Detroit Newspaper Agency v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2005 Decided January 20, 2006

No. 04-1366

DETROIT NEWSPAPER AGENCY, D/B/A DETROIT NEWSPAPERS,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with

04-1403

On Petition for Review and

Cross-Application for Enforcement

of an Order of the National Labor Relations Board

Robert M. Vercruysse argued the cause for petitioner. With

him on the briefs were William E. Altman and Gary S. Fealk.

Fred B. Jacob, Attorney, National Labor Relations Board,

argued the cause for respondent. With him on the brief were

John H. Ferguson, Associate General Counsel, Aileen A.

Armstrong, Deputy Associate General Counsel, and William M.

Bernstein, Senior Attorney.

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Before: HENDERSON, Circuit Judge, and EDWARDS* and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

Dissenting opinion filed by Circuit Judge HENDERSON.

EDWARDS, Senior Circuit Judge: Detroit Newspaper

Agency d/b/a Detroit Newspapers (“Company” or “Detroit

News”) petitions this court for review of an order of the

National Labor Relations Board (“Board” or “NLRB”), and the

Board cross-applies for enforcement. On charges filed by the

Detroit Mailers Union No. 2040, International Brotherhood of

Teamsters, AFL-CIO (“Union” or “Local 2040"), a divided

panel of the Board held that Detroit News committed an unfair

labor practice in violation of §§ 8(a)(1) and (3) of the National

Labor Relations Act (“Act” or “NLRA”), 29 U.S.C. § 158(a)(1),

(3) (2000), by discharging Union member and former striker

Thomas Hydorn. Detroit Newspaper Agency, D/B/A Detroit

Newspapers v. Detroit Mailers Union No. 2040, Int’l Bhd. of

Teamsters, AFL-CIO, 342 N.L.R.B. No. 125, 2004 WL 2203014

(Sept. 28, 2004) (“Detroit News”). The Board specifically found

that, despite Hydorn’s blatant act of insubordination, Detroit

News’ decision to terminate his employment was motivated in

part by Hydorn’s protected union activity, and that Detroit News

failed to prove it would have fired him even in the absence of

this activity. Consequently, the Board ordered Detroit News,

among other things, to cease and desist its unfair labor practice

and reinstate and make whole Hydorn for any lost earnings he

suffered as a result of his unlawful discharge. Id. at *7.

In concluding that Detroit News violated the Act, the Board

purported to apply the two-prong test set forth in Wright Line,

*

Senior Circuit Judge Edwards was in regular active service

at the time of oral argument.

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251 N.L.R.B. 1083 (1980). Wright Line outlines the general

framework for assessing whether an employee’s discharge that

turns on employer motivation violates § 8(a)(3) (and by

extension § 8(a)(1)) of the Act. As the Board explained:

[T]he General Counsel must first persuade, by a

preponderance of the evidence, that an employee’s

protected conduct was a motivating factor in the employer’s

decision.

If the General Counsel makes such a showing, the burden

of persuasion shifts “to the employer to demonstrate that

the same action would have taken place even in the absence

of the protected conduct.”

Detroit News, 2004 WL 2203014, at *3 (quoting Wright Line,

251 N.L.R.B. at 1089).

Detroit News argues that the Board lacked the substantial

evidence necessary to find that the General Counsel met its

burden of proof on the first prong of Wright Line. As we read

the Board’s decision, Detroit News certainly seems to be

correct. None of the Board’s three findings that are offered to

show that Hydorn’s protected conduct was a motivating factor

in the employer’s decision to fire him appear to be supported by

substantial evidence.

In the Board’s brief and at oral argument, however, Board

counsel argued that the Board also relied implicitly on a fourth

justification – that Hydorn was treated differently than non-

union adherents who had committed the same offense – in

support of its conclusion that Hydorn’s protected conduct was

a motivating factor in his discharge. This claim is not

articulated in the section of the Board’s decision discussing the

first prong of Wright Line. It is examined, however, in the

Board’s analysis of the second prong of Wright Line. We do not

know what to make of the Board’s decision. In situations where

we cannot discern “the precise basis upon which the Board

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rested in reaching its conclusion[,] . . . . meaningful judicial

review requires us to remand the case to the Board for

clarification of its position on the . . . issue.” Palace Sports &

Entm’t, Inc. v. NLRB, 411 F.3d 212, 224-25 (D.C. Cir. 2005).

We therefore reserve judgment on the merits of the Board’s

order and remand the case for further consideration consistent

with this decision.

I. BACKGROUND

A. Factual Background

The events leading to this case occurred at Detroit News’

“North Plant,” a printing facility located in Sterling Heights,

Michigan, a suburb north of Detroit. One of the North Plant’s

production functions is the placement of advertising

supplements into the newspapers and comics produced by

Detroit News. This process is facilitated by “insert machines,”

which are manned by multiple “material handlers” (or

“mailers”) and one machine “operator.”

