The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 21, 2025 Decided July 1, 2025
No. 24-1218
THOMAS HENRY MCLAMB,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
On Petition for Review of an Order
of the National Labor Relations Board
Alyssa K. Hazelwood argued the cause for petitioner. With
her on the brief was Glenn M. Taubman.
Gregoire F. Sauter, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick,
Deputy Associate General Counsel, and Usha Dheenan,
Supervisory Attorney.
Before: HENDERSON, WALKER and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
Opinion concurring in part and dissenting in part filed by
Circuit Judge WALKER.
KAREN LECRAFT HENDERSON, Circuit Judge: This case
arises from a heated confrontation that occurred during a union
election campaign. The Amalgamated Transit Union Local
689 (Union) represents employees of a transportation services
company, Transdev Services Inc. (TransDev). In November
2021, petitioner Thomas McLamb was running as an anti-
incumbent candidate to be a union official. While
campaigning, he made several inflammatory comments to an
incumbent Union official, Tiyaka Boone, who interpreted his
remarks as personal attacks. The argument escalated,
culminating in a physical altercation in which Boone struck
McLamb. Afterward, another Union official, Alma Williams,
made a statement to a manager allegedly suggesting that if
Transdev terminated Boone it should also terminate McLamb.
McLamb brought unfair labor practice charges against the
Union before the National Labor Relations Board (NLRB or
Board). He contended that the Union had violated the National
Labor Relations Act because Boone’s conduct was in response
to his protected union activities and that Williams had violated
the duty of fair representation as a union official. The Board
dismissed McLamb’s charges, finding that a reasonable
employee would believe that Boone was motivated by personal
animosity, not retaliation for protected activities, and
Williams’ comment was to ask for leniency for Boone, not
punishment for McLamb. McLamb has petitioned this Court
for review. We deny the petition because substantial evidence
supports both conclusions.
3
I. Background
A. Statutory Background
The National Labor Relations Act (Act), codified at
29 U.S.C. § 151 et seq., establishes employees’ rights to self-
organize, form, join or assist labor organizations and to engage
in collective bargaining or other concerted activities for mutual
aid or protection. Section 7 of the Act protects the right of
employees to engage in, or refrain from, any union-related
activities, with certain exceptions not relevant here. Id. § 157;
see also Weigand v. NLRB, 783 F.3d 889, 892 (D.C. Cir. 2015).
Section 8(b)(1)(A) of the Act makes it an unfair labor
practice for a labor organization or its agents to restrain or
coerce employees in the exercise of their section 7 rights.
29 U.S.C. § 158(b)(1)(A). Section 8(b)(2) prohibits labor
organizations from causing or attempting to cause an employer
to discriminate against an employee in order to encourage or
discourage union membership. Id. § 158(b)(2); see also id.
§ 158(a)(3).
B. Factual Background
Transdev Services, Inc. provides transportation services in
Maryland, Virginia and the District of Columbia. Transdev’s
drivers are represented by Amalgamated Transit Union (ATU),
Local 689, affiliated with Amalgamated Transit Union, AFL–
CIO, CLC, which local assumed its representational duties in
2021 following a merger with ATU Local 1764.
Petitioner Thomas Henry McLamb is a longtime dissident
Union member, whose opposition to Union leadership spanned
nearly a decade before this suit. In 2014, he filed a
decertification petition—seeking to remove the Union’s
representation—which failed in an employee vote. He also
4
became a fee objector, which allowed him to withhold union
dues used for activities beyond collective bargaining. See
Commc’ns Workers of Am. v. Beck, 487 U.S. 735 (1988).
McLamb filed petitions to de-authorize Union security
provisions in 2016 and 2018, both of which failed. These
efforts allegedly created a longstanding adversarial
relationship between McLamb and Union leadership.
At the time of the altercation, McLamb was campaigning
for election as a shop steward and executive board member as
part of an anti-incumbent slate, “the People’s Voice.”
McLamb opposed Union officers, including Michelle
Woodfork, Alma Williams and Tiyaka Boone, all of whom
supported Union President Raymond Jackson.
On November 11, 2021, McLamb arrived early at
Transdev’s facility in Hyattsville, Maryland, to campaign in the
operators’ lounge by distributing flyers and speaking with
colleagues. Several other employees, including shop steward
Tiyaka Boone, were present. Boone, although not a candidate
herself, was campaigning for Woodfork and Williams, who
were running as part of the incumbent slate.
The details of what happened next are disputed. McLamb
began to make loud comments to the assembled employees,
including accusations that the Union had embezzled funds. He
implied that he would expose certain improprieties at a meeting
where he would “let it all out.” R. 520. McLamb also made
pointed comments about Maryland residents using Virginia
license plates on their vehicles to evade higher costs associated
with Maryland registration and insurance. Boone lived in
Maryland but had Virginia plates. McLamb “made repeated
statements about unnamed people not paying their bills.” Id.
Boone’s husband had recently died and she had been forced to
raise money to pay for funeral expenses. R. 520-21. McLamb
5
also said “some people need to focus on their kids rather than
the union.” Id. Only a few days earlier, Boone’s son had
narrowly survived a stabbing. Boone understood each of
McLamb’s comments to be allusions to her specific hardships;
McLamb denied any knowledge of them.
The confrontation escalated. Boone faced McLamb,
telling him—with some profanity—to leave her alone and to
stop talking about her personal issues. Another employee tried
to intervene but Boone and McLamb continued to argue. That
employee escorted McLamb out of the lounge. Boone
followed shortly thereafter.
Seeing McLamb again, Boone approached him, yelling at
him and pushing another employee standing between them. As
she struggled with an employee blocking her from McLamb,
Boone managed to strike McLamb in the face, knocking his
glasses to the ground. Two Transdev employees, including
Alma Williams, escorted Boone from the scene. The entire
outdoor incident was captured on Transdev’s surveillance
camera. See NLRB Gen. Counsel’s Ex. 17.
