United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2011 Decided August 5, 2011
No. 10-1309
BALLY’S PARK PLACE, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE
AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,
UAW,
INTERVENOR
Consolidated with 10-1356
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Judith Sadler argued the cause for petitioner. With her on the
briefs was Charles E. Sykes.
Zachary R. Henige, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were John H. Ferguson, Associate General Counsel, Linda
2
Dreeben, Deputy Associate General Counsel, and Robert J.
Englehart, Supervisory Attorney.
Cassie Ehrenberg and Blair Katherine Simmons were on the
brief for intervenor.
Before: SENTELLE, Chief Judge, and GINSBURG and
GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Bally’s Park Place, Inc. petitions
for review of a decision and order of the National Labor
Relations Board (NLRB). The Board found that the company
committed unfair labor practices in violation of sections
(8)(a)(1) and (3) of the National Labor Relations Act (NLRA),
29 U.S.C. §§ 158(a)(1), (3), when it discharged employee Jose
Justiniano because of his support for the United Auto Workers.
For the reasons set forth below, we deny Bally’s’ petition and
grant the Board’s cross-application for enforcement of its order.
I
Bally’s operates a casino in Atlantic City, New Jersey. The
company hired Justiniano as a table dealer in 2000, and through
2006 it repeatedly praised him as a good employee. See Dealer
Evaluation Forms (J.A. 367-69). In November of that year, the
United Auto Workers (UAW) began a campaign to organize
casino dealers in the Atlantic City area, including those working
at Bally’s. Justiniano attended numerous meetings held by the
union, became a supporter, and signed an authorization card. He
spoke to other Bally’s employees on a daily basis about the need
for a union -- in the employees’ lounge, in the cafeteria, and as
they were coming to and going from work. He also appeared in
3
a promotional video that the union prepared and mailed to
casino workers in and around Atlantic City.1
In January 2007, at a time when no customers were present
at his table, Justiniano spoke to another employee about the
union’s organizing efforts. It is undisputed that Bally’s allowed
dealers to have social conversations in such circumstances.
Nonetheless, Justiniano’s supervisor told the two that they could
not talk about the union while on the casino floor.
On March 19, 2007, Justiniano got into a dispute with a
manager over break time. When the supervisor threatened to
discipline him, Justiniano responded that such threats were the
reason the employees needed a union. The manager then began
yelling at him, saying that he was not allowed to talk about
“union” on the casino floor and that he could be “fired for
talking about unions.” Bally’s Park Place, Inc., 355 N.L.R.B.
No. 218, at 7, 2010 WL 3835565 (Sept. 30, 2010) (ALJ Op.). A
short while later, Justiniano was instructed to report to another
supervisor, who told him that he was “not allowed to talk about
the Union on the casino floor whatsoever.” Id. And on March
22, Justiniano was escorted to speak to the shift manager, who
asked him about the previous incident. The shift manager told
Justiniano that he should not talk about the union on the casino
floor and issued him a written warning for acting “in an
unprofessional manner.” Id.
In late March or early April, Justiniano was talking with
other employees in the employee cafeteria when a Bally’s floor
person told them that she and other supervisors had just had a
meeting with “higher up management.” Id. She said they were
1
The facts set forth in Part I of this opinion are taken from the
decisions of the Board and the Administrative Law Judge, and are not
disputed on this appeal.
4
asked “the best way we can satisfy dealers” so they would not
join the union. Id. Justiniano told her there was nothing to do
because the “damage is already done.” Id.
On March 31, Justiniano was scheduled to work at the
casino from 12:00 noon to 8:00 p.m. The night before his shift,
the mother of his 13-year-old daughter called and asked him to
take care of the girl beginning at 12:30 p.m. the next day.
Justiniano’s daughter suffered from severe asthma that required
treatment every four hours. He had previously taken leave to
care for her, without incident, pursuant to the Family and
Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.
Justiniano called Bally’s at 6:00 a.m. on the morning of March
31 and left a message that he would be taking FMLA leave that
day; he called back at 9:00 a.m. to confirm that Bally’s had
received the message.
