Frazier Industrial Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2000 Decided June 9, 2000

No. 99-1297

Frazier Industrial Company, Inc.,
Petitioner

v.

National Labor Relations Board,
Respondent

On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board

Robert Leinwand argued the cause for petitioner. With
him on the briefs were Michael Hoffman and Robert G.
Hulteng.

Anne Marie Lofaso, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Leonard R. Page, General Counsel, Linda Sher,
Associate General Counsel, Aileen A. Armstrong, Deputy

Associate General Counsel, and David S. Habenstreit, Super-
visory Attorney.

Before: Edwards, Chief Judge, Henderson and Rogers,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Dissenting opinion filed by Circuit Judge Henderson.

Rogers, Circuit Judge: Frazier Industrial Company ap-
peals the National Labor Relations Board's decision that the
company violated s 8(a)(1) and (3) of the National Labor
Relations Act. See 29 U.S.C. s 158(a)(1), (3) (1994). The
company contends that the Board's conclusion that it violated
s 8(a)(1) and (3) by discharging John Ramirez for engaging in
union activity was unsupported by substantial evidence, and
that his reinstatement with backpay was an abuse of discre-
tion and inconsistent with the after-acquired evidence rule.
We deny the petition and remand the case for enforcement of
the Board's order.

I.

Frazier Industrial Company manufactures steel storage
systems for warehouses. The company has manufacturing
facilities at locations throughout the United States, and the
instant case involves its plant in Pocatello, Idaho, which
began operating in March 1996. During the plant's startup
phase, Dennis Haga, the plant manager, hired nine welders
and nine other employees to perform fabrication, mainte-
nance, painting, and other duties.

One of the welders, John Ramirez, applied for the position
at the request of the International Association of Sheet Metal
Workers Association, Local 60 ("the union").1 Ramirez, a
member of the union, was asked to assist in organizing the
company's work force. Ramirez started working for the
company on March 7, 1996. Beginning in April, he solicited
__________
1 Previous to his employment at the Frazier Industrial Compa-
ny, he was an employee of G&L Metal but was discharged for
absenteeism and for attempting to organize workers. When he
applied for employment at the company, Ramirez failed to disclose
this information.

employees to attend organizational meetings and to sign
union authorization cards. According to Ramirez, he spoke
with more than half of the plant's work force about the union,
and spoke with at least one person about unionization daily or
every other day before his discharge. We review his activi-
ties in light of the company's contention that Ramirez was
harassing employees and, thus, his activities were not protect-
ed by the Act, and that even if Ramirez's conduct were
protected, the company would have terminated Ramirez even
in the absence of protected conduct.

In late May 1996, Ramirez approached Mike Jennings,
another welder, and asked him to sign an authorization card
while on break. Jennings did not sign the card but told
Ramirez that he would take the card home and discuss it with
his wife. Ramirez followed up with Jennings several times
during May 1996. Jennings never brought the card back to
Ramirez, nor did he tell Ramirez that he was uninterested in
joining a union. Jennings did speak with Clint Moosman, a
supervisor, and asked him whether he "was aware of what
was going on" in regard to Ramirez's attempts to interest
Jennings in the union. Moosman told Jennings that "Ra-
mirez could solicit ... before work, during breaks, and after
work, but not on company time." At around the same time,
an employee remarked to a group of other employees in the
plant lunchroom during a break that they should start a
union. Moosman overheard the remark, and angrily told the
employees, "Well if I hear of anyone going union ... they'll
be down the road."

Marty Hrabik, another supervisor, received two complaints
from employees about Ramirez's union activities in May and
June of 1996. Hrabik and Moosman met with Haga, the
plant manager, in early June 1996. Haga told them to warn
their employees "that they could do whatever they wanted to
on their own time, but on company time they need not [ ] talk
about the union or bother[ ] anybody about it." Following
that meeting, Moosman spoke with the welders at their work
stations and explained that there had been complaints about
some employees "harassing" others to join a union. Moos-

man warned each welder, including Ramirez, that what they
did on their own time was their business, but that they could
not "harass" employees about the union during "company
time."2 Moosman then delivered the same message to a
group of employees, also including Ramirez, in the lunchroom
during a break. During the meeting, Moosman told the
employees that "he wanted to know about it if some one was
talking to [them] about the union on company time."