Later the same day, Boone and Williams, the latter acting
as Boone’s union representative, met with Conrad Marshall,
Transdev’s general manager, to discuss the incident. Marshall
told Boone that assaulting another employee was a terminable
offense. Williams responded that disparaging coworkers was
also prohibited conduct and said that if Transdev fired Boone,
it should also fire McLamb. Three days later, Williams
submitted a statement about the incident that downplayed
Boone’s responses to McLamb’s offensive comments.
A week after the incident, on November 18, Transdev
issued McLamb a ten-day suspension for making inappropriate
remarks and creating a hostile work environment. On
December 3, Transdev fired Boone for striking McLamb. Both
6
employees filed grievances over their punishments, which the
Union submitted to Transdev. After Transdev denied the
grievances, both were taken to arbitration. McLamb eventually
settled with Transdev, which retracted his suspension and
provided him backpay for the days he had not worked.
C. Procedural Background
McLamb filed unfair labor practice charges with the
National Labor Relations Board. He asserted that the Union
violated (1) section 8(b)(1)(A) of the NLRA by virtue of
Boone’s physical assault, which allegedly restrained or coerced
him in the exercise of his section 7 rights; and (2) section
8(b)(2) through Williams’ alleged efforts to see him
terminated. 1 The NLRB General Counsel issued a complaint
including both allegations. After a hearing, an administrative
law judge (ALJ) dismissed the section 8(b)(1)(A) charge,
finding that Boone’s actions were motivated by personal
animus, not by McLamb’s protected activity. The ALJ also
determined, however, that Williams’ comments to Transdev
constituted a violation of section 8(b)(2), concluding that the
statements sought McLamb’s termination in retaliation for his
union-related activity.
On review, the NLRB affirmed the ALJ’s first finding but
reversed the second. Regarding the first charge, the Board
determined that employees would have understood Boone’s
conduct to be a reaction to McLamb’s personal attacks, not
union activity, and thus her actions had no reasonable tendency
to restrain or coerce McLamb’s exercise of section 7 rights.
1
McLamb also filed a charge against Transdev but retracted it as part
of his settlement agreement.
7
As to the second charge, the Board determined that
Williams, in her capacity as a Union representative, had not
sought McLamb’s discharge. It concluded that Williams’
statement was conditional (“if Boone were discharged . . .”)
made while seeking leniency for Boone. The Board noted that
“there was no request, express or implied, that McLamb be
discharged” and “Williams was no more seeking McLamb’s
termination than she was seeking Boone’s.” Amalgamated
Transit Union, Loc. 689, 373 N.L.R.B. No. 49, 2024
WL 1878189, at *5 (Apr. 26, 2024). It added that, even if
Williams had sought McLamb’s discharge, the Union itself
would not have acted unlawfully because it did not breach the
duty of fair representation nor act from an impermissible
motive. One member of the Board dissented from the
section 8(b)(2) decision because he believed Williams’
comments were intended to secure McLamb’s discharge.
McLamb timely petitioned this Court for review. The
Board had jurisdiction under 29 U.S.C. § 160(a) and we have
jurisdiction under 29 U.S.C. § 160(f).
II. Analysis
A. Standard of Review
“Judicial review of the Board’s decisions and orders must
evaluate both the Board’s statements of law and application of
law to the facts.” Circus Circus Casinos v. NLRB, 961 F.3d
469, 475 (D.C. Cir. 2020). At the same time, we “review Board
decisions with a very high degree of deference.” Hosp. de la
Concepción v. NLRB, 106 F.4th 69, 76 (D.C. Cir. 2024)
(quotation omitted). “We will uphold a decision of the Board
unless it relied upon findings that are not supported by
substantial evidence, failed to apply the proper legal standard,
or departed from its precedent without providing a reasoned
justification for doing so.” Int’l Longshore & Warehouse
8
Union v. NLRB, 890 F.3d 1100, 1107 (D.C. Cir. 2018) (quoting
E.I. Du Pont De Nemours & Co. v. NLRB, 682 F.3d 65, 67
(D.C. Cir. 2012)). Substantial evidence means “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Universal Camera Corp. v. NLRB, 340
U.S. 474, 477 (1951) (quotation omitted).
We give “substantial deference to inferences drawn by the
Board from the factual record.” Tenneco Auto., Inc. v. NLRB,
716 F.3d 640, 647 (D.C. Cir. 2013) (quotation omitted). The
Board’s credibility determinations are accepted unless they are
“hopelessly incredible, self-contradictory, or patently
unsupportable.” Wayneview Care Ctr. v. NLRB, 664 F.3d 341,
349 (D.C. Cir. 2011) (quotation omitted). We “may not
displace the Board’s choice between two fairly conflicting
views, even though we would justifiably have made a different
choice had the matter been before us de novo.” Bob’s Tire Co.
v. NLRB, 980 F.3d 147, 153 (D.C. Cir. 2020) (quoting Regal
Cinemas, Inc. v. NLRB, 317 F.3d 300, 306 (D.C. Cir. 2003)).
But substantial-evidence review must also account for anything
in the record that “fairly detracts from its weight.” Universal
Camera, 340 U.S. at 488.
In a case like this one, where the Board and ALJ reach
different conclusions, the U.S. Supreme Court has instructed
that “[t]he ‘substantial evidence’ standard is not modified in
any way.” Id. at 496. The ALJ’s findings and written decision
are simply part of the record that the reviewing court must
consider in determining whether the Board’s decision is
supported by substantial evidence. Id. at 493. That said, Board
“determinations ‘are vulnerable if they fail to reflect attentive
consideration to’ the ALJ’s finding of fact.” Mathew Enter.,
Inc. v. NLRB, 498 F. App’x 45, 46 (D.C. Cir. 2012) (quoting
Greater Bos. Television Corp. v. FCC, 444 F.2d 841, 853 (D.C.
