Bally's Park Place, Inc. v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 12, 2011 Decided August 5, 2011

No. 10-1309

BALLY’S PARK PLACE, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE

AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA,

UAW,

INTERVENOR

Consolidated with 10-1356

On Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board

Judith Sadler argued the cause for petitioner. With her on the

briefs was Charles E. Sykes.

Zachary R. Henige, Attorney, National Labor Relations

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

were John H. Ferguson, Associate General Counsel, Linda

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Dreeben, Deputy Associate General Counsel, and Robert J.

Englehart, Supervisory Attorney.

Cassie Ehrenberg and Blair Katherine Simmons were on the

brief for intervenor.

Before: SENTELLE, Chief Judge, and GINSBURG and

GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Bally’s Park Place, Inc. petitions

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 violation of sections

(8)(a)(1) and (3) of the National Labor Relations Act (NLRA),

29 U.S.C. §§ 158(a)(1), (3), when it discharged employee Jose

Justiniano because of his support for the United Auto Workers.

For the reasons set forth below, we deny Bally’s’ petition and

grant the Board’s cross-application for enforcement of its order.

I

Bally’s operates a casino in Atlantic City, New Jersey. The

company hired Justiniano as a table dealer in 2000, and through

2006 it repeatedly praised him as a good employee. See Dealer

Evaluation Forms (J.A. 367-69). In November of that year, the

United Auto Workers (UAW) began a campaign to organize

casino dealers in the Atlantic City area, including those working

at Bally’s. Justiniano attended numerous meetings held by the

union, became a supporter, and signed an authorization card. He

spoke to other Bally’s employees on a daily basis about the need

for a union -- in the employees’ lounge, in the cafeteria, and as

they were coming to and going from work. He also appeared in

3

a promotional video that the union prepared and mailed to

casino workers in and around Atlantic City.1

In January 2007, at a time when no customers were present

at his table, Justiniano spoke to another employee about the

union’s organizing efforts. It is undisputed that Bally’s allowed

dealers to have social conversations in such circumstances.

Nonetheless, Justiniano’s supervisor told the two that they could

not talk about the union while on the casino floor.

On March 19, 2007, Justiniano got into a dispute with a

manager over break time. When the supervisor threatened to

discipline him, Justiniano responded that such threats were the

reason the employees needed a union. The manager then began

yelling at him, saying that he was not allowed to talk about

“union” on the casino floor and that he could be “fired for

talking about unions.” Bally’s Park Place, Inc., 355 N.L.R.B.

No. 218, at 7, 2010 WL 3835565 (Sept. 30, 2010) (ALJ Op.). A

short while later, Justiniano was instructed to report to another

supervisor, who told him that he was “not allowed to talk about

the Union on the casino floor whatsoever.” Id. And on March

22, Justiniano was escorted to speak to the shift manager, who

asked him about the previous incident. The shift manager told

Justiniano that he should not talk about the union on the casino

floor and issued him a written warning for acting “in an

unprofessional manner.” Id.

In late March or early April, Justiniano was talking with

other employees in the employee cafeteria when a Bally’s floor

person told them that she and other supervisors had just had a

meeting with “higher up management.” Id. She said they were

1

The facts set forth in Part I of this opinion are taken from the

decisions of the Board and the Administrative Law Judge, and are not

disputed on this appeal.

4

asked “the best way we can satisfy dealers” so they would not

join the union. Id. Justiniano told her there was nothing to do

because the “damage is already done.” Id.

On March 31, Justiniano was scheduled to work at the

casino from 12:00 noon to 8:00 p.m. The night before his shift,

the mother of his 13-year-old daughter called and asked him to

take care of the girl beginning at 12:30 p.m. the next day.

Justiniano’s daughter suffered from severe asthma that required

treatment every four hours. He had previously taken leave to

care for her, without incident, pursuant to the Family and

Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq.

Justiniano called Bally’s at 6:00 a.m. on the morning of March

31 and left a message that he would be taking FMLA leave that

day; he called back at 9:00 a.m. to confirm that Bally’s had

received the message.