Later that morning, the UAW held a rally outside the Trump
Plaza casino as part of its effort to organize Atlantic City casino
dealers. The rally was scheduled to last from 10:30 a.m. until
about 12:15 p.m. Justiniano attended the rally and waved a
“Union Yes” sign. On his way to work, one of Bally’s’
managers saw Justiniano holding the sign. Upon arriving at the
casino, the manager informed Bally’s’ vice president of table
games, Michael May, that he had just seen Justiniano at the
rally. May responded that Justiniano had requested FMLA leave
for the day.
When Justiniano returned to work, he signed a form
requesting paid family leave for his entire shift on March 31.
On April 9, May took Justiniano to meet with Bally’s’ director
of operations, Richard Tartaglio. Tartaglio informed Justiniano
that he had been seen at the UAW rally on the morning of
March 31, and he asked Justiniano when he left the rally.
Justiniano acknowledged that he was at the rally until it ended
5
at about 12:20 p.m.,2 and said that he had then gone home to
care for his daughter. Based on the information Justiniano
provided, Tartaglio and May concluded that Justiniano had been
at the rally for 20 minutes after the start of his scheduled shift
and that he had therefore spent 20 minutes of FMLA leave time
attending the rally. On April 12, Bally’s terminated Justiniano
for “violation of Work Rule Number 3 in the employee
handbook stating that employees will be honest and forthcoming
in all communication.” 355 N.L.R.B. No. 218, at 2 (Board Op.).
Following Justiniano’s termination, the UAW filed unfair
labor practice charges against Bally’s. Based on those charges,
the NLRB’s General Counsel issued a complaint alleging that
the company had violated sections 8(a)(1) and (3) of the NLRA,
which (inter alia) make it an unfair labor practice for an
employer “to interfere with, restrain, or coerce employees in the
exercise of” their rights to form, join, or assist labor
organizations, 29 U.S.C. § 158(a)(1), and “by discrimination in
regard to . . . tenure of employment . . . to encourage or
discourage membership in any labor organization,” id. §
158(a)(3). The complaint alleged that Bally’s violated section
8(a)(1) by instructing Justiniano that he could not talk about the
union on the casino floor, and by soliciting employees’
grievances and promising them improved conditions if they
refrained from supporting the union. The complaint also alleged
that Bally’s violated sections 8(a)(1) and (3) by terminating
Justiniano for engaging in union activity.
The Administrative Law Judge (ALJ) found that Bally’s
violated section 8(a)(1) by telling Justiniano -- once in January
2
Justiniano denied that he had said this, but the Administrative
Law Judge accepted the testimony of Tartaglio and May on this point,
see 355 N.L.R.B. No. 218, at 10 (ALJ Op.), and the Board accepted
the judge’s credibility determination, id. at 1 n.1 (Board Op.).
6
and three times in March, 2007 -- that he could not discuss
union issues on the casino floor even though employees were
permitted to discuss other nonwork-related matters there. 355
N.L.R.B. No. 218, at 7-8 (ALJ Op.) (citing, e.g., ITT Indus., 331
N.L.R.B. 4 (2000)). The judge also found that the floor person’s
inquiry as to how management could “satisfy dealers” so they
would not join the union constituted an implicit promise to
remedy dealers’ grievances if they did not join. This too, the
ALJ held, violated section 8(a)(1). Id. at 8 (citing Traction
Wholesale Ctr. Co., 328 N.L.R.B. 1058 (1999)).
But the ALJ dismissed the General Counsel’s allegation that
Bally’s violated sections 8(a)(1) and (3) by discharging
Justiniano. Id. at 9-10. Applying the familiar Wright Line test,
the judge first found that the General Counsel had established a
prima facie case that Bally’s discharged Justiniano because of
his union activity. Id. at 9 (citing Wright Line, 251 N.L.R.B.
1083 (1980)). The judge noted that it was undisputed that
Bally’s was aware of Justiniano’s support for the union, that
Justiniano was discharged shortly after he was seen attending a
union rally on March 31, and that the “timing of an employer’s
action can be persuasive evidence of its motivation.” Id. (citing,
e.g., Masland Indus., 311 N.L.R.B. 184, 197 (1993)). The judge
also determined that the section 8(a)(1) violations he had found
constituted further “evidence of animus on respondent’s part.”
Id.
Nonetheless, the ALJ concluded that Bally’s had satisfied
its rebuttal burden, under Wright Line, to show that it would
have discharged Justiniano in the absence of his union activity.
