BROWN, Circuit Judge:
Flagstaff Medical Center is an acutecare hospital in Arizona that has witnessed a flurry of union activity in recent years. This particular case finds its roots in October 2006, when the Communications Workers of America, Local Union 7019, AFL-CIO began organizing among Flagstaff's housekeeping and food services employees. The organizing campaign strained relationships with hospital management, and by January 2008, the union had charged Flagstaff with dozens of unfair labor practices under section 8(a)(1) and (3) of the National Labor Relations Act ("NLRA"). See 29 U.S.C. § 158(a)(1), (3). The ALJ hearing the case dismissed most of the allegations, concluding only eight had merit, and when the Board reviewed the ALJ's decision, it largely agreed. In short, a divided Board affirmed the eight § 8(a)(1) violations, reinstated four § 8(a)(1) and (3) charges the ALJ had dismissed, and affirmed the dismissal of everything else. See Flagstaff Med. Ctr., Inc. & Commc'ns Workers of America, Local Union 7019 ("Flagstaff"), 357 NLRB No. 65, at 1-2 & n. 1 (2011). Flagstaff now asks us to review three of the reinstated charges.
Rejecting the ALJ's findings, the Board concluded that Flagstaff violated § 8(a)(1) when its president, Bill Bradel, threatened employees that unionization would be futile; and that Flagstaff violated § 8(a)(1) and (3) by modifying employee Laverne Gorney's schedule in retaliation for her union activity and by firing employee Michael Conant because of his union activity. We agree the Board failed to muster substantial evidence for its conclusions about Bradel and Conant, so we grant Flagstaff's petition in part. We deny the petition in all other respects.
Section 8(a)(1) of the NLRA prohibits an employer's interference with, or restraint or coercion of, the rights of employees to organize and join unions, bargain collectively, and engage in certain other "concerted activities." 29 U.S.C. §§ 157, 158(a)(1). The Board concluded Flagstaff ran afoul of this provision when, in a June 2007 meeting with vice president of ancillary services Roger Schuler and food services department employees, Flagstaff president Bill Bradel said something to the effect that if there was a union, "I would not be negotiating with the union," or, "you won't be negotiating with me." According to the Board, this violated NLRA § 8(a)(1) because "employees could have reasonably construed Bradel's statement as indicating that [Flagstaff] would not bargain with the Union." Flagstaff, 357 NLRB No. 65, at 7. We disagree.
"An employer's statement violates the NLRA if, considering the totality of the circumstances, the statement has a reasonable tendency to coerce or interfere with those rights," Tasty Baking Co. v.
Considering this context, we are baffled by the Board's interpretation of Bradel's subsequent first-person-singular statement about negotiations as a comment about Flagstaff's threshold willingness to negotiate — rather than as a statement about his own attendance at whatever meetings occur.
Indeed, the record evidence about what Bradel actually said suggests Bradel implicitly recognized there would be negotiations. For instance, almost every witness who recounted Bradel's comment qualified it with the deictic phrase "like this," suggesting the comments expressly referred to a particular type of meeting rather than the possibility of a meeting. In the respective words of "outspoken union advocates" Shawn White and Lydia Sandoval, Flagstaff, 357 NLRB No. 65, at 31 (ALJ Op.), "He said he wanted us to think about our decision to unionize because, if we would unionize, we wouldn't have any more meetings with him like this," Hr'g Tr. at 360 (May 8, 2008) (J.A. 120), and "[H]e mentioned something about if bring the union in [sic], we won't be able to have any
The Board was troubled by the fact that Bradel — Flagstaff's "highest-ranking official" — did not make the contested comment immediately after his statement about direct communication but did so "in direct response to an employee's assertion that employees needed union representation." Flagstaff, 357 NLRB No. 65, at 7. Yet this does not mean, as the Board thought, that deeming Bradel's comment innocuous would render it a non sequitur; nor does Bradel's status as president necessarily mean, as the Board also thought, that employees reasonably would think he was speaking for Flagstaff. Access to one of the company's highest executives may very well be relevant to gauging the usefulness of union representation, and Bradel's emphasis on his appreciation of "direct communication" with employees would make little sense if he did not in fact hold a high position in the company.
At oral argument, the Board warned us against second-guessing its expertise where we know nothing about the tone of voice Bradel used when making the contested statement or the body language accompanying it. But of course, the person entrusted with evaluating witness credibility — the ALJ — articulated his judgment about the factual record by finding no NLRA violation. See Local 702, Int'l Bhd. of Elec. Workers v. NLRB, 215 F.3d 11, 15 (D.C.Cir.2000). The Board adopted the ALJ's credibility findings, so we are just following its lead.