In early June 1996, the union sponsored several meetings.
The day after one meeting, Moosman remarked to Robert
Rodriguez, an employee who had attended the meeting, that
he had heard a rumor about a "little bitch session" where
employees talked about "stuff" that they did not like about
the shop. Moosman told Rodriguez that he "was disappoint-
ed" in him. Rodriguez told Moosman that he and others had
discussed whether or not they wanted to continue working at
the shop with Haga, Hrabik, and Moosman being "the way
they were." Following that remark, Moosman took out his
knife, opened it, handed it to Rodriguez handle first and said,
"[W]ell don't cut your own throat." Later that day, Moosman
asked Rodriguez for the names of the employees who were at
the union meeting. When Rodriguez did not disclose the
names other than his own, Moosman told him, "If you contin-

__________
2 The company distributed an employee handbook on its policies
and rules at other locations, but did not give Pocatello employees
the handbook until July 1996, subsequent to the events underlying
Ramirez's discharge. The handbook stated the company's no-
harassment policy as follows: "[h]arassment of an employee ... is
unacceptable and will not be tolerated" and "[m]anagers and super-
visors are responsible for promoting and maintaining a working
environment which is free of such harassment for all employees."
The handbook further stated that "[i]n the event such harassment
does occur, managers and supervisors must take immediate correc-
tive action, including, where appropriate, dismissal of the offender."
Before the handbook was distributed, company supervisors orally
informed the Pocatello employees of the company's policies on an ad
hoc basis, and the plant culture was one in which employees
engaged in diverse personal conversations during working time,
with the knowledge of management.

ue to cut your own throat I'm not going to be able to do
anything for you."

Hrabik discussed the union with some employees as well.
Employee Allen Wilcox had promised Hrabik that he would
come to Hrabik's house one evening to help build a fence, but
Wilcox missed his appointment for personal reasons and to
attend a union meeting. The next day, Hrabik asked Wilcox
how the meeting was. When Wilcox asked if Hrabik referred
to his personal meeting, Hrabik replied, "[N]o you know what
meeting." Hrabik had another discussion about unionizing
when Wilcox was at his house with Rodriguez to work on the
fence as he had promised. While working, Hrabik was asked
what he thought about the union organizing, and Hrabik told
them that the company did not "have any stock here in
Pocatello" and that "Frazier isn't going to allow this, the
union to spread to the other companies, they'll just close this
plant up and they'll move on." Hrabik added that if his job
were threatened he would "start cutting throats," and that if
he were fired, they were "going down" with him. Shortly
afterwards, Hrabik asked Wilcox why certain employees
wanted a union, and upon hearing that perhaps employees
wanted better pay or better benefits, Hrabik said that before
the company "went union they would either hire non-union or
shut the plant down."

Also in June 1996, employees Todd Chandler and James
Frasure complained to Hrabik that Ramirez was "harassing"
them about attending union meetings. Ramirez spoke to
Chandler five or six times over several days about an upcom-
ing union meeting, and Chandler neither expressed an inter-
est in attending a union nor told Ramirez that he was not
interested. Similarly, Frasure was approached several times
by Ramirez, including four or five approaches on company
time on one particular day, each time to urge Frasure to
attend a union meeting. Ramirez's remarks to Frasure were
brief and on each occasion Frasure said that he would think
about it, never telling Ramirez that he was uninterested.
However, when Frasure talked to Hrabik about Ramirez, he
said that Ramirez's persistence about the union meetings was
"really pissing [him] off." Hrabik told Moosman about these

conversations, and both met with Haga, who said that "ha-
rassing" employees on company time "had to stop." Later
that day, Moosman told the employees, including Ramirez,
that "there had been complaints about people being harassed
on company time that needed to stop."