The judge found that Bally’s had a “zero-tolerance policy” with
respect to employees who abused FMLA leave by using it for
something other than that for which they had requested the
leave. And he concluded that Bally’s discharged Justiniano for
“abus[ing] the FMLA leave he had requested to care for his
7
daughter by using at least 20 minutes of such leave to attend the
UAW rally on March 31.” Id. at 10.
The UAW and the General Counsel appealed the ALJ’s
decision to the Board. Bally’s did not except to the ALJ’s
findings that it violated section 8(a)(1) by telling Justiniano not
to talk about the union and by soliciting grievances and
promising to remedy them in order to dissuade employees from
supporting the union. The Board therefore adopted those
findings. The Board disagreed, however, with the ALJ’s
determination that Bally’s did not violate sections 8(a)(1) and
(3) when it discharged Justiniano. To the contrary, the Board
determined that Bally’s failed to meet its Wright Line burden of
showing that it would have discharged Justiniano absent his
protected conduct. 355 N.L.R.B. No. 218, at 3 (Board Op.).
Bally’s now petitions for review of that determination.3
II
This court “accords a very high degree of deference to
administrative adjudications by the NLRB.” United
Steelworkers of Am. v. NLRB, 983 F.2d 240, 244 (D.C. Cir.
1993). When the Board concludes that a violation of the NLRA
has occurred, we must uphold that finding unless it “has no
rational basis” or is “unsupported by substantial evidence.”
United Mine Workers of Am., District 31 v. NLRB, 879 F.2d 939,
942 (D.C. Cir. 1989) (internal citations omitted). “It is not
necessary that we agree that the Board reached the best outcome
3
Bally’s does not contest the Board’s determination that it
committed the section 8(a)(1) violations found by the ALJ, and the
Board is therefore entitled to summary enforcement as to that part of
its order. See Flying Food Group, Inc. v. NLRB, 471 F.3d 178, 181
(D.C. Cir. 2006).
8
in order to sustain its decisions. The Board’s findings of fact are
‘conclusive’ when supported by substantial evidence on the
record considered as a whole.” United Steelworkers, 983 F.2d
at 244 (citing 29 U.S.C. § 160(e)). Indeed, “the Board is to be
reversed only when the record is ‘so compelling that no
reasonable factfinder could fail to find’ to the contrary.” Id.
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992)).4
With the blessing of the Supreme Court (and this court),
the Board employs the Wright Line test when reviewing a claim
that an employer discharged (or took other disciplinary action
against) an employee for protected conduct. See Wright Line,
251 N.L.R.B. at 1089; see also NLRB v. Transp. Mgmt. Corp.,
462 U.S. 393, 401-03 (1983) (approving the Wright Line test).
“Under that test, the General Counsel must first ‘make a prima
facie showing sufficient to support the inference that protected
. . . conduct was a motivating factor in the [discharge].’” Tasty
Baking Co. v. NLRB, 254 F.3d 114, 125 (2001) (quoting
TIC-The Indus. Co. Southeast v. NLRB, 126 F.3d 334, 337 (D.C.
Cir. 1997)). “Once a prima facie case has been established, the
4
We also note that, “[w]here the Board has disagreed with the
ALJ, as occurred here, the standard of review with respect to the
substantiality of the evidence does not change.” Local 702, Int’l Bhd.
of Elec. Workers v. NLRB, 215 F.3d 11, 15 (D.C. Cir. 2000) (internal
quotation marks omitted); see Universal Camera Corp. v. NLRB, 340
U.S. 474, 496 (1951) (holding that “the ‘substantial evidence’ standard
is not modified in any way when the Board and its examiner
disagree”). Although “the Board, when it disagrees with the ALJ,
must make clear the basis of its disagreement,” in the end it is the
Board that is “entrusted by Congress with the responsibility for
making findings under the statute.” Local 702, 215 F.3d at 15
(internal quotation marks omitted). “It is not precluded from reaching
a result contrary to that of the [ALJ] when there is substantial evidence
in support of each result, and is free to substitute its judgment for the
[ALJ]’s.” Id. (internal quotation marks omitted).
9
burden [of persuasion] shifts to the company to show that it
would have taken the same action in the absence of the unlawful
motive.” Id. at 126; see Shamrock Foods Co. v. NLRB, 346 F.3d
1130, 1135 (D.C. Cir. 2003).
