Mohave Electric Cooperative, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 1999 Decided March 28, 2000

No. 98-1522

Mohave Electric Cooperative, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Thomas J. Kennedy argued the cause for petitioner. With

him on the briefs were Gregg J. Tucek, William P. Allen, and

Neil I. Levy.

Preston L. Pugh, Attorney, National Labor Relations

Board, argued the cause for respondent. With him on the

brief were Linda Sher, Associate General Counsel, Aileen A.

Armstrong, Deputy Associate General Counsel, and David

Habenstreit, Supervisory Attorney. John D. Burgoyne, Dep-

uty Associate General Counsel, entered an appearance.

Before: Ginsburg, Henderson, and Garland, Circuit

Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Mohave Electric Cooperative, Inc.

petitions for review of a decision and order of the National

Labor Relations Board (NLRB), which concluded that the

company unlawfully discharged employee Richard Michaels

for protected concerted activity in violation of section 8(a)(1)

of the National Labor Relations Act (NLRA), 29 U.S.C.

s 158(a)(1). The NLRB cross-petitions for enforcement of its

order. We deny the petition for review and grant the cross-

petition for enforcement.

I

Mohave is an electric utility operating out of Bullhead City,

Arizona. It has approximately seventy employees, roughly

twenty of whom are represented by the International Broth-

erhood of Electrical Workers, Local 769, AFL-CIO ("the

Union"). The bargaining unit consists of linemen, mechanics,

warehousemen, and between eight and twelve meter readers.

The latter are responsible not only for reading electric me-

ters, but also for meter installation, meter connection and

disconnection, and other related duties. Gene Quinn super-

vises Mohave's meter department and reports to Tom Long-

tin, the operations manager.

Consistent with the terms of its collective bargaining agree-

ment (CBA), Mohave uses several subcontractors to supple-

ment its work force. One subcontractor, Guard Force, has

provided Mohave with additional meter readers since 1993.

Guard Force employees wear uniforms like those of Mohave

meter readers, and they work out of the same room on

Mohave's premises. Although they have their own on-site

supervisor, David Drabek, he reports to Mohave's Gene

Quinn. See Mojave Elec. Coop., 327 N.L.R.B. No. 7, 1998

WL 777462, at *4 (Oct. 30, 1998); Tr. at 74.1 Hence, all

__________

1 Although the Board employs the spelling "Mojave," we use the

spelling employed by the petitioner in this court.

meter readers--whether employed directly by Mohave or by

a subcontractor--come within the scope of Quinn's superviso-

ry responsibility.

Richard Michaels worked as a meter reader for Mohave

from August 1991 until his termination on June 3, 1996. He

was one of two union stewards at the Mohave facility and

served on a number of the Union's committees. His work

history was generally uneventful until May 1996.

The parties dispute the details of the events that began

that month and that ultimately culminated in Michaels' dis-

charge. The Administrative Law Judge (ALJ) who heard the

case found that on the morning of May 8, Michaels called

Drabek, the Guard Force supervisor, to complain that a

Guard Force employee had insisted that Michaels trade

meter-reading routes for the day. Following that conversa-

tion, Drabek reported to Mohave that Michaels had been rude

to him. Michaels denied the allegation, and his supervisor,

Quinn, ended the matter by finding that Michaels "had acted

properly." Mojave Elec., 1998 WL 777462, at *5.

Later that same month, Michaels learned from a friend

that someone wearing a Mohave uniform had been stopped at

a local grocery store for shoplifting. Pursuant to company

policy, Michaels reported this to Quinn, who in turn advised

Longtin, Mohave's operations manager, and Jay Nady, the

owner of Guard Force. According to Nady and Longtin, the

story that reached them was that Michaels had reported that

the person wearing the Mohave uniform was a Guard Force

employee, who had been handcuffed and driven away by the

police. The actual facts were somewhat less dramatic: there

had been no police arrest; the store's own security force had

stopped the Guard Force employee, who claimed to have

"forgotten" to pay for an item he took from the store. Nady

and Longtin concluded that Michaels had exaggerated the

story in order to discredit Guard Force. At the hearing

before the ALJ, however, Michaels testified that he had

merely reported what he had heard--that someone wearing a

Mohave uniform had been stopped for shoplifting--and noth-

ing more. Based on the demeanor of the witnesses, the ALJ

found Michaels' testimony substantially more credible than

that of Nady and Longtin. He therefore credited Michaels'

testimony and concluded that if there had been any exaggera-

tion, it had been by Mohave's supervisors rather than Mi-

chaels.