Around the same time, Ramirez followed up on his earlier
discussions with Jennings about unionizing and invited him to
meet with a union organizer. Jennings responded that he
would think about it. Later that day, Ramirez talked to
Jennings, who at the time was working with employee Tom
Neilsen.3 Ramirez testified that this conversation lasted
about twenty minutes, while Jennings stated that they spoke
for about forty-five minutes. Several days later, Ramirez,
after the end of his workday, saw Jennings reporting for
work and spoke with Jennings for about ninety seconds in an
effort to persuade Jennings to meet with a union organizer.
Jennings agreed to make an appointment, and then Ramirez,
noticing that Haga was watching them, ended the conversa-
tion. After Ramirez left, Haga asked Jennings if Ramirez
was bothering him, and Jennings replied that "[Ramirez] was
bothering [him] about the damn union stuff and won't leave
[him] alone." Later that day, Haga asked Moosman to tell
Ramirez to report to Haga's office the next morning.

When Ramirez met with Haga in his office the next day,
Haga asked Ramirez, "[W]hat am I going to do with you,
John?" Haga told him that people were complaining about
him "bothering them all the time" and that it was "affecting
... productivity." Ramirez denied that he was bothering
anyone. When Haga repeated, "[W]hat am I going to do with
you," Ramirez replied, "[W]ell you're the plant manager you
do whatever you have to do." Haga, who testified that
Ramirez had "a really bad attitude about it," offered him the
opportunity to quit, but Ramirez refused and Haga dis-
charged him. Later that morning, Hrabik spoke to Rodri-

__________
3 This meeting took place after Ramirez had already approached
Neilsen on a previous occasion. Ramirez asked him at their initial
meeting for his opinions on unionizing, and Neilsen responded then
that he "wasn't really for the union."

guez about Ramirez's discharge and told him that Rodriguez
should now understand why he should not talk about the
union on company time.

Following his discharge Ramirez applied for unemployment
insurance, and stated on the application that although he was
discharged for organizing on company time, he never did
organize on company time. The Idaho Department of Labor
denied his application.

Based on the foregoing evidence, the Board adopted the
Administrative Law Judge's findings that the company violat-
ed s 8(a)(1) by threatening to discharge employees who en-
gage in union activities, coercively interrogating employees
about their union activities and sympathies,4 threatening em-
ployees that it would close the plant if employees chose union
representation, and maintaining and enforcing a rule prohibit-
ing union talk while permitting other nonwork discussions.
See Frazier Indus. Co., 328 N.L.R.B. No. 89, 3, 14-15 (June
14, 1999). The Board, by a two to one vote, also adopted the
judge's findings that the company violated s 8(a)(1) and (a)(3)
by discharging Ramirez because of his union activity. See id.
at 3, 15. The Board ordered the company to cease and desist
from engaging in these unfair labor practices and ordered the
company to offer Ramirez full reinstatement and backpay for
any lost earnings and benefits. See id.

II.

Section 8(a)(1) and (3) of the Act makes it an unfair labor
practice for an employer "to interfere with, restrain or coerce
employees in the exercise of the rights guaranteed" by the

__________
4 Although the Board unanimously found that the company
unlawfully interrogated employees about their union activities on
various occasions, the finding that Haga's inquiry of Jennings as to
whether Ramirez was bothering him the day before Ramirez was
discharged constituted an unlawful interrogation was made by a two
to one vote. The dissenting member thought that Haga's question-
ing was "lawful in view of the repeated complaints by employees,
including Jennings, of harassment by Ramirez." Frazier, 328
N.L.R.B. No. 89, at 6 n.12.