Bally’s does not challenge the Board’s conclusion that the
General Counsel established a prima facie case of discriminatory
motive. And for good reason. As Bally’s well knew, the union
was attempting to organize its employees and Justiniano was an
outspoken union supporter. Its managers had unlawfully
instructed him on three recent occasions not to discuss the union
with other employees on the casino floor. Indeed, one manager
threatened that he could be “fired for talking about unions,” and
he was given a written warning. 355 N.L.R.B. No. 218, at 1
(Board Op.). A supervisor had also unlawfully solicited his
grievances with the implied promise to remedy them if he
refrained from supporting the union. Justiniano’s discharge
came less than three weeks after the firing threat, even closer in
time to the unlawful solicitation, and within days of a manager
observing him at a pro-union rally. As the Board rightly found,
this “evidence of a discriminatory motive is strong.” Id. at 3.
See, e.g., Tasty Baking Co., 254 F.3d at 125-26 (“In determining
whether the employer had a discriminatory motive, the NLRB
may ‘consider[] such factors as the employer’s knowledge of the
employee’s union activities, the employer’s hostility toward the
union, and the timing of the employer’s action.’” (quoting
Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994))).
Where, as here, the General Counsel makes a strong
showing of discriminatory motivation, the employer’s rebuttal
burden is substantial. See Eddyleon Chocolate Co., 301
N.L.R.B. 887, 890 (1991); see also Van Vlerah Mech., Inc., 320
N.L.R.B. 739, 746 (1996). Bally’s argues that it met that burden
by demonstrating that it maintained a “zero-tolerance” policy
with respect to the misuse of family leave time. As the Board
10
noted, however, Bally’s had no written zero-tolerance policy,
and there is no evidence that it ever announced such a policy to
its employees. 355 N.L.R.B. No. 218, at 3 (Board Op.).
Bally’s contends that it was error for the Board to insist on
a formal written or oral policy, arguing that the Board’s
“imposition of a requirement that Bally’s policy affirmatively
state that leave can only be used for reasons listed in the
[FMLA] statute in order to discharge an employee . . . is
unreasonable and contrary to the statutory provisions of the
FMLA.” Pet. Br. 24. But Bally’s badly misreads the NLRB’s
decision. The Board did not state that a company must have a
written (or oral) policy in order to discharge an employee for a
single leave violation, only that the absence of a writing
weakened its claim to have such a policy. See, e.g., Ross Stores
Inc. v. NLRB, 235 F.3d 669, 675 (D.C. Cir. 2001) (stating that
the Board’s finding, that the employer “had no rule requiring
that time off be scheduled in advance,” was “supported in the
record by the absence of any such rule from [the employer’s]
written time-off policies”).
Moreover, Bally’s’ problem is not just that it lacked a
written rule that supported its claim of zero tolerance for
misstatements regarding leave. Rather, the written policy that
Bally’s did have -- and upon which it relied as the justification
for Justiniano’s discharge -- actually contradicted that claim.
Although Bally’s had no work rule specifically relating to leave
time, it did have a work rule (Work Rule 3) that said,
“Employees will be honest and forthcoming in all
communication, verbal and written.” Bally’s Atlantic City
Employee Handbook, Rules of the Road ¶ 3 (J.A. 370). Bally’s
maintained before the NLRB, and repeats on appeal, that it
“discharged Justiniano for violating Bally’s Work Rule 3.” Pet.
Br. 26; see 355 N.L.R.B. No. 218, at 2 (Board Op.); id. at 8
(ALJ Op.).
11
But Bally’s’ “Rules of the Road” did not establish a zero-
tolerance policy pursuant to which an employee would be fired
for even the most minor violation of a work rule. To the
contrary, the Rules stated:
Although . . . violation[] [of the work rules] noted
below may result in immediate Separation of
Employment . . . upon first offense, less severe
offenses are viewed cumulatively and will normally be
handled on a four-step basis of progressive discipline:
- First Step -- Documented Coaching
- Second Step -- Written Warning
-Third Step -- Final Warning
- Fourth Step -- Separation of Employment.