On May 21, angry about the alleged exaggeration, Nady

went to Mohave's facility "to confront and straighten out

Michaels." Id. at *6 (internal quotation omitted). Unable to

find him, Nady instead located Stuart Douglas, another Mo-

have meter reader whom Nady had often seen with Michaels.

Although the parties dispute the details of the encounter, it

appears that Nady asked Douglas about Michaels' where-

abouts and that there was a brief physical confrontation

between them.2

The next day, when Michaels returned to work, Douglas

told him that he had been physically and verbally assaulted

by Nady, and that Nady had been "looking for" Michaels

when this occurred. Michaels promptly told his supervisor

that he felt threatened, and he asked the company for protec-

tion. Quinn told him to "give it a couple of days" and took no

further action, although later Longtin did advise Nady that

Mohave "reserved to itself any issues of supervision or disci-

pline of its employees." Id. at *7. Concerned about their

physical safety, Michaels and Douglas met with their co-

workers and discussed their options. They described Nady's

alleged assault on Douglas and stated that they were consid-

ering turning to the courts for protection. Michaels gave

uncontradicted testimony that the other employees agreed

with and supported such action. See Tr. at 189-90.

On May 23, in Bullhead City municipal court, Michaels and

Douglas filed petitions for injunctions against harassment,

citing their need for protection from "verbal and mental

abuse and possibly physical violence" by Nady and Drabek.

App. at 139-43. The petitions requested that Nady and

__________

2 Douglas claimed "that he'd been physically and verbally as-

saulted by Nady, with Nady grabbing him by the shirt and shaking

him." Mojave Elec., 1998 WL 777462, at *6. Nady claimed "that

any contact was merely incidental to being bumped as both were

leaving the meter reading room." Id.

Drabek have no contact with Douglas and Michaels, and that

they be enjoined to stay away from the petitioners' homes

and place of employment.

On May 29, Nady received copies of the petitions and

immediately contacted Longtin. He told Longtin that, if the

injunctions were granted, neither he nor Drabek would be

allowed on Mohave property. This, he said, would prevent

them from performing their duties as subcontractors. There-

after, Longtin decided to terminate Michaels. According to

Longtin's testimony, he did so because Michaels had filed the

petition, exaggerated the shoplifting incident, spoken rudely

to Drabek in the telephone conversation of May 8, and called

Guard Force employees "scabs." Mojave Elec., 1998 WL

777462, at *8. Longtin conceded, however, that when he told

Michaels that he was being terminated, he told him "of no

other reason besides his having filed the petition." Id. On

July 22, the municipal court denied both Michaels' and Doug-

las' petitions.

The ALJ concluded that the filing of the petitions was

protected conduct under the NLRA, and rejected Mohave's

contention that the filing was rendered unprotected because it

constituted "disloyalty." Applying the familiar Wright Line

test,3 the ALJ found that a prima facie violation of section

8(a)(1) had been established because Mohave "admittedly

fired [Michaels], at least in part, because of his having filed

the petition," id. at *11, and because Mohave did not show

that it would have fired Michaels in the absence of that

protected conduct, see id. at *9-11. The NLRB affirmed.4

__________

3 See Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d

899 (1st Cir. 1981); see also NLRB v. Transportation Management

Corp., 462 U.S. 393, 399-401 (1983) (approving Wright Line test).

4 The ALJ also concluded that Michaels had been discharged

because of anti-union animus in violation of NLRA s 8(a)(3), 29

U.S.C. s 158(a)(3). In light of its conclusion that Michaels was

unlawfully discharged in violation of section 8(a)(1) for filing the

civil injunction petition, the Board found "no need to rely on the

judge's conclusion that the discharge also violated Section 8(a)(3)."

Thereafter, Mohave petitioned this court for review, and the

Board cross-petitioned for enforcement.

