Frazier Industrial Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 11, 2000 Decided June 9, 2000

No. 99-1297

Frazier Industrial Company, Inc.,

Petitioner

v.

National Labor Relations Board,

Respondent

On Petition for Review and Cross-Application

for Enforcement of an Order of the

National Labor Relations Board

Robert Leinwand argued the cause for petitioner. With

him on the briefs were Michael Hoffman and Robert G.

Hulteng.

Anne Marie Lofaso, Attorney, National Labor Relations

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

brief were Leonard R. Page, General Counsel, Linda Sher,

Associate General Counsel, Aileen A. Armstrong, Deputy

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

visory Attorney.

Before: Edwards, Chief Judge, Henderson and Rogers,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Dissenting opinion filed by Circuit Judge Henderson.

Rogers, Circuit Judge: Frazier Industrial Company ap-

peals the National Labor Relations Board's decision that the

company violated s 8(a)(1) and (3) of the National Labor

Relations Act. See 29 U.S.C. s 158(a)(1), (3) (1994). The

company contends that the Board's conclusion that it violated

s 8(a)(1) and (3) by discharging John Ramirez for engaging in

union activity was unsupported by substantial evidence, and

that his reinstatement with backpay was an abuse of discre-

tion and inconsistent with the after-acquired evidence rule.

We deny the petition and remand the case for enforcement of

the Board's order.

I.

Frazier Industrial Company manufactures steel storage

systems for warehouses. The company has manufacturing

facilities at locations throughout the United States, and the

instant case involves its plant in Pocatello, Idaho, which

began operating in March 1996. During the plant's startup

phase, Dennis Haga, the plant manager, hired nine welders

and nine other employees to perform fabrication, mainte-

nance, painting, and other duties.

One of the welders, John Ramirez, applied for the position

at the request of the International Association of Sheet Metal

Workers Association, Local 60 ("the union").1 Ramirez, a

member of the union, was asked to assist in organizing the

company's work force. Ramirez started working for the

company on March 7, 1996. Beginning in April, he solicited

__________

1 Previous to his employment at the Frazier Industrial Compa-

ny, he was an employee of G&L Metal but was discharged for

absenteeism and for attempting to organize workers. When he

applied for employment at the company, Ramirez failed to disclose

this information.

employees to attend organizational meetings and to sign

union authorization cards. According to Ramirez, he spoke

with more than half of the plant's work force about the union,

and spoke with at least one person about unionization daily or

every other day before his discharge. We review his activi-

ties in light of the company's contention that Ramirez was

harassing employees and, thus, his activities were not protect-

ed by the Act, and that even if Ramirez's conduct were

protected, the company would have terminated Ramirez even

in the absence of protected conduct.

In late May 1996, Ramirez approached Mike Jennings,

another welder, and asked him to sign an authorization card

while on break. Jennings did not sign the card but told

Ramirez that he would take the card home and discuss it with

his wife. Ramirez followed up with Jennings several times

during May 1996. Jennings never brought the card back to

Ramirez, nor did he tell Ramirez that he was uninterested in

joining a union. Jennings did speak with Clint Moosman, a

supervisor, and asked him whether he "was aware of what

was going on" in regard to Ramirez's attempts to interest

Jennings in the union. Moosman told Jennings that "Ra-

mirez could solicit ... before work, during breaks, and after

work, but not on company time." At around the same time,

an employee remarked to a group of other employees in the

plant lunchroom during a break that they should start a

union. Moosman overheard the remark, and angrily told the

employees, "Well if I hear of anyone going union ... they'll

be down the road."

Marty Hrabik, another supervisor, received two complaints

from employees about Ramirez's union activities in May and

June of 1996. Hrabik and Moosman met with Haga, the

plant manager, in early June 1996. Haga told them to warn

their employees "that they could do whatever they wanted to

on their own time, but on company time they need not [ ] talk

about the union or bother[ ] anybody about it." Following

that meeting, Moosman spoke with the welders at their work

stations and explained that there had been complaints about

some employees "harassing" others to join a union. Moos-

man warned each welder, including Ramirez, that what they

did on their own time was their business, but that they could

not "harass" employees about the union during "company

time."2 Moosman then delivered the same message to a

group of employees, also including Ramirez, in the lunchroom

during a break. During the meeting, Moosman told the

employees that "he wanted to know about it if some one was

talking to [them] about the union on company time."

