Cadbury Beverages v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 20, 1998 Decided November 17, 1998

No. 98-1054

Cadbury Beverages, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondents

On Petition for Review and Cross-Application for

Enforcement of an Order of the National

Labor Relations Board

Richard N. Chapman argued the cause and filed the briefs

for petitioner.

David Habenstreit, Supervisory Attorney, National Labor

Relations Board, argued the cause for respondent. With him

on the brief were Linda Sher, Associate General Counsel,

John D. Burgoyne, Acting Deputy Associate General Counsel,

and Deborah E. Shrager, Attorney.

Before: Silberman, Williams, and Ginsburg, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: Petitioner Cadbury Beverages,

Inc. seeks review of the NLRB's decision and accompanying

order that Cadbury violated sections 8(a)(1) and 8(a)(3) of the

National Labor Relations Act when it suspended and termi-

nated Eugene Matzan. The Board filed a cross-application

for enforcement of its order. Since--although it is close--we

find substantial evidence supporting the Board's determina-

tion, we deny the petition for review and grant the cross-

application for enforcement.

I.

Eugene Matzan is an electrician in Cadbury's food process-

ing plant in Williamson, New York. In the early months of

1995, Matzan, who had become discontented with the perfor-

mance of the incumbent union (Retail, Wholesale and Depart-

ment Store Union, Local 220, AFL-CIO) and its fiscal man-

agement, made several requests to union officials to review

the union's financial records and its by-laws. After distribut-

ing copies of one such document to fellow employees, union

officials called a meeting (which James Fischette, Matzan's

supervisor, ordered Matzan to attend) at which union officials

put pressure on Matzan to cease his anti-incumbent activities.

After Matzan circulated a petition calling for a meeting to

consider changes to the union's by-laws and to review an

audit, Fischette informed Matzan that union business was not

permitted on company time (despite Matzan's insistence that

his union activity occurred during breaks).

Matzan's suspension arose out of a conversation in mid-

March 1995 between Matzan and his co-worker Lisa Dennis,

who had recently returned from maternity leave. According

to Matzan, Dennis told Matzan that she had not received an

expected bonus and was planning to ask Larry Graffius, the

union's then-vice president, for assistance. Matzan then ad-

vised Dennis against informing Graffius because two months

earlier Matzan had overheard Graffius tell Jane DeGroote,

Cadbury's human resources coordinator, that the company

should have fired Dennis (whom Graffius identified with an

unflattering expletive) when it had the chance to do so. At a

meeting later in March, union president Blackmon told Mea-

dor, Cadbury's human resources manager, that Matzan had

been spreading a false rumor that Blackmon, Graffius, and

Meador wanted to fire Dennis because she had taken mater-

nity leave. Meador decided to investigate the matter immedi-

ately and called Dennis, Matzan, and DeGroote into the

meeting for questioning. Recollections differ as to who said

what at the meeting about the story that Matzan told Dennis.

The crux of the dispute is whether Graffius said anything at

all to DeGroote about firing Dennis, and whether Matzan's

story implicated Meador or DeGroote, along with Graffius, in

making the negative comments about Dennis. Meador ulti-

mately concluded, based primarily on DeGroote's shocked

reaction when confronted with Matzan's story, that Matzan's

story was most likely false and that the potential damage to

DeGroote, Meador, and the human resources department was

sufficiently serious to warrant suspension without prior warn-

ing. After Matzan walked out of a meeting on April 10 to

discuss the situation before the company imposed discipline,

Matzan was suspended for three days.1

Matzan's termination arose out of his attempt to attend an

arbitration hearing of a co-worker, Bill Gowan, on Monday,

September 11, 1995. Although Matzan had conducted an

unofficial investigation of Gowan's case at the request of a

union steward, Matzan had no official role to play at Gowan's

arbitration hearing and planned to attend solely because he

had given Gowan his word that he would try to do so (Gowan,

according to Matzan, did not trust the union representative.).

On September 6 or 7, Matzan asked Fischette if he could

work an earlier shift on Monday, September 11, explaining

that he needed the schedule change for "personal" reasons.

