Tasty Baking Co. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 3, 2000 Decided June 22, 2001

No. 00-1030

Tasty Baking Company,

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

Barry Simon argued the cause and filed the briefs for

petitioner.

Frederick C. Havard, Supervisory Attorney, National La-

bor Relations Board, argued the cause for respondent. With

him on the brief were Leonard R. Page, General Counsel,

Linda Sher, Associate General Counsel, Aileen A. Armstrong,

Deputy Associate General Counsel, and Jeffrey Horowitz,

Attorney. Frederick L. Cornnell, Jr. and Steven B. Gold-

stein, Attorneys, entered appearances.

Before: Ginsburg, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Tasty Baking Company (TBC)

petitions this court for review of a decision and order of the

National Labor Relations Board (NLRB). The Board found

that the company committed unfair labor practices in viola-

tion of sections (8)(a)(1) and (3) of the National Labor Rela-

tions Act (NLRA), 29 U.S.C. s 158(a)(1), (3). TBC alleges

that part of the complaint filed by the NLRB's General

Counsel was time-barred, that the hearing conducted by the

Board's Administrative Law Judge (ALJ) was procedurally

flawed, that the Board's factual conclusions are unsupported,

and that the Board's prescribed remedy is improper. We

reject these challenges and grant the Board's cross-

application for enforcement of its order.

I

TBC operates a plant in Philadelphia, Pennsylvania, where

approximately 700 workers produce baked goods on daytime

and overnight shifts. In 1994, Teamsters Union Local 115

began an organizing drive among TBC employees. The union

lost a representation election in April 1995, but, upon the

union's objection, the Board set aside the results and ordered

a new election in March 1996.

The events forming the basis of the present case began in

the summer of 1995, after the first representation election.

In mid-June, Production Operations Director Thomas Kenney

demoted Edwina Flannery, the wife of well-known union

activist and "oven man" Michael Flannery,1 from the supervi-

sory position she had held for nearly five years. This demo-

tion took place despite management's recent assurances that

__________

1 At TBC, the oven man maintains control of the heat for the

ovens, coordinates the oven heating times with the floor monitor

and the operator of the crumbs depositor, and ensures that the

baked product is carried away on a conveyor belt.

her position was safe and that she was the company's "newest

rising star." Tr. at 185. On August 10, 1995, after Edwina

Flannery's demotion, Superintendent Charles Britsch told her

that the fact that her husband was outside the plant distribut-

ing union literature "was not helping [her] chances of staying

on day work," and that if he continued she "could very

seriously end up on night work." Id. at 200. Michael

Flannery continued leafleting, and a month later the company

transferred his wife to the night shift.

On January 16, 1996, Michael Flannery received a disciplin-

ary warning from his supervisor, alleging that Flannery had

twice failed to remove crumbs from the crumbs depositor.2

Flannery filed a written grievance, protesting that it was not

his responsibility to remove the crumbs. When Flannery met

with Britsch to discuss the grievance on January 18, Britsch

said that the warning stemmed from the company's new "get

tough" policy. Id. at 124-25. Britsch also said that he and

Flannery were "enemies," and that while Flannery might

think that he was doing the right thing for the employees,

Britsch felt that he (Britsch) was "doing the right thing for

Tasty Bake and will do whatever I have to to keep the union

out." Id. at 125.

On January 26, 1996, Operations Director Kenney met with

an employee, William Martin, to discuss Martin's suggestion

that metal detectors be installed at the entrance to the

workplace. Kenney told Martin that the suggestion was

"stupid," and speculated that Michael Flannery was behind it.

Id. at 220. Martin denied this, and then told Kenney that

Michael Flannery should not have received the "crumbs"

warning because it was Martin's, not Flannery's, responsibili-

ty to remove the crumbs from the depositor. Kenney re-

sponded that he did not care whose job it was, and "that he

had told Mike that if Mike f**ked him, he would f**k Mike

back." Id. at 221. Kenney then told Martin that "if you f**k

__________

2 The crumbs depositor, used in the company's production of

crumb cakes, receives crumbs from a chute and deposits them onto

cake batter. Crumbs must be removed from the depositor before

production can be switched from crumb cakes to cupcakes.

me, I'll f**k you back," and concluded: "[N]ow I'm getting

Mike. I told him I was going to do it. Now I'm doing it."

Id. at 221-22.

On January 31, 1996, sanitation employee Robert Nolan,

another vocal union supporter, received a three-day suspen-

sion and was subsequently issued a written warning for

"insubordination" resulting from an incident with Linda Ca-

sey, a substitute floor monitor. According to Nolan, he had

been making a telephone call during his usual break time,

when Casey began "yelling and screaming" at him to get off

the phone. Id. at 278. Nolan told Casey that he was talking

to his wife, and asked to see his regular floor monitor. Casey

refused to let Nolan explain or see his monitor, and instructed

him to get off the phone and return to work, which Nolan did.

Nolan testified that thereafter his regular monitor told him

not to worry about the incident. Nonetheless, Nolan received

a written warning and three-day suspension for insubordina-

tion.