Later that morning, the UAW held a rally outside the Trump

Plaza casino as part of its effort to organize Atlantic City casino

dealers. The rally was scheduled to last from 10:30 a.m. until

about 12:15 p.m. Justiniano attended the rally and waved a

“Union Yes” sign. On his way to work, one of Bally’s’

managers saw Justiniano holding the sign. Upon arriving at the

casino, the manager informed Bally’s’ vice president of table

games, Michael May, that he had just seen Justiniano at the

rally. May responded that Justiniano had requested FMLA leave

for the day.

When Justiniano returned to work, he signed a form

requesting paid family leave for his entire shift on March 31.

On April 9, May took Justiniano to meet with Bally’s’ director

of operations, Richard Tartaglio. Tartaglio informed Justiniano

that he had been seen at the UAW rally on the morning of

March 31, and he asked Justiniano when he left the rally.

Justiniano acknowledged that he was at the rally until it ended

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at about 12:20 p.m.,2 and said that he had then gone home to

care for his daughter. Based on the information Justiniano

provided, Tartaglio and May concluded that Justiniano had been

at the rally for 20 minutes after the start of his scheduled shift

and that he had therefore spent 20 minutes of FMLA leave time

attending the rally. On April 12, Bally’s terminated Justiniano

for “violation of Work Rule Number 3 in the employee

handbook stating that employees will be honest and forthcoming

in all communication.” 355 N.L.R.B. No. 218, at 2 (Board Op.).

Following Justiniano’s termination, the UAW filed unfair

labor practice charges against Bally’s. Based on those charges,

the NLRB’s General Counsel issued a complaint alleging that

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

which (inter alia) make it an unfair labor practice for an

employer “to interfere with, restrain, or coerce employees in the

exercise of” their rights to form, join, or assist labor

organizations, 29 U.S.C. § 158(a)(1), and “by discrimination in

regard to . . . tenure of employment . . . to encourage or

discourage membership in any labor organization,” id. §

158(a)(3). The complaint alleged that Bally’s violated section

8(a)(1) by instructing Justiniano that he could not talk about the

union on the casino floor, and by soliciting employees’

grievances and promising them improved conditions if they

refrained from supporting the union. The complaint also alleged

that Bally’s violated sections 8(a)(1) and (3) by terminating

Justiniano for engaging in union activity.

The Administrative Law Judge (ALJ) found that Bally’s

violated section 8(a)(1) by telling Justiniano -- once in January

2

Justiniano denied that he had said this, but the Administrative

Law Judge accepted the testimony of Tartaglio and May on this point,

see 355 N.L.R.B. No. 218, at 10 (ALJ Op.), and the Board accepted

the judge’s credibility determination, id. at 1 n.1 (Board Op.).

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and three times in March, 2007 -- that he could not discuss

union issues on the casino floor even though employees were

permitted to discuss other nonwork-related matters there. 355

N.L.R.B. No. 218, at 7-8 (ALJ Op.) (citing, e.g., ITT Indus., 331

N.L.R.B. 4 (2000)). The judge also found that the floor person’s

inquiry as to how management could “satisfy dealers” so they

would not join the union constituted an implicit promise to

remedy dealers’ grievances if they did not join. This too, the

ALJ held, violated section 8(a)(1). Id. at 8 (citing Traction

Wholesale Ctr. Co., 328 N.L.R.B. 1058 (1999)).

But the ALJ dismissed the General Counsel’s allegation that

Bally’s violated sections 8(a)(1) and (3) by discharging

Justiniano. Id. at 9-10. Applying the familiar Wright Line test,

the judge first found that the General Counsel had established a

prima facie case that Bally’s discharged Justiniano because of

his union activity. Id. at 9 (citing Wright Line, 251 N.L.R.B.

1083 (1980)). The judge noted that it was undisputed that

Bally’s was aware of Justiniano’s support for the union, that

Justiniano was discharged shortly after he was seen attending a

union rally on March 31, and that the “timing of an employer’s

action can be persuasive evidence of its motivation.” Id. (citing,

e.g., Masland Indus., 311 N.L.R.B. 184, 197 (1993)). The judge

also determined that the section 8(a)(1) violations he had found

constituted further “evidence of animus on respondent’s part.”