In early June 1996, the union sponsored several meetings.

The day after one meeting, Moosman remarked to Robert

Rodriguez, an employee who had attended the meeting, that

he had heard a rumor about a "little bitch session" where

employees talked about "stuff" that they did not like about

the shop. Moosman told Rodriguez that he "was disappoint-

ed" in him. Rodriguez told Moosman that he and others had

discussed whether or not they wanted to continue working at

the shop with Haga, Hrabik, and Moosman being "the way

they were." Following that remark, Moosman took out his

knife, opened it, handed it to Rodriguez handle first and said,

"[W]ell don't cut your own throat." Later that day, Moosman

asked Rodriguez for the names of the employees who were at

the union meeting. When Rodriguez did not disclose the

names other than his own, Moosman told him, "If you contin-

__________

2 The company distributed an employee handbook on its policies

and rules at other locations, but did not give Pocatello employees

the handbook until July 1996, subsequent to the events underlying

Ramirez's discharge. The handbook stated the company's no-

harassment policy as follows: "[h]arassment of an employee ... is

unacceptable and will not be tolerated" and "[m]anagers and super-

visors are responsible for promoting and maintaining a working

environment which is free of such harassment for all employees."

The handbook further stated that "[i]n the event such harassment

does occur, managers and supervisors must take immediate correc-

tive action, including, where appropriate, dismissal of the offender."

Before the handbook was distributed, company supervisors orally

informed the Pocatello employees of the company's policies on an ad

hoc basis, and the plant culture was one in which employees

engaged in diverse personal conversations during working time,

with the knowledge of management.

ue to cut your own throat I'm not going to be able to do

anything for you."

Hrabik discussed the union with some employees as well.

Employee Allen Wilcox had promised Hrabik that he would

come to Hrabik's house one evening to help build a fence, but

Wilcox missed his appointment for personal reasons and to

attend a union meeting. The next day, Hrabik asked Wilcox

how the meeting was. When Wilcox asked if Hrabik referred

to his personal meeting, Hrabik replied, "[N]o you know what

meeting." Hrabik had another discussion about unionizing

when Wilcox was at his house with Rodriguez to work on the

fence as he had promised. While working, Hrabik was asked

what he thought about the union organizing, and Hrabik told

them that the company did not "have any stock here in

Pocatello" and that "Frazier isn't going to allow this, the

union to spread to the other companies, they'll just close this

plant up and they'll move on." Hrabik added that if his job

were threatened he would "start cutting throats," and that if

he were fired, they were "going down" with him. Shortly

afterwards, Hrabik asked Wilcox why certain employees

wanted a union, and upon hearing that perhaps employees

wanted better pay or better benefits, Hrabik said that before

the company "went union they would either hire non-union or

shut the plant down."

Also in June 1996, employees Todd Chandler and James

Frasure complained to Hrabik that Ramirez was "harassing"

them about attending union meetings. Ramirez spoke to

Chandler five or six times over several days about an upcom-

ing union meeting, and Chandler neither expressed an inter-

est in attending a union nor told Ramirez that he was not

interested. Similarly, Frasure was approached several times

by Ramirez, including four or five approaches on company

time on one particular day, each time to urge Frasure to

attend a union meeting. Ramirez's remarks to Frasure were

brief and on each occasion Frasure said that he would think

about it, never telling Ramirez that he was uninterested.

However, when Frasure talked to Hrabik about Ramirez, he

said that Ramirez's persistence about the union meetings was

"really pissing [him] off." Hrabik told Moosman about these

conversations, and both met with Haga, who said that "ha-

rassing" employees on company time "had to stop." Later

that day, Moosman told the employees, including Ramirez,

that "there had been complaints about people being harassed

on company time that needed to stop."

