’s blatant act of insubordination, Detroit
News’ decision to terminate his employment was motivated in
part by Hydorn’s protected union activity, and that Detroit News
failed to prove it would have fired him even in the absence of
this activity. Consequently, the Board ordered Detroit News,
among other things, to cease and desist its unfair labor practice
and reinstate and make whole Hydorn for any lost earnings he
suffered as a result of his unlawful discharge. Id. at *7.
In concluding that Detroit News violated the Act, the Board
purported to apply the two-prong test set forth in Wright Line,

*
Senior Circuit Judge Edwards was in regular active service
at the time of oral argument.
 3

251 N.L.R.B. 1083 (1980). Wright Line outlines the general
framework for assessing whether an employee’s discharge that
turns on employer motivation violates § 8(a)(3) (and by
extension § 8(a)(1)) of the Act. As the Board explained:
[T]he General Counsel must first persuade, by a
preponderance of the evidence, that an employee’s
protected conduct was a motivating factor in the employer’s
decision.
If the General Counsel makes such a showing, the burden
of persuasion shifts “to the employer to demonstrate that
the same action would have taken place even in the absence
of the protected conduct.”
Detroit News, 2004 WL 2203014, at *3 (quoting Wright Line,
251 N.L.R.B. at 1089).
Detroit News argues that the Board lacked the substantial
evidence necessary to find that the General Counsel met its
burden of proof on the first prong of Wright Line. As we read
the Board’s decision, Detroit News certainly seems to be
correct. None of the Board’s three findings that are offered to
show that Hydorn’s protected conduct was a motivating factor
in the employer’s decision to fire him appear to be supported by
substantial evidence.
In the Board’s brief and at oral argument, however, Board
counsel argued that the Board also relied implicitly on a fourth
justification – that Hydorn was treated differently than non-
union adherents who had committed the same offense – in
support of its conclusion that Hydorn’s protected conduct was
a motivating factor in his discharge. This claim is not
articulated in the section of the Board’s decision discussing the
first prong of Wright Line. It is examined, however, in the
Board’s analysis of the second prong of Wright Line. We do not
know what to make of the Board’s decision. In situations where
we cannot discern “the precise basis upon which the Board
 4

rested in reaching its conclusion[,] . . . . meaningful judicial
review requires us to remand the case to the Board for
clarification of its position on the . . . issue.” Palace Sports &
Entm’t, Inc. v. NLRB, 411 F.3d 212, 224-25 (D.C. Cir. 2005).
We therefore reserve judgment on the merits of the Board’s
order and remand the case for further consideration consistent
with this decision.
I. BACKGROUND
A. Factual Background
The events leading to this case occurred at Detroit News’
“North Plant,” a printing facility located in Sterling Heights,
Michigan, a suburb north of Detroit. One of the North Plant’s
production functions is the placement of advertising
supplements into the newspapers and comics produced by
Detroit News. This process is facilitated by “insert machines,”
which are manned by multiple “material handlers” (or
“mailers”) and one machine “operator.”
At various points around the insert machines, there are
“heads,” which contain the supplements. The advertising inserts
at each head drop into buckets that travel in a circuit around the
machine between the various heads. At the conclusion of the
circuit, the bottom of each bucket opens and drops the section
onto a conveyor. This conveyor then transports the section to a
“stacker,” a machine that readies the sections to be tied together
and placed onto trucks for delivery.
Material handlers work at the heads positioned around the
machine. They are responsible for loading the advertising
inserts into the heads, and may be assigned to more than one
head at a time. The operators, who are stationed at a computer
at one end of the machine, are responsible for directing the work
group and running the computer that helps the machine function
properly.
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A common challenge faced by operators occurs when a
“paper drag” stops the operation. This happens when one of the
buckets opens up to release the insert onto the conveyor line, but
closes before the paper falls completely through. The bucket
then drags the trapped insert around the insert machine circuit.
When this occurs, a sensor shuts down the machine until the
paper drag is cleared by removing the misfed paper and, if
necessary, resetting the machine.
Thomas Hydorn began working for Detroit News in 1978,
when he took a part-time position in the mailroom. Hydorn
worked his way up to full-time status, becoming a material
handler, a position he occupied for 12 to 15 years. For the most
part, Hydorn had an unblemished personnel record, earning only
one disciplinary notice – for absenteeism – while he was a part-
time employee. Prior to the incident that led to his discharge in
August 1999, Hydorn received no other discipline of any kind.
In 1995, Hydorn was one of many Detroit News employees
who participated in a strike when negotiations between the
Company and various unions, including Local 2040, reached an
impasse. Hydorn was neither a Union leader nor an otherwise
prominent member of the striking unit, although he did
participate in picketing the Company. In February 1997, after
the strike proved fruitless, the Union made an unconditional
offer on behalf of strikers to return to work. Hydorn and the
other striking workers were not permitted to return immediately,
because Detroit News had hired replacement workers to take
their jobs during the strike. The striker replacements were
retained at the end of the strike and returning strikers were
placed on a preferential hiring list. See Detroit Typographical
Union No. 18 v. NLRB, 216 F.3d 109, 115 (D.C. Cir. 2000).
Hydorn was eventually rehired to his former position as a
material handler in August 1999, two and a half years after the
strike had ended. Prior to the resumption of his duties, Hydorn
was required to attend an orientation conducted by Company
 6