At various points around the insert machines, there are

“heads,” which contain the supplements. The advertising inserts

at each head drop into buckets that travel in a circuit around the

machine between the various heads. At the conclusion of the

circuit, the bottom of each bucket opens and drops the section

onto a conveyor. This conveyor then transports the section to a

“stacker,” a machine that readies the sections to be tied together

and placed onto trucks for delivery.

Material handlers work at the heads positioned around the

machine. They are responsible for loading the advertising

inserts into the heads, and may be assigned to more than one

head at a time. The operators, who are stationed at a computer

at one end of the machine, are responsible for directing the work

group and running the computer that helps the machine function

properly.

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A common challenge faced by operators occurs when a

“paper drag” stops the operation. This happens when one of the

buckets opens up to release the insert onto the conveyor line, but

closes before the paper falls completely through. The bucket

then drags the trapped insert around the insert machine circuit.

When this occurs, a sensor shuts down the machine until the

paper drag is cleared by removing the misfed paper and, if

necessary, resetting the machine.

Thomas Hydorn began working for Detroit News in 1978,

when he took a part-time position in the mailroom. Hydorn

worked his way up to full-time status, becoming a material

handler, a position he occupied for 12 to 15 years. For the most

part, Hydorn had an unblemished personnel record, earning only

one disciplinary notice – for absenteeism – while he was a part-

time employee. Prior to the incident that led to his discharge in

August 1999, Hydorn received no other discipline of any kind.

In 1995, Hydorn was one of many Detroit News employees

who participated in a strike when negotiations between the

Company and various unions, including Local 2040, reached an

impasse. Hydorn was neither a Union leader nor an otherwise

prominent member of the striking unit, although he did

participate in picketing the Company. In February 1997, after

the strike proved fruitless, the Union made an unconditional

offer on behalf of strikers to return to work. Hydorn and the

other striking workers were not permitted to return immediately,

because Detroit News had hired replacement workers to take

their jobs during the strike. The striker replacements were

retained at the end of the strike and returning strikers were

placed on a preferential hiring list. See Detroit Typographical

Union No. 18 v. NLRB, 216 F.3d 109, 115 (D.C. Cir. 2000).

Hydorn was eventually rehired to his former position as a

material handler in August 1999, two and a half years after the

strike had ended. Prior to the resumption of his duties, Hydorn

was required to attend an orientation conducted by Company

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Post-Press Director Karen Zemnickas, the North Plant

management official in charge of the work and discipline of the

Local 2040 members. At the orientation, Zemnickas discussed

the material handlers’ duties and distributed supplementary

written materials. She told the returning employees that they

should do the job as they had done it before, although they may

now be called upon to work at more than one station. During

this reorientation training, Zemnickas overlooked one important

change in the material handler job, which required the handlers

– as opposed to the operators, whose responsibility it had been

in the past – to clear any paper drags that occurred. In addition,

the new rule required that the handler nearest the paper drag was

obligated to remove it.

On the evening of August 24, 1999, shortly after Hydorn

returned to work, he was assigned to an insert machine with

fellow material handler John Dutka and operator William

Mihalik. While some of the material facts relating to what

occurred on this evening are in dispute, we will assume, for the

purposes of this analysis only, that the Board’s version of the

events is correct.

Midway through the night shift, at about 1:00 a.m., a paper

drag occurred near the stations at the insert machine where

Hydorn and Dutka were working. Mihalik signaled the two men

by calling out “paper drag” and told them to clear it. In

accordance with Detroit News policy, since Dutka was closer to

the machine, the paper drag was his responsibility. Dutka

therefore left his work station and cleared it. Upon witnessing

Dutka’s action, Hydorn, who was under the impression that

clearing paper drags was the operator’s duty, told Dutka not to

do it. Hydorn then pointed at Mihalik and told Dutka that it was

the operator’s “f__king job” and that was why he got paid the

“big f__king dollars.” Detroit News, 2004 WL 2203014, at *2.

Mihalik responded to this verbal assault by summoning one of

the night shift supervisors, Casey Leach.

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When Leach arrived and was apprised of the situation by

Mihalik, he informed Hydorn that it was, in fact, the material

handlers’ job to clear paper drags. An insolent Hydorn replied

that he would not clear them, even if it meant that he would be

suspended or fired. Leach then brought over another supervisor,

Louis Monroig, who was the acting post-press manager.

Monroig asked Hydorn if he understood that Leach had given

him a direct order, and Hydorn again stated that he would not

remove paper drags, because that was not his job. Monroig then

demanded that Hydorn follow him to his office, at which point

Hydorn requested Union representation.

Shortly thereafter, Monroig and Leach met in the office

with Hydorn and Harold Sorenson, a Union Steward. Sorenson

confirmed to Hydorn that it was, in fact, his responsibility to

clear paper drags. Hydorn held steadfast in his insistence that it

was the operator’s job, however, and told both Leach and

Monroig that he simply would not do it. As a result, Monroig

suspended Hydorn and told him to turn in his identification card.