Around the same time, Ramirez followed up on his earlier

discussions with Jennings about unionizing and invited him to

meet with a union organizer. Jennings responded that he

would think about it. Later that day, Ramirez talked to

Jennings, who at the time was working with employee Tom

Neilsen.3 Ramirez testified that this conversation lasted

about twenty minutes, while Jennings stated that they spoke

for about forty-five minutes. Several days later, Ramirez,

after the end of his workday, saw Jennings reporting for

work and spoke with Jennings for about ninety seconds in an

effort to persuade Jennings to meet with a union organizer.

Jennings agreed to make an appointment, and then Ramirez,

noticing that Haga was watching them, ended the conversa-

tion. After Ramirez left, Haga asked Jennings if Ramirez

was bothering him, and Jennings replied that "[Ramirez] was

bothering [him] about the damn union stuff and won't leave

[him] alone." Later that day, Haga asked Moosman to tell

Ramirez to report to Haga's office the next morning.

When Ramirez met with Haga in his office the next day,

Haga asked Ramirez, "[W]hat am I going to do with you,

John?" Haga told him that people were complaining about

him "bothering them all the time" and that it was "affecting

... productivity." Ramirez denied that he was bothering

anyone. When Haga repeated, "[W]hat am I going to do with

you," Ramirez replied, "[W]ell you're the plant manager you

do whatever you have to do." Haga, who testified that

Ramirez had "a really bad attitude about it," offered him the

opportunity to quit, but Ramirez refused and Haga dis-

charged him. Later that morning, Hrabik spoke to Rodri-

__________

3 This meeting took place after Ramirez had already approached

Neilsen on a previous occasion. Ramirez asked him at their initial

meeting for his opinions on unionizing, and Neilsen responded then

that he "wasn't really for the union."

guez about Ramirez's discharge and told him that Rodriguez

should now understand why he should not talk about the

union on company time.

Following his discharge Ramirez applied for unemployment

insurance, and stated on the application that although he was

discharged for organizing on company time, he never did

organize on company time. The Idaho Department of Labor

denied his application.

Based on the foregoing evidence, the Board adopted the

Administrative Law Judge's findings that the company violat-

ed s 8(a)(1) by threatening to discharge employees who en-

gage in union activities, coercively interrogating employees

about their union activities and sympathies,4 threatening em-

ployees that it would close the plant if employees chose union

representation, and maintaining and enforcing a rule prohibit-

ing union talk while permitting other nonwork discussions.

See Frazier Indus. Co., 328 N.L.R.B. No. 89, 3, 14-15 (June

14, 1999). The Board, by a two to one vote, also adopted the

judge's findings that the company violated s 8(a)(1) and (a)(3)

by discharging Ramirez because of his union activity. See id.

at 3, 15. The Board ordered the company to cease and desist

from engaging in these unfair labor practices and ordered the

company to offer Ramirez full reinstatement and backpay for

any lost earnings and benefits. See id.

II.

Section 8(a)(1) and (3) of the Act makes it an unfair labor

practice for an employer "to interfere with, restrain or coerce

employees in the exercise of the rights guaranteed" by the

__________

4 Although the Board unanimously found that the company

unlawfully interrogated employees about their union activities on

various occasions, the finding that Haga's inquiry of Jennings as to

whether Ramirez was bothering him the day before Ramirez was

discharged constituted an unlawful interrogation was made by a two

to one vote. The dissenting member thought that Haga's question-

ing was "lawful in view of the repeated complaints by employees,

including Jennings, of harassment by Ramirez." Frazier, 328

N.L.R.B. No. 89, at 6 n.12.

Act, 29 U.S.C. s 158(a)(1), and "by discrimination in regard to

hire or tenure of employment or any term or condition of

employment to encourage or discourage membership in any

labor organization." Id. s 158(a)(3). To establish a causal

nexus between adverse employment decisions and an employ-

ee's union affiliation, the complaining party must first show

that protected activity "was a 'motivating factor' " in the

adverse employment decision, and then the employer may

show that it would have made the adverse decision even had

the employee not engaged in protected activity. Wright

Line, Inc., 251 N.L.R.B. 1083, 1089 (1980); see also NLRB v.