Post-Press Director Karen Zemnickas, the North Plant
management official in charge of the work and discipline of the
Local 2040 members. At the orientation, Zemnickas discussed
the material handlers’ duties and distributed supplementary
written materials. She told the returning employees that they
should do the job as they had done it before, although they may
now be called upon to work at more than one station. During
this reorientation training, Zemnickas overlooked one important
change in the material handler job, which required the handlers
– as opposed to the operators, whose responsibility it had been
in the past – to clear any paper drags that occurred. In addition,
the new rule required that the handler nearest the paper drag was
obligated to remove it.
On the evening of August 24, 1999, shortly after Hydorn
returned to work, he was assigned to an insert machine with
fellow material handler John Dutka and operator William
Mihalik. While some of the material facts relating to what
occurred on this evening are in dispute, we will assume, for the
purposes of this analysis only, that the Board’s version of the
events is correct.
Midway through the night shift, at about 1:00 a.m., a paper
drag occurred near the stations at the insert machine where
Hydorn and Dutka were working. Mihalik signaled the two men
by calling out “paper drag” and told them to clear it. In
accordance with Detroit News policy, since Dutka was closer to
the machine, the paper drag was his responsibility. Dutka
therefore left his work station and cleared it. Upon witnessing
Dutka’s action, Hydorn, who was under the impression that
clearing paper drags was the operator’s duty, told Dutka not to
do it. Hydorn then pointed at Mihalik and told Dutka that it was
the operator’s “f__king job” and that was why he got paid the
“big f__king dollars.” Detroit News, 2004 WL 2203014, at *2.
Mihalik responded to this verbal assault by summoning one of
the night shift supervisors, Casey Leach.
 7

When Leach arrived and was apprised of the situation by
Mihalik, he informed Hydorn that it was, in fact, the material
handlers’ job to clear paper drags. An insolent Hydorn replied
that he would not clear them, even if it meant that he would be
suspended or fired. Leach then brought over another supervisor,
Louis Monroig, who was the acting post-press manager.
Monroig asked Hydorn if he understood that Leach had given
him a direct order, and Hydorn again stated that he would not
remove paper drags, because that was not his job. Monroig then
demanded that Hydorn follow him to his office, at which point
Hydorn requested Union representation.
Shortly thereafter, Monroig and Leach met in the office
with Hydorn and Harold Sorenson, a Union Steward. Sorenson
confirmed to Hydorn that it was, in fact, his responsibility to
clear paper drags. Hydorn held steadfast in his insistence that it
was the operator’s job, however, and told both Leach and
Monroig that he simply would not do it. As a result, Monroig
suspended Hydorn and told him to turn in his identification card.
Hydorn surrendered his card to Sorenson and was escorted out
of the plant.
Later that morning, Zemnickas was informed about the
Hydorn incident while attending a Company golf outing. While
at the outing, Zemnickas met with the North Plant Post-Press
Manager, Mike Martin, and the Company’s Senior Legal
Counsel and Labor Relations Director, John Taylor. Zemnickas
then interviewed Monroig and Leach, and had them submit
written statements. Zemnickas did not speak with Hydorn,
Mihalik, or Dutka.
After receiving all of the relevant information, Zemnickas
again consulted with Taylor, and determined that Hydorn should
be discharged. The Company issued a discharge letter to
Hydorn on August 27, informing him that he was being
terminated due to his “refusal to follow the instructions and the
direct order given by [his] supervisor.” Letter from Mike
 8