Cir. 1970)); see also Universal Camera, 340 U.S. at 496 (“[A]
9
conclusion may be less substantial when an impartial,
experienced examiner who has observed the witnesses and
lived with the case has drawn conclusions different from the
Board’s . . . .”).
B. The Section 8(b)(1)(A) Charge
McLamb first challenges the Board’s conclusion that
Boone did not violate section 8(b)(1)(A) because any
reasonable employee would have understood her actions to be
motivated by his insulting behavior rather than any union-
related activities. He argues that the Board lacked a sufficient
factual basis to conclude that he had in fact been personally
insulting. Pet. Br. 21-29. And, even if he were insulting, he
asserts that the Board ignored its precedent by concluding that
Boone’s conduct did not violate section 8(b)(1)(A). Id. at 29-
38. Neither argument has merit.
In analyzing an alleged section 8(b)(1)(A) violation, the
Board “applies an objective standard that focuses on whether
the union conduct would have a reasonable tendency to restrain
or coerce employees in the exercise of their Section 7 rights.”
Graphic Commc’ns Conf.–Teamsters Loc. 735-S, 369
N.L.R.B. No. 97, 2020 WL 3048007, at *9 (June 5, 2020)
(Bemis). It “is an objective test, and neither the speaker’s
subjective intent nor the employee’s subjective reaction is
relevant.” Nat’l Rural Letter Carriers Ass’n, 372 N.L.R.B.
No. 52, 2023 WL 2016436, at *2 (Feb. 13, 2023) (citing
Consol. Bus Transit, 350 N.L.R.B. 1064 (2007)); see also
Teamsters Loc. 162 (American Steel, Inc.), 255 N.L.R.B. 1230,
1233 (1981) (“[T]he test is an objective, rather than a
subjective, one and depends on whether, in the circumstances
of a given case, the probable effect of the conduct is to restrain
or coerce an employee in the exercise of his Section 7
10
rights.”). 2 In other words, the test asks whether, objectively, a
reasonable employee would have understood the union
representative’s conduct to restrain or coerce him in the
exercise of his section 7 rights. Id.
The Board found that McLamb failed to clear that bar
because no reasonable employee would have understood
Boone’s actions as being related to his union activities. 373
N.L.R.B. No. 49, at *3. Instead, it determined that an
employee would have understood Boone’s conduct to be
motivated by personal animosity stemming from McLamb’s
own antagonistic behavior toward her. Id. The Board reasoned
that, because an objective employee “would have understood
Boone’s conduct as a reaction to McLamb’s personal attacks,
not his dissident union activity, . . . Boone’s conduct would not
have had a reasonable tendency to restrain or coerce [him] in
the exercise of [his] Section 7 rights.” Id. The Board also noted
that, “[a]s a threshold matter, . . . it stretche[d] the imagination
to consider the personal insults [McLamb] hurled at Boone . . .
as protected activity.” Id. at *4.
Substantial evidence supports the Board’s conclusion.
Witnesses uniformly testified that Boone and McLamb had a
personal disagreement, not one motivated by union activities.
No witness testified that Boone sought to curb McLamb’s
election advocacy or prevent him from engaging in protected
activity. In addition to Boone and McLamb, the ALJ heard
testimony from five other Transdev employees—Laco King,
2
The parties do not contest that the objective standard is applicable
to McLamb’s claim. Whether that standard is the correct one is not
before us and there is thus no reason to decide it. Cf. Tamosiunas v.
NLRB, 892 F.3d 422, 430 n.1 (D.C. Cir. 2018) (taking no position on
“whether the Board’s ‘any reasonable employee’ framework
provides the proper lens through which to view a Section 8
violation”).
11
Tandaleyia Butler, Brenard Bolling, Michelle Smith and
Valerie Thomas—all of whom witnessed the exchange
between Boone and McLamb. Their accounts described a
personal dispute, not one centered on union activity. The ALJ
also credited Boone’s testimony that McLamb’s remarks were
directed at her and discredited McLamb’s contrary account.
R. 520 n.3, 521 n.4.
King testified that McLamb specifically addressed Boone,
making comments about her Virginia license plates and
financial difficulties, and that Boone appeared to take the
remarks personally. R. 315-16, 321-22. He understood the
dispute as between Boone and McLamb, not as union-related.
R. 321-22. King confirmed that McLamb never mentioned the
Union and that no one had attempted to prevent him from
distributing flyers or speaking about it. R. 316-18. The ALJ
found King’s testimony especially credible. R. 520 n.2, n.3.
Butler’s testimony aligned with King’s. She recalled that
McLamb repeatedly addressed Boone by name, making
remarks about her Virginia tags and referencing her staying
home with her children. R. 208. 3 Boone, for her part, appeared
confused as to why McLamb was “bothering her,” as she was
not a candidate. Id. Butler confirmed that Boone had not
interfered with McLamb’s electioneering. Id. Smith likewise
recalled Boone telling McLamb, “Leave me alone. Don’t
3
McLamb argues that the Board erred by relying on Butler’s
testimony for the proposition that he addressed Boone by name
because that testimony was not discussed by the ALJ. See Pet. Br.
22-23. He failed to preserve that challenge because he did not move
for reconsideration of that finding. See Woelke & Romero Framing,
Inc. v. NLRB, 456 U.S. 645, 665-66 (1982) (parties must file motion
for reconsideration to preserve challenges to findings made by the
Board in the first instance). McLamb has thus forfeited that
argument.
12
worry about what I am doing. Don’t worry about me paying
my bills.” R. 300. She also testified that Boone described
McLamb as “harassing” her. R. 302-03.