"[A]n employer violates the NLRA by taking an adverse employment action in order to discourage union activity." Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 104 (D.C.Cir.2003); see 29 U.S.C. § 158(a)(3). To determine whether an employer's motive was unlawful, the Board applies a burden-shifting scheme known as the Wright Line test. Under it, General Counsel for the NLRB has the initial burden of showing that the employee's protected conduct was a "motivating factor" in the adverse employment decision; once it makes this showing, the employer may escape liability only if it shows by a preponderance of evidence that it would have taken the same action even had there been no protected conduct. See Ark Las Vegas Rest. Corp., 334 F.3d at 104. We evaluate the Board's conclusions about Gorney and Conant within this framework.
Laverne Gorney has worked in the food services department for over ten years, most recently as a dishwasher. On May 26, 2007,
Motive is a question of fact, so the Board's inferences about unlawful motive are entitled to substantial deference. See Laro Maint. Corp. v. NLRB, 56 F.3d 224, 229 (D.C.Cir.1995). The Board concluded Jeanine Drake, the director of the food services department who set Gorney's schedule, interfered with the union campaign by telling employees not to discuss their wages, by coercively interrogating an employee about the usefulness of a union (and in the process, calling the nurses' union "foolish"), and by implicitly suggesting a newly-hired employee would be laid off if the hospital unionized. The Board could reasonably find that in doing so, Drake demonstrated anti-union animus. See, e.g., Lee Builders, Inc., 345 NLRB 348, 349 (2005) (inferring anti-union animus when managers "threatened employees with job loss and plant closure if the Union were to succeed in the organizing campaign"); see also Federated Logistics & Operations v. NLRB, 400 F.3d 920, 923 (D.C.Cir.2005). If so, and Drake assigned Gorney a very unusual shift schedule soon after Gorney began publicly supporting the union — which Drake admitted seeing — then the Board could reasonably infer an unlawful motive for the schedule change. See Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 955 (D.C.Cir.1988) ("[T]he Board may consider such factors as the employer's knowledge of the employees' union activities, the employer's hostility towards the union, and the timing of the employer's action." (internal citations omitted)).
Flagstaff, for its part, disputes the factual premises propelling this analysis. First, Flagstaff challenges the "majority's finding that the June shift was `very unusual,'"
But no matter: Flagstaff raised neither argument before the Board, so we have no jurisdiction to consider them. See 29 U.S.C. § 160(e). The Board deemed the June schedule very unusual precisely because
We may consider arguments not raised before the Board in "extraordinary circumstances," 29 U.S.C. § 160(e), but Flagstaff gives us no reason to think these circumstances are anything but ordinary. Perhaps Flagstaff might be excused from raising these arguments before the Board rendered its decision. Compare Detroit Edison Co. v. NLRB, 440 U.S. 301, 311 n. 10, 99 S.Ct. 1123, 59 L.Ed.2d 333 (1979) (rejecting argument that a party need not object to ALJ recommendation where it has "no practical reason" to do so, explaining that accepting this as "extraordinary circumstance" would undermine the statutory exception and that party in fact had a reason to challenge the recommendation when the opposing party excepted to it), with NLRB v. Good Foods Mfg. & Processing Corp., 492 F.2d 1302, 1305 (7th Cir.1974) (noting that courts sometimes excuse a party's failure to file exceptions to the ALJ's findings where the findings "were favorable to the petitioner, were subsequently reversed by the Board, and petitioner had no reason to file exceptions to a decision in its favor"). But we will not excuse its failure to raise them afterwards in a motion for reconsideration. See Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66, 102 S.Ct. 2071, 72 L.Ed.2d 398 (1982); Stephens Media, LLC v. NLRB, 677 F.3d 1241, 1255 (D.C.Cir.2012); Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1101-02 (D.C.Cir.2001).
Michael Conant, a Flagstaff housekeeper, began wearing a union button in July 2007; he was fired in August. Though Conant had a record of poor attendance during his two years at Flagstaff, the Board found that Flagstaff had general antiunion animus, that the timing of Conant's discharge was suspicious, and that Flagstaff's enforcement of the company attendance policy was highly — and therefore suspiciously — inconsistent. We think the Board failed to justify these findings with substantial evidence.
Flagstaff's attendance policy provides that "[e]xcessive absenteeism and tardiness... may result in disciplinary action to include termination." J.A. 373. It also lists the sanctions to be imposed for specified numbers of absences in any rolling six- or twelve-month period. Four absences in any rolling six-month period, or seven in any twelve-month period, results in a verbal warning; five absences in any six-month period, or eight in any twelve-month period, results in a written warning; six absences in any six-month period, or nine in any twelve-month period, results in a final warning and possible suspension; and seven absences in any six-month period, or ten in any twelve-month period, results in termination. See Flagstaff, 357 NLRB No. 65, at 8.