Hydorn surrendered his card to Sorenson and was escorted out

of the plant.

Later that morning, Zemnickas was informed about the

Hydorn incident while attending a Company golf outing. While

at the outing, Zemnickas met with the North Plant Post-Press

Manager, Mike Martin, and the Company’s Senior Legal

Counsel and Labor Relations Director, John Taylor. Zemnickas

then interviewed Monroig and Leach, and had them submit

written statements. Zemnickas did not speak with Hydorn,

Mihalik, or Dutka.

After receiving all of the relevant information, Zemnickas

again consulted with Taylor, and determined that Hydorn should

be discharged. The Company issued a discharge letter to

Hydorn on August 27, informing him that he was being

terminated due to his “refusal to follow the instructions and the

direct order given by [his] supervisor.” Letter from Mike

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Martin, Post-Press Manager, Detroit Newspapers, to Thomas

Hydorn (Aug. 27, 1999) (“Discharge Letter”), Joint Appendix

(“J.A.”) 60.

The Union responded by filing a formal grievance with the

Company on September 1, 1999. At a grievance meeting held

between the parties on October 8, 1999, Hydorn apologized for

his behavior and stated that he had been guilty of having a “bad

attitude.” Br. for NLRB at 11. Detroit News nevertheless

rejected Hydorn’s appeal on October 21, 1999, reiterating that

Hydorn “refus[ed] to follow the instructions of his supervisor.”

See Letter from John A. Taylor, Detroit Newspapers, to Alex

Young, Detroit Mailers Union No. 2040 (Oct. 21, 1999), J.A.

65.

B. The Board’s Decision

After failing to overturn Hydorn’s discharge through an

internal grievance procedure, the Union filed an unfair labor

practice charge against Detroit News, alleging that Hydorn’s

discharge violated §§ 8(a)(1) and (3) of the Act. An

Administrative Law Judge (“ALJ”) presided over a two-day

hearing on March 14-15, 2000, and found that Hydorn was

discharged unlawfully “because of his union and protected

activities.” Decision (June 21, 2000), slip op. at 15, J.A. 19.

Detroit News appealed the ALJ’s decision to the Board.

More than four years later, a three-member panel of the

Board issued a 2-1 decision upholding the ALJ’s finding that

Hydorn was discharged in violation of the Act. Detroit News,

2004 WL 2203014, at *1. Through the application of the two-

prong Wright Line formula, the Board found that: (1) Hydorn’s

participation in the strike was a motivating factor in his

discharge, and (2) the Company’s assertion that it would have

fired Hydorn regardless of any alleged antiunion animus was

undercut by evidence of its disparate treatment of Hydorn. Id.

at *4.

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The Board’s conclusion under the first prong of Wright Line

explicitly relied on three elements of the Union’s case. First, the

Board asserted that “Hydorn was disciplined for misconduct he

did not commit.” Id. at *5. According to the Board, Detroit

News informed Hydorn that he was being fired because he

“refus[ed] to follow the instructions and the direct order given

by [his] supervisor.” Id. (quoting Discharge Letter, supra, J.A.

60). The Board concluded that this was a “false” reason for the

termination, because Hydorn “never defied a direct order to

remedy a pending paper drag,” just a hypothetical one. See id.

(quotation marks omitted) (emphasis added). Thus, according

to the Board, Hydorn could not have refused to follow a “direct

order.”

The Board also found the “backdrop” against which the

discharge took place to be suggestive of an unlawful Company

motive. Id. at *4. The Board noted that the Union’s strike had

been “prolonged and bitter” and spawned numerous unfair labor

practice charges, and Union members were forced to return to

work without an agreement. Id. The Board contended that the

strikers returned to “altered working conditions,” which among

other things, left them without the benefit of their former

seniority system. Id. In addition, the Board credited comments

allegedly made by Monroig to Union Steward Sorenson that

“the strike had been a mistake, their return was an

‘unconditional surrender,’ the unions were at fault, and that

union employees had ruined everything.” Id.

Finally, the Board found that Detroit News failed both to

“investigate fully the circumstances surrounding Hydorn’s

suspension,” id. at *5, and “consider whether Hydorn’s offense

warranted application of its progressive discipline policy,” id. at

*6. In terms of the Company’s investigation, the Board claimed

that it neglected to follow its “own guidelines” for employee

discipline. Id. at *5. These “guidelines” were not formally

promulgated procedures; rather, they were the themes allegedly

10

discussed by John Taylor, Detroit News’ senior legal counsel, at

a workshop he conducted on disciplinary issues held the

morning prior to the Hydorn incident. In the notes prepared for

the seminar, Taylor outlined that an internal investigation should

be “thorough” and should provide the subject of the

investigation with an “opportunity to respond.” Id. (quoting

John A. Taylor, Labor/Legal Issues Workshop, Detroit

Newspaper Agency (Aug. 24, 1999), J.A. 138 (“Taylor

Workshop”)). The Board found that Detroit News’ investigation

failed to meet either of these requirements, as Zemnickas’s

review of the incident canvassed only management employees,

and never involved a statement from Hydorn. For the Board,

that review was “cursory,” and was further evidence of

antiunion animus. Id. The Board also found that the

Company’s subsequent choice of punishment was impulsive, as

Zemnickas did not take into account that this was Hydorn’s

“first offense for insubordination,” and that he had a good

personnel record throughout his tenure with the Company. Id.

at *6.