II

As we have noted many times before, our role in reviewing

an NLRB decision is limited. See, e.g., Pioneer Hotel, Inc. v.

NLRB, 182 F.3d 939, 942 (D.C. Cir. 1999); Time Warner

Cable v. NLRB, 160 F.3d 1, 3 (D.C. Cir. 1998). "We must

uphold the judgment of the Board unless, upon reviewing the

record as a whole, we conclude that the Board's findings are

not supported by substantial evidence, or that the Board

acted arbitrarily or otherwise erred in applying established

law to the facts of the case." International Union of Elec.,

Elec., Salaried, Mach. & Furniture Workers v. NLRB, 41

F.3d 1532, 1536 (D.C. Cir. 1994) (internal quotations and

citation omitted). We are also required to give "substantial

deference to the inferences drawn by the NLRB from the

facts." Time Warner Cable, 160 F.3d at 3. Moreover, absent

exceptional circumstances, we must accept the agency's deter-

minations regarding the credibility of witnesses. See Elastic

Shop Nut Div. v. NLRB, 921 F.2d 1275, 1281 (D.C. Cir. 1990)

(stating that "the Court must uphold Board-approved credi-

bility determinations of an ALJ unless they are 'hopelessly

incredible' or 'self-contradictory' ").

Mohave seeks to overturn the Board's finding that it com-

mitted an unfair labor practice on two principal grounds.

First, it contends that Michaels' conduct in filing the injunc-

tion petition was unprotected because it was "disloyal." Sec-

ond, it contends that Michaels' activity was unprotected be-

cause it was inconsistent with the collective bargaining

agreement. In addition, Mohave argues that even if it did

discharge Michaels for protected activity, the remedy should

be limited because the company would have fired him in any

event based on evidence of unrelated misconduct it discover-

__________

Mojave Elec., 1998 WL 777462, at *1. Accordingly, that issue is not

before us.

ed after his termination.5 We consider each of these argu-

ments below.

A

Section 7 of the NLRA guarantees employees the "right to

self-organization, to form, join, or assist labor organizations,

... and to engage in other concerted activities for the pur-

pose of collective bargaining or other mutual aid or protec-

tion." 29 U.S.C. s 157. Section 8(a)(1) of the Act imple-

ments that guarantee by declaring that "[i]t shall be an unfair

labor practice for an employer ... to interfere with, restrain,

or coerce employees in the exercise of the rights guaranteed

in [section 7]." Id. s 158(a)(1); see PHT, Inc. v. NLRB, 920

F.2d 71, 73 (D.C. Cir. 1990). Thus, an employer violates

section 8(a)(1) if it discharges an employee for engaging in

concerted activity for the purpose of mutual aid or protection.

See, e.g., Prill v. NLRB, 835 F.2d 1481, 1483 (D.C. Cir. 1987).

Moreover, the Supreme Court has confirmed that "the 'mutu-

al aid or protection' clause protects employees from retalia-

tion by their employers when they seek to improve working

conditions through resort to administrative and judicial fo-

rums." Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 & n.15

(1978) (citing with approval Walls Mfg. Co., 137 N.L.R.B.

1317 (1962), enforced, 321 F.2d 753 (D.C. Cir. 1963), and

Socony Mobil Oil Co., 153 N.L.R.B. 1244 (1965), enforced, 357

F.2d 662 (2d Cir. 1966)).

__________

5 In the Statement of Facts section of its brief, Mohave suggests

that Michaels was not fired solely for the filing of the petition, but

rather due to a continuing "pattern" of disloyal actions including,

inter alia, exaggerating the shoplifting incident, speaking rudely to

Drabek, and calling Guard Force employees names. See Mohave

Br. at 5-6; see also id. at 14. Even if this were true, there is

substantial evidence to support the ALJ's conclusion that Mohave

failed to overcome its Wright Line burden of showing it would have

fired Michaels absent the filing of the petition. See Transportation

Management Corp., 462 U.S. at 401-03 (holding that where protect-

ed activity is at least a "motivating factor," employer must show it

would have taken same action in its absence). Moreover, as dis-

cussed below, there is substantial evidence to support the ALJ's

finding that Michaels did not engage in the purported pattern of

disloyal activity.

