United States Court of Appeals
For the First Circuit
No. 05-1924
NATIONAL LABOR RELATIONS BOARD,
Petitioner/Cross-Respondent,
v.
HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES
INTERNATIONAL UNION LOCAL 26, AFL-CIO,
Respondent/Cross-Petitioner.
ON APPLICATION FOR ENFORCEMENT AND CROSS-PETITION FOR
REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before
Lipez, Circuit Judge,
Campbell and Bowman,* Senior Circuit Judges.
David Seid with whom Jill A. Griffin, Supervisory Attorney,
Arthur F. Rosenfeld, Acting General Counsel, John E. Higgins, Jr.,
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, and Aileen A. Armstrong, Deputy Associate General Counsel,
were on brief for petitioner/cross-respondent.
Ellen C. Kearns with whom Jeffery M. Rosin was on brief for
respondent/cross-petitioner.
April 28, 2006
*
Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
BOWMAN, Senior Circuit Judge. The National Labor
Relations Board ("Board") issued an order affirming the decision of
an administrative law judge ("ALJ") that the Hotel Employees and
Restaurant Employees International Union, Local 26, AFL-CIO
("Union"), violated the National Labor Relations Act ("NLRA") by
discharging Emma Johnson because she engaged in protected concerted
activity and by telling another employee that the Union discharged
Johnson because of such activity. The Board's General Counsel
applies for enforcement of the Board's order. The Union petitions
for review of the order, asking this Court to set aside the adverse
ruling or remand the case for additional findings. We deny the
Union's petition for review and grant the General Counsel's
application for enforcement of the Board's order.1
I.
The Union, a local affiliate of the International Union,
represents 5800 hotel workers in and around Boston, Massachusetts.
In 1997, the Union hired Janice Loux as its president. Loux had
exclusive authority to hire and discharge Union employees. Loux
created a research department to organize more effectively at
Boston area hotels. Martin Leary, a research supervisor for the
International Union, assisted the Union in creating its research
1
We derive the operative facts recited in part I from the
ALJ's specific findings and from the record evidence that is
consistent with the ALJ's findings and credibility determinations.
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department. In September 1998, Loux hired Johnson as a researcher.
Loux later hired Mark Parker as a researcher.
In May 1999, Leary evaluated Johnson. Leary rated
Johnson's overall quality of work as very good and her specific
work habits and skills from excellent to satisfactory. Leary wrote
that Johnson's strengths were "[m]anaging work tasks, facilitating
communication among team members & keeping us on task, and mastery
of the details of the development process." As for areas needing
improvement, Leary wanted Johnson to show "[m]ore initiative in
cultivating new sources & generating issues"; "dig[] deeper to
understand target companies"; and increase her "exposure to
specific info-gathering techniques." As for Johnson's ability to
prioritize work, set work goals, and manage work schedule/time,
Leary commented, "Thank God someone on the team can do this!" When
Johnson later met with Loux and Leary about the evaluation, Loux
did not disagree with Leary's evaluation. And neither Loux nor
Leary criticized Johnson's work.
In June 1999, the Logan Airport Ramada Inn (owned by
Hilton Hotels) announced that it was closing, it would discharge
all employees, Hilton Boston would later open and operate the
hotel, and Hilton would not provide a right of employment to hotel
employees. In July 1999, Loux decided that the Union would begin
a leafletting campaign to advertise its dispute with Hilton. Loux
announced, "We're starting a picket line at the Back Bay Hilton.
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Everyone cancel all your plans for the summer. We're going to be
doing this 7 days a week, all summer long. We're going to be
leafletting. And it's in 2 hour shifts." Loux alerted employees
that the campaign could last until October, that she would assign
the shifts, and that the employees could not switch their shifts
with each other. The leafletting initially ran from 10:00 a.m. to
8:00 p.m., but later began at 8:00 a.m. Each employee was required
to leaflet in a two-hour shift that started at various times from
day to day, as opposed to leafletting at the same time each day.