On April 11, 1996, Kenney approached Michael Flannery

during his shift and said: "[I] don't believe you. After what

happened to your wife, you're still pushing the union and

calling OSHA [the Occupational Safety and Health Adminis-

tration]. Are you going to make me fire you?" Id. at 127.

Two months later, on June 6, 1996, Flannery received a

written warning for reporting wrong "oven times" to other

employees. Flannery received the warning notwithstanding

that he had disputed the allegation and been told that he

would merely receive a memo to his file.

Between August 1995 and July 1996, the union filed unfair

labor practice charges with the NLRB concerning the above-

described events. Those charges resulted in separate com-

plaints filed by the Board's General Counsel, which were

eventually consolidated for hearing. The complaints charged

that the company had violated sections 8(a)(1) and (3) of the

NLRA, which make it an unfair labor practice for an employ-

er: "to interfere with, restrain, or coerce employees in the

exercise of" their rights to form, join, or assist labor organiza-

tions, 29 U.S.C. s 158(a)(1); see id. s 157, and "by discrimi-

nation in regard to ... any term or condition of employment

to encourage or discourage membership in any labor organi-

zation," id. s 158(a)(3). After a hearing, the ALJ sustained

the complaints with respect to the charges that are the

subject of the instant petition, and the company filed excep-

tions with the Board.

The NLRB affirmed the ALJ's conclusions with minor

modifications. Tasty Baking Co. and Teamsters Union Local

115, 330 N.L.R.B. No. 80, 2000 WL 127513 (Jan. 31, 2000)

("Tasty Baking Co."). The Board found that TBC violated

section 8(a)(1) by: (1) telling Michael Flannery that the

company had implemented a "get tough policy" in response to

his union activities; (2) threatening William Martin with

retaliation if he engaged in union activities; and (3) threaten-

ing Michael Flannery with discharge because of his union

activities and calls to OSHA. The NLRB also found that

TBC committed unfair labor practices in violation of sections

8(a)(1) and (3) of the Act by: (1) issuing a written warning to

Michael Flannery for the "crumbs" incident; (2) issuing a

three-day suspension and written warning to Robert Nolan

for alleged insubordination in connection with the telephone

incident; and (3) issuing a written warning to Michael Flan-

nery for the "oven times" incident. Finally, the Board found

that the company violated section 8(a)(1) by demoting Edwina

Flannery from her supervisory position in retaliation for her

husband's union activities, and violated sections 8(a)(1) and (3)

by transferring Edwina Flannery to the night shift because

her husband continued working for the union.

The company petitions for review. It contends that the

General Counsel's complaint concerning Edwina Flannery's

demotion is time-barred because it was not "closely related"

to any charge that was timely filed with the NLRB. TBC

also alleges that certain of its procedural rights were violated

during the hearing conducted by the ALJ. The company

further argues that substantial evidence does not support any

of the Board's findings that the company committed unfair

labor practices. Finally, TBC challenges the Board's authori-

ty to order reinstatement of Edwina Flannery to her supervi-

sory position.

II

The company contends that the complaint concerning Ed-

wina Flannery's demotion was time-barred under NLRA

s 10(b), 29 U.S.C. s 160(b), which states that "no complaint

shall issue based upon any unfair labor practice occurring

more than six months prior to the filing of the charge." TBC

notes that the NLRB has construed section 10(b) to permit

prosecution of an alleged violation that was not timely

charged if it is "closely related" to the allegations in a timely

filed charge. See TBC Br. at 7-8 (citing Nickles Bakery of

Indiana, Inc., 296 N.L.R.B. 927, 928 (1989)). TBC contends

that the allegation concerning Edwina Flannery's June 1995

demotion fails the "closely related" test.

The initial charge was timely filed on October 16, 1995, and

stated that the company had unlawfully "demot[ed] an em-

ployee for supporting and associating with the union." J.A.

838. On February 12, 1996, the General Counsel filed a

complaint based upon that charge, specifically alleging that

Edwina Flannery was demoted from her position as "supervi-

sor" because of the union activities of one of her relatives.

J.A. 832. TBC argues, citing Drug Plastics & Glass Co. v.

NLRB, 44 F.3d 1017, 1021, (D.C. Cir. 1995), that the Febru-

ary 1996 complaint was not "closely related" to the October

1995 charge, because the complaint referred to a demoted

"supervisor" while the charge had referred to a demoted

"employee." TBC notes that these words--"supervisor" and

"employee"--have distinct meanings under the NLRA, see 29

U.S.C. s 152(3), and it argues that because different legal

theories and defenses apply to the demotion of supervisors

and employees, the allegations cannot be regarded as "close-

ly related." See TBC Br. at 13-16 (citing Nickles Bakery,

296 N.L.R.B. 927).

Far from failing the "closely related" test, however, we

think the complaint and charge are fairly read--notwithstand-

ing the technical imprecision of the charge--as identifying the

very same conduct. The actual thrust of TBC's argument is

that the timely charge did not give the company "fair notice

of the acts alleged to constitute the unfair labor practice."