Thomas testified that she had not heard McLamb refer to
the Union at all but that he seemed to be making inexplicable
remarks about license plates and insurance. R. 285-86. She
added that McLamb “wasn’t campaigning when he was . . .
talking about insurance and cars” and that she “never heard
anything . . . based on the campaign.” R. 291. The ALJ found
Thomas, like King, credible. R. 520 n.3.
McLamb argues that, as a factual matter, the Board erred
in finding that he was personally insulting Boone or was
making comments implicating Boone’s husband and child.
Pet. Br. 19-25. At least one credible witness—Butler—
testified that she heard McLamb mention Boone’s child and
that he had directed his comments toward her personally.
R. 208. But more importantly, the Board’s decision did not rest
on the fact that McLamb had used any specifically egregious
insults. McLamb’s exact language is irrelevant to the analysis,
which asks only whether an objective employee would have
understood Boone’s reactions to be related to McLamb’s union
activities. None of the witnesses’ testimony supported such a
conclusion.
McLamb also asserts that the Board improperly
characterized or inferred that his statements were “egregious
insults,” despite there being no evidence that he intended to be
insulting or knew about Boone’s particular circumstances. It
does not matter what McLamb intended by his comments, nor
even what the specifics of those comments were. The Board
had the benefit of multiple witnesses, most of whom had little
or no relationship with either Boone or McLamb and none of
whom understood any of Boone’s action to have been
13
motivated by anything except personal feelings. In other
words, there was sufficient evidence that an objective
employee would not have understood Boone’s conduct to be in
response to McLamb’s union activities.
McLamb argues further that the Board incorrectly found
that he had lost the Act’s protections due to his purported
insults because NLRB precedent establishes a much higher
threshold for such behavior to lose protection. McLamb
misreads both the Board’s decision and its precedent. McLamb
is correct as a general matter that if a dissident is engaged in
section 7 activities, the NLRB has established a high bar for the
circumstances in which his conduct might lose the Act’s
protections. See HealthBridge Mgmt. v. NLRB, 798 F.3d 1059,
1075 (D.C. Cir. 2015) (“[E]ven the most repulsive speech
enjoys immunity provided it falls short of a deliberate or
reckless untruth, so long as the alleged offensive actions are
directly related to activities protected by the Act and are not so
egregious as to be considered indefensible.”). Even so, as the
Board explained, a condition precedent to that protection is a
nexus or relationship between the conduct at issue and the
protected activities. Without that nexus, as here, the behavior
is not given the same protection.
McLamb relies on precedent that supports the distinction.
In Boilermakers Local 686, for example, a local union
president threatened a member who had resigned from the
union and lied about soliciting employees to cross a picket line.
267 N.L.R.B. 1056, 1056 (1983). There, the Board determined
that there was “an unmistakable nexus between [the
president’s] repeated comments about physical confrontation
and the ongoing dispute with [the member’s] protected
concerted activities against the [u]nion.” Id. at 1057. In
another case, union dissidents engaged in a years-long feud
with union leadership “characterized by vulgarities, insults,
14
and slurs,” including accusations of child molestation.
Laborers’ Int’l Union of N. Am., Loc. 806, 295 N.L.R.B. 941,
958 (1989). But the Board determined there that, despite its
“nettlesome” character, such insulting conduct did not remove
it from the Act’s protection because it was “intimately related
to the focus of the dissident activities, [the union’s]
leadership.” Id. Likewise, in Kiewit Power Constructors Co.
v. NLRB, 652 F.3d 22 (D.C. Cir. 2011), this court upheld
protection for employees who engaged in a heated argument
with supervisors regarding their work assignments. Id. at 29.
Although their conduct was confrontational, it remained rooted
in a direct challenge to employment conditions and thus
retained its character as protected activity. Id. In each of those
cases, the conduct in question, however aggressive or
offensive, was inextricably linked to workplace conditions or
union activity. By contrast, McLamb’s comments, which bore
no relation to Union policies or collective concerns, lacked the
requisite nexus to connect them to section 7.
Although not cited by McLamb, the Board decision in Pier
Sixty, LLC, 362 N.L.R.B. 505 (2015), further illustrates the
distinction. There, a group of catering employees sought union
representation based on what they perceived to be mistreatment
by management. Id. at 505. Two days before the union
election, after an employee’s unpleasant interaction with a
supervisor—the same kind of complaint that sparked the
unionization effort—the employee posted a profane Facebook
message that ended in a clarion call to “Vote YES for the
UNION!!!!!!!” Id. The employee was then discharged for
violating a workplace-conduct policy. Id. at 506.
The Board first determined that the employee’s comments
were protected section 7 activity because they “were part of a
sequence of events involving the employees’ attempts to
protest and ameliorate what they saw as rude and demeaning
15
treatment on the part of [the employer’s] managers.” Id. On
review, the Second Circuit affirmed that the Board had
reasonably found a nexus between the employee’s post and
protected union activity, in part because the “subject matter of
the message included workplace concerns—management’s
allegedly disrespectful treatment of employees, and the
upcoming union election.” See NLRB v. Pier Sixty, LLC, 855
F.3d 115, 124 (2d Cir. 2017) (citation modified). The Board
then found that the employee’s language was not “so egregious
as to exceed the Act’s protection.” 362 N.L.R.B. at 506. 4
Pier Sixty illustrates the difference between the Board’s
approach and McLamb’s misunderstanding. Here, unlike Pier
Sixty, the Board reasonably concluded that McLamb was not
engaged in section 7 activity when he made his comments
about and to Boone. Notwithstanding McLamb was engaged
in campaigning at the time of the incident, the substance of his
remarks bore no relationship to the Union’s institutional
conduct or to the terms and conditions of employment
generally. The ALJ found, and the Board affirmed, that
McLamb’s comments were specific to Boone’s private life and
unconnected to any broader union or workplace issue. That
those comments were objectively understood to be personal
attacks is corroborated both by multiple witnesses and by
Boone’s immediate reaction, which was not to contest union
policy or campaign positions but to defend her private affairs.