Mohave does not dispute the ALJ's conclusion that the

filing of a judicial petition--supported by fellow employees

and joined by a co-employee--constitutes concerted action

under the NLRA.6 Nor does Mohave dispute that concerted

action to ensure greater workplace safety through petitioning

for injunctive relief may constitute protected conduct. In-

stead, it contends that Michaels' conduct was unprotected

here because it was "disloyal," in that if granted, the injunc-

tion would have interfered with the business relationship

between Mohave and Guard Force.

It is true that an employer may discharge an employee for

disloyalty without committing an unfair labor practice.7 But

the fact that an employee's actions may cause some harm to

the employer does not alone render them disloyal. See

NLRB v. Knuth Bros., Inc., 537 F.2d 950, 953 (7th Cir. 1976).

The activity at issue here involves the filing of a petition for

judicial relief, and, as Mohave itself recites, the "rule [is] that

filing a 'civil action by a group of employees is protected

activity unless done with malice or in bad faith.' " Mohave

Reply Br. at 5 (quoting Trinity Trucking & Materials Corp.,

221 N.L.R.B. 364, 365 (1975)) (emphasis added).8 Moreover,

__________

6 See, e.g., Prill, 835 F.2d at 1483 (noting that complaint of

single employee is deemed concerted action when taken "with the

actual participation or on the authority of his co-workers"); Inter-

national Ladies' Garment Workers' Union v. NLRB, 299 F.2d 114,

115-16 (D.C. Cir. 1962) (finding concerted action where complaint

letter written by single employee was "approved in advance by

several other employees").

7 See, e.g., NLRB v. Local Union No. 1229 (Jefferson Standard

Broad. Co.), 346 U.S. 464, 471 (1953) (upholding discharge where

employees publicly disparaged quality of employer's product, with

no discernible relationship to pending labor dispute); George A.

Hormel & Co. v. NLRB, 962 F.2d 1061, 1064 (D.C. Cir. 1992)

(stating that employee violates duty of loyalty by supporting boycott

of employer's product, unless boycott is non-disparaging and related

to ongoing labor dispute).

8 Accord Leviton Mfg. Co. v. NLRB, 486 F.2d 686, 689 (1st Cir.

1973); Socony Mobil Oil Co., 357 F.2d at 663-64; cf. Walls Mfg.

Co., 321 F.2d at 754 (holding that complaint to state health depart-

that the petition "was later dismissed on the pleadings would

not in itself make the activity unprotected or establish bad

faith." Trinity Trucking & Materials Corp., 221 N.L.R.B. at

365 (citing Walls Mfg. Co., 137 N.L.R.B. at 1317).9

Mohave contends that Michaels' petition was in fact filed

"with malice and in bad faith" because it was intended not to

protect employees but rather to disrupt Mohave's relationship

with Guard Force. Mohave Br. at 19. The ALJ, however,

found to the contrary, and we affirm that finding as sup-

ported by substantial evidence. As the ALJ stated, "whether

or not one regards Michaels' fears as totally realistic," it is

not possible to conclude that they were baseless. Mojave

Elec., 1998 WL 777462, at *11. Testimony supported the

ALJ's finding that "Nady did behave toward Michaels in an

angry fashion, and did seek to find him for some sort of

confrontation." Id. at *10; see Tr. at 80-81; General Counsel

Ex. 10. Moreover, the ALJ observed that "Nady's imposing

size and evident state of fitness would strike a disturbing

chord in virtually any man who learned as Michaels did that

Nady had come onto [Mohave's] premises seeking a confron-

tation with him." Mojave Elec., 1998 WL 777462, at *10.

And as the ALJ also noted, "Michaels sought assurances for

his safety" from Mohave, and "resorted to the filing of a

petition only after such assurances were not given." Id.

The ALJ's observations are fully supported by Michaels'

testimony, which the ALJ found to be of "superior" credibili-

ty--a determination to which we defer. Michaels testified

without contradiction that he "felt very threatened" when he

__________

ment was protected conduct given lack of evidence that "the allega-

tions were made with intent to falsify or maliciously injure the

[employer]").