Once the Board determined that the General Counsel met its

burden of proving that Hydorn’s protected activity served as a

substantial factor in the Company’s decision to discharge him,

it then moved to Wright Line’s second prong and questioned

whether Detroit News could show that it would have taken the

same action even in the absence of Hydorn’s protected activity.

The Board concluded that the Company’s second-prong defense

fell short, because it found that Detroit News “engaged in

disparate treatment in disciplining Hydorn.” Id. at *7.

Specifically, the Board found the record replete with evidence

that “the [Company] treated Hydorn more harshly than

nonstrikers . . . who engaged in similar conduct.” Id.

In light of these findings, the Board ordered Detroit News

to cease and desist from discharging or otherwise discriminating

against employees in order to discourage union activity. In

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addition, it ordered the Company to offer Hydorn full

reinstatement and to make him whole for any loss of earnings

that he may have suffered due to the Company’s discrimination.

II. ANALYSIS

A. The Board’s Case Under Wright Line’s First Prong

Detroit News argues that the Board’s Wright Line analysis

should not have advanced beyond the first prong, as the Board’s

General Counsel was unable to establish any concrete

connection between Hydorn’s protected activity – his

participation in the strike from 1995-97 – and his eventual

discharge. The Company takes exception to each of the Board’s

findings supporting its justification for the conclusion that

Hydorn’s protected conduct was a motivating factor in his

discharge. Whether taken separately or as a whole, Detroit

News asserts that the record evidence clearly shows that Hydorn

was fired solely for his blatant insubordination.

Our review of the Board’s findings of fact is limited to

whether they are “‘supported by substantial evidence on the

record considered as a whole.’” Palace Sports, 411 F.3d at 220

(quoting 29 U.S.C. § 160(e)-(f) (2000)). But while the “Board’s

findings are entitled to respect[,] . . . they must nonetheless be

set aside when the record . . . clearly precludes the Board’s

decision from being justified by a fair estimate of the worth of

the testimony of witnesses or its informed judgment on matters

within its special competence or both.” Universal Camera

Corp. v. NLRB, 340 U.S. 474, 490 (1951). “Thus, ‘a reviewing

court is not barred from setting aside a Board decision when it

cannot conscientiously find that the evidence supporting that

decision is substantial, when viewed in the light that the record

in its entirety furnishes, including the body of evidence opposed

to the Board’s view.’” Epilepsy Found. of Ne. Ohio v. NLRB,

268 F.3d 1095, 1103 (D.C. Cir. 2001) (quoting Universal

Camera, 340 U.S. at 488).

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As noted above, the Board offered three primary reasons for

holding that the General Counsel met its burden of proving that

Hydorn’s protected activity was a motivating factor in his

discharge. We evaluate each of the Board’s contentions below.

1. Discharge for Misconduct

Hydorn was informed by letter that his discharge was the

result of his “refusal to follow the instructions and the direct

order given by [his] supervisor.” Discharge Letter, supra, J.A.

60. It is undisputed that Hydorn repeatedly told his supervisors

that he would never perform the required work. This defiance

continued even after the supervisors’ position was confirmed by

the Union Steward, whose presence Hydorn requested. Indeed,

Hydorn went so far as to say that the employer would have to

fire him before he would comply. Therefore, the discharge letter

was accurate in stating that Hydorn had refused to follow the

instructions and direct orders of his supervisors.

This notwithstanding, the Board found that “the

Respondent’s stated reason for discharging Hydorn is false.”

Detroit News, 2004 WL 2203014, at *5. Why? Because,

according to the Board, “while Hydorn may have exhibited

insubordinate behavior on August 25, we agree with the [ALJ]

that ‘he never defied a direct order to remedy a pending paper

drag.’” Id. (quoting Decision, slip op. at 11, J.A. 15). At oral

argument, the Board’s counsel attempted to explain the Board’s

theory: “Who knows what would have happened if they had

actually let [Hydorn] . . . . process the papers? He may have

agreed to do it.” Recording of Oral Argument at 19:46.