See R. 520-21.
4
It is also worth noting that Pier Sixty was subsequently overruled
by the Board before it decided this case. See Gen. Motors LLC, 369
N.L.R.B. No. 127 (July 21, 2020). The Board appears to be
reassessing how it determines whether an employer’s sanctioning of
an employee is motivated by punishing protected activity or by a
need for workplace discipline. Compare id., with Lion Elastomers
LLC, 372 N.L.R.B. No. 83 (May 1, 2023).
16
The timing of McLamb’s remarks—although coincident
with his campaign—does not suffice to bring them within the
protection of section 7. The Act does not insulate all speech
uttered during a union campaign; it protects only those
expressions that relate to “concerted activities for the purpose
of collective bargaining or other mutual aid or protection.”
29 U.S.C. § 157. In Pier Sixty, the employee’s profane
exhortation explicitly advocated for union representation as a
remedy to workplace mistreatment. See 362 N.L.R.B. at 506.
McLamb’s statements to Boone, by contrast, were not directed
toward her union role (or that of the candidates she supported)
nor sought to engage fellow employees in collective action
regarding their working conditions. They were, as the Board
found, personal insults detached from any recognized protected
activity. Because the NLRB reasonably concluded that
McLamb failed to meet the threshold requirement to show that
he was engaged in protected activity, it had no reason—unlike
the Pier Sixty circumstances—to consider whether the nature
of those comments would nonetheless have vitiated that
protection. Cf. id. at 506-08.
C. The Section 8(b)(2) Charge
McLamb next contends that the Board erred in dismissing
the section 8(b)(2) charge because, in his view, it based that
decision on testimony discredited by the ALJ. As noted,
section 8(b)(2) prohibits a labor organization from attempting
to cause an employer to discriminate against an employee in
violation of section 8(a)(3). 29 U.S.C. § 158(b)(2).
The NLRB evaluates alleged section 8(b)(2) violations
under a two-step framework. The first step asks whether a
union in fact caused or attempted to cause an employee to be
disciplined or, as relevant here, discharged. See Bemis, 369
N.L.R.B. at *6. If that threshold is met, “there is a rebuttable
17
presumption that [the union] acted unlawfully.” Id. At step
two, a union may then rebut the presumption by showing that
its actions were in fact lawful. Id. The Board uses a variety of
methods to analyze the lawfulness of a union’s conduct,
including the duty of fair representation and Wright Line
frameworks. Id. at *5.
Here, the Board determined that the section 8(b)(2)
allegation failed at the first step because “there was no request,
express or implied, that McLamb be discharged.” 373
N.L.R.B. No. 49, at *5. Specifically, it determined that
Williams’ statement was conditional on its face and “made in
the context of arguing against discipline for Boone,” rather than
for discipline of McLamb. Id. & n.13. “Williams’ statement,
therefore, was an attempt to raise the stakes for the employer
in order to discourage Transdev from discharging Boone” and
“Williams was no more seeking McLamb’s termination than
she was seeking Boone’s.” Id. It noted that, even if McLamb
had shown that the Union’s conduct was presumptively
unlawful, the presumption would have been rebutted because
there was neither a breach of the duty of fair representation nor
an impermissible motivation under Wright Line. Id. at *5-6.
Member Kaplan dissented, contending that the Board’s
conclusion rested on a “post-hoc rationalization” of Williams’
comment that was inconsistent with the ALJ’s finding that she
acted in bad faith. Id. at *8. In his view, once Williams’ motive
was discredited, her statement could not reasonably be
interpreted as a neutral appeal for parity in discipline but as an
effort to prompt McLamb’s discharge.
We disagree. Substantial evidence supported the finding
that McLamb’s claim failed at step one. Although McLamb is
correct that direct evidence of a request for discharge is
unnecessary, there must at least be “sufficient evidence to
support a reasonable inference of a union request [for
18
discharge] or a union–employer understanding.” Bemis, 369
N.L.R.B. at *4. That showing was not met here. Even ignoring
Williams’ testimony entirely, it is undisputed that Williams
phrased her comment as a conditional statement. See R. 166
(Boone confirming that Williams had made a conditional
statement). It was that fact, and not Williams’ discredited
testimony, that the Board relied on in making its decision.
Moreover, beyond Williams’ single conditional remark,
the record is devoid of any evidence that suggests an intent to
seek McLamb’s discharge. Williams did not follow up on her
comment, nor did she convey a request for discipline in more
direct or urgent terms. No employer representative testified
that he understood her to be urging McLamb’s termination.
Nor is there any documentary evidence reflecting that her
statement influenced Transdev’s disciplinary decision. The
company simply imposed differing penalties—Boone was
terminated and McLamb received only a suspension (later
retracted). See R. 522.
Granted, the ALJ and one Board member drew a negative
inference from Williams’ statement based on her apparent bad
faith but that result was not compelled by the precise language
Williams used. The Board majority reasonably came to the
opposite conclusion. Even if reasonable minds could differ,
that fact alone does not justify setting aside the Board’s
decision. Because the Board’s conclusion is supported by
substantial evidence, we affirm. See Tenneco, 716 F.3d at 647.
And, assuming arguendo that Williams’ statement could
be construed as a request to fire McLamb, the Board did not act
unreasonably in finding that the Union nonetheless did not
violate its duty of fair representation.