Martin, Post-Press Manager, Detroit Newspapers, to Thomas
Hydorn (Aug. 27, 1999) (“Discharge Letter”), Joint Appendix
(“J.A.”) 60.
The Union responded by filing a formal grievance with the
Company on September 1, 1999. At a grievance meeting held
between the parties on October 8, 1999, Hydorn apologized for
his behavior and stated that he had been guilty of having a “bad
attitude.” Br. for NLRB at 11. Detroit News nevertheless
rejected Hydorn’s appeal on October 21, 1999, reiterating that
Hydorn “refus[ed] to follow the instructions of his supervisor.”
See Letter from John A. Taylor, Detroit Newspapers, to Alex
Young, Detroit Mailers Union No. 2040 (Oct. 21, 1999), J.A.
65.
B. The Board’s Decision
After failing to overturn Hydorn’s discharge through an
internal grievance procedure, the Union filed an unfair labor
practice charge against Detroit News, alleging that Hydorn’s
discharge violated §§ 8(a)(1) and (3) of the Act. An
Administrative Law Judge (“ALJ”) presided over a two-day
hearing on March 14-15, 2000, and found that Hydorn was
discharged unlawfully “because of his union and protected
activities.” Decision (June 21, 2000), slip op. at 15, J.A. 19.
Detroit News appealed the ALJ’s decision to the Board.
More than four years later, a three-member panel of the
Board issued a 2-1 decision upholding the ALJ’s finding that
Hydorn was discharged in violation of the Act. Detroit News,
2004 WL 2203014, at *1. Through the application of the two-
prong Wright Line formula, the Board found that: (1) Hydorn’s
participation in the strike was a motivating factor in his
discharge, and (2) the Company’s assertion that it would have
fired Hydorn regardless of any alleged antiunion animus was
undercut by evidence of its disparate treatment of Hydorn. Id.
at *4.
 9

The Board’s conclusion under the first prong of Wright Line
explicitly relied on three elements of the Union’s case. First, the
Board asserted that “Hydorn was disciplined for misconduct he
did not commit.” Id. at *5. According to the Board, Detroit
News informed Hydorn that he was being fired because he
“refus[ed] to follow the instructions and the direct order given
by [his] supervisor.” Id. (quoting Discharge Letter, supra, J.A.
60). The Board concluded that this was a “false” reason for the
termination, because Hydorn “never defied a direct order to
remedy a pending paper drag,” just a hypothetical one. See id.
(quotation marks omitted) (emphasis added). Thus, according
to the Board, Hydorn could not have refused to follow a “direct
order.”
The Board also found the “backdrop” against which the
discharge took place to be suggestive of an unlawful Company
motive. Id. at *4. The Board noted that the Union’s strike had
been “prolonged and bitter” and spawned numerous unfair labor
practice charges, and Union members were forced to return to
work without an agreement. Id. The Board contended that the
strikers returned to “altered working conditions,” which among
other things, left them without the benefit of their former
seniority system. Id. In addition, the Board credited comments
allegedly made by Monroig to Union Steward Sorenson that
“the strike had been a mistake, their return was an
‘unconditional surrender,’ the unions were at fault, and that
union employees had ruined everything.” Id.
Finally, the Board found that Detroit News failed both to
“investigate fully the circumstances surrounding Hydorn’s
suspension,” id. at *5, and “consider whether Hydorn’s offense
warranted application of its progressive discipline policy,” id. at
*6. In terms of the Company’s investigation, the Board claimed
that it neglected to follow its “own guidelines” for employee
discipline. Id. at *5. These “guidelines” were not formally
promulgated procedures; rather, they were the themes allegedly
 10

discussed by John Taylor, Detroit News’ senior legal counsel, at
a workshop he conducted on disciplinary issues held the
morning prior to the Hydorn incident. In the notes prepared for
the seminar, Taylor outlined that an internal investigation should
be “thorough” and should provide the subject of the
investigation with an “opportunity to respond.” Id. (quoting
John A. Taylor, Labor/Legal Issues Workshop, Detroit
Newspaper Agency (Aug. 24, 1999), J.A. 138 (“Taylor
Workshop”)). The Board found that Detroit News’ investigation
failed to meet either of these requirements, as Zemnickas’s
review of the incident canvassed only management employees,
and never involved a statement from Hydorn. For the Board,
that review was “cursory,” and was further evidence of
antiunion animus. Id. The Board also found that the
Company’s subsequent choice of punishment was impulsive, as
Zemnickas did not take into account that this was Hydorn’s
“first offense for insubordination,” and that he had a good
personnel record throughout his tenure with the Company. Id.
at *6.
Once the Board determined that the General Counsel met its
burden of proving that Hydorn’s protected activity served as a
substantial factor in the Company’s decision to discharge him,
it then moved to Wright Line’s second prong and questioned
whether Detroit News could show that it would have taken the
same action even in the absence of Hydorn’s protected activity.
The Board concluded that the Company’s second-prong defense
fell short, because it found that Detroit News “engaged in
disparate treatment in disciplining Hydorn.” Id. at *7.
Specifically, the Board found the record replete with evidence
that “the [Company] treated Hydorn more harshly than
nonstrikers . . . who engaged in similar conduct.” Id.
In light of these findings, the Board ordered Detroit News
to cease and desist from discharging or otherwise discriminating
against employees in order to discourage union activity. In
 11