Id.

Nonetheless, the ALJ concluded that Bally’s had satisfied

its rebuttal burden, under Wright Line, to show that it would

have discharged Justiniano in the absence of his union activity.

The judge found that Bally’s had a “zero-tolerance policy” with

respect to employees who abused FMLA leave by using it for

something other than that for which they had requested the

leave. And he concluded that Bally’s discharged Justiniano for

“abus[ing] the FMLA leave he had requested to care for his

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daughter by using at least 20 minutes of such leave to attend the

UAW rally on March 31.” Id. at 10.

The UAW and the General Counsel appealed the ALJ’s

decision to the Board. Bally’s did not except to the ALJ’s

findings that it violated section 8(a)(1) by telling Justiniano not

to talk about the union and by soliciting grievances and

promising to remedy them in order to dissuade employees from

supporting the union. The Board therefore adopted those

findings. The Board disagreed, however, with the ALJ’s

determination that Bally’s did not violate sections 8(a)(1) and

(3) when it discharged Justiniano. To the contrary, the Board

determined that Bally’s failed to meet its Wright Line burden of

showing that it would have discharged Justiniano absent his

protected conduct. 355 N.L.R.B. No. 218, at 3 (Board Op.).

Bally’s now petitions for review of that determination.3

II

This court “accords a very high degree of deference to

administrative adjudications by the NLRB.” United

Steelworkers of Am. v. NLRB, 983 F.2d 240, 244 (D.C. Cir.

1993). When the Board concludes that a violation of the NLRA

has occurred, we must uphold that finding unless it “has no

rational basis” or is “unsupported by substantial evidence.”

United Mine Workers of Am., District 31 v. NLRB, 879 F.2d 939,

942 (D.C. Cir. 1989) (internal citations omitted). “It is not

necessary that we agree that the Board reached the best outcome

3

Bally’s does not contest the Board’s determination that it

committed the section 8(a)(1) violations found by the ALJ, and the

Board is therefore entitled to summary enforcement as to that part of

its order. See Flying Food Group, Inc. v. NLRB, 471 F.3d 178, 181

(D.C. Cir. 2006).

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in order to sustain its decisions. The Board’s findings of fact are

‘conclusive’ when supported by substantial evidence on the

record considered as a whole.” United Steelworkers, 983 F.2d

at 244 (citing 29 U.S.C. § 160(e)). Indeed, “the Board is to be

reversed only when the record is ‘so compelling that no

reasonable factfinder could fail to find’ to the contrary.” Id.

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992)).4

With the blessing of the Supreme Court (and this court),

the Board employs the Wright Line test when reviewing a claim

that an employer discharged (or took other disciplinary action

against) an employee for protected conduct. See Wright Line,

251 N.L.R.B. at 1089; see also NLRB v. Transp. Mgmt. Corp.,

462 U.S. 393, 401-03 (1983) (approving the Wright Line test).

“Under that test, the General Counsel must first ‘make a prima

facie showing sufficient to support the inference that protected

. . . conduct was a motivating factor in the [discharge].’” Tasty

Baking Co. v. NLRB, 254 F.3d 114, 125 (2001) (quoting

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

Cir. 1997)). “Once a prima facie case has been established, the

4

We also note that, “[w]here the Board has disagreed with the

ALJ, as occurred here, the standard of review with respect to the

substantiality of the evidence does not change.” Local 702, Int’l Bhd.

of Elec. Workers v. NLRB, 215 F.3d 11, 15 (D.C. Cir. 2000) (internal

quotation marks omitted); see Universal Camera Corp. v. NLRB, 340

U.S. 474, 496 (1951) (holding that “the ‘substantial evidence’ standard

is not modified in any way when the Board and its examiner

disagree”). Although “the Board, when it disagrees with the ALJ,

must make clear the basis of its disagreement,” in the end it is the

Board that is “entrusted by Congress with the responsibility for

making findings under the statute.” Local 702, 215 F.3d at 15

(internal quotation marks omitted). “It is not precluded from reaching

a result contrary to that of the [ALJ] when there is substantial evidence

in support of each result, and is free to substitute its judgment for the

[ALJ]’s.” Id. (internal quotation marks omitted).