The duty of fair representation is a judicially created
doctrine which requires a union to represent its members
19
“honestly and in good faith and without invidious
discrimination or arbitrary conduct.” Hines v. Anchor Motor
Freight, Inc., 424 U.S. 554, 570 (1976). That duty is breached
“only when a union’s conduct toward a member . . . is arbitrary,
discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171,
190 (1967); Jacoby v. NLRB, 325 F.3d 301, 305-06 (D.C. Cir.
2003). 5 It also “applies to all union activity.” Air Line Pilots
Ass’n v. O’Neill, 499 U.S. 65, 67 (1991). Where, as here, the
union is alleged to have acted in bad faith, the petitioner faces
a “demanding standard . . . requiring a union’s actions toward
unit employees to be sufficiently egregious or so intentionally
misleading [as] to be invidious.” See Ruisi v. NLRB, 856 F.3d
1031, 1038 (D.C. Cir. 2017) (alterations in original) (quoting
Int’l Union of Elec., Elec., Salaried, Mach. & Furniture
Workers v. NLRB, 41 F.3d 1532, 1537 (D.C. Cir. 1994)).
Conversely, a union has not breached the duty if it can
show that its actions were “done in good faith, based on rational
considerations, and were linked in some way to its need
effectively to represent its constituency as a whole.” Operative
Plasterers & Cement Masons, Loc. 299, 257 N.L.R.B. 1386,
1395 (1981). Accordingly, the “union may rebut the
presumption that it acted unlawfully by demonstrating that its
action ‘was necessary to the effective performance of its
function of representing its constituency.’” Bemis, 369
5
As the Board noted, there is tension between the NLRB’s use of the
presumption of unlawfulness and the Supreme Court’s
understanding of the duty of fair representation as understood in
Vaca v. Sipes, where a breach of the duty was held to occur “only”
when a union’s action is “arbitrary, discriminatory, or in bad faith.”
386 U.S. at 190 (emphasis added); see also 373 N.L.R.B. No. 49, at
*5 n.12 (noting that one Board member would be willing to revisit
the use of the presumption in an appropriate future case). In any
event, the issue is not before us.
20
N.L.R.B. at 97 (quoting Operating Eng’rs Loc. 18, 204
N.L.R.B. 681, 681 (1973)).
Here, the Board determined that—even assuming
Williams’s statement had been a request for McLamb’s
discharge—the Union met its burden to rebut the presumption
of unlawfulness because it interpreted her actions as “act[ing]
in good faith based on rational considerations in connection
with representing the Union’s constituency as a whole.” 373
N.L.R.B. No. 49, at *5. It also determined that Williams’
statement was “at the very most” “negligence in
representation” or an “error of judgment.” Id. at *6 (citing
Castello v. Douglas Aircraft Co., 752 F.2d 1480, 1482 (9th Cir.
1985) and NLRB v. Local 139, Int’l Union of Operating
Engineers, 796 F.2d 985, 993 (7th Cir. 1986)). Although the
ALJ and one Board member understood Williams’ comment to
have been made in bad faith, it was not unreasonable for the
Board to infer that the comment was insufficiently “egregious”
to amount to a breach of the duty. Ruisi, 856 F.3d at 1038-39. 6
* * *
For the foregoing reasons, the petition for review is denied.
So ordered.
6
In light of our holding, we do not address the Board’s subsidiary
conclusions regarding the Wright Line framework.
WALKER, Circuit Judge, concurring in part and dissenting in
part:
Even when a union member criticizes his union, the union
must represent him fairly. This duty is required by the National
Labor Relations Act. It is much like the duty an attorney owes
a client.1
In this case, a union shop steward told an employer to fire
a union member who had frequently criticized the Union.
Because the union shop steward’s betrayal of the union
member violated the NLRA, I respectfully dissent.
I
Thomas McLamb drives for a company that provides
public transportation. The company’s drivers are represented
by the Amalgamated Transit Union. In McLamb’s opinion, the
Union wastes its members’ money.
McLamb has not been shy about that opinion. He has tried
to decertify the Union. He has petitioned twice to deauthorize
it. He has opposed the merger of his union local with another.
And he has campaigned for union office as part of a slate of
dissidents.2
One morning during that campaign, in the drivers’ lounge,
McLamb once again accused the Union of mismanagement.
He also insulted Tiyaka Boone, a union officer who supported
McLamb’s opponent in the election. Boone responded with a
1
See Air Line Pilots Association, International v. O’Neill, 499 U.S.
65, 74-75 (1991).
2
See Oral Arg. Tr. 31 (NLRB counsel: McLamb has been “a thorn
in the union’s side.”).
2
threat: “I will fuck you up.”3 The situation escalated, and
Boone hit McLamb in the face.
McLamb and Boone are two of the three employees
relevant to this case. The third is Alma Williams. She was
(1) a witness to the altercation between McLamb and Boone;
(2) Boone’s friend; (3) a union officer up for re-election on the
slate opposed by McLamb; and (4) a union shop steward
responsible for representing union members in trouble with
their employer.4
After Boone’s attack on McLamb, Boone met with the
company’s general manager. Williams accompanied Boone to
that meeting in Williams’ capacity as a union shop steward.
When the general manager told Boone that hitting a co-worker
is a terminable offense, Williams told the general manager that
if Boone were fired, McLamb should be fired too. Williams
argued that McLamb deserved “equal and fair punishment.”5
Later, Williams sent the general manager a witness
statement. With an emphasis on McLamb’s “very personal and
very offensive” insults toward Boone, Williams’ statement
portrayed McLamb as the episode’s villain.6 It praised Boone
for “handling herself well,” cast her as calmly asking McLamb
3
R. 316.
4
See What Is the Role of a Union Steward?, Society for Human
Resource Management (Nov. 16, 2023), perma.cc/X2ZD-J2J6
(“when an employee is believed to have violated company
policy . . . , the steward duties are to represent and defend rank-and-
file employees in investigatory interviews . . . that are reasonably
expected to result in disciplinary action”); see also Air Line Pilots,
499 U.S. at 74-75.
5
R. 259.
6
R. 419.
3
to “leave her alone,” and conveniently omitted the most
important part of the altercation — that Boone hit McLamb.7
In spite of Williams’ advocacy for Boone, the company
fired Boone and suspended McLamb. McLamb then filed an
unfair labor practice charge against the Union before the
National Labor Relations Board. McLamb claimed that when
Williams (acting on the Union’s behalf) encouraged the
company to fire him, the Union violated the duty of fair
representation required by the National Labor Relations Act.8
The administrative law judge agreed with McLamb on his
fair-representation claim. But a divided Board disagreed,
reversing the ALJ and dismissing McLamb’s complaint.