addition, it ordered the Company to offer Hydorn full
reinstatement and to make him whole for any loss of earnings
that he may have suffered due to the Company’s discrimination.
II. ANALYSIS
A. The Board’s Case Under Wright Line’s First Prong
Detroit News argues that the Board’s Wright Line analysis
should not have advanced beyond the first prong, as the Board’s
General Counsel was unable to establish any concrete
connection between Hydorn’s protected activity – his
participation in the strike from 1995-97 – and his eventual
discharge. The Company takes exception to each of the Board’s
findings supporting its justification for the conclusion that
Hydorn’s protected conduct was a motivating factor in his
discharge. Whether taken separately or as a whole, Detroit
News asserts that the record evidence clearly shows that Hydorn
was fired solely for his blatant insubordination.
Our review of the Board’s findings of fact is limited to
whether they are “‘supported by substantial evidence on the
record considered as a whole.’” Palace Sports, 411 F.3d at 220
(quoting 29 U.S.C. § 160(e)-(f) (2000)). But while the “Board’s
findings are entitled to respect[,] . . . they must nonetheless be
set aside when the record . . . clearly precludes the Board’s
decision from being justified by a fair estimate of the worth of
the testimony of witnesses or its informed judgment on matters
within its special competence or both.” Universal Camera
Corp. v. NLRB, 340 U.S. 474, 490 (1951). “Thus, ‘a reviewing
court is not barred from setting aside a Board decision when it
cannot conscientiously find that the evidence supporting that
decision is substantial, when viewed in the light that the record
in its entirety furnishes, including the body of evidence opposed
to the Board’s view.’” Epilepsy Found. of Ne. Ohio v. NLRB,
268 F.3d 1095, 1103 (D.C. Cir. 2001) (quoting Universal
Camera, 340 U.S. at 488).
 12

As noted above, the Board offered three primary reasons for
holding that the General Counsel met its burden of proving that
Hydorn’s protected activity was a motivating factor in his
discharge. We evaluate each of the Board’s contentions below.
1. Discharge for Misconduct
Hydorn was informed by letter that his discharge was the
result of his “refusal to follow the instructions and the direct
order given by [his] supervisor.” Discharge Letter, supra, J.A.
60. It is undisputed that Hydorn repeatedly told his supervisors
that he would never perform the required work. This defiance
continued even after the supervisors’ position was confirmed by
the Union Steward, whose presence Hydorn requested. Indeed,
Hydorn went so far as to say that the employer would have to
fire him before he would comply. Therefore, the discharge letter
was accurate in stating that Hydorn had refused to follow the
instructions and direct orders of his supervisors.
This notwithstanding, the Board found that “the
Respondent’s stated reason for discharging Hydorn is false.”
Detroit News, 2004 WL 2203014, at *5. Why? Because,
according to the Board, “while Hydorn may have exhibited
insubordinate behavior on August 25, we agree with the [ALJ]
that ‘he never defied a direct order to remedy a pending paper
drag.’” Id. (quoting Decision, slip op. at 11, J.A. 15). At oral
argument, the Board’s counsel attempted to explain the Board’s
theory: “Who knows what would have happened if they had
actually let [Hydorn] . . . . process the papers? He may have
agreed to do it.” Recording of Oral Argument at 19:46.
The Board’s claim is disingenuous. Hydorn precipitated the
incident leading to his discharge by stating, in unequivocal
terms, that he would not perform the specific, clearly delineated
duties associated with his job. An employee like Hydorn can
refuse to follow a direct order to perform specific work that is
pending at the time the order is given, or he can refuse to
 13