While leafletting, employees had to follow certain rules, one of
which forbade employees from placing leaflets or personal property
on Hilton property. In addition to leafletting seven days per
week, employees also were required to perform their other job
duties.
After a week of leafletting, Johnson requested that Loux
allow employees to switch shifts. Loux denied the request.
Johnson then approached co-employees about their interests in
switching shifts. Johnson also prepared an alternative schedule so
employees could enjoy a day off on the weekend. Johnson's proposed
schedule required each employee to work one, four-hour shift each
weekend rather than two-hour shifts on both Saturday and Sunday.
Some employees were interested in these ideas, and Johnson informed
them that she was going to raise her ideas at a staff meeting.
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Loux later informed two employees, including Calvin Wu,
that Johnson complained about the leafletting schedule. Loux asked
whether they preferred two, two-hour shifts or one, four-hour shift
on weekends. Wu said he preferred one shift per weekend.
During the campaign, Loux acknowledged at a staff meeting
that she knew "people were getting frustrated" and that there were
"some grumblings on the picket line." At another staff meeting,
Johnson twice asked Loux if employees could switch shifts. Loux
denied the requests. Johnson told Loux that "the issue of the
weekends is becoming a big issue so how about . . . changing the
two hour blocks into the four hour blocks and giving people one
weekend day off." Loux responded, "No. There will be no switching
the schedule. It stays as it is."
Johnson later gave Loux a revised schedule that allowed
employees to have an early shift on one weekend day to avoid having
two, mid-day shifts on the weekend. Loux did not allow Johnson to
discuss the proposed schedule but said she would look at it. The
schedule contained a cover letter stating, "Could we do weekend
shifts of 4 hours each, thus letting everyone have one weekend day
off? One person would do 4 hours one weekend day and none the
other day. Or, if not, could those who want to, switch with each
other so that they do a 4 hour shift one weekend day and take the
other weekend day off? Then get it approved by you."
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In late July 1999, Loux complained to Leary, "I'm really
at the end of my rope with Emma Johnson and I'm thinking very
seriously about terminating her." Loux complained about Johnson's
temper, her failure to "put[] in the time," and her complaining
about the picket line schedule.
Loux later increased the number of hours that employees
would leaflet to four hours per day. At a staff meeting on August
5, 1999, Johnson asked Loux if they could talk about scheduling.
Loux "got really angry"; "slamm[ed] her hand on the table"; and
responded, "No. We cannot talk about scheduling. There are going
to be no changes. . . . No! I am the boss! I make the rules!"
On Friday, August 6, 1999, Loux announced that the Union
had reached an agreement with Hilton and that the leafletting would
end. Loux then was out of the office until Monday, August 16, the
same day Johnson left for a one-day research conference. When
Johnson returned on August 18, she asked Loux for a meeting to
request time off. Loux responded, "We need to talk about what
happened on the picket line. . . . I am just not comfortable with
this. . . . I can't have that attitude that you displayed on the
picket line. . . . I'm just not comfortable. You're a really good
researcher and we'll just do this as a layoff." Johnson asked,
"You're firing me for something I did on the picket line?" Loux
responded, "It's just not a good fit any more. But, I'll give you
a good recommendation and you'll get two weeks pay." Loux then
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ordered Johnson to pack her things and leave under an escort.
Before the discharge, neither Loux nor Leary told Johnson about any
problems at work that might require discharge.
On the day of Johnson's discharge, Wu asked Johnson why
she had been discharged. Johnson replied that she was discharged
for complaining about the Hilton campaign. Shortly after the
discharge, Brian Lang, the Union's director of organizing, told Wu
that Johnson was discharged because of her complaints about the
Hilton campaign.