9 See Walls Mfg. Co., 321 F.2d at 754 (upholding finding of lack

of malice "notwithstanding the inaccuracy" of the complaint); see

also Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1351 n.12 (3d

Cir. 1969) ("We are not concerned in this case with the merit or lack

of merit of [the employee's] grievance.... [I]t is clear that Sec. 7

protects his right to utter it as a matter of concerted activity with

other employees for mutual aid.").

heard Nady had come looking for him, that he felt "the

physical altercation between [Nady] and Douglas was actually

directed towards [him]," and that he and Douglas filed their

petitions to protect themselves from further harassment. Tr.

at 184-90. Mohave officials conceded that Michaels commu-

nicated his safety concerns to the company both before and

after the petitions were filed, see id. at 92-93, 337, and that he

asked the company to take "some action to protect" him, id.

at 85--a request Mohave initially put off with the suggestion

to "give it a couple of days," Mojave Elec., 1998 WL 777462,

at *7; Tr. at 185. Although Mohave later "advised" Nady to

leave any disciplining of its employees to the company, Mi-

chaels was not required to accept that admonition as provid-

ing him with sufficient protection.

Mohave contends that the filing of the petitions should not

be considered in isolation, and that Michaels' bad faith is

evidenced by the fact that the filing was part of a long-term

campaign to discredit Guard Force and sever its contractual

relationship with Mohave. Other elements of this asserted

campaign were Michaels' alleged exaggeration of the shoplift-

ing incident, his allegedly rude telephone conversation with

Drabek on May 8, his purported practice of calling Guard

Force employees "scabs," and the fact that after the May 21

incident with Nady, Michaels filed a union grievance seeking

the removal of Guard Force from Mohave's property. The

ALJ readily disposed of each of these claims, see Mojave

Elec., 1998 WL 777462, at *4 n.6, and we find those disposi-

tions reasonable. The ALJ determined based on witness

demeanor that it was Mohave's supervisors rather than Mi-

chaels who had exaggerated the shoplifting incident. Super-

visor Quinn concluded that Michaels had behaved properly in

the May 8 telephone conversation with Drabek. The ALJ

credited Michaels' denial that he had ever called Guard Force

employees scabs, finding Longtin's contrary testimony to be

internally "inconsistent[ ]" and a "makeweight." Id. at *8

n.12. Finally, the filing of the union grievance in connection

with the same conduct for which Michaels sought a civil

injunction is itself a protected activity. See, e.g., Illinois

Ruan Transp. Corp. v. NLRB, 404 F.2d 274, 284 (8th Cir.

1968); Walls Mfg. Co., 321 F.2d at 753.

We conclude that substantial evidence supports the Board's

finding that Michaels did not file his petition out of bad faith

or malice. Accordingly, we reject Mohave's contention that

Michaels' conduct was "disloyal" and therefore unworthy of

NLRA protection.

B

Mohave also contends that the filing of Michaels' judicial

petition was unprotected because it was "contrary to the

express terms of the collective bargaining agreement between

[Mohave] and Michaels' union." Mohave Br. at 20. That

agreement, the company argues, not only "permit[ted] [Mo-

have] to contract with Guard Force, it specifically prohibited

Michaels from interfering with that and other aspects of

[Mohave's] operations." Id. at 20-21. Thus, the company

contends, by seeking an injunction that would have impaired

Guard Force's ability to fulfill its contract with Mohave,

Michaels breached the CBA.

Mohave is correct that conduct in breach of a collective

bargaining agreement is one of "the normal categories of

unprotected concerted activities." NLRB v. Washington Al-

uminum Co., 370 U.S. 9, 17 (1962). But its claim that

Michaels breached the agreement at issue here is truly

breathtaking in its scope. The company does not contend

that the filing of the petition breached the agreement; rath-

er, Mohave's contention is that the breach would occur if the

petition were granted. "If granted," the company argues, an

order directing Guard Force's owner and supervisor to stay

away from Michaels' place of business would limit Mohave's

ability "to enjoy the benefits of [its] contractual relationship"

with Guard Force. Mohave Br. at 16. In essence, Mohave's

contention is that if an employee asserts a right under state

law to be free of physical harassment, and if a judge deter-

mines on the merits that a stay-away order is necessary to

vindicate that right, the employee has violated the collective

bargaining agreement struck between Mohave and the Union.