9

burden [of persuasion] shifts to the company to show that it

would have taken the same action in the absence of the unlawful

motive.” Id. at 126; see Shamrock Foods Co. v. NLRB, 346 F.3d

1130, 1135 (D.C. Cir. 2003).

Bally’s does not challenge the Board’s conclusion that the

General Counsel established a prima facie case of discriminatory

motive. And for good reason. As Bally’s well knew, the union

was attempting to organize its employees and Justiniano was an

outspoken union supporter. Its managers had unlawfully

instructed him on three recent occasions not to discuss the union

with other employees on the casino floor. Indeed, one manager

threatened that he could be “fired for talking about unions,” and

he was given a written warning. 355 N.L.R.B. No. 218, at 1

(Board Op.). A supervisor had also unlawfully solicited his

grievances with the implied promise to remedy them if he

refrained from supporting the union. Justiniano’s discharge

came less than three weeks after the firing threat, even closer in

time to the unlawful solicitation, and within days of a manager

observing him at a pro-union rally. As the Board rightly found,

this “evidence of a discriminatory motive is strong.” Id. at 3.

See, e.g., Tasty Baking Co., 254 F.3d at 125-26 (“In determining

whether the employer had a discriminatory motive, the NLRB

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.’” (quoting

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

Where, as here, the General Counsel makes a strong

showing of discriminatory motivation, the employer’s rebuttal

burden is substantial. See Eddyleon Chocolate Co., 301

N.L.R.B. 887, 890 (1991); see also Van Vlerah Mech., Inc., 320

N.L.R.B. 739, 746 (1996). Bally’s argues that it met that burden

by demonstrating that it maintained a “zero-tolerance” policy

with respect to the misuse of family leave time. As the Board

10

noted, however, Bally’s had no written zero-tolerance policy,

and there is no evidence that it ever announced such a policy to

its employees. 355 N.L.R.B. No. 218, at 3 (Board Op.).

Bally’s contends that it was error for the Board to insist on

a formal written or oral policy, arguing that the Board’s

“imposition of a requirement that Bally’s policy affirmatively

state that leave can only be used for reasons listed in the

[FMLA] statute in order to discharge an employee . . . is

unreasonable and contrary to the statutory provisions of the

FMLA.” Pet. Br. 24. But Bally’s badly misreads the NLRB’s

decision. The Board did not state that a company must have a

written (or oral) policy in order to discharge an employee for a

single leave violation, only that the absence of a writing

weakened its claim to have such a policy. See, e.g., Ross Stores

Inc. v. NLRB, 235 F.3d 669, 675 (D.C. Cir. 2001) (stating that

the Board’s finding, that the employer “had no rule requiring

that time off be scheduled in advance,” was “supported in the

record by the absence of any such rule from [the employer’s]

written time-off policies”).

Moreover, Bally’s’ problem is not just that it lacked a

written rule that supported its claim of zero tolerance for

misstatements regarding leave. Rather, the written policy that

Bally’s did have -- and upon which it relied as the justification

for Justiniano’s discharge -- actually contradicted that claim.

Although Bally’s had no work rule specifically relating to leave

time, it did have a work rule (Work Rule 3) that said,

“Employees will be honest and forthcoming in all

communication, verbal and written.” Bally’s Atlantic City

Employee Handbook, Rules of the Road ¶ 3 (J.A. 370). Bally’s

maintained before the NLRB, and repeats on appeal, that it

“discharged Justiniano for violating Bally’s Work Rule 3.” Pet.

Br. 26; see 355 N.L.R.B. No. 218, at 2 (Board Op.); id. at 8

(ALJ Op.).

11

But Bally’s’ “Rules of the Road” did not establish a zero-

tolerance policy pursuant to which an employee would be fired

for even the most minor violation of a work rule. To the

contrary, the Rules stated:

Although . . . violation[] [of the work rules] noted

below may result in immediate Separation of

Employment . . . upon first offense, less severe

offenses are viewed cumulatively and will normally be

handled on a four-step basis of progressive discipline:

- First Step -- Documented Coaching

- Second Step -- Written Warning

-Third Step -- Final Warning

- Fourth Step -- Separation of Employment.