Johnson filed an unfair labor practice charge against the
Union for discharging her because she engaged in protected
concerted activity. The General Counsel filed a complaint with the
Board, charging the Union with violating § 8(a)(1) of the NLRA, 29
U.S.C. § 158(a)(1) (2000) (prohibiting employers from interfering
with employees in the exercise of their NLRA rights), by
interfering with the exercise of rights guaranteed by § 7 of the
NLRA, 29 U.S.C. § 157 (providing employees the right to engage in
"concerted activities for the purpose of . . . mutual aid or
protection"). Specifically, the General Counsel alleged that
Johnson had "engaged in concerted activity with other employees for
the purpose of mutual aid and protection by discussing terms and
conditions of employment"; "Johnson concertedly complained to [the
Union about] the wages, hours and working conditions of [the
Union]'s employees by requesting that [the Union] discuss
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scheduling issues"; the Union "implicitly threatened its employees
with discharge if they engaged in protected concerted activity";
and the Union discharged Johnson.
The Union contends that it discharged "Johnson for four
reasons: (A) failure to follow the rules for leafleting during the
Hilton campaign; (B) failure to complete required assignments for
the Hilton campaign; (C) poor performance as a researcher; and
(D) poor attitude." At a hearing conducted by an ALJ, the Union
submitted evidence that Johnson (A) violated leafletting rules by
placing leaflets and personal property on Hilton property and by
sitting down, (B) failed to organize staff to make strategic calls
and report on those calls, (C) failed to file one-page reports on
hotel projects during the leafletting campaign, and (D) displayed
a deteriorating attitude toward her job and the leafletting
activities.
An ALJ concluded that the Union violated § 8(a)(1) of the
NLRA by discharging Johnson because of her protected concerted
activity (i.e., complaining about the leafletting schedule) and by
telling Wu that Johnson had been discharged because of her
protected concerted activity. After concluding that the General
Counsel proved that the Union discharged Johnson for engaging in
protected concerted activity, the ALJ explained that under the
standards announced in Wright Line, 251 N.L.R.B. 1083 (1980),
enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied, 455 U.S. 989
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(1982), the Union had the burden "to establish that it would have
laid off or discharged [Johnson] for good cause despite . . . her
union or protected activities." The ALJ determined that the Union
failed to meet its burden of proof. The Union and the General
Counsel filed exceptions to the ALJ's decision with the Board.
Noting that the ALJ did not evaluate the credibility of witnesses
who testified about the reasons for Johnson's discharge and did not
address discrepancies in key testimony, the Board remanded the case
to the ALJ to make additional findings and credibility
determinations regarding the Union's proffered reasons for
discharging Johnson.
In a supplemental decision, the ALJ made credibility
determinations and additional findings. The ALJ found that
"Johnson's testimony was detailed and credible," and to the extent
that Johnson's and Loux's testimony conflicted, the ALJ credited
Johnson's testimony. Notably, the ALJ did "not believe Loux's
testimony as to the reasons that she gave for Johnson's discharge."
The ALJ decided that Leary's testimony "shows that the primary
reason that Loux decided to discharge Johnson was because Johnson
had made an effort to convince other employees to concertedly
complain about the picket line schedules insofar as they affected
their hours of work." The ALJ also stated that Lang's telling Wu
that Johnson was discharged because she complained about the
leafletting schedule "goes a long way toward establishing a
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forceful . . . case." The ALJ noted that Lang's statement is
"certainly consistent with Leary's testimony regarding what Loux
told him before Johnson was fired." The ALJ also concluded that
Loux's complaints "about Johnson's attitude, bad temper, and lack
of enthusiasm" are "inextricably related to the fact that Johnson
made herself a pest in Loux's eyes by continually complaining about
the scheduling of the leafleting schedule. Johnson may have been
an irritant to Loux because she was challenging the schedule; but
that irritating activity by Johnson is protected" by § 7 of the
NLRA. Thus, the ALJ reaffirmed his decision. The Union filed
exceptions to the ALJ's decision. The Board affirmed the ALJ's
"rulings, findings, and conclusions," and adopted the ALJ's order.2
The General Counsel seeks enforcement of the Board's
order. The Union petitions for review of the order, arguing that
the Board misapplied Wright Line to find that the Union discharged
Johnson for her protected concerted activity and that the Board
erroneously concluded that Johnson even engaged in such activity.
II.
We will enforce the Board's order if the Board "correctly
applied the law and if its factual findings are supported by
substantial evidence on the record." Acme Tile & Terrazzo Co. v.