perform that work when it arises in the future. In either case, the
refusal to perform the duties of the job is a flagrant act of
insubordination. In other words, in either instance, an employee
who, like Hydorn, says he will not perform work that is within
the compass of his assigned duties has flatly defied the
instructions of management. The orders given to Hydorn were
not hypothetical and neither were Hydorn’s refusals. Therefore,
we find that Detroit News’ discharge notice to Hydorn was not
“false,” as the Board found, in stating that Hydorn was fired for
his “refusal to follow the instructions and the direct order given
by [his] supervisor.”
2. The “Backdrop” of the Discharge
To support its contention that the acrimonious “backdrop”
of the discharge was evidence of discriminatory motive, the
Board referenced the “prolonged and bitter” strike and the
antiunion sentiments allegedly expressed by a Company
supervisor. Without more, however, these claims are virtually
meaningless. The strike ended over two and a half years prior
to Hydorn’s return, and there is nothing in the record to indicate
that there was reason for the Company to single out Hydorn for
negative treatment. The only evidence offered was that Hydorn
had “picketed” along with many other striking Union members.
It was never alleged, however, that he was a Union leader or that
he had any exceptional run-in with the Company as part of his
Union activity. Nothing indicates that he was singled out for
bad treatment when he returned to work. And there is not one
iota of evidence relied upon by the Board in its first-prong
Wright Line analysis to suggest that the employer engaged in a
pattern or practice of negative treatment aimed at returning
strikers.
The alleged antiunion statements made by supervisor
Monroig also offer little to the Board’s case. First, it is unclear
whether Monroig actually uttered those statements, as the lone
testimony supporting this claim came from Union Steward
 14

Harold Sorenson, who the ALJ found to be “very lacking in
credibility.” See Decision, slip op. at 8, J.A. 12. And while the
Board notes that the ALJ credited Sorenson’s testimony “where
it was not contradicted by other witnesses,” see Detroit News,
2004 WL 2203014, at *4 n.7, it failed to note that the ALJ did
not rely on Sorenson’s Monroig testimony to support his finding
of antiunion animus. Second, it appears that those alleged
statements were made only to Sorenson. See Trial Tr. at 203
(3/14/00), J.A. 355. Monroig’s alleged passing comments to
Sorenson hardly constructed a viable “backdrop” against which
to assess the Company’s discipline of Hydorn. Finally, Monroig
was not directly involved in the final decision to terminate
Hydorn, so any potential impact he had on that decision was
necessarily circumscribed.
3. Failure to Investigate and Progressive Discipline
The Board’s final rationale supporting its first-prong
decision is that Detroit News both failed to “thoroughly”
investigate the incident leading to Hydorn’s suspension and
discharge, thereby contravening its own “guidelines,” and
neglected to adhere to its “progressive discipline policy.”
Detroit News, 2004 WL 2203014, at *5-6. These arguments are
red herrings. The Board does its best to paint Taylor’s seminar
as installing mandatory guidelines for disciplinary review, but
that implication is specious. The Board has not cited any
agreed-upon termination procedure between the Union and the
Company, and puts forth no cogent reason for why Taylor’s
alleged departure from his written seminar outline is evidence of
antiunion animus. Indeed, Detroit News was not obliged to
“investigate” Hydorn’s case in any particular way, and further,
the Board offers nothing material that the employer would have
uncovered had it investigated the matter differently.
In addition, there is no evidence that Detroit News
promulgated a “progressive discipline” policy that limited the
 15

action that it could take against Hydorn. We made clear in
Epilepsy Foundation of Northeast Ohio v. NLRB that
[t]he Board does not have authority to regulate all behavior
in the workplace and it cannot function as a ubiquitous
“personnel manager,” supplanting its judgment on how to
respond to unprotected, insubordinate behavior for those of
an employer. It is well recognized that an employer is free
to lawfully run its business as it pleases. This means that an
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.
268 F.3d at 1105.
In short, the three reasons relied upon by the Board to
justify its finding that the General Counsel met its burden under
the first prong of Wright Line are not supported by substantial
evidence. Without more, they fail to meet the necessary
threshold to support a conclusion that antiunion animus was a
motivating factor in Hydorn’s discharge.
B. The “Fourth” Rationale Under Wright Line’s First
Prong
In its brief and at oral argument, counsel for the Board,
apparently recognizing that the Board’s decision was fragile in
its analysis of the first prong of Wright Line, argued that the
Board had implicitly relied upon a fourth reason to show that
antiunion animus was a motivating factor in the Company’s
discharge of Hydorn: his disparate treatment in comparison to
nonstrikers who had committed similar or more egregious acts
of insubordination. See Br. of NLRB at 25-29; Recording of
Oral Argument at 20:43. It is true that the Board found that
the General Counsel has produced significant evidence of
disparate treatment. Based on Respondent’s personnel
records, the General Counsel has shown that between
 16