Mohave is not dissuaded by the implications of this position.

At oral argument, its counsel agreed this would mean that if

an employee were sexually harassed by Mohave's president, it

would be a breach of contract for the employee to seek a

judicial restraining order. The employee's only recourse,

counsel suggested, would be to sue the Union for having

"shackled" the employee with a CBA that barred access to

the courts.

It is doubtful that a collective bargaining agreement could

waive an employee's statutory rights10 in the manner claimed

by Mohave.11 But even if this were the kind of right that a

CBA could waive, the Supreme Court has held that such a

waiver must be "clear and unmistakable." Wright v. Univer-

sal Maritime Serv. Corp., 119 S. Ct. 391, 396 (1998) (holding

that general arbitration clause in CBA did not waive employ-

ee's right to judicial forum for claim of employment discrimi-

nation). "We will not infer from a general contractual provi-

sion," the Court said, "that the parties intended to waive a

statutorily protected right unless the undertaking is explicitly

stated. More succinctly, the waiver must be clear and unmis-

takable." Id. (internal quotations omitted).

Nothing in the collective bargaining agreement at issue

here even approaches this "clear and unmistakable" standard

for waiver. The provision upon which Mohave relies bears

the title "NO STRIKE" and reads as follows:

During the terms of this Agreement, under no circum-

stances will the Union or the employees engage in,

instigate, cause, permit, encourage, or take part in any

__________

10 Michaels' petition was based on Ariz. Rev. Stat. s 12-1809,

which authorizes courts to grant injunctions against harassment.

11 See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S.

728, 745 (1981) (holding that employees' rights under Fair Labor

Standards Act are not waivable through collective bargaining);

Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974) (holding

that CBA cannot prospectively waive employees' statutory rights

under Title VII); cf. Hawaiian Airlines, Inc. v. Norris, 512 U.S.

246, 260 (1994) (holding that Railway Labor Act does not preempt

state-law causes of action that are independent of CBA).

strike, boycott, work stoppage, slowdown, cessation of

work, interruption of work, sympathy strike, unfair labor

practice strike, picket, curtailment of work, reduction of

production, or interference of any kind with the opera-

tions of the Employer.

App. at 123 (emphasis added). As is immediately apparent,

the provision does not mention the exercise of statutory

rights or the filing of lawsuits at all. Rather, as its title

makes clear, it is principally a no-strike provision, and the

specific prohibitions it sets forth are all against work stoppag-

es of one form or another. Although Mohave contends that

the phrase we have italicized above, "or interference of any

kind," gives the prohibition a wider scope, the canon of

ejusdem generis ("of the same kind or class") counsels against

our reading that general phrase to include conduct wholly

unlike that specified in the immediately preceding list of

prohibited acts. In any event, given the Supreme Court's

admonition that we should not infer waivers of statutory

rights unless they are "clear and unmistakable," we see

nothing in this CBA to justify inferring a waiver of the

proportions claimed by Mohave.12

C

Having rejected Mohave's arguments that Michaels' con-

duct was unprotected, we turn now to its alternative argu-

ment: that evidence acquired after Michaels' termination

should limit his remedy. The NLRB awarded Michaels full

reinstatement and backpay from the time of his discharge.

See Mojave Elec., 1998 WL 777462, at *1. Mohave disputes

__________

12 This case is therefore completely different from Emporium

Capwell Co. v. Western Addition Community Org., 420 U.S. 50

(1975), urged upon us by petitioner. There, the Court held that

conduct was unprotected by the NLRA where a group of employees

attempted "to bypass the grievance procedure" set forth in their

CBA, "in favor of attempting to bargain with their employer"

separately and without their union. Id. at 67. Michaels endeav-

ored neither to bypass the CBA's grievance procedure, nor to

bargain separately with Mohave.

that award, contending that one week after it fired Michaels,

it came upon evidence that would have resulted in his termi-

nation irrespective of the injunction petitions. That evidence

was a statement by Guard Force employee Tammy Bauguess

that, on a single occasion nine to ten months before his

discharge, Michaels paid her five dollars to take part of his

meter route. Mohave's operations manager, Tom Longtin,

"testified unequivocally that he would have discharged Mi-

chaels for this action" as soon as he discovered it. Mohave

Reply Br. at 9.