The Board’s claim is disingenuous. Hydorn precipitated the

incident leading to his discharge by stating, in unequivocal

terms, that he would not perform the specific, clearly delineated

duties associated with his job. An employee like Hydorn can

refuse to follow a direct order to perform specific work that is

pending at the time the order is given, or he can refuse to

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perform that work when it arises in the future. In either case, the

refusal to perform the duties of the job is a flagrant act of

insubordination. In other words, in either instance, an employee

who, like Hydorn, says he will not perform work that is within

the compass of his assigned duties has flatly defied the

instructions of management. The orders given to Hydorn were

not hypothetical and neither were Hydorn’s refusals. Therefore,

we find that Detroit News’ discharge notice to Hydorn was not

“false,” as the Board found, in stating that Hydorn was fired for

his “refusal to follow the instructions and the direct order given

by [his] supervisor.”

2. The “Backdrop” of the Discharge

To support its contention that the acrimonious “backdrop”

of the discharge was evidence of discriminatory motive, the

Board referenced the “prolonged and bitter” strike and the

antiunion sentiments allegedly expressed by a Company

supervisor. Without more, however, these claims are virtually

meaningless. The strike ended over two and a half years prior

to Hydorn’s return, and there is nothing in the record to indicate

that there was reason for the Company to single out Hydorn for

negative treatment. The only evidence offered was that Hydorn

had “picketed” along with many other striking Union members.

It was never alleged, however, that he was a Union leader or that

he had any exceptional run-in with the Company as part of his

Union activity. Nothing indicates that he was singled out for

bad treatment when he returned to work. And there is not one

iota of evidence relied upon by the Board in its first-prong

Wright Line analysis to suggest that the employer engaged in a

pattern or practice of negative treatment aimed at returning

strikers.

The alleged antiunion statements made by supervisor

Monroig also offer little to the Board’s case. First, it is unclear

whether Monroig actually uttered those statements, as the lone

testimony supporting this claim came from Union Steward

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Harold Sorenson, who the ALJ found to be “very lacking in

credibility.” See Decision, slip op. at 8, J.A. 12. And while the

Board notes that the ALJ credited Sorenson’s testimony “where

it was not contradicted by other witnesses,” see Detroit News,

2004 WL 2203014, at *4 n.7, it failed to note that the ALJ did

not rely on Sorenson’s Monroig testimony to support his finding

of antiunion animus. Second, it appears that those alleged

statements were made only to Sorenson. See Trial Tr. at 203

(3/14/00), J.A. 355. Monroig’s alleged passing comments to

Sorenson hardly constructed a viable “backdrop” against which

to assess the Company’s discipline of Hydorn. Finally, Monroig

was not directly involved in the final decision to terminate

Hydorn, so any potential impact he had on that decision was

necessarily circumscribed.

3. Failure to Investigate and Progressive Discipline

The Board’s final rationale supporting its first-prong

decision is that Detroit News both failed to “thoroughly”

investigate the incident leading to Hydorn’s suspension and

discharge, thereby contravening its own “guidelines,” and

neglected to adhere to its “progressive discipline policy.”

Detroit News, 2004 WL 2203014, at *5-6. These arguments are

red herrings. The Board does its best to paint Taylor’s seminar

as installing mandatory guidelines for disciplinary review, but

that implication is specious. The Board has not cited any

agreed-upon termination procedure between the Union and the

Company, and puts forth no cogent reason for why Taylor’s

alleged departure from his written seminar outline is evidence of

antiunion animus. Indeed, Detroit News was not obliged to

“investigate” Hydorn’s case in any particular way, and further,

the Board offers nothing material that the employer would have

uncovered had it investigated the matter differently.

In addition, there is no evidence that Detroit News

promulgated a “progressive discipline” policy that limited the

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action that it could take against Hydorn. We made clear in

Epilepsy Foundation of Northeast Ohio v. NLRB that

[t]he Board does not have authority to regulate all behavior

in the workplace and it cannot function as a ubiquitous

“personnel manager,” supplanting its judgment on how to

respond to unprotected, insubordinate behavior for those of

an employer. It is well recognized that an employer is free

to lawfully run its business as it pleases. This means that an

employer may discharge an employee for a good reason, a

bad reason, or no reason, so long as it is not for an unlawful

reason.

268 F.3d at 1105.

In short, the three reasons relied upon by the Board to

justify its finding that the General Counsel met its burden under

the first prong of Wright Line are not supported by substantial

evidence. Without more, they fail to meet the necessary

threshold to support a conclusion that antiunion animus was a

motivating factor in Hydorn’s discharge.