__________

1 Matzan was suspended again later in April in an unrelated

incident that did not form part of the general counsel's charges

against the company. At that time Matzan was given a warning

that further disciplinary problems could lead to his termination.

Fischette told Matzan that the schedule change would proba-

bly not be a problem and that he would see what he could do.

On Friday, after Fischette learned that Monday was the

beginning of the "fall pack season," the busiest day of the

year for the whole plant, Fischette told Matzan that he could

not work the earlier shift. When Matzan insisted that he

needed the time for personal business, Fischette told Matzan

to see if he could reschedule his business and that if he could

not, to tell Fischette how much time he needed.

On Saturday, Fischette again told Matzan that he could not

switch his schedule. But when Matzan informed Fischette

that his still unidentified "personal business" would only take

a couple of hours and that he could probably take care of it on

his lunch hour, Fischette again indicated some flexibility,

telling Matzan that they would have to wait until Monday to

decide. Later that Saturday, however, Fischette learned

from Tony Peluso, another electrician, that Matzan wanted

the time to attend Gowan's arbitration. On Monday morning,

after Matzan reiterated that he needed the time for "personal

business," Fischette asked Matzan directly whether he was

planning to attend Gowan's arbitration. Matzan indicated

that he could go where he liked on his lunch hour, and

Fischette then instructed Matzan not to attend the arbitration

and that he would be subject to discipline if he did. Later

that morning, each tried to page the other to no avail:

Fischette needed Matzan to fix a malfunctioning conveyor,

and Matzan wanted to tell Fischette that he was taking an

early lunch and that Peluso would cover for him (even though

company policy permitted such lunch substitutions without

supervisory approval). A security guard, pursuant to Fis-

chette's instruction, informed Matzan on his way out that he

was needed on the floor, but Matzan told the guard that he

was going to lunch and proceeded to the conference room for

the arbitration. After Cadbury's attorney insisted that Mat-

zan leave Gowan's arbitration, Matzan returned to work,

whereupon Fischette, following Meador's instructions, imme-

diately suspended Matzan. Meador and Fischette deliberat-

ed further and Cadbury terminated Matzan by letter on

September 15.

The general counsel filed charges alleging that the compa-

ny violated section 8(a)(1) of the NLRA when it suspended

Matzan, and that it violated sections 8(a)(1) and 8(a)(3) when

it terminated him. On the suspension charge, the ALJ found

that Matzan's discussion with Dennis was protected activity,

that the company knew it was protected, that Matzan was

suspended for misconduct in the course of that protected

activity (defaming Cadbury's human resource department),

and that Matzan was not in fact guilty of the misconduct

(since Matzan only implicated union member Graffius in the

story he told Dennis). The ALJ also considered the compa-

ny's motive in suspending Matzan and concluded that the real

reason for the suspension was Matzan's protected activity.

Turning to the unlawful termination charge, the ALJ conclud-

ed that the general counsel satisfied its burden of proving

that anti-union sentiment was a substantial factor in Matzan's

termination, and that the company did not carry its burden to

prove that Matzan's alleged insubordination would have re-

sulted in his termination even in the absence of his protected

activity. The ALJ ordered Cadbury, among other things, to

rescind Matzan's suspensions and to reinstate him to his

former position with back pay.

The Board, with one member dissenting, affirmed all of the

ALJ's findings and conclusions and adopted the ALJ's recom-

mended order. The Board ratified the ALJ's decision on the

suspension charge in a footnote without discussion, pausing

only to note that the dissenting board member agreed with

the ALJ on this issue. The Board elaborated its reasons for

adopting the ALJ's conclusions on the termination charge,

highlighting Fischette's denial of Matzan's request outright

only after he learned the purpose of Matzan's request, and

noting that "[s]uch an abrupt reversal of position clearly

evidences Respondent's animus toward Matzan's protected

activities and its retaliatory intent." The Board found that

Cadbury did not terminate Matzan for insubordination since

Matzan fully complied with company policy when he attended

the arbitration. Board member Higgins dissented on

grounds that Fischette consistently denied Matzan's request

and that Matzan was insubordinate.