Act, 29 U.S.C. s 158(a)(1), and "by discrimination in regard to
hire or tenure of employment or any term or condition of
employment to encourage or discourage membership in any
labor organization." Id. s 158(a)(3). To establish a causal
nexus between adverse employment decisions and an employ-
ee's union affiliation, the complaining party must first show
that protected activity "was a 'motivating factor' " in the
adverse employment decision, and then the employer may
show that it would have made the adverse decision even had
the employee not engaged in protected activity. Wright
Line, Inc., 251 N.L.R.B. 1083, 1089 (1980); see also NLRB v.
Transportation Management Corp., 462 U.S. 393, 403 (1983)
(approving of the Wright Line approach). To establish an
employer's discriminatory motive, the Board 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." Power, Inc. v. NLRB,
40 F.3d 409, 418 (D.C. Cir. 1994). In addition, evidence that
an employer has violated s 8(a)(1) of the Act can support an
inference of anti-union animus. See Parsippany Hotel Man-
agement Co. v. NLRB, 99 F.3d 413, 423-24 (D.C. Cir. 1996).

The court will affirm the findings of the Board unless they
are "unsupported by substantial evidence in the record con-
sidered as a whole," General Elec. Co. v. NLRB, 117 F.3d
627, 630 (D.C. Cir. 1997), or unless the Board "acted arbitrari-
ly or otherwise erred in applying established law to the facts."
Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1358 (D.C.
Cir. 1997) (quotation and citation omitted). Even if the court
might have reached a different conclusion had the court
considered the issue de novo, the court will uphold the
Board's decision if it is supported by substantial evidence in
the record. See Synergy Gas Corp. v. NLRB, 19 F.3d 649,
651 (D.C. Cir. 1994). The court gives even greater deference
to the Board's determination of questions of motive, see Laro
Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir.
1995), and "accept[s] the ALJ's credibility determinations that
are adopted by the Board 'unless they are patently unsup-
portable.' " Schaeff Inc. v. NLRB, 113 F.3d 264, 266 (D.C.
Cir. 1997) (quoting NLRB v. Creative Food Design Ltd., 852

F.2d 1295, 1297 (D.C. Cir. 1988)); see also Capital Cleaning
Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir.
1998).

The company contends that Ramirez "harassed" co-workers
regarding the union during working time, and on the compa-
ny premises, and that such solicitations were not protected by
the Act. The company maintains further that, even if Ra-
mirez's actions constituted protected activities, its termination
of Ramirez's employment was lawful because it would have
discharged him in the absence of protected conduct for his
insubordination and dishonesty. We hold that there is sub-
stantial evidence in the record to support the Board's conclu-
sions that Ramirez's conduct was protected union activity
under the Act, that the company violated the Act by discharg-
ing Ramirez for engaging in such protected union activity,
and that the company's other proffered reasons for termi-
nation of Ramirez's employment--insubordination and dis-
honesty--are insufficient to meet its burden under Wright
Line.

In support of its contention that Ramirez's conduct was not
protected by the Act because he was engaged in repeated
harassment of fellow employees during work time resulting in
frequent interruptions of work, the company relies on NLRB
v. General Indicator Corp., 707 F.2d 279 (7th Cir. 1983),
which held that "an employee who disrupts other employees
during working hours is not engaged in a protected activity
even though he is discussing union business." Id. at 282.
Similarly, Board precedent states that "activity that would
otherwise be protected may lose that protection if the means
by which that activity is conducted are sufficiently abusive or
threatening." Patrick Indus., Inc., 318 N.L.R.B. 245, 248
(1995). Under such precedent, the company contends, the
fact that Ramirez was attempting to organize the company's
work force is immaterial because he had no legitimate pro-
tected interest in repeatedly approaching and harassing his
co-workers while they were trying to work. Although this
interpretation of evidence may be reasonable, the Board's
finding to the contrary was supported by substantial evidence
in the record.

 The Board found that Ramirez's activities were protected
because "it is clear that ... all of Ramirez' worktime solicita-
tions were brief and did not involve any obvious disruption in
production." Frazier, 328 N.L.R.B. No. 89, at 2. Adding
that "there is no evidence that employees whom Ramirez
solicited more than once ever even told him that he was
interfering with their work or that further solicitations would
have that effect," id., the Board found that although Ramirez
tenaciously solicited employees to sign cards, attend the
union's meetings, or meet individually with a union organizer,
he did not pursue such matters with employees over their
expressed objections. On the contrary, the Board found that
"his persistence, in the main, resulted in those instances
where he received tepid or inconclusive responses from the
employees with whom he spoke." Id. at 13.5 The Board thus
concluded that Ramirez's conduct, while persistent, did not
rise "to the level of unprotected harassment." Id. at 2.
There is substantial evidence in the record to support the
Board's findings.