2
Although the Board unanimously affirmed the ALJ's liability
findings, one Board member dissented on the ground that the ALJ's
remedy was inadequate, arguing that Johnson was entitled to "tax
compensation as part of [the] make-whole remedy."
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NLRB, 87 F.3d 558, 560 (1st Cir. 1996); 29 U.S.C. § 160(e) (stating
that the Board's factual findings are conclusive if supported by
substantial evidence). Substantial evidence "means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." McGaw of Puerto Rico, Inc. v. NLRB, 135 F.3d 1, 7
(1st Cir. 1997) (internal quotation marks and citation omitted).
"'The possibility of drawing two inconsistent conclusions from the
evidence does not prevent [the Board's] finding from being
supported by substantial evidence.'" Sociedad Espanola de Auxilio
Mutuo y Beneficiencia de P.R. v. NLRB, 414 F.3d 158, 160-61 (1st
Cir. 2005) (quoting Am. Textile Mfrs. Inst., Inc. v. Donovan, 452
U.S. 490, 523 (1981)). The ALJ saw the witnesses testify, so we
afford great weight to his credibility determinations. Holyoke
Visiting Nurses Ass'n v. NLRB, 11 F.3d 302, 308 (1st Cir. 1993).
A.
The Board concluded that the Union violated § 8(a)(1) of
the NLRA because Lang told Wu that Johnson had been discharged for
complaining about the leafletting schedule. Contending that the
Union does not contest this finding of a violation, the General
Counsel asks for summary enforcement of the Board's order as it
relates to this violation. In its initial brief, the Union does
not contest this finding. The only time the Union addresses this
part of the Board's decision is when it spends two pages in its
reply brief half-heartedly arguing that it contests this finding,
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or at least contesting the relevance of this finding as it relates
to the fighting issue of Loux's motivation for discharging Johnson.
We conclude that the General Counsel is entitled to summary
enforcement of the Board's order as it relates to Lang's statement
to Wu. See, e.g., McGaw, 135 F.3d at 11 (holding that the NLRB is
entitled to summary affirmance of the Board's findings of § 8(a)(1)
violations because the petitioner failed to challenge them);
Ramsdell v. Bowles, 64 F.3d 5, 8 (1st Cir. 1995) (stating that a
party waived an argument "by failing to raise it in her opening
brief on appeal"), cert. denied, 516 U.S. 1113 (1996).
The Union argues that even if we enforce the Board's
finding of a violation involving Lang's statement, "it does not
affect [the Union]'s arguments with respect to Johnson." We agree
that the Union's arguments on the Johnson discharge issue are not
foreclosed. At the same time, Lang's statement remains relevant to
the Board's finding of a violation on Johnson's discharge. McGaw,
135 F.3d at 8.
B.
Before asking whether substantial evidence supports the
Board's findings and determination that the Union discharged
Johnson because of her protected concerted activity, we ask whether
the Board erroneously concluded that Johnson engaged in "concerted
activit[y] for the purpose of . . . mutual aid or protection.” 29
U.S.C. § 157. The Union argues that Johnson did not engage in
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concerted activity, but rather engaged in self-motivated
complaining about her schedule.
To qualify as concerted activity, conduct "need not take
place in a union setting and it is not necessary that a collective
bargaining agreement be in effect. It is sufficient that the
[complaining] employee intends or contemplates, as an end result,
group activity which will also benefit some other employees." Koch
Supplies, Inc. v. NLRB, 646 F.2d 1257, 1259 (8th Cir. 1981). We
recognize that even a conversation can constitute concerted
activity, "but to qualify as such, it must appear at the very least
that it was engaged in with the object of initiating or inducing or
preparing for group action or that it had some relation to group
action in the interest of the employees." El Gran Combo de Puerto
Rico v. NLRB, 853 F.2d 996, 1004 (1st Cir. 1988) (quoting Mushroom
Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)).