Petitioner claims that the Board's finding of a section

8(a)(1) violation for the company's suspension of Matzan was

not supported by substantial evidence. Petitioner also as-

serts that the Board ignored its own precedent governing

employees' right to attend arbitration hearings when it con-

cluded that petitioner's termination of Matzan violated sec-

tions 8(a)(1) and 8(a)(3). In what appears to be an argument

in the alternative on this second point, petitioner claims that

substantial evidence does not support the Board's determina-

tion that the company's termination of Matzan was motivated

by anti-union animus.

II.

Petitioner argues that the suspension could not constitute a

section 8(a)(1) violation "as a matter of law" because Matzan's

conversation with Dennis was not protected, concerted activi-

ty. In support of this argument, the company relies on

Board precedent establishing the well-settled proposition that

mere talk between co-workers is not concerted activity pro-

tected by the NLRA. See, e.g., Daly Park Nursing Home,

287 N.L.R.B. 710 (1987). What petitioner overlooks, howev-

er, is that the ALJ's opinion, adopted by the Board, specifical-

ly distinguished the Daly Park line of cases from those Board

cases establishing the rule that discussion among employees

about subjects affecting their employment is, when directed

toward future action, protected, concerted activity. See, e.g.,

Express Messenger Sys., 301 N.L.R.B. 651 (1991); Jhirmack

Enter., 283 N.L.R.B. 609 (1987).

Matzan's conversation with Dennis about not turning to

Graffius for assistance in obtaining a bonus clearly falls

within this latter line of cases. Nor are we impressed with

petitioner's argument that substantial evidence does not sup-

port the Board's finding that Dennis and Matzan were talking

about Dennis' bonus. Although Dennis could not remember

the context of the conversation, she did not contradict Mat-

zan's account. This is an issue of credibility on which the

ALJ was entitled to credit Matzan's testimony (petitioner's

assertion that Matzan's testimony was self-contradictory is

the product of selective transcript snipping and borders on

the frivolous). Petitioner should be aware that we do not

reverse the Board's adoption of an ALJ's credibility determi-

nations unless, unlike here, those determinations are "hope-

lessly incredible," "self-contradictory," or "patently unsup-

portable." Capital Cleaning Contractors, Inc. v. NLRB, 147

F.3d 999, 1004 (D.C. Cir. 1998); Elastic Stop Nut Div. of

Harvard Indus., Inc. v. NLRB, 921 F.2d 1275, 1281 (D.C. Cir.

1990).

Petitioner alternatively asserts that the conversation was

not protected activity because Matzan's reckless disregard of

whether the story he told Dennis was true or false rendered

his remarks so defamatory as to lose the protection of the

Act. See HCA Health Servs. v. New Hampshire, Inc., 316

N.L.R.B. 919 (1995). Petitioner claims that Matzan "serious-

ly impugned" the reputation of the human resources depart-

ment by implicating Meador or DeGroote in making negative

remarks about Dennis. But the ALJ was entitled to credit

the testimony, including testimony from Dennis, indicating

that Matzan accused Graffius alone.

We think very little of petitioner's contention that an

employee is under some obligation to verify the truth of what

the employee himself overhears, when the sole reason for the

employee's allegedly defamatory statement is to communicate

the fact that the conversation he overheard occurred. Unlike

the situation in which an employee repeats a rumor told to

him by another without verifying the facts underlying the

rumor, see HCA Health Servs., there was nothing for Matzan

to verify when he told Dennis what he heard Graffius say to

DeGroote. Any duty to avoid reckless rumor-mongering does

not impose an obligation to verify the competence of one's

auditory faculties. In any event, the ALJ credited Matzan's

testimony that the conversation between Graffius and De-

Groote in fact occurred, based in part on an adverse inference

from Graffius' failure to testify,2 and in part on the ALJ's

discounting of DeGroote's impassioned denial given the vari-

__________

2 We note that it is somewhat unusual for the ALJ to treat a

union vice-president as a witness "presumably friendly" to an

employer's case. See Gatliff Coal Co., 301 N.L.R.B. 793 n.2 (1991),

ous competing reasons that may have motivated her (such as

protecting herself from possible discipline). In sum, there is

easily substantial evidence supporting the ALJ's and the

Board's finding that Matzan's protected conversation oc-

curred and that it did not become unprotected because of the

manner in which it was communicated.