Pergament United Sales, Inc. v. NLRB, 920 F.2d 130, 134 (2d

Cir. 2000). We conclude that it did.

As the Board explained, the term "employee," used in its

generic rather than NLRA-specific sense, can certainly refer

to someone employed as a supervisor. Tasty Baking Co., slip

op. at 1.3 Moreover, other allegations in the same timely filed

charging document made clear that it was Edwina Flannery

who was the referenced "employee." That document alleged

that the company had "depriv[ed] an employee of seniority

rights" and "transferr[ed] an employee to the night shift"--

both of which the company had done to Flannery (and, as far

as the record reflects, only to Flannery) soon after it demoted

her from her supervisory position. This additional informa-

tion was more than sufficient to give TBC fair notice of the

charge against it. See NLRB v. Mackay Radio & Telegraph

Co., 304 U.S. 333, 349-50 (1938) (holding that the discrepancy

between a charge alleging discriminatory refusal to reinstate,

and the Board's finding of discriminatory discharge, did not

violate the company's due process rights). Compare Perga-

ment United Sales, Inc., 920 F.2d at 135-36 (granting en-

forcement of an NLRB order where the Board had charged

the employer with violating section 8(a)(3), but ultimately

found it to have violated section 8(a)(4) with respect to the

same employees), with Lotus Suites, Inc. v. NLRB, 32 F.3d

588, 592 (D.C. Cir. 1994) (denying enforcement where the

charge contained only a "boilerplate allegation that the Em-

ployer violated s 8(a)(1) and [was] utterly lacking in factual

specificity").

III

TBC next argues that procedural irregularities in the com-

plaint and hearing before the ALJ require us to set aside the

__________

3 Indeed, by the time the charge was filed in October 1995,

Edwina Flannery had already been demoted and was thus an

"employee" in both the generic and NLRA-specific senses.

NLRB's findings regarding threats Kenney and Britsch made

to employees. TBC argues that those findings should be set

aside because the General Counsel's complaint did not put the

company on notice of the conduct at issue, and because the

ALJ improperly sequestered Kenney and Britsch during the

proceeding, preventing them from hearing the allegations

that union witnesses made against them. TBC claims that

these irregularities violated both due process and NLRB

rules. We disagree. See Pergament United Sales, Inc., 920

F.2d at 134 (holding that "due process is satisfied when a

complaint gives a respondent fair notice ... and when the

conduct implicated in the alleged violation has been fully and

fairly litigated").

The company's principal challenge to the complaint is that

it alleged that Kenney and Britsch threatened employees on

dates different from those proven at the hearing. The com-

plaint alleged that Kenney made a threat "on or about"

January 12, 1996, while the evidence showed that Kenney's

threat to William Martin took place two weeks later, on

January 26. Similarly, the complaint alleged a threat made

by Britsch "on or about" January 24, 1996, while the evidence

concerned statements he made to Michael Flannery six days

earlier, on January 18. These minor variances in "on or

about" dates, however, were insufficient to prejudice the

company's hearing preparation. Indeed, courts have permit-

ted variances of the same and greater magnitude between

dates charged in criminal indictments and those later proven

at trial, notwithstanding that in such cases the defendant's

very liberty is at stake. See, e.g., United States v. Kimberlin,

18 F.3d 1156, 1158-59 (4th Cir. 1994) (finding nonprejudicial a

variance of nearly one month between the date charged in the

indictment and that proven at trial); Robinson v. United

States, 210 F.2d 29, 31 (D.C. Cir. 1954) (holding that "[t]here

is no material variance between March 16 and 'about March

1' "). Moreover, at the hearing itself, TBC had a full opportu-

nity to cross-examine the General Counsel's witnesses about

the circumstances surrounding the threats, and to put Ken-

ney and Britsch on the stand to rebut those witnesses. See

Pergament United Sales, Inc., 920 F.2d at 136.

The company also challenges the manner in which the ALJ

applied the NLRB's sequestration rule, under which an ALJ

may exclude witnesses from the hearing room while others

are testifying. Exempt from the rule are, inter alia, a party's

designated representative and "a person who is shown by a

party to be essential to the presentation of the party's cause."

Greyhound Lines, Inc., 319 N.L.R.B. 554, 554 (1995); see

Fed. R. Evid. 615(3) (same). The purpose of the rule is to

prevent one witness from "shaping his testimony to match

that given by other witnesses at the trial." Queen v. Wash.

Metro. Area Transit Auth., 842 F.2d 476, 481 (D.C. Cir. 1998)

(citations omitted).

TBC selected its Vice President for Human Resources,

William Mahoney, as its designated representative to assist in

its defense, and the ALJ excepted him from sequestration.

The ALJ excluded four other company managers from the

hearing room, including Kenney and Britsch. The company

argues that the exclusion of Kenney and Britsch was improp-

er, because they were "essential" witnesses. The ALJ re-

tains considerable discretion in determining which witnesses

are "essential" within the meaning of the rule, however, and

we find no abuse of that discretion here. Cf. Polythane Sys.

v. Marina Ventures Int'l, 993 F.2d 1201, 1209-10 (5th Cir.