We conclude that substantial evidence supports the ALJ's
finding that Johnson engaged in concerted activity. The record
shows that Johnson polled co-employees about their desire to switch
shifts and/or work only one day per weekend, she informed co-
employees that she would present her ideas to Loux at a staff
meeting, and she later presented her ideas that would benefit all
employees to Loux. Johnson also gave Loux alternative weekend
schedules that either would have granted employees one weekend day
off per week or at least ensured that the employees did not work in
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the middle of both weekend days. Some employees supported
Johnson's ideas. The ALJ did not err in concluding that Johnson's
conduct related to group action that would have benefitted the
Union's employees such that it constituted concerted activity.
C.
We now focus on the two main issues in this case. First,
we ask whether the Board properly applied the Wright Line standard.
Under that standard, the General Counsel bears the burden to prove
that Johnson's protected concerted activity was a motivating factor
in Loux's decision to discharge Johnson. See NLRB v. Hosp. San
Pablo, Inc., 207 F.3d 67, 70 (1st Cir. 2000). If the General
Counsel meets this burden, the Union must prove, by a preponderance
of the evidence, that it would have discharged Johnson even if she
had not engaged in the protected activity. Id. at 71. The Union
maintains that the ALJ and the Board misapplied the Wright Line
standard by wrongly placing the burden of persuasion on the Union.
We disagree. The ALJ decided that the NLRB had proved that Loux
was motivated to discharge Johnson because she engaged in protected
concerted activity. Following the dictates of Wright Line, the ALJ
then determined that the Union had failed to prove that Loux would
have discharged Johnson regardless of her protected activity. Our
reading of the ALJ's decision leads us to conclude that the ALJ
simply determined that the General Counsel proved its case and the
Union did not. This was not legal error.
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Second, we ask whether substantial evidence supports the
Board's finding that Loux discharged Johnson because she engaged in
protected concerted activity. We answer yes. The record shows
that the General Counsel presented strong proof that Johnson's
complaining about the leafletting schedule motivated Loux to
discharge Johnson. After Loux announced that the leafletting
campaign could last up to four months, that employees could not
take any vacations until it was concluded, and that employees would
work seven days per week during the campaign, Johnson began to
discuss schedule changes openly with co-employees. Johnson then
advocated to Loux on behalf of the employees for the ability to
switch shifts or be allowed to work four-hour shifts on one weekend
day so that they could enjoy one day off per week.
In addition to proof that Johnson engaged in concerted
activity and that Loux knew about this activity, the record shows
that the General Counsel also presented a very strong case that
Loux's motivation for discharging Johnson was rooted in Johnson's
protesting the leafletting schedule. For instance, Leary rated
Johnson's performance as a researcher as very good and gave
excellent marks for her ability to prioritize work, set work goals,
and manage work schedule/time. Loux did not disagree with Leary's
assessment of Johnson's performance as a researcher and did not
have anything critical to say when meeting with Johnson. This
evaluation took place in May 1999. Soon after, in July 1999, Loux
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initiated the leafletting campaign against the Hilton and Johnson
began voicing complaints about the leafletting schedule. That is
when Loux became extremely critical of Johnson's performance and
attitude. Within a few weeks of the campaign's start and Johnson's
complaints about the schedule, Loux told Leary, "I'm really at the
end of my rope with Emma Johnson and I'm thinking very seriously
about terminating her." Loux specifically mentioned Johnson's
complaints about the leafletting schedule. A week after that
private incident, Loux publicly displayed anger when Johnson sought
to discuss scheduling at a staff meeting. After slamming her hand
on the table, Loux stated, "We cannot talk about scheduling. There
are going to be no changes. . . . I am the boss! I make the
rules!" When Loux privately met with Johnson to discharge her,
Loux said that she could not tolerate the attitude that Johnson
displayed on the picket line. After Johnson left the private
meeting with Loux, Johnson told Wu that Johnson was discharged
because she complained about the Hilton campaign. Lang, the
Union's director of organizing, corroborated what Loux said to
Johnson when Lang later told Wu that Johnson was discharged because
of her complaints about the Hilton campaign. Thus, we conclude
that substantial evidence supports the Board's decision that the
General Counsel proved that a motivating factor in the Union's
discharge of Johnson was her protected concerted activity.