The Board's decision on the suspension claim is thus readi-

ly resolved. In cases involving employee discipline for al-

leged misconduct in the course of a protected activity that the

employer knew was protected, an employer violates section

8(a)(1) if it is proven that the alleged misconduct did not

occur, whether or not the employer acted in good faith. See

NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964). This

case, as the ALJ understood, fits squarely in the Burnup &

Sims framework: Matzan's actions were protected, the com-

pany knew that they were protected,3 and Matzan was sus-

pended for defamation in the course of protected activity that,

according to the substantial evidence relied upon by the ALJ,

simply did not occur. Although the ALJ went on to discuss

Cadbury's motive for suspending Matzan, we agree with the

Board's counsel on appeal that Burnup & Sims explicitly

obviates the need to inquire into intent and ends the analysis.4

__________

enforced 953 F.2d 247 (6th Cir. 1992). However, given the special

circumstances of this case--involving an employee waging a cam-

paign against an incumbent union that the record shows manage-

ment favored and joined forces with against the employee--we

think the ALJ was entitled to treat Graffius as a witness presum-

ably friendly to the company's case, whose failure to testify permit-

ted an adverse inference that Graffius made the comment that

Matzan attributed to him. See generally UAW v. NLRB, 459 F.2d

1329 (D.C. Cir. 1972).

3 It is true that petitioner's litigation arguments that the conver-

sation was not protected could be taken to imply that the company

did not know at the time that Matzan's conversation with Dennis

was protected. However, because petitioner does not challenge the

ALJ's determination that it knew of Matzan's protected activity,

petitioner has waived that argument.

4 The ALJ thought, and the Board did not correct him, that the

Board typically inquires as part of the Burnup & Sims inquiry

III.

Petitioner's argument against the Board's termination deci-

sion is really only another substantial evidence challenge

subject also to limited and "highly deferential" review. Al-

lentown Mack Sales & Serv., Inc. v. NLRB, 118 S. Ct. 818,

823 (1998) (substantial evidence inquiry is "whether on this

record it would have been possible for a reasonable jury to

reach the Board's conclusion"); Capital Cleaning Contrac-

tors, 147 F.3d at 1004. Petitioner attempts to dress this

pedestrian challenge in the slightly more rarefied doctrinal

clothes of the Board's obligation to adhere to its own prece-

dents. But as we explain, petitioner's argument, stripped

down, is nothing more than a bare, and ultimately futile,

substantial evidence challenge.

The precedent in question is Ohmite Mfg. Co., 290 N.L.R.B.

1036, 1037-39 (1988), which holds that, in order for an em-

ployer's refusal to allow an employee to attend a Board

hearing to constitute an unfair labor practice, the general

counsel must first make a prima facie case that the refusal

was improperly motivated or that the employee had a "real

need" to attend the hearing. The burden then shifts to the

employer either to discredit the general counsel's evidence of

improper motivation, or to show that it had an overriding

business reason for its refusal that outweighs the employee's

__________

whether the challenged action would have taken place even in the

absence of the protected activity. But that analysis is generally

appropriate in the sort of case in which the general counsel's charge

is based on an unlawful motive--it gives the employer the opportu-

nity to prove that, despite any unlawful motive, the same action

would have occurred pursuant to some additional, lawful motive.