1993) (holding that whether a witness is "essential" under

Fed. R. Evid. 615 is "a matter soundly within the discretion of

the trial court"); Queen, 842 F.2d at 482 (same).

Moreover, we are unable to discern any prejudice suffered

by the company on account of the sequestration. See Brick-

layers Int'l Union of Am. v. NLRB, 475 F.2d 1316, 1323 (D.C.

Cir. 1973) (noting that under 5 U.S.C. s 706, "due account

shall be taken of the rule of prejudicial error"). Under the

NLRB's rule, "counsel for a party may inform counsel's own

witness of the content of testimony ... given by a witness for

the opposing side in order to prepare for rebuttal of such

testimony." Greyhound Lines, Inc., 319 N.L.R.B. at 554. In

light of company counsel's ability thus to prepare Kenney and

Britsch, and of the fact that both men did testify in rebuttal

to the General Counsel's witnesses, such prejudice seems

highly unlikely. See Desert Hosp. v. NLRB, 91 F.3d 187, 190

(D.C. Cir. 1996) ("The burden of showing prejudice from

assertedly erroneous rulings is on the party claiming inju-

ry.").

TBC offers only one example of such purported prejudice.

It contends that the ALJ wrongly interpreted Kenney's un-

certainty about details of his meeting with Martin as evidence

of Kenney's lack of credibility. The true reason for Kenney's

uncertainty, the company argues, is that the complaint al-

leged a meeting date that was off by two weeks, and that the

sequestration order prevented Kenney from hearing Martin's

description of that meeting. But even if this contention were

true, Kenney's uncertain description of the meeting with

Martin was the last and least important of the grounds the

ALJ gave for doubting Kenney's credibility. The ALJ found

Kenney's responses vague with respect to numerous other

incidents; found that although he had no difficulty remember-

ing events when questioned on direct examination by compa-

ny counsel, he had inexplicable failures of memory when

under cross-examination; and found Kenney generally "eva-

sive" in responding to questions from the General Counsel.

Tasty Baking Co., slip op. at 20. Moreover, in concluding

that Kenney had threatened Martin, the ALJ principally

relied not on the vagueness of Kenney's testimony, but on the

fact that his testimony was inconsistent and at points self-

contradictory, while Martin testified "in an honest and truth-

ful manner." Id. at 13. In sum, even were the complaint

misleading and the sequestration order erroneous, the compa-

ny could not fairly blame those factors for the ALJ's finding

that Kenney unlawfully threatened William Martin.

IV

TBC also disputes the Board's findings that the company

committed unfair labor practices on the ground that those

findings are not supported by substantial evidence. Our role

in reviewing such a claim is limited. Pioneer Hotel, Inc., 182

F.3d at 942. We must uphold the findings of the Board as

long as they are "supported by substantial evidence on the

record considered as a whole." 29 U.S.C. s 160(e). In

making that determination, "we ask only whether on this

record it would have been possible for a reasonable jury to

reach the Board's conclusion[,].... and we give substantial

deference to the inferences drawn by the NLRB from the

facts." Halle Enters., Inc. v. NLRB, 247 F.3d 268, 271 (D.C.

Cir. 2001) (citations and internal quotations omitted). More-

over, we "must accept the ALJ's credibility determinations

..., as adopted by the Board, unless they are patently

insupportable." Gold Coast Rest. Corp. v. NLRB, 995 F.2d

257, 265 (D.C. Cir. 1993) (citations and internal quotations

omitted). We apply this standard of review to each of the

findings challenged by the company.

A

We first consider TBC's challenge to the Board's findings

that three threats made by the company's supervisors to

Michael Flannery and William Martin violated section 8(a)(1)

of the Act. That section forbids coercive statements that

threaten retaliation against employees for the exercise of

their rights to organize and to participate in union activities.

See Southwire Co. v. NLRB, 820 F.2d 453, 457 (D.C. Cir.

1987). An employer's statement violates the NLRA if, con-

sidering the totality of the circumstances, the statement has a

reasonable tendency to coerce or to interfere with those

rights. See Avecor, Inc. v. NLRB, 931 F.2d 924, 931 (D.C.

Cir. 1991).

The Board found a section 8(a)(1) violation based upon

Britsch's statements to Michael Flannery on January 18,

when Flannery met with Britsch to discuss his grievance over

the "crumbs" warning. According to Flannery, Britsch told

him that the warning stemmed from the company's new "get

tough" policy, which had been instituted because too many

people were "screwing up." Tr. at 124-25; see Tasty Baking

Co., slip op. at 9. Britsch said that Flannery and he were

"enemies over this," and that while Flannery might think that

he was doing the right thing for the employees, Britsch felt

that he (Britsch) was "doing the right thing for Tasty Bake

and will do whatever I have to to keep the union out." Tr. at

125; see Tasty Baking Co., slip op. at 9. The ALJ recognized

that "if viewed in isolation, Britsch's mention to [Michael]

Flannery of a new 'get tough' policy and about people 'screw-

ing up' is arguably subject to more than one interpretation."