Rules of the Road, Conduct Standards, at 2.16 (J.A. 370). Work
Rule 3 was one of the work rules noted. But so also were many
others, including rules prohibiting employees from: harassing
guests or coworkers on the basis of sex, race, or religion;
participating in theft, misappropriation, misuse, or willful
destruction of co-workers’ or company property; reporting to
work under the influence of drugs or alcohol; selling drugs; and
coercing, threatening, colluding with, or using physical force
toward co-workers, vendors, or others. See Rules of the Road
¶¶ 1-35 (J.A. 370-72). It is hardly unreasonable to conclude
that, under a progressive discipline policy that applies to these
kinds of violations and pursuant to which discharge is
“normally” reserved for the more severe offenses, the employer
would not fire an employee simply for improperly taking (and
misrepresenting) 20 minutes of leave time.5 Indeed, as the
5
See Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 31 (D.C.
Cir. 1998) (stating that the employer must “prove . . . that despite any
12
Board points out, testimony at the ALJ hearing revealed that in
2007 Bally’s suspended for one day, but did not fire, two
employees who violated Work Rule 3 (albeit outside of the leave
context). Hr’g Tr. at 276-78 (J.A. 290-92). Under these
circumstances, it is a reasonable inference that Bally’s’ reliance
on Work Rule 3 was a pretext for discriminatory motive.6
As the Board notes, Bally’s’ claim to have a zero-tolerance
policy ultimately rests entirely on its anecdotal evidence
regarding nine employees whom it says it discharged for misuse
of family or medical leave. As the Board found, however, those
nine cases are distinguishable from Justiniano’s situation. In the
great majority, “the entirety of the requested leave was used for
an improper purpose.” 355 N.L.R.B. No. 218, at 3. One
employee, for example, sought leave purportedly to care for a
serious health condition, but in fact used it to work at a
competing casino and avoid being docked for tardiness at
Bally’s. Another sought medical leave for a health problem, but
used the leave to perform construction work. Two employees
requested intermittent family leave, but were fired when Bally’s
discovered they were using the time to operate a canoe rental
business. And yet another sought a three-month medical leave,
claiming that he could not work because of severe osteoarthritis,
but instead was found operating a massage parlor.
anti-union animus, [it] would have fired [the employee], not that it
could have done so”).
6
See Cadbury Beverages, 160 F.3d at 31-32 (holding that it was
“not incumbent on the general counsel to prove, nor on the Board to
find, that the company’s asserted nondiscriminatory reason of
insubordination was pretextual[,] . . . although such a showing would
have served as a conclusive rejection of [the company’s] affirmative
defense”).
13
As the Board reasonably concluded, “at most, this evidence
establishes that the Respondent had a practice of terminating
employees who fraudulently requested or extended FMLA
leave, i.e., telling the Respondent that they required leave to
fulfill family responsibilities or out of medical necessity and
then using the leave for a completely different purpose.” 355
N.L.R.B. No. 218, at 4. By contrast, “Justiniano did not
intentionally and fraudulently request FMLA leave for a purpose
not covered by the FMLA.” Id.7
Bally’s offers only two examples of employees who, like
Justiniano, used some but not all of their FMLA leave time for
its intended purpose. One requested leave to care for her ailing
father, but then failed to return to work for a month after her
7
Bally’s points out that, after discharging Justiniano, it learned
that he had not only failed to use his FMLA leave to care for his
daughter for 20 minutes at the beginning of his shift, but that he had
also failed to use it for that purpose after 5:30 p.m., when his daughter
returned to her mother’s home. As the Board correctly noted,
however, because Bally’s did not know this when it terminated
Justiniano, it is not relevant to the company’s motive for discharging
him. 355 N.L.R.B. No. 218, at 2 n.6; see Cadbury Beverages, 160
F.3d at 32 n.7 (holding that “the relevant belief is the belief that the
company had at the time it fired [the employee]; that [the company]
can show a reasonable basis for having fired [him] now is . . .
unavailing if, at the time, [the company] was motivated only by
antiunion animus”). Although late-discovered misconduct is relevant
to whether the Board can order reinstatement or front pay, see Frazier
Indus. Co., Inc. v. NLRB, 213 F.3d 750, 760 (D.C. Cir. 2000), we
cannot consider such a claim because Bally’s did not challenge the
Board’s remedy on that ground below, see 29 U.S.C. § 160(e); see
also W & M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341, 1345 (D.C.
Cir. 2008) (“If aggrieved by the Board’s remedy, W & M should have
filed a petition for reconsideration pursuant to the Board’s rules and
regulations.”).