By the summer of 2007, Conant had already received verbal and written warnings and a three-day suspension. The suspension apparently did not faze him. He missed work four more times before he was fired: once in May, once in June, and twice in July — making a total of twelve unscheduled absences in twelve months. No one denies this entitled Flagstaff under the attendance policy to fire Conant.
The Board makes much of the fact that Flagstaff did not do so until after Conant
Only Brown and Schuler were involved in the decision to fire Conant, and there is no substantial evidence either had an unlawful motivation. See Parsippany Hotel Mgmt. Co. v. NLRB, 99 F.3d 413, 422 (D.C.Cir.1996) (explaining that general counsel must prove "that the employer knew of the employee's pro-union activities," "that the timing of the alleged reprisal was proximate to the protected activities," and that "there was anti-union animus to link the factors of timing and knowledge to the improper motivation" (internal quotation marks omitted)). First, there is little reason to think Schuler knew anything about Conant's unionizing. The Board — which in its decision below referenced Schuler only to note that he "reviewed and approved [Brown's] recommendation," Flagstaff, 357 NLRB No. 65, at 9 — now points to an affidavit in which Schuler stated that "[a]t the time of his termination, I could guess that Conant supported the union." Hr'g Tr. at 106 (May 6, 2008) (J.A. 68). The Board considers this a damning admission. Not so. Schuler clearly testified that his admittedly ambiguous statement did not mean what the Board now asserts but rather meant only that "at the time I was giving the affidavit, in retrospect" he could have guessed Conant supported the union. Hr'g Tr. at 104 (May 6, 2008) (J.A. 66). Indeed, when signing the affidavit, Schuler handwrote a qualifier next to the controverted statement: "Based on conversations I had with him in which he often expressed his dissatisfaction with management and other work related issues. I never saw him wear a union shirt or button, nor did he ever overtly express his union support to me." Hr'g Tr. at 106 (May 6, 2008) (J.A. 68).
The Board argues in the alternative that even assuming Schuler "was personally unaware of Conant's union support, his lack of personal knowledge is not determinative" because the Board could reasonably impute such knowledge to him. Resp't's Br. at 48-49. This makes no sense. If general counsel relies on circumstantial evidence and legal fictions about constructive knowledge, it does so to carry its burden of showing the decisionmaker knew about the employee's union activity. See, e.g., Avecor, Inc. v. NLRB, 931 F.2d 924, 928-29 (D.C.Cir.1991); Wolf Trap Foundation, 287 NLRB 1040, 1041 (1988); Kimball Tire Co., Inc., 240 NLRB 343, 344 (1979). Permitting circumstantial evidence and legal fictions to trump direct proof to the contrary is absurd. See Chevron Mining, Inc., 684 F.3d at 1327-28; see also Vulcan Basement Waterproofing of Il. v. NLRB, 219 F.3d 677, 685 (7th Cir.2000).
Second, though Brown testified he knew about Conant's union activity by July, the record does not support the inference that Conant's union activity played any role in Brown's decision or, put differently, that
Both the ALJ and the Board credited Brown's testimony that he followed Flagstaff's attendance policy and, "from the inception of his tenure with [Flagstaff], attempted to enforce [Flagstaff's] policies with consistency." Flagstaff, 357 NLRB No. 65, at 55 (ALJ Op.). As written, the policy is ambiguous: it is possible to have accumulated no more than four or five absences in any six-month period but nevertheless exceed nine absences in a twelve-month period, thereby requiring both warnings and discharge. The record shows Brown understood the policy to mandate an incremental approach whereby, for example, it would be inappropriate to fire an employee who had not yet received a final warning.
There appear to be two instances where a supervisor ostensibly under Brown's authority failed to escalate the sanction though the escalation would have been warranted and the employee had already received the same level of discipline, but we think this insignificant in light of the ALJ and Board's conclusion that Brown tried to enforce Flagstaff's policies consistently and the record evidence that Brown generally did so in fact. See MECO Corp., 986 F.2d at 1437. Perhaps controversy over Flagstaff's attendance policy might have been avoided if the housekeeping department had done a better job tracking employee absences so that an employee received, for example, the verbal warning immediately after a fourth unscheduled absence rather than after the fifth, but it is unreasonable to find animus merely because Brown's reliance on the department secretary to track absences and the exigencies of day-to-day work led to a few false negatives. This of course assumes Brown was even at Flagstaff when both incidents occurred, which is not at all clear from the record. See Hr'g Tr. at 463 (May 8, 2008) (J.A. 135) (Brown testifying, "I've
Because there is no substantial evidence justifying the Board's findings that Bradel's comments violated NLRA § 8(a)(1) or that Conant's discharge violated § 8(a)(1) and (3), we grant Flagstaff's petition in part. We grant the Board's application for enforcement of its order in all other respects.
So ordered.