See Wright Line, Inc. 251 N.L.R.B. 1083 (1980), enforced 662 F.3d

899 (1st Cir. 1981). In any event, the ALJ actually conducted a

different analysis, and asked whether Cadbury's asserted reason for

Matzan's suspension--the misconduct--was pretextual. But since

Burnup & Sims imposes liability for an employment action errone-

ously taken because of alleged misconduct, regardless of motive, see

Allied Indus. Workers v. NLRB, 476 F.2d 868, 880 (D.C. Cir. 1973),

it is plainly irrelevant whether Cadbury's proffered reason for

acting was pretextual.

need to attend the hearing. See id. Petitioner of course

maintains that, because Matzan had no real need to attend

Gowan's arbitration, the company's business interests tip the

scale in its favor. But in concluding that that fact immunizes

the company from liability, petitioner reads the disjunctive

out of Ohmite, and seemingly asserts the baffling proposition

that the Board must always engage in Ohmite's balancing,

irrespective of the motivation behind the employer's refusal.

We need do no more than state Ohmite's holding to show that

petitioner's view is plainly not the law of the Board, nor the

law of this circuit, see Service Employees Int'l Union Local

250 v. NLRB, 600 F.2d 930, 935-37 (D.C. Cir. 1979). The

Board did not ignore its own precedent; petitioner simply

misunderstood it.5

Petitioner's real complaint, then, is that the Board's finding

of discriminatory motive in Matzan's termination was not

supported by substantial evidence and here it is on firmer

ground. In order for an employer's discharge of an employee

to constitute an unfair labor practice, the general counsel

must first prove that the activity for which the employee was

fired was protected, that the employer was aware of the

protected activity, that the timing of the contested discharge

is proximate to the protected activities, and ultimately that

anti-union animus was a substantial or motivating factor in

the termination. See Wright Line, Inc., 251 N.L.R.B. 1083

(1980), enforced 662 F.2d 899 (1st Cir. 1981), approved by the

Supreme Court in NLRB v. Transportation Management

Corp., 462 U.S. 393 (1983); Meco Corp. v. NLRB, 986 F.2d

__________

5 We note that in cases involving discriminatory motive in the

denial of a request to attend a hearing, such as this one, the Board

applies the motive test of Wright Line, which essentially takes the

case out of Ohmite altogether. This is important because the

Wright Line test has been subject to important clarifications by the

Supreme Court (notably that the burden of persuasion always rests

on the general counsel, see Office of Workers' Compensation Pro-

grams v. Greenwich Collieries, 114 U.S. 2251, 2258 (1994)), which

are not evident from Ohmite's use of the term "prima facie" case to

describe the general counsel's initial burden. See Southwest Mer-

chandising Corp. v. NLRB, 53 F.3d 1334, 1339-40 (D.C. Cir. 1995).

1434, 1437 (D.C. Cir. 1993). Even if the general counsel

sustains this burden, the employer can successfully defend by

proving as an affirmative defense that the challenged termi-

nation would have occurred even in the absence of the

protected conduct. See Wright Line, 251 N.L.R.B. at 1089;

NLRB v. Transportation Management. Corp., 462 U.S. at

399-400; see generally Southwest Merchandising, 53 F.3d at

1339-40.

Petitioner's case is considerably helped because both the

ALJ and the Board included in their opinions factual findings

that can in no way be thought supported by substantial

evidence. For example, in explaining that Cadbury was

aware of Matzan's protected union activities, both the Board

and the ALJ seemed to suggest that Cadbury was aware of

Matzan's participation in the investigation and preparation of

Gowan's arbitration case. But as petitioner effectively points

out, nothing in the record indicates that the company knew of

Matzan's pre-arbitration assistance before September 15 (the

day on which Matzan was fired). The ALJ, moreover, reject-

ed as "almost pretextual" petitioner's asserted reason for

discharging Matzan partly on the ground that there was no

evidence in the record of major electrical problems when

Fischette claimed to have needed Matzan on the line (be-

tween 9:00 and 10:00 a.m.). Yet, Fischette specifically testi-

fied that there was a broken conveyor on Line A around 9:25

a.m. and that the other electricians were busy. Last, the

Board rejected Cadbury's claim that Matzan was insubordi-

nate when he left the plant despite Fischette's explicit order

forbidding it in part because of Cadbury's supposed policy

that electricians were not required to respond to pages when

they are en route to lunch. But Fischette explicitly denied

that such a policy existed and pointed to special time cards

that employees carry for the very purpose of enabling them

to respond to pages while at lunch. The only evidence

supporting Cadbury's supposed policy, besides Matzan's rath-

er self-serving account, was testimony from the security

guard that about 5% of employees do not respond to pages

when they are on their way home (rather unconvincing proof

of any company policy, let alone one governing pages at

lunchtime).