Transportation Management Corp., 462 U.S. 393, 403 (1983)

(approving of the Wright Line approach). To establish an

employer's discriminatory motive, the Board may "consider[ ]

such factors as the employer's knowledge of the employee's

union activities, the employer's hostility toward the union, and

the timing of the employer's action." Power, Inc. v. NLRB,

40 F.3d 409, 418 (D.C. Cir. 1994). In addition, evidence that

an employer has violated s 8(a)(1) of the Act can support an

inference of anti-union animus. See Parsippany Hotel Man-

agement Co. v. NLRB, 99 F.3d 413, 423-24 (D.C. Cir. 1996).

The court will affirm the findings of the Board unless they

are "unsupported by substantial evidence in the record con-

sidered as a whole," General Elec. Co. v. NLRB, 117 F.3d

627, 630 (D.C. Cir. 1997), or unless the Board "acted arbitrari-

ly or otherwise erred in applying established law to the facts."

Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1358 (D.C.

Cir. 1997) (quotation and citation omitted). Even if the court

might have reached a different conclusion had the court

considered the issue de novo, the court will uphold the

Board's decision if it is supported by substantial evidence in

the record. See Synergy Gas Corp. v. NLRB, 19 F.3d 649,

651 (D.C. Cir. 1994). The court gives even greater deference

to the Board's determination of questions of motive, see Laro

Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir.

1995), and "accept[s] the ALJ's credibility determinations that

are adopted by the Board 'unless they are patently unsup-

portable.' " Schaeff Inc. v. NLRB, 113 F.3d 264, 266 (D.C.

Cir. 1997) (quoting NLRB v. Creative Food Design Ltd., 852

F.2d 1295, 1297 (D.C. Cir. 1988)); see also Capital Cleaning

Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir.

1998).

The company contends that Ramirez "harassed" co-workers

regarding the union during working time, and on the compa-

ny premises, and that such solicitations were not protected by

the Act. The company maintains further that, even if Ra-

mirez's actions constituted protected activities, its termination

of Ramirez's employment was lawful because it would have

discharged him in the absence of protected conduct for his

insubordination and dishonesty. We hold that there is sub-

stantial evidence in the record to support the Board's conclu-

sions that Ramirez's conduct was protected union activity

under the Act, that the company violated the Act by discharg-

ing Ramirez for engaging in such protected union activity,

and that the company's other proffered reasons for termi-

nation of Ramirez's employment--insubordination and dis-

honesty--are insufficient to meet its burden under Wright

Line.

In support of its contention that Ramirez's conduct was not

protected by the Act because he was engaged in repeated

harassment of fellow employees during work time resulting in

frequent interruptions of work, the company relies on NLRB

v. General Indicator Corp., 707 F.2d 279 (7th Cir. 1983),

which held that "an employee who disrupts other employees

during working hours is not engaged in a protected activity

even though he is discussing union business." Id. at 282.

Similarly, Board precedent states that "activity that would

otherwise be protected may lose that protection if the means

by which that activity is conducted are sufficiently abusive or

threatening." Patrick Indus., Inc., 318 N.L.R.B. 245, 248

(1995). Under such precedent, the company contends, the

fact that Ramirez was attempting to organize the company's

work force is immaterial because he had no legitimate pro-

tected interest in repeatedly approaching and harassing his

co-workers while they were trying to work. Although this

interpretation of evidence may be reasonable, the Board's

finding to the contrary was supported by substantial evidence

in the record.

The Board found that Ramirez's activities were protected

because "it is clear that ... all of Ramirez' worktime solicita-

tions were brief and did not involve any obvious disruption in

production." Frazier, 328 N.L.R.B. No. 89, at 2. Adding

that "there is no evidence that employees whom Ramirez

solicited more than once ever even told him that he was

interfering with their work or that further solicitations would

have that effect," id., the Board found that although Ramirez

tenaciously solicited employees to sign cards, attend the

union's meetings, or meet individually with a union organizer,

he did not pursue such matters with employees over their

expressed objections. On the contrary, the Board found that

"his persistence, in the main, resulted in those instances

where he received tepid or inconclusive responses from the

employees with whom he spoke." Id. at 13.5 The Board thus

concluded that Ramirez's conduct, while persistent, did not

rise "to the level of unprotected harassment." Id. at 2.