B. The “Fourth” Rationale Under Wright Line’s First

Prong

In its brief and at oral argument, counsel for the Board,

apparently recognizing that the Board’s decision was fragile in

its analysis of the first prong of Wright Line, argued that the

Board had implicitly relied upon a fourth reason to show that

antiunion animus was a motivating factor in the Company’s

discharge of Hydorn: his disparate treatment in comparison to

nonstrikers who had committed similar or more egregious acts

of insubordination. See Br. of NLRB at 25-29; Recording of

Oral Argument at 20:43. It is true that the Board found that

the General Counsel has produced significant evidence of

disparate treatment. Based on Respondent’s personnel

records, the General Counsel has shown that between

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February, 1997 and November 1999, Respondent

disciplined 37 nonstrikers for insubordination less harshly

than Hydorn. In 20 of those 37 instances, the Respondent

only issued a warning to the offending employee, while in

the remaining cases the employees were disciplined with

suspensions. We agree with the judge that “the evidence in

this case shows that the Respondent had a relatively lax

attitude towards insubordination by non-strikers, even those

who defied multiple direct orders or had been insubordinate

on prior occasions.”

Detroit News, 2004 WL 2203014, at *7 (quoting Decision, slip

op. at 12, J.A. 16). The Board argues in its brief that this finding

clearly supports the Board’s conclusion that antiunion animus

was a motivating factor in Hydorn’s discharge. See Br. for

NLRB at 29.

The problem with this argument is that the Board’s analysis

of the alleged disparate treatment comes under the section of its

decision dealing with the second prong of the Wright Line test,

not in the section addressing whether the General Counsel met

its burden of proving that the employee’s protected conduct was

a motivating factor in the employer’s decision. In other words,

the Board’s sole references to the alleged disparate treatment

appear when the Board discusses whether the employer met its

burden to demonstrate that the same disciplinary action would

have taken place even in the absence of Hydorn’s protected

conduct.

Thus, at least as written, the Board’s decision does not

present substantial evidence to support the conclusion that

Hydorn’s protected conduct was a motivating factor in his

discharge. Rather, it appears that Hydorn was dismissed for

insubordination. In this circumstance, we would normally

reverse the Board’s decision, because the reasons given by the

Board do not support the result reached. And we must accept

the Board’s decision on it own terms, ignoring post-hoc

17

rationalizations by counsel and rejecting the temptation to

supply reasons to support the Board’s decision that the Board

itself has not offered. See SEC v. Chenery Corp., 318 U.S. 80,

89-90 (1943). Two things give us pause, however.

First, at the beginning of its decision, the Board summarizes

the applicable law, as follows:

The elements the Board considers when determining

whether an employer’s conduct was discriminatorily

motivated are generally the alleged discriminatee’s

protected activity, employer knowledge of that activity, and

union animus. . . . Under certain circumstances the Board

will infer animus in the absence of direct evidence. That

finding may be inferred from the record as a whole. The

Board has further stated that evidence of a blatant disparity

is sufficient to support a prima facie case of discrimination.

Detroit News, 2004 WL 2203014, at *4 (internal citations and

quotation marks omitted) (emphasis added). Although the

Board did not explicitly cite any “blatant disparity” as one of the

factors showing that the employer acted pursuant to unlawful

motivation in dismissing Hydorn, it is nonetheless clear that the

Board recognized that disparate treatment in disciplinary actions

might be a factor.

Second, in the latter half of the decision, dealing with the

second prong of Wright Line (and the employer’s burden of

proof), the Board found that “the General Counsel has produced

significant evidence of disparate treatment.” Id. at *7 (emphasis

added). It is unclear what to make of this, and it is certainly

hard to fathom why the Board failed to make this same point in

its analysis of the first prong of Wright Line. Poor

draftsmanship or inadvertence are possible explanations. It is

also possible that the Board made a tactical decision to leave the

discussion of disparate treatment until the second half of the

Wright Line analysis because, of all its arguments, it is the most

18

pertinent to the Company’s affirmative defense. Whatever the

reason, the Board misfired, and its analysis as currently

constituted is not sufficiently clear to allow for meaningful

review.

Because we do not know what to make of the Board’s

decision, we remand the case for clarification and further

consideration. On remand, the Board must first explain whether

the evidence suggesting disparate treatment in discipline is

among the factors that the Board meant to consider in

concluding that the General Counsel met its burden of

demonstrating that antiunion animus was a motivating factor in

the Company’s discharge of Hydorn. In particular, the Board

must explain how this evidence satisfies the burden that the

General Counsel carries. Second, if the Board meant to include

disparate treatment in discipline in analyzing the first prong of

Wright Line, the Board must consider whether it would still

reach the same result in light of this court’s holding that its other

three findings are not supported by substantial evidence. We

express no opinion on the substantive validity of the Board’s

findings on disparate treatment. The Board may amplify the

point as necessary on remand.

We offer no judgment on the correct result in this case. The

Board must make this determination in the first instance on

remand. We do note, however, that the Board may, if

appropriate, change its judgment on reconsideration and dismiss

the unfair labor practice charges.