Ramirez followed up with Jennings about signing an autho-
rization card only after Jennings stated that he would take
the card home, think about it, and discuss it with his wife.6
Ramirez similarly followed up with employees Chandler and
Frasure only after they had given Ramirez the impression

__________
5 The Board also rejected the company's contention that, al-
though no employees had directly asked Ramirez not to approach
them in the future, its warnings that employees were not to
"harass" coworkers about the union on working time put Ramirez
on notice that future entreaties to the complaining employees about
the union would be considered harassment. See Frazier, 328
N.L.R.B. No. 89, at 13-14. The Board's conclusion was reasonable;
those warnings, themselves unlawful, did not identify for Ramirez
the employees who did not wish to be solicited, nor did they provide
any guidance as to what constituted harassment, other than that
union organizing on company time was unwelcome.

6 The company claims that Jennings repeatedly told Ramirez
that he was not interested, and Jennings testified to that effect;
however, the Administrative Law Judge did not credit this asser-
tion. See id. at 13.

that they were at least feeling ambivalent about unionizing.
By contrast, Ramirez never spoke to Neilsen about the union
again after Neilsen informed Ramirez in their initial conver-
sation he "wasn't really for the union." Neilsen was present
as a bystander to a conversation Ramirez had with Jennings
one evening, and this conversation was the only conversation
that was more than momentary, lasting twenty minutes ac-
cording to Ramirez and forty-five minutes according to Jen-
nings. However, as the Board explained, there is "no evi-
dence that anyone told the [company] about this incident
before Ramirez's discharge." Id. at 2 n.5. Therefore, how
long this particular conversation lasted and what Jennings
told Ramirez in the conversation are immaterial. In addition,
there is no evidence that Ramirez's solicitations were other
than courteous or produced disruptive arguments.7

Taking another tack, the company contends that the
Board's finding that Ramirez's activities were protected was
based on erroneous legal standards, requiring the company to
demonstrate Ramirez's interruptions were lengthy and result-
ed in a loss of production and requiring Ramirez's co-workers
to confront Ramirez directly instead of complaining to super-
visors. This contention mischaracterizes the Board's find-
ings. The Board did not apply a general standard that work
time interruptions must be lengthy and result in a loss of
production in order for them to be harassment. The question
that the Board was addressing was whether Ramirez's activi-

__________
7 The company maintains that Ramirez's solicitations were dis-
ruptive and cites the instance in which employee Clair Monson
started screaming at him when Ramirez approached him. (Presum-
ably, our dissenting colleague's description, "almost to the point of a
physical fight," refers to this incident.) However, the Board has
ruled that mere hostile reactions to protected union solicitation do
not render that conduct unprotected. In Patrick Industries, the
Board stated that "the test for determining whether a given union
card solicitation was protected is not the perhaps idiosyncratic
reaction of the particular employee who happened to be on the
receiving end of that activity," and that "it is for the Board to
decide whether or not the Act's protections apply." Patrick Indus.,
318 N.L.R.B. at 248.

ties rose to the level of harassment, and, in order to make
that determination, the Board considered various factors,
such as how long each interruption lasted, how disruptive it
was, how courteous or abusive Ramirez was in each instance,
and whether he respected co-workers' requests not to be
bothered. The Board noted that Ramirez's conduct was
neither lengthy nor disruptive only because they were, quite
reasonably, considered to be relevant to the Board's determi-
nation that his conduct was protected by the Act, and not
because it determined that only lengthy interruptions rose to
the level of harassment.