There is substantial evidence in the record to support the

Board's findings.

Ramirez followed up with Jennings about signing an autho-

rization card only after Jennings stated that he would take

the card home, think about it, and discuss it with his wife.6

Ramirez similarly followed up with employees Chandler and

Frasure only after they had given Ramirez the impression

__________

5 The Board also rejected the company's contention that, al-

though no employees had directly asked Ramirez not to approach

them in the future, its warnings that employees were not to

"harass" coworkers about the union on working time put Ramirez

on notice that future entreaties to the complaining employees about

the union would be considered harassment. See Frazier, 328

N.L.R.B. No. 89, at 13-14. The Board's conclusion was reasonable;

those warnings, themselves unlawful, did not identify for Ramirez

the employees who did not wish to be solicited, nor did they provide

any guidance as to what constituted harassment, other than that

union organizing on company time was unwelcome.

6 The company claims that Jennings repeatedly told Ramirez

that he was not interested, and Jennings testified to that effect;

however, the Administrative Law Judge did not credit this asser-

tion. See id. at 13.

that they were at least feeling ambivalent about unionizing.

By contrast, Ramirez never spoke to Neilsen about the union

again after Neilsen informed Ramirez in their initial conver-

sation he "wasn't really for the union." Neilsen was present

as a bystander to a conversation Ramirez had with Jennings

one evening, and this conversation was the only conversation

that was more than momentary, lasting twenty minutes ac-

cording to Ramirez and forty-five minutes according to Jen-

nings. However, as the Board explained, there is "no evi-

dence that anyone told the [company] about this incident

before Ramirez's discharge." Id. at 2 n.5. Therefore, how

long this particular conversation lasted and what Jennings

told Ramirez in the conversation are immaterial. In addition,

there is no evidence that Ramirez's solicitations were other

than courteous or produced disruptive arguments.7

Taking another tack, the company contends that the

Board's finding that Ramirez's activities were protected was

based on erroneous legal standards, requiring the company to

demonstrate Ramirez's interruptions were lengthy and result-

ed in a loss of production and requiring Ramirez's co-workers

to confront Ramirez directly instead of complaining to super-

visors. This contention mischaracterizes the Board's find-

ings. The Board did not apply a general standard that work

time interruptions must be lengthy and result in a loss of

production in order for them to be harassment. The question

that the Board was addressing was whether Ramirez's activi-

__________

7 The company maintains that Ramirez's solicitations were dis-

ruptive and cites the instance in which employee Clair Monson

started screaming at him when Ramirez approached him. (Presum-

ably, our dissenting colleague's description, "almost to the point of a

physical fight," refers to this incident.) However, the Board has

ruled that mere hostile reactions to protected union solicitation do

not render that conduct unprotected. In Patrick Industries, the

Board stated that "the test for determining whether a given union

card solicitation was protected is not the perhaps idiosyncratic

reaction of the particular employee who happened to be on the

receiving end of that activity," and that "it is for the Board to

decide whether or not the Act's protections apply." Patrick Indus.,

318 N.L.R.B. at 248.

ties rose to the level of harassment, and, in order to make

that determination, the Board considered various factors,

such as how long each interruption lasted, how disruptive it

was, how courteous or abusive Ramirez was in each instance,

and whether he respected co-workers' requests not to be

bothered. The Board noted that Ramirez's conduct was

neither lengthy nor disruptive only because they were, quite

reasonably, considered to be relevant to the Board's determi-

nation that his conduct was protected by the Act, and not

because it determined that only lengthy interruptions rose to

the level of harassment.