19

III. CONCLUSION

For the foregoing reasons, the case is hereby remanded to

the Board for further clarification.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

The majority has decided to remand this case to the Board

because it ultimately concludes that it “do[es] not know what

to make of the Board’s decision.” Maj. op. at 18. This, after

six pages meticulously detailing the inadequacies of that

decision. See id. at 12 (“The Board’s claim is

disingenuous.”); id. 14 (“These arguments [of the Board] are

red herrings.”); id. 15 (“In short, the three reasons relied upon

by the Board to justify its finding that the General Counsel

met its burden under the first prong of Wright Line are not

supported by substantial evidence.”); id. 15 (The Board

“fail[s] to meet the necessary threshold to support a

conclusion that antiunion animus was a motivating factor in

Hydorn’s discharge.”); id. 16 (“[T]he Board’s decision does

not present substantial evidence . . . In this circumstance, we

would normally reverse the Board’s decision, because the

reasons given by the Board do not support the result

reached.”). But it earlier correctly characterized the Board’s

order, namely “the Board misfired.” Id. at 17-18. In other

words, the Board’s decision is wrong. When that happens,

our duty is to grant the petition for review pure and simple.

We have no warrant to allow an agency to patch the holes in

an insufficient order, much less to “amplify . . . as necessary

on remand,” id., the “substantive validity” of its critical

finding, id. While in certain limited circumstances we have

remanded to an agency for further action, never have we done

so where, as here, the majority itself categorically denounces

the sufficiency of the order under review. C.f. Lee Lumber &

Bldg. Material Corp. v. NLRB, 117 F.3d 1454, 1460 (D.C.

Cir. l997) (on remand for failure to explain departure from its

standard, Board had choice to vacate order or explain why

order was necessary given facts of case). Because the Board’s

decision is not supported by substantial evidence, as the

majority acknowledges, see maj. op. at 16 (“[T]he Board’s

decision does not present substantial evidence to support the

conclusion that Hydorn’s protected conduct was a motivating

2

factor in his discharge.”), I would grant Detroit News’s

petition for review. Accordingly, I respectfully dissent.

The Board order plainly did not consider evidence of

disparate treatment during the first step of the Wright Line

analysis; “Thus, at least as written, the Board’s decision does

not present substantial evidence to support the conclusion that

Hydorn’s protected conduct was a motivating factor in his

discharge.” Id. (emphasis in original). My colleagues,

however, do not take the Board at its word and instead

uncover ambiguity from two sentences in the Board’s 5,000

word opinion. To them, the Board’s general observation that

“evidence of a ‘blatant disparity is sufficient to support a

prima facie case of discrimination,’ ” coupled with one

sentence in its discussion of Wright Line step two, renders the

Board order “not sufficiently clear to allow for meaningful

review.” Id. at 18. In so concluding, they accept the Board’s

post hoc rationalization for its analytically flawed decision.

No principle is better-settled in administrative law than

that we are to uphold an agency order based only on reasoning

fairly stated by the agency in the order under review. See

SEC v. Chenery Corp., 318 U.S. 80, 88 (1943). “[P]ost hoc

rationalizations by agency counsel will not suffice.” W.

Union Corp. v. FCC, 856 F.2d 315, 318 (D.C. Cir. 1988).

Unlike a district court’s decision, that of an administrative

agency cannot be sustained on a ground the agency did not

consider—the agency’s decision must stand or fall upon its

reasoning. See Ind. Hosp., Inc. v. NLRB, 10 F.3d 151, 155 (3d

Cir. 1993); NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506,

517-18 (7th Cir. 1991).

Here, the Board’s reasoning did not rely on evidence of

disparate treatment. It discussed only three factors in its

Wright Line step one analysis: (1) Hydorn’s termination

occurred against a backdrop of anti-striker animus; (2) the

Company’s stated reason for Hydorn’s discharge was false;

3

and (3) the Company failed to follow its own investigative

and disciplinary procedures. Detroit Newspaper Agency, 342

N.L.R.B. No. 125, slip op. at 4-5 (2004). That its finding of a

prima facie case was not based on evidence of disparate

treatment is further supported by its summary of the prima

facie case, from which, again, any mention of disparate

treatment is conspicuous by its absence. Furthermore, the

General Counsel presented no evidence of disparate treatment

in litigating the prima facie case before the ALJ.1

I fail to see how the majority discerns ambiguity from the

two sentences it cites in light of the Board’s unambiguously

articulated justifications for its Wright Line step one finding,

id., whether the sentences are viewed in isolation or taken

together. The first sentence contains a reference to disparate

treatment in an introductory paragraph listing various

components of the prima facie showing. Id. at 3. In isolation,

it is classic boilerplate; and, when coupled with the second

sentence that appears in the Board’s discussion of disparate

treatment evidence in step two, it still does not support the

conclusion that the Board considered it as part of the prima

facie showing. Detroit News rebutted the General Counsel’s

prima facie case with evidence of six non-striking employees

it also terminated for insubordination. Id. at 5-6. The Board

rejected the Company’s rebuttal, noting that “we are unable to

conclude from the Respondent’s evidence that it evaluated

Hydorn’s misconduct according to the same standard applied

to employees who did not engage in protected activities.” Id.

at 5. Following this sentence, the Board discussed the

General Counsel’s disparate treatment evidence. Id. It

ultimately concluded that Detroit News “had a relatively lax

attitude towards insubordination by non-strikers, even those

who defied multiple direct orders or had been insubordinate

1

In addition, the General Counsel did not allege disparate

treatment in the complaint. See J.A. 47-51.