Tasty Baking Co., slip op. at 14. He concluded, however,

that in context, "Flannery could reasonably have construed

Britsch's remarks to mean that the warning issued to him

was part of Britsch's admitted strategy of doing what it took

to keep the Union out, and as a threat that he and other

union supporters faced further reprisals under [the] ... new

'get tough' policy should they persist in their union efforts."

Id.

Although TBC suggests that this conversation may never

have occurred, Flannery's testimony--found credible by the

ALJ--provides substantial evidence that it did. Indeed,

Britsch conceded that the conversation did occur and did not

deny the truth of Flannery's version; Britsch simply testified

that he did not specifically remember what was said. Tr. at

420; see Tasty Baking Co., slip op. at 14. TBC further

contends that if the conversation did occur, it was equally

plausible that the references to people "screwing up" and to

the new "get tough" policy had nothing to do with union

activity. While this may be so, we must uphold the Board's

findings as long as they rest upon reasonable inferences, and

we may not reject them simply because other reasonable

inferences may also be drawn. See Halle Enters., Inc., 247

F.3d at 271. In this case, the Board's inference that Britsch's

statements constituted a threat of anti-union reprisal is a

reasonable one.

The second threat found by the Board occurred on January

26, 1996. On that date, William Martin told Kenney that

Michael Flannery should not have received the "crumbs"

warning, because it was Martin's responsibility as operator of

the crumbs depositor, not Flannery's responsibility as oven

man, to remove the crumbs from the depositor. According to

Martin, Kenney replied that he did not care whose job it was.

Kenney said that he "had told Mike that if Mike f**ked him,

he would f**k Mike back," and that "[n]ow I'm doing it." Tr.

at 221-22; see Tasty Baking Co., slip op. at 13. Kenney also

warned Martin that "if you f**k me, I'll f**k you back." Tr.

at 221; see Tasty Baking Co., slip op. at 13.

Martin's testimony, judged "honest and truthful" by the

ALJ, Tasty Baking Co., slip op. at 13, provides substantial

evidence that the conversation occurred as Martin recounted.

And Kenney's statement, that actual culpability for the

crumbs incident was irrelevant to which employee had been

disciplined, supports the ALJ's finding that Martin "could

reasonably have concluded, particularly in light of [Michael]

Flannery's role as an open and active union adherent, that the

[crumbs] warning ... was linked to [Flannery's] involvement

with [the] Union." Id. That statement also supports the

ALJ's determination that the message to Martin was that

"involvement with the Union could lead to unspecified repri-

sals being taken against him" as well. Id.

The final management threat came on April 11, 1996, when,

according to Michael Flannery's testimony, Kenney told him:

"[I] don't believe you. After what happened to your wife,

you're still pushing the union and calling OSHA. Are you

going to make me fire you?" Tr. at 127. The ALJ credited

Flannery's testimony as "honest and straightforward," and,

with the exception of the reference to OSHA, Kenney did not

controvert it. Tasty Baking Co., slip op. at 13. Accordingly,

we have no doubt that the Board's finding--that Kenney

threatened Michael Flannery in violation of section 8(a)(1)--is

supported by substantial evidence.

B

We next consider TBC's challenge to the Board's determi-

nations that the company violated sections 8(a)(1) and (3) by

taking disciplinary action against employees Michael Flan-

nery and Robert Nolan. It is well settled that an employer

violates the NLRA by taking an adverse employment action,

such as issuing a disciplinary warning, in order to discourage

union activity. See Gold Coast Rest. Corp., 995 F.2d at 264-

65. The central question is the employer's motivation for

taking the adverse action, and to make that determination the

NLRB employs the so-called Wright Line test. See Wright

Line, 251 N.L.R.B. 1083, 1089 (1980), enforced, 662 F.2d 899

(1st Cir. 1981); see also NLRB v. Transp. Mgmt. Corp., 462

U.S. 393, 401-03 (1983) (approving Wright Line test); TIC-

The Indus. Co. Southeast v. NLRB, 126 F.3d 334, 337 (D.C.

Cir. 1997) ("TIC") (citing Wright Line). Under that test, the

General Counsel must first "make a prima facie showing

sufficient to support the inference that protected [i.e., union-

related] conduct was a motivating factor in the ... adverse

action." TIC, 126 F.3d at 337 (citations and internal quota-

tions omitted). In determining whether the employer had a

discriminatory motive, "the NLRB may 'consider[ ] such fac-

tors 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.' " Vincent Indus. Plastics,

Inc. v. NLRB, 209 F.3d 727, 735 (D.C. Cir. 2000) (quoting

Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994)).

Once a prima facie case has been established, the burden

shifts to the company to show that it would have taken the

same action in the absence of the unlawful motive. TIC, 126

F.3d at 337.