Contrary to the company's contention, this approach is

consistent with Patrick Industries and General Indicator. In

Patrick Industries, the Board ruled that an employee's re-

peated solicitations of a coworker to sign an authorization

card were protected under the Act, and explained that in the

absence of evidence that the employee ever "threatened or

abused" the coworker or even "raised his voice," a conclusion

that the activity was unprotected could "significantly limit the

ability and willingness of employees to solicit their fellow

employees' support for, opposition to, a union, activity that is

central to the purposes of the Act." Patrick Indus., 318

N.L.R.B. at 248. Also, unlike the instant case, in General

Indicator, where the Seventh Circuit held that an employer

lawfully discharged an employee who engaged in union activi-

ties on company time, the discharged employee "had a history

of disrupting the work schedule of co-employees, and even

after he had been disciplined for this pattern of disruption

and had received a 'final warning,' he continued to approach

other employees and prevent them from completing their

assigned tasks in a timely manner." General Indicator, 707

F.2d at 283. The court concluded that the discharged em-

ployee's tenure with the company was "a continual pattern of

disruptive and insubordinate behavior and activities as well as

... interfer[ence] with productivity." Id. By contrast, the

Board found that Ramirez's behavior was neither disruptive

nor threatening and that he voluntarily discontinued the

solicitation of any employee who failed to express at least

some interest in the union.

Similarly, the company's contention that the Board "fault-

ed" Ramirez's co-workers "for complaining to their supervi-

sors rather than directly confronting Ramirez" is groundless.

Contrary to our dissenting colleague's criticism, the Board

did not assume that Ramirez's co-workers had a "duty ... to

inform Ramirez he was disturbing their work." Again, the

Board considered various relevant factors in order to deter-

mine whether Ramirez's conduct was protected by the Act.

One of the factors the Board considered relevant was that

Ramirez was persistent only with those who gave "tepid or

inconclusive responses." Frazier, 328 N.L.R.B. No. 89, at 13.

Therefore, when the Board stated that "there is no evidence

that employees whom Ramirez solicited more than once ever

told him that he was interfering with their work or that

further solicitations would have that effect," the Board was

not applying a general requirement that a behavior does not

constitute harassment until there is a direct confrontation.

Instead, the Board was merely emphasizing that Ramirez,

while persistent as a union organizer, did not bother anyone

who expressly indicated that he was not interested or that he

did not want to be bothered. Therefore, the company's claim

that the Board inappropriately required employees to rebuke

Ramirez first before complaining to the management is a

wholly inaccurate account of the Board's opinion.

Given that Ramirez's union activities are protected under

the Act, the remaining question is whether the company's

discharge of Ramirez was lawful. The Board found that

Ramirez's discharge was unlawful because "the chain of

events leading to the discharge was a direct result of the

[company's] enforcement of its unlawful rule prohibiting talk

about the Union during worktime." Frazier, 328 N.L.R.B.

No. 89, at 2. There is substantial evidence in the record to

support this finding. Here, context is everything. The com-

pany promulgated an invalid rule prohibiting employees from

talking about the union during working time. See Industrial

Wire Prods., 317 N.L.R.B. 190, 190 (1995). That rule was

implemented in direct response to rumors of Ramirez's union

organizing efforts, and the employees who subsequently in-

formed the company of Ramirez's work time solicitations

were acting in accordance with the company's directive that

they report union "talk" to management. In addition, the

company's activities in violation of s 8(a)(1), violations the

company does not challenge, included threatening to dis-

charge employees who engaged in union activities, coercively

interrogating employees about their union activities and sym-

pathies, expressing disappointment in employees who attend-

ed union meetings, threatening to close the plant if employees

chose union representation, threatening to retaliate against

employees for their union activities, and remarking to an

employee after Ramirez's discharge that the employee should

now understand why he should not talk about the union on

company time. Such factual findings by the Board constitute

substantial evidence to support its finding that Ramirez's

discharge by the company violated s 8(a)(3) and (1) of the

Act.