14
father died. The other requested leave to attend to his wife who,
he claimed, required constant care. After an investigation,
however, Bally’s discovered that he was operating a bed-and-
breakfast with his wife. These employees are also reasonably
distinguishable from Justiniano, who misused only a tiny
fraction of the time they did. But even if they were not
distinguishable, two examples -- without any contemporary
statement of their reasoning -- do not a policy make. They
certainly do not establish a policy that “no reasonable factfinder
could fail to find.” United Steelworkers of Am., 983 F.2d at 244.
Finally, Bally’s maintains that the NLRB misconstrued the
testimony of its director of operations, Richard Tartaglio. At the
ALJ hearing, Tartaglio testified: “If [Justiniano] would have
said [he left the rally] any time prior to 12:00, then we wouldn’t
be here today.” Hr’g Tr. at 231 (J.A. 247). Because “Tartaglio
knew that Justiniano did not need to care for his daughter until
30 minutes later,” the Board inferred that Tartaglio discharged
Justiniano “for a reason other than that he spent 20 minutes of
his FMLA leave on something [that was not a] family or
medical necessity.” 355 N.L.R.B. No. 218, at 4; see id. (stating
that this is what the testimony “suggests”). Bally’s contends
that when Tartaglio’s “testimony is considered in context with
his other testimony, one reaches the same conclusion as the ALJ
-- that Mr. Tartaglio meant that Justiniano would not have been
guilty of misusing his leave time if he left the rally before noon
and had been caring for his daughter.” Pet. Br. 32-33
(emphasis added by petitioner).
We are inclined to agree with Bally’s that, in context, the
Board derived the wrong inference from Tartaglio’s testimony.
But whether or not we agree with Bally’s is not the question.
Rather, “‘we ask only whether on this record it would have been
possible for a reasonable jury to reach the Board’s conclusion[s],
giving substantial deference to the inferences drawn by the
15
[Board] from the facts.’” Progressive Elec., Inc. v. NLRB, 453
F.3d 538, 543 (D.C. Cir. 2006) (quoting Ceridian Corp. v.
NLRB, 435 F.3d 352, 357 (D.C. Cir. 2006)) (emphasis added).
“So long as the Board’s findings are reasonable, we will not
substitute our own judgment even if we would have come to a
different conclusion in the first instance.” Id.
Moreover, even if the Board’s inference were not only
wrong but unreasonable, it would make no difference to our
disposition. The Board’s discussion of Tartaglio’s testimony
came at the tail end of its opinion, after it had already completed
the Wright Line analysis discussed above. It then observed that
its conclusion, that Bally’s discharged Justiniano because he
spent time at the union rally, was “supported by Tartaglio’s
testimony.” 355 N.L.R.B. No. 218, at 4 (emphasis added). It is
thus plain that whatever weight the Board accorded that
testimony, it was not necessary to its decision. And as we noted
in the coincidentally entitled Casino Airlines case, “[w]hen an
agency relies on multiple grounds for its decision, some of
which are invalid, we may nonetheless sustain the decision as
long as one is valid and ‘the agency would clearly have acted on
that ground even if the other were unavailable.’” Casino
Airlines, Inc. v. Nat’l Transp. Safety Bd., 439 F.3d 715, 717
(D.C. Cir. 2006) (quoting Mail Order Ass’n. of Am. v. U.S.
Postal Serv., 2 F.3d 408, 434 (D.C. Cir. 1993)) (additional
internal quotation marks omitted).
To be sure, the NLRB could have credited Bally’s’
argument that it would have fired Justiniano regardless of his
support for the union. See Traction Wholesale Ctr., 216 F.3d at
100. “The only question before us, however, is whether
substantial evidence supports the Board’s view of the disputed
events, not [the petitioner’s].” Id. Indeed, “‘[w]e are even more
deferential when reviewing the Board’s conclusions regarding
discriminatory motive, because most evidence of motive is
16
circumstantial.’” Id. at 99 (quoting Vincent Plastics Inc. v.
NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000)); see Progressive
Elec., 453 F.3d at 549. Under this standard of review, we have
no warrant for disturbing the Board’s conclusion that
Justiniano’s termination was unlawful.
III
For the foregoing reasons we deny the petition for review
and grant the Board’s cross-application for enforcement.
So ordered.