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Substantial evidence also supports the Board's rejection
of the Union's defense that it would have discharged Johnson
regardless of her protected concerted activity. In considering
this defense, the ALJ rightly concentrated on Loux's credibility,
since only Loux had the authority to discharge Johnson. Of course,
testimony from other witnesses either supported or contradicted
Loux's testimony, but it is important to remember that the ALJ had
the benefit of watching and listening to Loux's testimony when
deciding the critical question of what motivated Loux to discharge
Johnson. The ALJ found that Loux was not credible: "I do not
believe Loux's testimony as to the reasons that she gave for
Johnson's discharge." According to testimony credited by the ALJ,
the only reason Loux gave at the time of discharge for discharging
Johnson was Johnson's poor attitude on the picket line. The ALJ
was free to eye with a good deal of suspicion any reasons later
generated during litigation. See NLRB v. Waco Insulation, Inc.,
567 F.2d 596, 601 (4th Cir. 1977) ("We believe that it is extremely
unlikely that the reason for [an employee]'s discharge was due to
poor work performance [i.e., the employer's proffered reason] since
it was not articulated as a reason for his discharge at the time he
was fired.").
The Union admits that Johnson's poor attitude during the
leafletting activities was a reason for her discharge. The ALJ
recognized that "this criticism is inextricably related to the fact
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that Johnson made herself a pest in Loux's eyes by continually
complaining about the . . . leafletting schedule." The ALJ
expounded: "Johnson may have been an irritant to Loux because she
was challenging the schedule; but that irritating activity by
Johnson is protected by" § 7 of the NLRA. The record in this case
simply does not allow us to second-guess the ALJ's findings on this
point.
The Union also maintains that Loux was motivated to
discharge Johnson because she was a poor researcher. But the ALJ
specifically credited Johnson's testimony that at the time of
discharge, Loux praised Johnson as "a really good researcher."
Thus, the record supports the ALJ's rejection of this asserted
reason for discharging Johnson.
We also acknowledge that the ALJ decided that the
strength of the General Counsel's case in proving Loux's unlawful
motive in discharging Johnson detracted from the Union's defense.
It was entirely appropriate for the ALJ to recognize that the
stronger the General Counsel's case, the harder it was for the
Union to meet its burden to prove that it would have discharged
Johnson regardless of her protected concerted activity. Cf. Sears,
Roebuck & Co. v. NLRB, 349 F.3d 493, 503 (7th Cir. 2003) ("The
[General Counsel's] case and the [employer's] affirmative defense
available under Wright Line are linked: the weaker the [General
Counsel's] case, the easier it is for the employer to establish
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that it would have taken the adverse action regardless of the
employee's protected activity."). When the ALJ rejected Loux's
testimony in favor of Johnson's, it became very difficult for the
Union to argue that the General Counsel failed to prove that Loux
was motivated to discharge Johnson because of her protected
concerted activity.
The Union argues that because Parker's testimony
corroborates parts of Loux's testimony, the ALJ was required to
adopt Parker's and Loux's testimony over Johnson's and Leary's. We
disagree. Only Loux had the authority to discharge Johnson and
only Loux knew what motivated her to do so. The ALJ did not find
Loux credible and rejected all of her testimony that conflicted
with Johnson's testimony. Morever, substantial evidence shows that
Loux told Leary that she wanted to discharge Johnson, in part,
because of her leafletting complaints. The ALJ was free to
conclude that this testimony revealed Loux's unlawful motivation.
The ALJ was also free to conclude that Loux displayed her
motivation for discharging Johnson at the discharge meeting when
Loux gave one reason for the discharge—Johnson's conduct on the
picket line. The same reason for the discharge appeared when
Johnson told Wu why she was discharged and when Lang told Wu about
the discharge. A consistent theme runs through the credited
testimony and supports the ALJ's finding that Johnson's protected
concerted activity motivated Loux to discharge her.
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III.
For the reasons discussed, we grant the General Counsel's
application for enforcement of the Board's order and deny the
Union's petition for review.
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