February, 1997 and November 1999, Respondent
disciplined 37 nonstrikers for insubordination less harshly
than Hydorn. In 20 of those 37 instances, the Respondent
only issued a warning to the offending employee, while in
the remaining cases the employees were disciplined with
suspensions. We agree with the judge that “the evidence in
this case shows that the Respondent had a relatively lax
attitude towards insubordination by non-strikers, even those
who defied multiple direct orders or had been insubordinate
on prior occasions.”
Detroit News, 2004 WL 2203014, at *7 (quoting Decision, slip
op. at 12, J.A. 16). The Board argues in its brief that this finding
clearly supports the Board’s conclusion that antiunion animus
was a motivating factor in Hydorn’s discharge. See Br. for
NLRB at 29.
The problem with this argument is that the Board’s analysis
of the alleged disparate treatment comes under the section of its
decision dealing with the second prong of the Wright Line test,
not in the section addressing whether the General Counsel met
its burden of proving that the employee’s protected conduct was
a motivating factor in the employer’s decision. In other words,
the Board’s sole references to the alleged disparate treatment
appear when the Board discusses whether the employer met its
burden to demonstrate that the same disciplinary action would
have taken place even in the absence of Hydorn’s protected
conduct.
Thus, at least as written, the Board’s decision does not
present substantial evidence to support the conclusion that
Hydorn’s protected conduct was a motivating factor in his
discharge. Rather, it appears that Hydorn was dismissed for
insubordination. In this circumstance, we would normally
reverse the Board’s decision, because the reasons given by the
Board do not support the result reached. And we must accept
the Board’s decision on it own terms, ignoring post-hoc
 17

rationalizations by counsel and rejecting the temptation to
supply reasons to support the Board’s decision that the Board
itself has not offered. See SEC v. Chenery Corp., 318 U.S. 80,
89-90 (1943). Two things give us pause, however.
First, at the beginning of its decision, the Board summarizes
the applicable law, as follows:
The elements the Board considers when determining
whether an employer’s conduct was discriminatorily
motivated are generally the alleged discriminatee’s
protected activity, employer knowledge of that activity, and
union animus. . . . Under certain circumstances the Board
will infer animus in the absence of direct evidence. That
finding may be inferred from the record as a whole. The
Board has further stated that evidence of a blatant disparity
is sufficient to support a prima facie case of discrimination.
Detroit News, 2004 WL 2203014, at *4 (internal citations and
quotation marks omitted) (emphasis added). Although the
Board did not explicitly cite any “blatant disparity” as one of the
factors showing that the employer acted pursuant to unlawful
motivation in dismissing Hydorn, it is nonetheless clear that the
Board recognized that disparate treatment in disciplinary actions
might be a factor.
Second, in the latter half of the decision, dealing with the
second prong of Wright Line (and the employer’s burden of
proof), the Board found that “the General Counsel has produced
significant evidence of disparate treatment.” Id. at *7 (emphasis
added). It is unclear what to make of this, and it is certainly
hard to fathom why the Board failed to make this same point in
its analysis of the first prong of Wright Line. Poor
draftsmanship or inadvertence are possible explanations. It is
also possible that the Board made a tactical decision to leave the
discussion of disparate treatment until the second half of the
Wright Line analysis because, of all its arguments, it is the most
 18

pertinent to the Company’s affirmative defense. Whatever the
reason, the Board misfired, and its analysis as currently
constituted is not sufficiently clear to allow for meaningful
review.
Because we do not know what to make of the Board’s
decision, we remand the case for clarification and further
consideration. On remand, the Board must first explain whether
the evidence suggesting disparate treatment in discipline is
among the factors that the Board meant to consider in
concluding that the General Counsel met its burden of
demonstrating that antiunion animus was a motivating factor in
the Company’s discharge of Hydorn. In particular, the Board
must explain how this evidence satisfies the burden that the
General Counsel carries. Second, if the Board meant to include
disparate treatment in discipline in analyzing the first prong of
Wright Line, the Board must consider whether it would still
reach the same result in light of this court’s holding that its other
three findings are not supported by substantial evidence. We
express no opinion on the substantive validity of the Board’s
findings on disparate treatment. The Board may amplify the
point as necessary on remand.
We offer no judgment on the correct result in this case. The
Board must make this determination in the first instance on
remand. We do note, however, that the Board may, if
appropriate, change its judgment on reconsideration and dismiss
the unfair labor practice charges.
 19