Nor, as the company contends, did the Board's conclusion

contradict Patrick Industries and BJ's Wholesale. In Patrick

Industries, the Board found that the company's discipline,

while unlawful under s 8(a)(1), did not independently violate

s 8(a)(3) because "the discipline was not discriminatory and

was not done in order to encourage or discourage member-

ship in any labor organization." Patrick Indus., 318 N.L.R.B.

at 248. As noted, the Board's finding in the instant case was

based on numerous indications of the company's discriminato-

ry prohibition on union talk, its repeated solicitation of com-

plaints regarding union solicitation, and numerous other in-

stances reflecting the company's anti-union animus. The

company's reliance on BJ's Wholesale fares no better. As the

Board explained, in BJ's Wholesale, the employee had previ-

ously been counseled under the employer's anti-harassment

policy for conduct unrelated to the union, and, unlike the

instant case, the employer had not promulgated an unlawful

rule prohibiting all working-time union speech. See BJ's

Wholesale, 318 N.L.R.B. at 684. Moreover, in finding the

discipline in BJ's Wholesale to be lawful, the Board empha-

sized that the employer had not solicited complaints from

employees about union activity. See id. The record here

shows that the company repeatedly solicited complaints about

union "harassment," and that Moosman told the employees

that he "wanted to know about it if some one was talking to

[them] about the union on company time." Moreover, the

purported "complaint" from Jennings that immediately pre-

cipitated Ramirez's discharge was directly solicited by Haga's

inquiry as to whether Ramirez was harassing him. There-

fore, the Board's findings are consistent with BJ's Wholesale

and Patrick Industries.

The Board reasonably rejected the company's Wright Line

defense that Ramirez would have been terminated even in the

absence of the protected activity because of his insubordina-

tion and dishonesty when questioned by Haga. Substantial

evidence supports the Board's finding that Haga decided to

terminate Ramirez for the union activities, and not for insub-

ordination and dishonesty. As the Board emphasized, Haga

initially testified that Ramirez was discharged solely for

"harassing" company employees. In addition, none of the

company's filings with regard to Ramirez's application for

unemployment benefits mentioned any grounds for termi-

nation other than alleged harassment. Therefore, the compa-

ny has failed to provide sufficient evidence to overcome the

Board's finding that it would have terminated Ramirez even

in the absence of the protected activity for his insubordination

and dishonesty. In the end, the company offers no reason for

the court to disturb the Board's finding of unlawful discharge.

III.

The company also challenges the Board's remedy, contend-

ing that the Board abused its discretion by awarding Ramirez

reinstatement. The company takes the position that Ra-

mirez's failure to disclose fully his employment history at the

time he applied for employment as a welder and his false

statements regarding his union activities on his unemploy-

ment benefit application warranted immediate termination

and preclude reinstatement. The company relies on the

after-acquired evidence rule of McKennon v. Nashville Ban-

ner Publishing Company, 513 U.S. 352 (1995), which held

that "neither reinstatement nor front pay is an appropriate

remedy" for an unlawful termination "where there is after-

acquired evidence of wrongdoing that would have led to

termination on legitimate grounds had the employer known

about it." Id. at 361-62. Following McKennon, the Board

has limited reinstatement and backpay based on after-

acquired evidence that an employee who was unlawfully dis-

charged had engaged in misconduct that would have led to

the employee's termination. See, e.g., Marshall Durbin Poul-

try Co., 310 N.L.R.B. 68, 70 (1993), enforced in pertinent

part, 39 F.3d 1312, 1317 (5th Cir. 1994); John Cuneo, Inc.,

298 N.L.R.B. 856, 857 (1990); Axelson, Inc., 285 N.L.R.B.

862, 866 (1987). The difficulty for the company stems from

the fact that it makes a bare assertion.

The McKennon Court explained, "Where an employer

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

must first establish that the wrongdoing was of such severity

that the employee in fact would have been terminated on

those grounds alone if the employer had known of it at the

time of the discharge." McKennon, 513 U.S. at 362-63. The

Court added that "[t]he concern that employers might as a

routine matter undertake extensive discovery into an employ-

ee's background or performance on the job to resist claims is

not an insubstantial one." Id. at 363. Accordingly, the

Board has placed on the employer the burden of showing that

it would have discharged the employee because of the miscon-

duct, not simply that it could have done so. See, e.g.,

Marshall Durbin, 310 N.L.R.B. at 70; John Cuneo, 298

N.L.R.B. at 859. The Board has broad remedial discretion to

devise remedies that effectuate the policies of the Act, see

ABF Freight System, Inc. v. NLRB, 510 U.S. 317, 324 (1994),

and because the company has not produced evidence to

overcome that deference and to show that it would have

terminated Ramirez's employment for his misconduct, we find

that the Board did not abuse its discretion in ordering

reinstatement.