Contrary to the company's contention, this approach is
consistent with Patrick Industries and General Indicator. In
Patrick Industries, the Board ruled that an employee's re-
peated solicitations of a coworker to sign an authorization
card were protected under the Act, and explained that in the
absence of evidence that the employee ever "threatened or
abused" the coworker or even "raised his voice," a conclusion
that the activity was unprotected could "significantly limit the
ability and willingness of employees to solicit their fellow
employees' support for, opposition to, a union, activity that is
central to the purposes of the Act." Patrick Indus., 318
N.L.R.B. at 248. Also, unlike the instant case, in General
Indicator, where the Seventh Circuit held that an employer
lawfully discharged an employee who engaged in union activi-
ties on company time, the discharged employee "had a history
of disrupting the work schedule of co-employees, and even
after he had been disciplined for this pattern of disruption
and had received a 'final warning,' he continued to approach
other employees and prevent them from completing their
assigned tasks in a timely manner." General Indicator, 707
F.2d at 283. The court concluded that the discharged em-
ployee's tenure with the company was "a continual pattern of
disruptive and insubordinate behavior and activities as well as
... interfer[ence] with productivity." Id. By contrast, the
Board found that Ramirez's behavior was neither disruptive
nor threatening and that he voluntarily discontinued the
solicitation of any employee who failed to express at least
some interest in the union.

 Similarly, the company's contention that the Board "fault-
ed" Ramirez's co-workers "for complaining to their supervi-
sors rather than directly confronting Ramirez" is groundless.
Contrary to our dissenting colleague's criticism, the Board
did not assume that Ramirez's co-workers had a "duty ... to
inform Ramirez he was disturbing their work." Again, the
Board considered various relevant factors in order to deter-
mine whether Ramirez's conduct was protected by the Act.
One of the factors the Board considered relevant was that
Ramirez was persistent only with those who gave "tepid or
inconclusive responses." Frazier, 328 N.L.R.B. No. 89, at 13.
Therefore, when the Board stated that "there is no evidence
that employees whom Ramirez solicited more than once ever
told him that he was interfering with their work or that
further solicitations would have that effect," the Board was
not applying a general requirement that a behavior does not
constitute harassment until there is a direct confrontation.
Instead, the Board was merely emphasizing that Ramirez,
while persistent as a union organizer, did not bother anyone
who expressly indicated that he was not interested or that he
did not want to be bothered. Therefore, the company's claim
that the Board inappropriately required employees to rebuke
Ramirez first before complaining to the management is a
wholly inaccurate account of the Board's opinion.

Given that Ramirez's union activities are protected under
the Act, the remaining question is whether the company's
discharge of Ramirez was lawful. The Board found that
Ramirez's discharge was unlawful because "the chain of
events leading to the discharge was a direct result of the
[company's] enforcement of its unlawful rule prohibiting talk
about the Union during worktime." Frazier, 328 N.L.R.B.
No. 89, at 2. There is substantial evidence in the record to
support this finding. Here, context is everything. The com-
pany promulgated an invalid rule prohibiting employees from
talking about the union during working time. See Industrial
Wire Prods., 317 N.L.R.B. 190, 190 (1995). That rule was
implemented in direct response to rumors of Ramirez's union
organizing efforts, and the employees who subsequently in-
formed the company of Ramirez's work time solicitations

were acting in accordance with the company's directive that
they report union "talk" to management. In addition, the
company's activities in violation of s 8(a)(1), violations the
company does not challenge, included threatening to dis-
charge employees who engaged in union activities, coercively
interrogating employees about their union activities and sym-
pathies, expressing disappointment in employees who attend-
ed union meetings, threatening to close the plant if employees
chose union representation, threatening to retaliate against
employees for their union activities, and remarking to an
employee after Ramirez's discharge that the employee should
now understand why he should not talk about the union on
company time. Such factual findings by the Board constitute
substantial evidence to support its finding that Ramirez's
discharge by the company violated s 8(a)(3) and (1) of the
Act.