The first adverse action at issue is the January 12, 1996

written warning to Michael Flannery for allegedly failing to

empty the crumbs from the crumbs depositor. As the ALJ

concluded, the General Counsel had a strong prima facie case

that the warning was motivated by Flannery's union activi-

ties, given his well-known status as a union activist and the

extensive evidence of anti-union animus provided by Kenney's

and Britsch's threats, as well as by Britsch's statements to

Edwina Flannery. Tasty Baking Co., slip op. at 15. The

company, by contrast, was unable to demonstrate that it

would have issued the warning absent this motivation. The

company conceded that no other employee had "ever been

issued a disciplinary warning for failing to clean out a deposi-

tor." Tasty Baking Co., slip op. at 9; see Tr. at 325. There

was also substantial evidence that it was not Flannery's

responsibility to empty the crumbs, including the testimony of

both Flannery and Martin, as well as documentation showing

that it was the function of the depositor operator, not Flan-

nery (the oven man), to remove the crumbs from the deposi-

tor. Tr. at 169-70, 221; Gen. Counsel Ex. 14 (J.A. 912-13);

see Tasty Baking Co., slip op. at 15. Finally, the coup de

grace was Kenney's statement to Martin that he did not care

whose job it was to remove the crumbs, and that he had

issued the warning merely to "f**k Mike back." As the ALJ

said, this comment "provides near irrefutable evidence that

the warning had nothing to do with crumbs being left in the

depositor." Tasty Baking Co., slip op. at 15-16.

The second adverse action is the February 5, 1996 warning

and suspension of Nolan for alleged insubordination. A

replacement floor monitor, Linda Casey, accused Nolan of

using the telephone when not on break and of failing to go

back to work when asked to do so. The ALJ found a prima

facie case of unlawful discrimination, both because Nolan was

an open and active union adherent whose union sympathies

were well known to TBC, and because there was substantial

evidence of the company's anti-union animus, much of which

has been described above. As the ALJ correctly determined,

whether TBC could rebut that case depended upon whose

account of the phone incident was believed. Id. at 17. Ac-

cording to Nolan: he had permission from his regular moni-

tor to take a break at the time he was making the call; when

Casey saw him, she immediately began screaming at him;

and when he asked to see his regular monitor, Casey told him

to get back to work, which he quickly did. Tr. at 264-82; see

Tasty Baking Co., slip op. at 17. Casey's version was that:

she had caught Nolan making a call when he was not on

break; she directed him to return to work in a normal tone of

voice; and Nolan refused. Tr. at 290-91; see Tasty Baking

Co., slip op. at 17. The ALJ found Nolan to have testified in

an "honest and truthful manner," while characterizing Casey's

demeanor as that of "someone who was willing to slant her

testimony to help her employer's cause." Tasty Baking Co.,

slip op. at 17-18. The ALJ found further evidence that the

insubordination claim was a pretext in the fact that neither

Casey nor higher-level supervisors gave Nolan a chance to

explain before imposing the warning and suspension, as was

required by company policy. Id. at 18. In light of the

deference we owe to an ALJ's credibility determinations, we

affirm the NLRB's finding with respect to this incident. See

Gold Coast Rest. Corp., 995 F.2d at 265; see also Elastic Stop

Nut Div. of Harvard Indus., Inc. v. NLRB, 921 F.2d 1275,

1281 (D.C. Cir. 1990) (holding that a reviewing court "must

uphold Board-approved credibility determinations of an ALJ

unless they are 'hopelessly incredible' or 'self-contradictory' "

(citations omitted)).

The final adverse action we consider in this section is the

company's June 6, 1996 written warning to Michael Flannery

for allegedly giving wrong oven times to other employees.

Flannery testified that his supervisor originally told him he

would receive only a memo to his file, and that when a

performance warning issued instead, the supervisor told him

that "the powers that be" had decided a warning was justified

because production time had been lost. Tr. at 131; see Tasty

Baking Co., slip op. at 10. We agree with the Board's

conclusion that the company's repeated statements and

threats regarding Flannery provide substantial evidence for a

prima facie case of anti-union animus, and we further con-

clude that substantial evidence supports the Board's determi-

nation that the company failed to show it would have disci-

plined Flannery had he not engaged in union activity. See

Tasty Baking Co., slip op. at 16-17. The evidence showed

that Flannery was given the oven times by someone else--

either a supervisor or fellow employee--and that the compa-

ny never inquired as to whether the times that person gave

Flannery were wrong from the outset. Id. at 10-11. This is

particularly significant because the person most likely to have

given Flannery the oven times had furnished wrong times to

the baking department just one month earlier. Tr. at 392;

see Tasty Baking Co., slip op. at 17. Moreover, although the

company claimed it issued Flannery a warning because the

error had resulted in a loss of production, TBC had no

evidence that it actually experienced any such loss. Tasty

Baking Co., slip op. at 17.

C

We now consider TBC's challenge to the Board's conclu-

sions that the company violated the NLRA by demoting

Edwina Flannery from her supervisory position, and by sub-

sequently transferring her to the night shift, in retaliation for

her husband's union activities.