III. CONCLUSION
For the foregoing reasons, the case is hereby remanded to
the Board for further clarification.
So ordered.
KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:
The majority has decided to remand this case to the Board
because it ultimately concludes that it “do[es] not know what
to make of the Board’s decision.” Maj. op. at 18. This, after
six pages meticulously detailing the inadequacies of that
decision. See id. at 12 (“The Board’s claim is
disingenuous.”); id. 14 (“These arguments [of the Board] are
red herrings.”); id. 15 (“In short, the three reasons relied upon
by the Board to justify its finding that the General Counsel
met its burden under the first prong of Wright Line are not
supported by substantial evidence.”); id. 15 (The Board
“fail[s] to meet the necessary threshold to support a
conclusion that antiunion animus was a motivating factor in
Hydorn’s discharge.”); id. 16 (“[T]he Board’s decision does
not present substantial evidence . . . In this circumstance, we
would normally reverse the Board’s decision, because the
reasons given by the Board do not support the result
reached.”). But it earlier correctly characterized the Board’s
order, namely “the Board misfired.” Id. at 17-18. In other
words, the Board’s decision is wrong. When that happens,
our duty is to grant the petition for review pure and simple.
We have no warrant to allow an agency to patch the holes in
an insufficient order, much less to “amplify . . . as necessary
on remand,” id., the “substantive validity” of its critical
finding, id. While in certain limited circumstances we have
remanded to an agency for further action, never have we done
so where, as here, the majority itself categorically denounces
the sufficiency of the order under review. C.f. Lee Lumber &
Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1460 (D.C.
Cir. l997) (on remand for failure to explain departure from its
standard, Board had choice to vacate order or explain why
order was necessary given facts of case). Because the Board’s
decision is not supported by substantial evidence, as the
majority acknowledges, see maj. op. at 16 (“[T]he Board’s
decision does not present substantial evidence to support the
conclusion that Hydorn’s protected conduct was a motivating
 2

factor in his discharge.”), I would grant Detroit News’s
petition for review. Accordingly, I respectfully dissent.
The Board order plainly did not consider evidence of
disparate treatment during the first step of the Wright Line
analysis; “Thus, at least as written, the Board’s decision does
not present substantial evidence to support the conclusion that
Hydorn’s protected conduct was a motivating factor in his
discharge.” Id. (emphasis in original). My colleagues,
however, do not take the Board at its word and instead
uncover ambiguity from two sentences in the Board’s 5,000
word opinion. To them, the Board’s general observation that
“evidence of a ‘blatant disparity is sufficient to support a
prima facie case of discrimination,’ ” coupled with one
sentence in its discussion of Wright Line step two, renders the
Board order “not sufficiently clear to allow for meaningful
review.” Id. at 18. In so concluding, they accept the Board’s
post hoc rationalization for its analytically flawed decision.
No principle is better-settled in administrative law than
that we are to uphold an agency order based only on reasoning
fairly stated by the agency in the order under review. See
SEC v. Chenery Corp., 318 U.S. 80, 88 (1943). “[P]ost hoc
rationalizations by agency counsel will not suffice.” W.
Union Corp. v. FCC, 856 F.2d 315, 318 (D.C. Cir. 1988).
Unlike a district court’s decision, that of an administrative
agency cannot be sustained on a ground the agency did not
consider—the agency’s decision must stand or fall upon its
reasoning. See Ind. Hosp., Inc. v. NLRB, 10 F.3d 151, 155 (3d
Cir. 1993); NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506,
517-18 (7th Cir. 1991).
Here, the Board’s reasoning did not rely on evidence of
disparate treatment. It discussed only three factors in its
Wright Line step one analysis: (1) Hydorn’s termination
occurred against a backdrop of anti-striker animus; (2) the
Company’s stated reason for Hydorn’s discharge was false;
 3

and (3) the Company failed to follow its own investigative
and disciplinary procedures. Detroit Newspaper Agency, 342
N.L.R.B. No. 125, slip op. at 4-5 (2004). That its finding of a
prima facie case was not based on evidence of disparate
treatment is further supported by its summary of the prima
facie case, from which, again, any mention of disparate
treatment is conspicuous by its absence. Furthermore, the
General Counsel presented no evidence of disparate treatment
in litigating the prima facie case before the ALJ.1
I fail to see how the majority discerns ambiguity from the
two sentences it cites in light of the Board’s unambiguously
articulated justifications for its Wright Line step one finding,
id., whether the sentences are viewed in isolation or taken
together. The first sentence contains a reference to disparate
treatment in an introductory paragraph listing various
components of the prima facie showing. Id. at 3. In isolation,
it is classic boilerplate; and, when coupled with the second
sentence that appears in the Board’s discussion of disparate
treatment evidence in step two, it still does not support the
conclusion that the Board considered it as part of the prima
facie showing. Detroit News rebutted the General Counsel’s
prima facie case with evidence of six non-striking employees
it also terminated for insubordination. Id. at 5-6. The Board
rejected the Company’s rebuttal, noting that “we are unable to
conclude from the Respondent’s evidence that it evaluated
Hydorn’s misconduct according to the same standard applied
to employees who did not engage in protected activities.” Id.
at 5. Following this sentence, the Board discussed the
General Counsel’s disparate treatment evidence. Id. It
ultimately concluded that Detroit News “had a relatively lax
attitude towards insubordination by non-strikers, even those
who defied multiple direct orders or had been insubordinate