Still, the Board focused its finding of anti-union animus

directed at Matzan's protected activity6 on Fischette's abrupt

change in position after learning that Matzan wanted time off

to attend Gowan's arbitration hearing--a factual finding

which is supported by uncontroverted evidence and which we

think is sufficient on its own to support the Board's finding of

anti-union animus. See United Steelworkers Local Union

14534 v. NLRB, 983 F.2d 240, 244 (D.C. Cir. 1993) (holding

that factual findings may be reversed only when the record is

so compelling that no reasonable fact-finder could fail to find

the contrary). It is true that, as dissenting Board member

Higgins and petitioner contend, Fischette consistently denied

Matzan permission to take time off or to switch his shifts.

But that truth is also plainly beside the point, since the ALJ

and the Board majority focused on Fischette's change in

position from a tentative denial on September 9, to an out-

right rejection on September 11, with the sole intervening

fact Fischette's discovery of Matzan's plan to attend the

hearing. And petitioner's theory that Fischette was intuitive-

__________

6 Petitioner argues that Matzan's attendance at Gowan's hearing

was not protected activity because Matzan had no "real need" to

attend and could not have survived Ohmite's balancing test. But

the suggestion that an employee who would fail the Ohmite balanc-

ing test is necessarily engaged in unprotected activity if he attends

the hearing is a blatant case of mixing apples and oranges. That an

employee's right to attend a hearing may be trumped by an

employer's countervailing business reasons does not mean that

attending a hearing of a co-worker is unprotected activity. If that

were so, Ohmite balancing's test would eviscerate Ohmite's alterna-

tive consideration of whether the motivation for the denied request

was discriminatory (which presupposes that attendance at a co-

worker's hearing, even without a "real need" to attend, is protected

activity). Although we see no need to speculate as to the precise

scope of this protected activity, we think the Board was correct that

an employee's attendance at the arbitration hearing of a co-worker,

where the employee had helped in investigating the co-worker's

grievance and the co-worker requested the employee's presence, is

protected activity.

ly performing Ohmite's balancing test when he denied Mat-

zan's request is, though artful advocacy, simply a highfalutin

(and, we might add, rather unrealistic) way of saying that

Fischette and the company had no unlawful motive--which is

precisely what the ALJ and the Board rejected. The Board

majority was entitled to hang its hat on Fischette's flip-flop.

Although hardly overpowering evidence of animus, we cannot

call it insubstantial, even though a finding of no animus would

have been easily justifiable on these facts, see Universal

Camera Corp. v. NLRB, 340 U.S. 474, 477, 488 (1951), and

one that we might be inclined to make were we deciding the

issue ourselves, see Elastic Stop Nut, 921 F.2d at 1279. As

we have explained before, our review of the Board's motive

determinations, including inferences of improper motive

drawn from the evidence, is especially deferential. See Capi-

tal Cleaning Contractors, Inc., 147 F.3d at 1004; Laro Main-

tenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 1995).

We also think the Board's conclusion at the second step of

the Wright Line test is supported by substantial evidence.