Nor, as the company contends, did the Board's conclusion
contradict Patrick Industries and BJ's Wholesale. In Patrick
Industries, the Board found that the company's discipline,
while unlawful under s 8(a)(1), did not independently violate
s 8(a)(3) because "the discipline was not discriminatory and
was not done in order to encourage or discourage member-
ship in any labor organization." Patrick Indus., 318 N.L.R.B.
at 248. As noted, the Board's finding in the instant case was
based on numerous indications of the company's discriminato-
ry prohibition on union talk, its repeated solicitation of com-
plaints regarding union solicitation, and numerous other in-
stances reflecting the company's anti-union animus. The
company's reliance on BJ's Wholesale fares no better. As the
Board explained, in BJ's Wholesale, the employee had previ-
ously been counseled under the employer's anti-harassment
policy for conduct unrelated to the union, and, unlike the
instant case, the employer had not promulgated an unlawful
rule prohibiting all working-time union speech. See BJ's
Wholesale, 318 N.L.R.B. at 684. Moreover, in finding the
discipline in BJ's Wholesale to be lawful, the Board empha-
sized that the employer had not solicited complaints from
employees about union activity. See id. The record here
shows that the company repeatedly solicited complaints about

union "harassment," and that Moosman told the employees
that he "wanted to know about it if some one was talking to
[them] about the union on company time." Moreover, the
purported "complaint" from Jennings that immediately pre-
cipitated Ramirez's discharge was directly solicited by Haga's
inquiry as to whether Ramirez was harassing him. There-
fore, the Board's findings are consistent with BJ's Wholesale
and Patrick Industries.

The Board reasonably rejected the company's Wright Line
defense that Ramirez would have been terminated even in the
absence of the protected activity because of his insubordina-
tion and dishonesty when questioned by Haga. Substantial
evidence supports the Board's finding that Haga decided to
terminate Ramirez for the union activities, and not for insub-
ordination and dishonesty. As the Board emphasized, Haga
initially testified that Ramirez was discharged solely for
"harassing" company employees. In addition, none of the
company's filings with regard to Ramirez's application for
unemployment benefits mentioned any grounds for termi-
nation other than alleged harassment. Therefore, the compa-
ny has failed to provide sufficient evidence to overcome the
Board's finding that it would have terminated Ramirez even
in the absence of the protected activity for his insubordination
and dishonesty. In the end, the company offers no reason for
the court to disturb the Board's finding of unlawful discharge.

III.

The company also challenges the Board's remedy, contend-
ing that the Board abused its discretion by awarding Ramirez
reinstatement. The company takes the position that Ra-
mirez's failure to disclose fully his employment history at the
time he applied for employment as a welder and his false
statements regarding his union activities on his unemploy-
ment benefit application warranted immediate termination
and preclude reinstatement. The company relies on the
after-acquired evidence rule of McKennon v. Nashville Ban-
ner Publishing Company, 513 U.S. 352 (1995), which held
that "neither reinstatement nor front pay is an appropriate

remedy" for an unlawful termination "where there is after-
acquired evidence of wrongdoing that would have led to
termination on legitimate grounds had the employer known
about it." Id. at 361-62. Following McKennon, the Board
has limited reinstatement and backpay based on after-
acquired evidence that an employee who was unlawfully dis-
charged had engaged in misconduct that would have led to
the employee's termination. See, e.g., Marshall Durbin Poul-
try Co., 310 N.L.R.B. 68, 70 (1993), enforced in pertinent
part, 39 F.3d 1312, 1317 (5th Cir. 1994); John Cuneo, Inc.,
298 N.L.R.B. 856, 857 (1990); Axelson, Inc., 285 N.L.R.B.
862, 866 (1987). The difficulty for the company stems from
the fact that it makes a bare assertion.

The McKennon Court explained, "Where an employer
seeks to rely upon after-acquired evidence of wrongdoing, it
must first establish that the wrongdoing was of such severity
that the employee in fact would have been terminated on
those grounds alone if the employer had known of it at the
time of the discharge." McKennon, 513 U.S. at 362-63. The
Court added that "[t]he concern that employers might as a
routine matter undertake extensive discovery into an employ-
ee's background or performance on the job to resist claims is
not an insubstantial one." Id. at 363. Accordingly, the
Board has placed on the employer the burden of showing that
it would have discharged the employee because of the miscon-
duct, not simply that it could have done so. See, e.g.,
Marshall Durbin, 310 N.L.R.B. at 70; John Cuneo, 298
N.L.R.B. at 859. The Board has broad remedial discretion to
devise remedies that effectuate the policies of the Act, see
ABF Freight System, Inc. v. NLRB, 510 U.S. 317, 324 (1994),
and because the company has not produced evidence to
overcome that deference and to show that it would have
terminated Ramirez's employment for his misconduct, we find
that the Board did not abuse its discretion in ordering
reinstatement.