McLamb petitioned for review.
II
The National Labor Relations Act prohibits unions from
“caus[ing] or attempt[ing] to cause an employer to discriminate
against an employee,” 29 U.S.C. § 158(b)(2), “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. § 158(a)(3). The Supreme Court has
interpreted that prohibition to impose a “statutory duty of fair
representation.”9 The duty requires a union “to serve the
interests of all members without hostility or discrimination
7
Id.
8
In a settlement with the Board, the company reversed McLamb’s
ten-day suspension.
9
Vaca v. Sipes, 386 U.S. 171, 177 (1967).
4
toward any, to exercise its discretion with complete good faith
and honesty, and to avoid arbitrary conduct.”10
To enforce this rule, the National Labor Relations Board
has devised a two-step framework. At step one, the Board asks
whether the union attempted to cause an employer to discipline
an employee; if the union did, the union presumptively violated
the NLRA.11 At step two, the union can try to rebut this
presumption; to succeed, the union must show that it acted “in
good faith, based on rational considerations,” connected “in
some way to its need effectively to represent its constituency
as a whole.”12
Here, the Board concluded that McLamb’s claim failed at
both steps. First, the Board found that Williams’
statement — that if Boone were fired, McLamb should also be
fired — did not actually urge the company to punish McLamb
because the statement was merely “conditional.”13 Second, the
Board found that Williams acted in good faith because her
statement was designed to save Boone’s job, not to get
McLamb fired.14 According to the Board, Williams merely
“raised the stakes for” the company by “pointing out the
possibility that [the company] would have to decide whether to
discharge two employees rather than one.”15
10
Id.
11
Graphic Communications Conference – Teamsters Local Union
No. 735-S, 369 NLRB No. 97, 2020 WL 3048007, at *6 (June 5,
2020).
12
Operative Plasterers & Cement Masons, Local No. 299, 257
NLRB 1386, 1395 (1981).
13
R. 595.
14
Id.
15
Id.
5
We review the Board’s factual findings for “substantial
evidence on the record considered as a whole.”16 Evidence is
substantial when “a reasonable mind might accept [it] as
adequate to support a conclusion.”17 Our review is deferential,
but it is no “rubber stamp.”18 We cannot ignore “whatever in
the record fairly detracts from” the “weight” of the evidence
supporting the Board’s decision.19 And Board decisions
displaying a “lack of evenhandedness” must be set aside.20
III
The Board lacked substantial evidence for its decision.
A
At step one, the Board concluded that Williams’ statement
was merely conditional, not a request to punish McLamb. It
relied on Williams’ if-then phrasing — if Boone were fired,
then McLamb should be fired too. But substantial evidence
does not support the Board’s conclusion.
Consider the context that existed before and after Williams
and Boone met with the general manager. Williams’
relationships with Boone and McLamb, and her “course of
16
29 U.S.C. § 160(f).
17
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
18
Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 484 (D.C. Cir.
2020).
19
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
20
Circus Circus Casinos, 961 F.3d at 484 (quoting Sutter East Bay
Hospitals v. NLRB, 687 F.3d 424, 437 (D.C. Cir. 2012)).
6
conduct” in the aftermath of their altercation, strongly indicate
that she sought his punishment.21 For example:
• Boone was Williams’ friend; McLamb was not.
• Boone and Williams supported the Union; McLamb
did not.
• Boone supported Williams’ slate of union candidates;
McLamb ran on an opposing slate.
• McLamb had insulted Boone (Williams’ friend and
ally) in a dispute that ended with Boone hitting
McLamb and thereby jeopardizing Boone’s job.
• Williams recounted the incident to management in
what both the ALJ and the Board called a
“categorically dishonest” and one-sided witness
statement, which cast Boone as an innocent victim of
McLamb’s verbal abuse.22
• Similarly, Williams gave “slanted testimony” before
the ALJ, again heavily favoring Boone over
McLamb.23
21
See Graphic Communications Conference – Teamsters Local
Union No. 735-S, 369 NLRB No. 97, 2020 WL 3048007, at *4 (June
5, 2020) (contextual considerations like the union agent’s “course of
conduct” may “warrant[ ] the inference of an implied request that an
employee be disciplined” (cleaned up)); Avon Roofing & Sheet Metal
Co., 312 NLRB 499, 499 (1993) (“direct evidence of an express
demand by the Union is not necessary where the evidence supports
a reasonable inference of a union request”); see also Local No. 454,
United Food & Commercial Workers, 245 NLRB 1295, 1297 (1979)
(“conduct amount[ing] to” a request for “discharge or disciplining,”
though “never explicitly requested,” violates the NLRA).
22
R. 526, 602.
23
R. 522 n.7.
7
In short, the record shows that Williams had a strong bias
against McLamb and a clear motive to request that he be
punished.