It is undisputed that Ramirez falsified his employment

application by omitting information about his previous em-

ployment with G&L Metal; however, the Board reasonably

concluded that the company failed to show that he would have

been discharged for his failure to disclose the information had

the company learned about it before the discharge. As the

Board noted, the employment application that Ramirez filled

out states merely that false information, omissions, or misrep-

resentations may result in a discharge of the employee. See

Frazier, 328 N.L.R.B. No. 89, at 15. In other words, the

language on the form warns of dismissal only as a potential

option, and the company has provided no evidence that its

practice has been to dismiss employees for similar omissions.

The company's assertion that the company's policy manual,

which specifies that "[f]alsifying or altering Company rec-

ords" is a violation "warranting immediate dismissal of an

employee," is sufficient evidence that it would have dis-

charged Ramirez for his omission fails not only because the

manual was not distributed to him before the termination of

his employment and there is no evidence otherwise to indicate

that he was made aware of this falsification rule, but because

the company offered no evidence that it has routinely dis-

missed employees for similar omissions.

Similarly, the company's reliance on the evidence of Ra-

mirez's false statement on his unemployment benefits applica-

tion is misplaced. The company has not provided sufficient

evidence to show that Ramirez's misrepresentations amount-

ed to "[f]alsifying or altering Company records," given that it

is not obvious why unemployment insurance applications filed

with a state agency would be considered company records for

the purposes of the company policy at issue. Neither has the

company proffered any other evidence to show that Ramirez's

misconduct precludes his reinstatement. While we do not

understand the Board to suggest that the company would

have to demonstrate that other employees had been dis-

charged on this ground, as there will always be a first case, a

bare assertion merely referring to a company policy that

seems remotely related is insufficient. Hence, the Board

reasonably distinguished Vilter Mfg. Corp., 271 N.L.R.B. 1544

(1984), in which the Board found no unfair labor practice for

failure to reinstate a discharged employee where the employ-

er demonstrated that an employee's post-termination dishon-

esty would have resulted in the employee's discharge under

the employer's progressive discipline system. See Frazier,

328 N.L.R.B. No. 89, at 15; Vilter, 271 N.L.R.B. at 1546-47.

Accordingly, we deny the petition and remand the case for

enforcement of the Board's order.

Karen LeCraft Henderson, Circuit Judge, dissenting:

I would grant the petition for review for the reasons

expressed so convincingly by the dissenting member of the

National Labor Relations Board. John Ramirez repeatedly

pestered the same employees while they were trying to

perform their jobs, as many as four times in a single day and

once almost to the point of a physical fight. This was not

protected activity but harassment. His fellow employees

were under no duty, as the majorities of this panel and of the

Board seem to think, to inform Ramirez he was disturbing

their work. That should have been, and surely was, as

obvious to him as it was to them. As the dissenting Board

member noted, Ramirez's discharge did not violate section

8(a)(1) or (3) of the National Labor Relations Act because the

employer "was lawfully responding to multiple complaints

from multiple employees regarding Ramirez' repeated harass-

ment of them during worktime about the Union." Frazier

Indus. Co., 328 N.L.R.B. No. 89, slip op. at 59 (1999) (footnote

omitted). Further, "even assuming that the General Counsel

has established a prima facie showing that Ramirez' protected

conduct was a motivating factor in his discharge, the Respon-

dent has met its burden of showing that the discharge would

have occurred even in the absence of protected activity." Id.

(citing Wright Line, 251 N.L.R.B. 1083 (1980), enf'd., 662 F.2d

899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982)). Ac-

cordingly I dissent.