Rules of the Road, Conduct Standards, at 2.16 (J.A. 370). Work

Rule 3 was one of the work rules noted. But so also were many

others, including rules prohibiting employees from: harassing

guests or coworkers on the basis of sex, race, or religion;

participating in theft, misappropriation, misuse, or willful

destruction of co-workers’ or company property; reporting to

work under the influence of drugs or alcohol; selling drugs; and

coercing, threatening, colluding with, or using physical force

toward co-workers, vendors, or others. See Rules of the Road

¶¶ 1-35 (J.A. 370-72). It is hardly unreasonable to conclude

that, under a progressive discipline policy that applies to these

kinds of violations and pursuant to which discharge is

“normally” reserved for the more severe offenses, the employer

would not fire an employee simply for improperly taking (and

misrepresenting) 20 minutes of leave time.5 Indeed, as the

5

See Cadbury Beverages, Inc. v. NLRB, 160 F.3d 24, 31 (D.C.

Cir. 1998) (stating that the employer must “prove . . . that despite any

12

Board points out, testimony at the ALJ hearing revealed that in

2007 Bally’s suspended for one day, but did not fire, two

employees who violated Work Rule 3 (albeit outside of the leave

context). Hr’g Tr. at 276-78 (J.A. 290-92). Under these

circumstances, it is a reasonable inference that Bally’s’ reliance

on Work Rule 3 was a pretext for discriminatory motive.6

As the Board notes, Bally’s’ claim to have a zero-tolerance

policy ultimately rests entirely on its anecdotal evidence

regarding nine employees whom it says it discharged for misuse

of family or medical leave. As the Board found, however, those

nine cases are distinguishable from Justiniano’s situation. In the

great majority, “the entirety of the requested leave was used for

an improper purpose.” 355 N.L.R.B. No. 218, at 3. One

employee, for example, sought leave purportedly to care for a

serious health condition, but in fact used it to work at a

competing casino and avoid being docked for tardiness at

Bally’s. Another sought medical leave for a health problem, but

used the leave to perform construction work. Two employees

requested intermittent family leave, but were fired when Bally’s

discovered they were using the time to operate a canoe rental

business. And yet another sought a three-month medical leave,

claiming that he could not work because of severe osteoarthritis,

but instead was found operating a massage parlor.

anti-union animus, [it] would have fired [the employee], not that it

could have done so”).

6

See Cadbury Beverages, 160 F.3d at 31-32 (holding that it was

“not incumbent on the general counsel to prove, nor on the Board to

find, that the company’s asserted nondiscriminatory reason of

insubordination was pretextual[,] . . . although such a showing would

have served as a conclusive rejection of [the company’s] affirmative

defense”).

13

As the Board reasonably concluded, “at most, this evidence

establishes that the Respondent had a practice of terminating

employees who fraudulently requested or extended FMLA

leave, i.e., telling the Respondent that they required leave to

fulfill family responsibilities or out of medical necessity and

then using the leave for a completely different purpose.” 355

N.L.R.B. No. 218, at 4. By contrast, “Justiniano did not

intentionally and fraudulently request FMLA leave for a purpose

not covered by the FMLA.” Id.7

Bally’s offers only two examples of employees who, like

Justiniano, used some but not all of their FMLA leave time for

its intended purpose. One requested leave to care for her ailing

father, but then failed to return to work for a month after her

7

Bally’s points out that, after discharging Justiniano, it learned

that he had not only failed to use his FMLA leave to care for his

daughter for 20 minutes at the beginning of his shift, but that he had

also failed to use it for that purpose after 5:30 p.m., when his daughter

returned to her mother’s home. As the Board correctly noted,

however, because Bally’s did not know this when it terminated

Justiniano, it is not relevant to the company’s motive for discharging

him. 355 N.L.R.B. No. 218, at 2 n.6; see Cadbury Beverages, 160

F.3d at 32 n.7 (holding that “the relevant belief is the belief that the

company had at the time it fired [the employee]; that [the company]

can show a reasonable basis for having fired [him] now is . . .