To preclude reinstatement and limit backpay on the basis

of after-acquired evidence, the employer has the burden of

proving that the evidence reveals misconduct for which it

"would have discharged any employee," not simply for which

it could have done so. Marshall Durbin Poultry Co., 310

N.L.R.B. 68, 70 (1993) (emphasis added), aff'd in relevant

part, 39 F.3d 1312 (5th Cir. 1995); see also John Cuneo, Inc.,

298 N.L.R.B. 856, 856-57 (1990).13 The NLRB affirmed the

ALJ's determination that Mohave had not met that burden.

See Mojave Elec., 1998 WL 777462, at *1. Because the Board

has "broad discretion" in fashioning remedial orders, ABF

Freight Sys., Inc. v. NLRB, 510 U.S. 317, 325 (1994), we will

uphold its decision as long as there is substantial evidence in

the record to support it.

There is such substantial evidence here. The ALJ conclud-

ed that "even if [he] had found the events to have occurred as

testified to by Bauguess,"14 he could not credit Longtin's

__________

13 Cf. McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352,

362-63 (1995) (holding in age discrimination suit that "[w]here an

employer seeks to rely upon after-acquired evidence of wrongdoing,

it must first establish that the wrongdoing was of such severity that

the employee in fact would have been terminated on those grounds

alone if the employer had known of it at the time of the discharge").

14 The ALJ also concluded that the alleged payment to Bau-

guess had not been made, stating that Michaels denied he had ever

paid anyone to take his meter route. See Mojave Elec., 1998 WL

777462, at *14. We have been unable to find that denial in the

record before us.

testimony that this kind of misconduct would alone have

resulted in Michaels' discharge. Mojave Elec., 1998 WL

777462, at *14. The "claimed seriousness" of the single

alleged five-dollar bribe, the ALJ said, was substantially

undercut by "Longtin's benign attitude" toward Bauguess,

who purportedly had taken the bribe. Id. at *15. As Long-

tin admitted, he had "made no request or demand that

[Bauguess] be disciplined by Guard Force." Id.; see Tr. at

385 (testimony of Longtin) (agreeing that it was "against the

rules for [Bauguess] to accept the money," but conceding that

he had not recommended that she be disciplined). "The fact

that Longtin has taken absolutely no action against" her, the

ALJ concluded, spoke "volumes" as to whether the five dollar

bribe was an offense for which Michaels really would have

been fired, Mojave Elec., 1998 WL 777462, at *15, and

"belied" Longtin's testimony that it was, id. at *12.

The inference drawn by the ALJ is a reasonable one. See

John Cuneo, Inc., 298 N.L.R.B. at 861 n.10 (noting that

treatment of similarly situated employees carries great

weight in evaluating whether employer would have terminat-

ed employee for act of misconduct); Axelson, Inc., 285

N.L.R.B. 862, 866 (1987) (holding that, to terminate backpay

on basis of after-acquired evidence, employer must demon-

strate that discovered misconduct "is not conduct of a sort

that it has tolerated in the past").15 Against it Mohave offers

nothing more than Longtin's testimony, which the ALJ was

entitled to reject as self-serving. See Import Body Shop,

Inc., 262 N.L.R.B. 1188, 1188 (1982) (viewing "with skepti-

cism" rationale for discharge based on post-discharge evi-

dence, since employer "already had manifested its intention to

discharge [employee] for unlawful reasons"). Indeed, Mo-

have does not even attempt to explain why Bauguess escaped

discipline for engaging in the same transaction for which the

company claims it would have fired Michaels. Accordingly,

__________

15 Although Bauguess was technically an employee of Guard

Force rather than Mohave, Mohave exercised ultimate supervision

over all meter readers. See Tr. at 269-70. Longtin specifically

testified that he could demand the discharge of a Guard Force

employee for misconduct. See id. at 365-66.

we have no warrant for rejecting the Board's conclusion that

Michaels should be awarded full reinstatement and backpay.

III

For the foregoing reasons, Mohave's petition for review is

denied, and the Board's cross-petition for enforcement is

granted.

So ordered.