We emphasize that the question on review is not, as petitioner

would have it, whether the Board's conclusion that Matzan

fully complied with Cadbury's policies is supported by sub-

stantial evidence. If it were, this case would be even closer

than it already is, for as we noted above, the Board's finding

to that effect is, to be charitable, thinly supported. The

Board's discussion of the insubordination issue, however,

must be placed in its doctrinal context: it is a subsidiary

aspect of petitioner's overall burden to prove, as an affirma-

tive defense, that despite any anti-union animus, petitioner

would have fired Matzan because of his insubordination, not

that it could have done so. See Wright Line, 251 N.L.R.B. at

1089 (employer's burden is to "demonstrate that the same

action would have taken place even in the absence of the

protected conduct") (emphasis added); Southwest Merchan-

dising, 53 F.3d at 1340 (company bears the burden of proving

that nondiscriminatory motive was in fact the cause of the

action). It was therefore not incumbent on the general

counsel to prove, nor on the Board to find, that the company's

asserted nondiscriminatory reason of insubordination was

pretextual--that is, "wholly without merit"--although such a

showing would have served as a conclusive rejection of Cad-

bury's affirmative defense. Wright Line, 251 N.L.R.B. at

1084 & n.5; Southwest Merchandising, 53 F.3d at 1339 n.7

(distinguishing "dual motive" and "pretext" cases). The ques-

tion for us is whether substantial evidence supports the ALJ's

finding, adopted by the Board, that Cadbury failed to prove

an actual, lawful motivation for Matzan's termination.7

The ALJ explicitly found, given the illicit motive evident

from the circumstances of Fischette's change in position, that

Cadbury would not have fired Matzan were it not for its anti-

union animus. See Southwire Co. v. NLRB, 820 F.2d 453, 463

(D.C. Cir. 1987) (affirming Board's finding that employer

failed its affirmative defense because of the evidence of illicit

motive and because the ALJ concluded that the real reason

for the discharge was the employee's union activities and not

his admitted rule violation). All of petitioner's evidence de-

signed to undermine this conclusion relates to its formal

policy against unauthorized leaving, which completely ignores

the uncontroverted evidence that electricians were permitted

by company policy to switch their lunch breaks without

authorization if they arranged for a replacement (which Mat-

zan did). Petitioner's notion, adopted by dissenting Board

member Higgins, that Fischette gave an advance refusal of

Matzan's ordinary ability to switch his lunch would be persua-

sive were it not for the crucial finding that the advance

refusal was tainted by an illicit motive. Petitioner cannot

overcome its burden at Wright Line step two by pointing to

an employee's unwillingness to comply with an order that the

Board determined (and which we affirm) to be unlawful at

__________

7 Petitioner cites the Board's decision in Jordan Marsh Stores

Corp., 317 N.L.R.B. 460 (1995), for the proposition that an employer

proves its affirmative defense simply by showing that it reasonably

believed that the employee engaged in misconduct at the level

warranting termination. Of course, the relevant belief is the belief

that the company had at the time it fired Matzan; that petitioner

can show a reasonable basis for having fired Matzan now is rather

unavailing if, at the time, petitioner was motivated only by anti-

union animus.

Wright Line step one. And although the general counsel's

proof of a policy authorizing employees to ignore pages is less

than compelling, petitioner, on whom the evidentiary burden

lies, has not pointed to any policy authorizing termination for

failure to respond to a page en route to lunch (the only

plausible grounds for believing Matzan to be insubordinate),

nor has it offered any evidence of similar treatment of those

employees who have acted similarly. See Capital Cleaning,

147 F.3d at 1007 (upholding Board's finding of unlawful

motive at Wright Line step two because the employer "failed

utterly" to show that it would have taken the same action

absent its unlawful motive).

To be sure, the Board did not state the issue in these

terms; it remarked only on the question whether the compa-

ny's asserted insubordination defense was pretextual (i.e.,

that no insubordination in fact occurred). But, the Board

adopted all of the ALJ's findings and conclusions, including

the conclusion that Cadbury would not have terminated Mat-

zan for insubordination (if any). See Elastic Stop Nut, 921

F.2d at 1281 (affirming Board's order based on Board's

adoption of the ALJ's specific findings rejecting employer's

Wright Line defense, even though Board itself provided no

discussion of that issue). We will not upset that conclusion,

and the ALJ's more detailed discussion supporting it, simply

because the Board's opinion also discussed a pretext theory

that, while less than persuasive, was unnecessary for the

Board to reach.

For the foregoing reasons, we deny the petition for review

and grant the cross-application for enforcement of the

Board's order.