It is undisputed that Ramirez falsified his employment
application by omitting information about his previous em-
ployment with G&L Metal; however, the Board reasonably
concluded that the company failed to show that he would have

been discharged for his failure to disclose the information had
the company learned about it before the discharge. As the
Board noted, the employment application that Ramirez filled
out states merely that false information, omissions, or misrep-
resentations may result in a discharge of the employee. See
Frazier, 328 N.L.R.B. No. 89, at 15. In other words, the
language on the form warns of dismissal only as a potential
option, and the company has provided no evidence that its
practice has been to dismiss employees for similar omissions.
The company's assertion that the company's policy manual,
which specifies that "[f]alsifying or altering Company rec-
ords" is a violation "warranting immediate dismissal of an
employee," is sufficient evidence that it would have dis-
charged Ramirez for his omission fails not only because the
manual was not distributed to him before the termination of
his employment and there is no evidence otherwise to indicate
that he was made aware of this falsification rule, but because
the company offered no evidence that it has routinely dis-
missed employees for similar omissions.

Similarly, the company's reliance on the evidence of Ra-
mirez's false statement on his unemployment benefits applica-
tion is misplaced. The company has not provided sufficient
evidence to show that Ramirez's misrepresentations amount-
ed to "[f]alsifying or altering Company records," given that it
is not obvious why unemployment insurance applications filed
with a state agency would be considered company records for
the purposes of the company policy at issue. Neither has the
company proffered any other evidence to show that Ramirez's
misconduct precludes his reinstatement. While we do not
understand the Board to suggest that the company would
have to demonstrate that other employees had been dis-
charged on this ground, as there will always be a first case, a
bare assertion merely referring to a company policy that
seems remotely related is insufficient. Hence, the Board
reasonably distinguished Vilter Mfg. Corp., 271 N.L.R.B. 1544
(1984), in which the Board found no unfair labor practice for
failure to reinstate a discharged employee where the employ-

er demonstrated that an employee's post-termination dishon-
esty would have resulted in the employee's discharge under
the employer's progressive discipline system. See Frazier,
328 N.L.R.B. No. 89, at 15; Vilter, 271 N.L.R.B. at 1546-47.

Accordingly, we deny the petition and remand the case for
enforcement of the Board's order.

Karen LeCraft Henderson, Circuit Judge, dissenting:

I would grant the petition for review for the reasons
expressed so convincingly by the dissenting member of the
National Labor Relations Board. John Ramirez repeatedly
pestered the same employees while they were trying to
perform their jobs, as many as four times in a single day and
once almost to the point of a physical fight. This was not
protected activity but harassment. His fellow employees
were under no duty, as the majorities of this panel and of the
Board seem to think, to inform Ramirez he was disturbing
their work. That should have been, and surely was, as
obvious to him as it was to them. As the dissenting Board
member noted, Ramirez's discharge did not violate section
8(a)(1) or (3) of the National Labor Relations Act because the
employer "was lawfully responding to multiple complaints
from multiple employees regarding Ramirez' repeated harass-
ment of them during worktime about the Union." Frazier
Indus. Co., 328 N.L.R.B. No. 89, slip op. at 59 (1999) (footnote
omitted). Further, "even assuming that the General Counsel
has established a prima facie showing that Ramirez' protected
conduct was a motivating factor in his discharge, the Respon-
dent has met its burden of showing that the discharge would
have occurred even in the absence of protected activity." Id.
(citing Wright Line, 251 N.L.R.B. 1083 (1980), enf'd., 662 F.2d
899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982)). Ac-
cordingly I dissent.