1

The Board concluded that in June 1995, TBC violated

section 8(a)(1) by demoting Edwina Flannery from supervisor

to packer because of anti-union animus toward her husband,

Michael Flannery. As a matter of law, the Board appropri-

ately concluded that section 8(a)(1) prohibits a company from

terminating or demoting a supervisor because of a family

member's union activities. Id. at 19-20. This court has

recognized the general principle that, although supervisors

are not themselves protected by the NLRA, an action taken

against a supervisor "is unlawful when it interferes with the

right of employees to exercise their rights." Parker-Robb

Chevrolet, Inc., 262 N.L.R.B. 402, 404 (1982), aff'd sub nom.

Auto. Salesmen's Union Local 1095 v. NLRB, 711 F.2d 383

(D.C. Cir. 1983); see Pioneer Hotel, Inc., 182 F.3d at 942

(holding that an employer violates section 8(a)(1) when it

discharges a supervisor for refusing to commit an unfair labor

practice). And courts have approved as well the Board's

more specific conclusion that section 8(a)(1) is violated when

an employer takes action against a supervisor in retaliation

for a relative's union activities. See Kenrich Petrochem., Inc.

v. NLRB, 893 F.2d 1468, 1477-78 (3d Cir. 1990) ("Kenrich I"),

vacated on other grounds by 907 F.2d 400, 402 (3d Cir. 1990)

(en banc) ("Kenrich II"); NLRB v. Advertisers Mfg. Co., 823

F.2d 1086, 1088-89 (7th Cir. 1987). As Judge Posner has

explained, to "retaliate against a man by hurting a member of

his family is an ancient method of revenge," and retaliation

aimed at a relative who is a supervisor can have "only one

purpose, and that [is] to intimidate union supporters--consist-

ing mainly of workers protected by the Act ...--by showing

the lengths to which the company would go to punish one of

them." Advertisers Mfg. Co., 823 F.2d at 1088.

To determine whether TBC violated section 8(a)(1) in this

manner, the Board properly applied the Wright Line test.

See Tasty Baking Co., slip op. at 20. Substantial evidence for

the prima facie case included the unlawful threats and warn-

ings issued directly to Michael Flannery--in particular, Ken-

ney's statement to Michael Flannery that Kenney couldn't

believe that "[a]fter what happened to your wife, you're still

pushing the union." Tr. at 127. The Board also reasonably

concluded that the company had failed to rebut this prima

facie case by showing that Edwina Flannery would have been

demoted absent discriminatory motivation. The company

argued that, as part of a reorganization, it had selected

Flannery for demotion because, in Kenney's words, she

"couldn't get [the job] done" and her department was the

"poorest in the bakery." Id. at 457-58; see Tasty Baking

Co., slip op. at 20. The ALJ rejected this explanation for a

host of reasons.4 First, the ALJ did not believe Kenney's

testimony, noting that he was evasive and inconsistent in his

responses and unable to recollect even the year in which

employees allegedly made complaints about Flannery's work.

Tasty Baking Co., slip op. at 20. Second, the ALJ noted that

TBC's written appraisals of Flannery's performance showed

that she had consistently met or exceeded the company's

expectations for her job as supervisor of the Krimpet depart-

ment;5 indeed, she had received a merit increase for her work

in 1994. See Gen. Counsel Ex. 13 (J.A. 905-08); Tasty

Baking Co., slip op. at 20-21. Third, the ALJ pointed out

that although Flannery was not the only supervisor with

responsibility for her department's performance, the company

offered no explanation as to why in that department she alone

was singled out for demotion. Tasty Baking Co., slip op. at

21. Finally, the ALJ credited Flannery's testimony that at

__________

4 Cf. Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 301 (D.C.

Cir. 1997) (holding that although evidence supported the company's

position that the challenged promotions were part of a planned

reorganization, substantial evidence also supported the Board's

conclusion that the timing of the promotions was part of an unlawful

effort to interfere with unionization).

5 A "Krimpet," not to be confused with the English "crumpet," is

a small, sweet, crimped cake, either filled with jelly or topped with

butterscotch frosting.

the end of 1994, a company vice president had assured her

that she was the company's "newest rising star." Tr. at 185;

see Tasty Baking Co., slip op. at 21.

Following the recitation of these reasons for rejecting the

company's Wright Line rebuttal, the ALJ cited two other

factors that give us some pause. First, the ALJ noted that

the company had not produced Edwina Flannery's 1995 per-

formance evaluation. He concluded that such an evaluation

must have existed and must have been favorable (as the 1994

evaluation had been), else the company would have submitted

it into evidence. Tasty Baking Co., slip op. at 21. This

conclusion is questionable, as Flannery's 1995 demotion and

transfer may have rendered the preparation of her 1995

evaluation moot. Second, the ALJ stated that he was uncon-

vinced that a reorganization had actually taken place, because

no documents dated prior to Edwina Flannery's demotion

referred to such a reorganization. Id. at 22. This conclusion

seems weak as well, because reorganizations need not be

preceded by documents and because TBC did produce other

documents, roughly contemporaneous with Flannery's demo-

tion, that used the word "restructure" in connection with her

demotion. TBC Exs. 20-23 (J.A. 1066-69).