The immediate context of Boone’s disciplinary meeting
with the general manager is even more illuminating. When
Williams spoke, she knew that a punishment for Boone was
inevitable. So her “if” (as in “if” you punish Boone) was really
a “when” (as in “when” you punish Boone). After all, Boone
had hit a colleague in the face, and the general manager had
(not surprisingly) identified that conduct as “terminable.”24
Considered in this light, Williams’ “conditional”
statement implied a request: If Boone is going to be fired (or
otherwise punished) — and we all know that she is — the
company should fire (or otherwise punish) McLamb too.25
Board precedents have found implied requests for
discipline in statements less explicit than Williams’ statement
here. For example, the Board has found that merely
“mention[ing] a disciplinary rule” and asking, “Does the rule
apply to everyone?” can create an implied request for
discipline — even when the union member’s “purpose” in
asking was to lay a “foundation for a grievance on behalf of”
someone else.26 Likewise, the Board has deemed it an implied
request for discipline to “report[ ] an allegation of . . .
harassment to the Employer with full knowledge of the
24
R. 259, 525.
25
R. 595.
26
Local No. 454, 245 NLRB at 1297.
8
Employer’s rules concerning such conduct” and with some
“inferable” “animus” toward the person reported.27
Williams’ conduct falls well within those precedents. She
broached McLamb’s conduct at Boone’s meeting, overtly
stated that McLamb violated company policy, and linked a
proposed punishment for McLamb to the inevitable
punishment of Boone.28 So Williams (at least implicitly)
requested that McLamb face discipline.
That request violated the NLRA.
B
As for step two, substantial evidence does not support the
Board’s conclusion that Williams acted “in good faith, based
on rational considerations, and . . . linked in some way to the
27
United Paperworkers International Union, Local 1048, 323 NLRB
1042, 1044 (1997); see also Graphic Communications, 369 NLRB
at *3-4 (union member “stat[ing] that she wanted an investigation”
and that “the Employer had disciplined people for less” constituted
an implied request for discipline).
28
See Williams’ testimony at R. 259 (“I said [to the general
manager], ‘Well, you know, harassing someone for that length of
time is prohibited conduct, so whatever you decide to do, it should
be fair. It should be equal.’”); R. 260 (agreeing to counsel’s
statement: “You mentioned that Mr. McLamb might have run afoul
of some policies concerning harassment.”); R. 261 (“The prohibited
conduct is on page 12 [of the employee handbook]. You do not harass
anybody verbally.”); R. 262 (testifying that McLamb violated that
rule); see also R. 271 (Counsel: “[D]id you believe that it would be
fair to treat . . . Mr. McLamb or Ms. Boone differently than the other,
as far as discipline is concerned?” Williams: “No.”).
9
Union’s need effectively to represent its constituency as a
whole.”29
For starters, Williams provided a “categorically dishonest”
witness statement and “slanted” testimony that favored Boone
and strongly disfavored McLamb — strong indicators of bad
faith.30 And Williams illegally acted with that bad faith when
she requested that the company fire McLamb if it fired Boone.
The Board called Williams’ request a “good faith” tactic
to “raise the stakes” to help save both employees’ jobs.31 But
for two reasons, no substantial evidence supports that “post-
hoc rationalization” of Williams’ illegal, bad-faith request that
the company punish McLamb.32
First, McLamb’s job was not in jeopardy. So, contrary to
the Board’s suggestion, Williams could not have been trying to
save McLamb’s job.33 To the contrary, Williams imperiled
29
R. 595 (cleaned up).
30
First quoting R. 526, then quoting R. 522 n.7. See Ruisi v. NLRB,
856 F.3d 1031, 1038 (D.C. Cir. 2017) (“A union commits a bad faith
violation of the duty of fair representation when it engages in fraud,
or deceitful or dishonest action.” (cleaned up)); see also
International Union of Electronic, Electrical, Salaried, Machine &
Furniture Workers v. NLRB, 41 F.3d 1532, 1538 (D.C. Cir. 1994)
(“bad-faith violation of duty of fair representation” when union
makes “serious misrepresentations” that “are improperly motivated”
(cleaned up)).
The Board acknowledged Williams’ bias and even disclaimed
reliance on her discredited testimony.
31
R. 595.
32
R. 597 (Member Kaplan, dissenting in part).
33
R. 595 (concluding that the “gist of Williams’ argument” was “that
neither employee should be fired”).
10
McLamb’s job by raising the prospect of McLamb’s removal
when the general manager had not yet suggested any
disciplinary action against McLamb.34
Second, Williams’ statement rested on a dubious
premise — that hurtful words equate to physical violence.35
But at the risk of stating the obvious, in the workplace, non-
violence is better than violence. So an insult and a hit to the
face will not always merit “equal . . . punishment.”36 And no
union shop steward acting “in good faith, based on rational
considerations” would think so.37
By equating McLamb’s (poor) conduct with Boone’s
(worse) conduct, Williams imperiled McLamb’s job and
violated her duty of fair representation.
* * *
Williams did not have to like McLamb. But as a union
shop steward, she owed him a duty of fair representation. And
Williams violated that duty by trying to convince McLamb’s
employer to punish him.
34
R. 597 (Member Kaplan, dissenting in part).
35
R. 270 (Williams’ testimony) (“Q. Do you think that [physical
attacks, fighting, pushing, or shoving] [are] equal to verbal
harassment? A. Yes.”); see R. 552 (Union’s Exceptions to ALJ
Decision) (“Insulting statements may not be the equivalent of
physical violence in every instance, but the circumstances of this case
warrant additional consideration.” (emphases added)).
36
R. 259.
37
Operative Plasterers & Cement Masons, Local No. 299, 257
NLRB 1386, 1395 (1981).
11
Because the court denies McLamb’s petition for review of
the Board’s contrary decision, I respectfully dissent.38
38
I dissent only from the court’s decision about McLamb’s § 8(b)(2)
claim. I join Section II.B. of the court’s opinion because I agree that
the Board had substantial evidence for its conclusion on McLamb’s
§ 8(b)(1)(A) claim.