1
In addition, the General Counsel did not allege disparate
treatment in the complaint. See J.A. 47-51.
 4

on prior occasions.” Id. The Board did not relate this
evidence to the prima facie case but instead to the step two
analysis, which makes complete sense in relation to the
Company’s rebuttal.
Even assuming the Board’s discussion of disparate
treatment could properly be considered as having been
directed to the prima facie showing stage, that showing would
nonetheless be unsupported by substantial evidence. The
record reveals that, at worst, Detroit News was inconsistent in
disciplining insubordinate employees; more accurately, it
manifests that Hydorn was treated no differently from non-
strikers who engaged in behavior as high-handed as Hydorn’s.
According to the Board, the General Counsel produced
evidence that, between February 1997 and November 1999,
the Company “disciplined 37 non-strikers for insubordination
less harshly than Hydorn.” Id. The difficulty with the
Board’s conclusion is that it assumed all types of
insubordination are alike.2 While in 20 of the 37 instances,
Detroit News simply reprimanded the employee, nearly one-
half involved employees who filed paperwork late and
another two involved employees who would not work
overtime. The Board emphasized the fact that the other 17
employees were suspended—not terminated—but it omitted
to mention that there were strikers who had also been
suspended—not terminated—for insubordination. Id. In fact,
from 1997 to 1999, seven employees in all were terminated

2
The dissenting Board member reminded his colleagues of their
limited ability to evaluate workplace imbroglios after the fact:
“However, it is not our place to second-guess personnel decisions; our
sole responsibility is to determine whether the General Counsel has
established by a preponderance of the evidence that discriminatory
animus was a substantial or motivating factor in the challenged
disciplinary action.” Detroit Newspaper Agency, 342 N.L.R.B. No.
125, slip op. at 7 (Schaumber, Member, dissenting) (2004).
 5

for insubordination. Id. Only one was a returning striker and
that was Hydorn.
The Board discounted this evidence, claiming that five of
the six incidents involved termination for more than a single
act of insubordination. Id. But, as the dissenting Board
member convincingly explained, the conduct of two non-
strikers was on par with Hydorn’s. Id. at 11. The discharge
letter sent to non-striker Sylvia Dean referenced only one
incident when she “refused to follow the instructions of …
[her] supervisor[] and perform the work on the machine
assigned to [her].” Id. Detroit News’s concern was the same
with Dean as it was with Hydorn: “it appears from the
foregoing that you are not willing to meet the duties,
responsibilities and proper conduct required of you in your
job.” J.A. 129. The Board distinguished the discharge of
non-striker Usman Daramay because he was terminated for
both refusal to obey an order and “inappropriate behavior.”
Apparently, Daramay’s “inappropriate behavior” was the
“additional” factor that contributed to the Company’s
termination decision. It is undisputed that Hydorn was guilty
of “inappropriate behavior” too. Indeed, even Hydorn
admitted that he had a “bad attitude.” Detroit Newspaper
Agency, 342 N.L.R.B. No. 125, slip op. at 2. Because
Hydorn’s attitude was not separately listed in the discharge
letter, however, the Board found the two cases
distinguishable. Nevertheless, as the record indicates, see J.A.
665-66, Taylor considered Hydorn’s attitude as well as the
written statements of Leach and Monroig in deciding to fire
him.3
3
Taylor testified that he took into account Hydorn’s “attitude,”
which was “[g]o ahead and fire me. Because I am not going to [clear
paper drags] today and I am not going to do it tomorrow.” J.A. 665.
See Detroit Newspaper Agency, 342 N.L.R.B. No. 125, slip op. at 11
(Schaumber, Member, dissenting) (“No one can reasonably dispute
that Hydorn engaged in conduct Respondent deemed ‘inappropriate’
 6

The majority’s decision to remand this case to the Board
“for elaboration” skirts decades of case law declaring that we
can uphold an agency decision only upon the articulated
rationale of the agency. I believe that the Board in fact
articulated its rationale and that rationale is not supported by
substantial evidence. Because I would grant the Company’s
petition for review, I respectfully dissent.4

in the course of his refusal to clear paper drags. Nor can one
reasonably claim that Respondent did not consider the entire course of
Hydorn’s conduct in deciding what discipline to impose.”).
4
For the reasons already set forth, I believe the Board’s finding
that Detroit News would not have fired Hydorn in the absence of
protected concerted activity is likewise not supported by substantial
evidence. Accordingly, even assuming the Board’s finding of a prima
facie case is supported by substantial evidence, I would grant the
petition for review. Such a succinct holding would have avoided the
mistake I believe the majority has made.