4

on prior occasions.” Id. The Board did not relate this

evidence to the prima facie case but instead to the step two

analysis, which makes complete sense in relation to the

Company’s rebuttal.

Even assuming the Board’s discussion of disparate

treatment could properly be considered as having been

directed to the prima facie showing stage, that showing would

nonetheless be unsupported by substantial evidence. The

record reveals that, at worst, Detroit News was inconsistent in

disciplining insubordinate employees; more accurately, it

manifests that Hydorn was treated no differently from non-

strikers who engaged in behavior as high-handed as Hydorn’s.

According to the Board, the General Counsel produced

evidence that, between February 1997 and November 1999,

the Company “disciplined 37 non-strikers for insubordination

less harshly than Hydorn.” Id. The difficulty with the

Board’s conclusion is that it assumed all types of

insubordination are alike.2 While in 20 of the 37 instances,

Detroit News simply reprimanded the employee, nearly one-

half involved employees who filed paperwork late and

another two involved employees who would not work

overtime. The Board emphasized the fact that the other 17

employees were suspended—not terminated—but it omitted

to mention that there were strikers who had also been

suspended—not terminated—for insubordination. Id. In fact,

from 1997 to 1999, seven employees in all were terminated

2

The dissenting Board member reminded his colleagues of their

limited ability to evaluate workplace imbroglios after the fact:

“However, it is not our place to second-guess personnel decisions; our

sole responsibility is to determine whether the General Counsel has

established by a preponderance of the evidence that discriminatory

animus was a substantial or motivating factor in the challenged

disciplinary action.” Detroit Newspaper Agency, 342 N.L.R.B. No.

125, slip op. at 7 (Schaumber, Member, dissenting) (2004).

5

for insubordination. Id. Only one was a returning striker and

that was Hydorn.

The Board discounted this evidence, claiming that five of

the six incidents involved termination for more than a single

act of insubordination. Id. But, as the dissenting Board

member convincingly explained, the conduct of two non-

strikers was on par with Hydorn’s. Id. at 11. The discharge

letter sent to non-striker Sylvia Dean referenced only one

incident when she “refused to follow the instructions of …

[her] supervisor[] and perform the work on the machine

assigned to [her].” Id. Detroit News’s concern was the same

with Dean as it was with Hydorn: “it appears from the

foregoing that you are not willing to meet the duties,

responsibilities and proper conduct required of you in your

job.” J.A. 129. The Board distinguished the discharge of

non-striker Usman Daramay because he was terminated for

both refusal to obey an order and “inappropriate behavior.”

Apparently, Daramay’s “inappropriate behavior” was the

“additional” factor that contributed to the Company’s

termination decision. It is undisputed that Hydorn was guilty

of “inappropriate behavior” too. Indeed, even Hydorn

admitted that he had a “bad attitude.” Detroit Newspaper

Agency, 342 N.L.R.B. No. 125, slip op. at 2. Because

Hydorn’s attitude was not separately listed in the discharge

letter, however, the Board found the two cases

distinguishable. Nevertheless, as the record indicates, see J.A.

665-66, Taylor considered Hydorn’s attitude as well as the

written statements of Leach and Monroig in deciding to fire

him.3

3

Taylor testified that he took into account Hydorn’s “attitude,”

which was “[g]o ahead and fire me. Because I am not going to [clear

paper drags] today and I am not going to do it tomorrow.” J.A. 665.

See Detroit Newspaper Agency, 342 N.L.R.B. No. 125, slip op. at 11

(Schaumber, Member, dissenting) (“No one can reasonably dispute

that Hydorn engaged in conduct Respondent deemed ‘inappropriate’

6

The majority’s decision to remand this case to the Board

“for elaboration” skirts decades of case law declaring that we

can uphold an agency decision only upon the articulated

rationale of the agency. I believe that the Board in fact

articulated its rationale and that rationale is not supported by

substantial evidence. Because I would grant the Company’s

petition for review, I respectfully dissent.4

in the course of his refusal to clear paper drags. Nor can one

reasonably claim that Respondent did not consider the entire course of

Hydorn’s conduct in deciding what discipline to impose.”).

4

For the reasons already set forth, I believe the Board’s finding

that Detroit News would not have fired Hydorn in the absence of

protected concerted activity is likewise not supported by substantial

evidence. Accordingly, even assuming the Board’s finding of a prima

facie case is supported by substantial evidence, I would grant the

petition for review. Such a succinct holding would have avoided the

mistake I believe the majority has made.