Notwithstanding the weakness of these last two elements of

the Board's reasoning, we will not remand an administrative

adjudication where we have no "substantial doubt that the

administrative agency would have reached the result it did

absent reference" to the questionable factors. Barnes v.

Small, 840 F.2d 972, 979 n.6 (D.C. Cir. 1988) (citations

omitted); see Puerto Rico Mar. Shipping Auth. v. Fed. Mar.

Comm'n, 678 F.2d 327, 344 (D.C. Cir. 1982) ("The essential

question on judicial review [is] whether the agency would

have come to the same conclusion had it been aware of its

error."). We have no such doubt here, both because of the

strength of the other record evidence, and because the ALJ

expressly relied on that other evidence to reject TBC's

Wright Line defense before he even considered the two

further factors that we found to be questionable. See Tasty

Baking Co., slip op. at 21-22.

2

More readily disposed of is TBC's challenge to the Board's

conclusion that, soon after demoting Edwina Flannery from

her supervisory position, the company again violated the

NLRA by transferring her to the night shift because of her

husband's continued union activity. By that time, of course,

Edwina Flannery was a statutory "employee," and hence was

herself protected by the NLRA. See Advertisers Mfg. Co.,

823 F.2d at 1088.

The Board's case against TBC could hardly have been

stronger. Edwina Flannery testified that on August 10, 1995,

two months after her demotion, Superintendent Britsch told

her that her husband's continued distribution of union litera-

ture outside the plant "was not helping [her] chances of

staying on day work." Tr. at 200; see Tasty Baking Co., slip

op. at 7. According to Flannery, Britsch said that "upper

management would interpret this as a slap in the face,"

because Michael Flannery was continuing his union activities

notwithstanding that the company was being "so nice" to her

by letting her remain on the day shift. Tr. at 200. If this

continued, Britsch warned, she "could very seriously end up

on night work as a result of this." Id. (emphasis added).

Edwina Flannery responded that her husband was a "grown

man," and that she could not tell him what to do. Id.; see

Tasty Baking Co., slip op. at 22.6 On September 13, 1996,

Michael Flannery again distributed union literature outside

TBC, and one week later the company transferred his wife to

the night shift. Tasty Baking Co., slip op. at 22.

In its defense, TBC explained that when Edwina Flannery

was demoted from her supervisory position, she lost her

seniority pursuant to established company policy. That loss

of seniority, TBC claimed, rendered Flannery eligible only for

the night shift. But the company was unable to produce any

documentation that such a policy, applicable to Flannery's

__________

6 Although Britsch disputed Flannery's description of the conver-

sation, the ALJ declined to credit Britsch's effort to characterize it

as nothing more than helpful advice from a "Dutch uncle." Tasty

Baking Co., slip op. at 22; see Tr. at 419.

situation, existed. Id. at 22-23. And Britsch himself con-

ceded that, although he believed such a policy did exist, TBC

had not consistently applied it to demoted supervisors. Tr. at

423-24; see Tasty Baking Co., slip op. at 22-23. In light of

this evidence, the Board reasonably rejected the company's

Wright Line defense, and concluded that TBC transferred

Edwina Flannery to the night shift in retaliation for her

husband's continued union activity.

V

Finally, TBC alleges that the Board exceeded its remedial

power by ordering the company to reinstate Edwina Flannery

as a supervisor. We disagree. As a general matter, the

Board enjoys "broad discretionary power ... to fashion rem-

edies that effectuate the policies of the Act," and "the Board's

exercise of its discretion is subject to quite limited judicial

review." Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26,

34 (D.C. Cir. 2001); see Kenrich II, 907 F.2d at 406. Al-

though it might be "anomalous to force the company to

reinstate a supervisor who was on the union's side," Advertis-

ers Mfg. Co., 823 F.2d at 1089, there is no evidence in the

record that Edwina Flannery was herself a union supporter.

Indeed, Flannery's only response to Britsch's denouncement

of her husband's activity was that he was "a grown man," and

that she could not tell him what to do. Tr. at 200; see Tasty

Baking Co., slip op. at 22. Hence, in Judge Posner's colorful

turn of phrase, "[t]he company is not being asked to grasp a

viper to its bosom." Advertisers Mfg. Co., 823 F.2d at 1089.

Edwina Flannery "is not being reinstated so that she can help

the union but so that [her husband] and other protected

employees will not be deterred from exercising their rights

... by fear that if they do the company will try to get back at

them in any way it can, including by firing their relatives."

Id. Under these circumstances, reinstatement is an appro-

priate exercise of the Board's remedial authority. Id.7

__________

7 See Kenrich II, 907 F.2d at 411 ("[W]here a company fires an

employee's close relative to punish the employee, that employee is

likely to reasonably believe that the employer will go to any lengths

VI

For the above reasons, we deny TBC's petition for review

and grant the Board's cross-application for enforcement of its

order.

__________

to get rid of the union and that the next step in that scheme may be

her own discharge. Reinstatement in this situation ... serves to

dispel employees' fears and concomitant reluctance to fully exercise

their rights, by demonstrating that the law sets boundaries on

employers' ability to engage in this sort of conduct with impunity.").