unavailing if, at the time, [the company] was motivated only by

antiunion animus”). Although late-discovered misconduct is relevant

to whether the Board can order reinstatement or front pay, see Frazier

Indus. Co., Inc. v. NLRB, 213 F.3d 750, 760 (D.C. Cir. 2000), we

cannot consider such a claim because Bally’s did not challenge the

Board’s remedy on that ground below, see 29 U.S.C. § 160(e); see

also W & M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341, 1345 (D.C.

Cir. 2008) (“If aggrieved by the Board’s remedy, W & M should have

filed a petition for reconsideration pursuant to the Board’s rules and

regulations.”).

14

father died. The other requested leave to attend to his wife who,

he claimed, required constant care. After an investigation,

however, Bally’s discovered that he was operating a bed-and-

breakfast with his wife. These employees are also reasonably

distinguishable from Justiniano, who misused only a tiny

fraction of the time they did. But even if they were not

distinguishable, two examples -- without any contemporary

statement of their reasoning -- do not a policy make. They

certainly do not establish a policy that “no reasonable factfinder

could fail to find.” United Steelworkers of Am., 983 F.2d at 244.

Finally, Bally’s maintains that the NLRB misconstrued the

testimony of its director of operations, Richard Tartaglio. At the

ALJ hearing, Tartaglio testified: “If [Justiniano] would have

said [he left the rally] any time prior to 12:00, then we wouldn’t

be here today.” Hr’g Tr. at 231 (J.A. 247). Because “Tartaglio

knew that Justiniano did not need to care for his daughter until

30 minutes later,” the Board inferred that Tartaglio discharged

Justiniano “for a reason other than that he spent 20 minutes of

his FMLA leave on something [that was not a] family or

medical necessity.” 355 N.L.R.B. No. 218, at 4; see id. (stating

that this is what the testimony “suggests”). Bally’s contends

that when Tartaglio’s “testimony is considered in context with

his other testimony, one reaches the same conclusion as the ALJ

-- that Mr. Tartaglio meant that Justiniano would not have been

guilty of misusing his leave time if he left the rally before noon

and had been caring for his daughter.” Pet. Br. 32-33

(emphasis added by petitioner).

We are inclined to agree with Bally’s that, in context, the

Board derived the wrong inference from Tartaglio’s testimony.

But whether or not we agree with Bally’s is not the question.

Rather, “‘we ask only whether on this record it would have been

possible for a reasonable jury to reach the Board’s conclusion[s],

giving substantial deference to the inferences drawn by the

15

[Board] from the facts.’” Progressive Elec., Inc. v. NLRB, 453

F.3d 538, 543 (D.C. Cir. 2006) (quoting Ceridian Corp. v.

NLRB, 435 F.3d 352, 357 (D.C. Cir. 2006)) (emphasis added).

“So long as the Board’s findings are reasonable, we will not

substitute our own judgment even if we would have come to a

different conclusion in the first instance.” Id.

Moreover, even if the Board’s inference were not only

wrong but unreasonable, it would make no difference to our

disposition. The Board’s discussion of Tartaglio’s testimony

came at the tail end of its opinion, after it had already completed

the Wright Line analysis discussed above. It then observed that

its conclusion, that Bally’s discharged Justiniano because he

spent time at the union rally, was “supported by Tartaglio’s

testimony.” 355 N.L.R.B. No. 218, at 4 (emphasis added). It is

thus plain that whatever weight the Board accorded that

testimony, it was not necessary to its decision. And as we noted

in the coincidentally entitled Casino Airlines case, “[w]hen an

agency relies on multiple grounds for its decision, some of

which are invalid, we may nonetheless sustain the decision as

long as one is valid and ‘the agency would clearly have acted on

that ground even if the other were unavailable.’” Casino

Airlines, Inc. v. Nat’l Transp. Safety Bd., 439 F.3d 715, 717

(D.C. Cir. 2006) (quoting Mail Order Ass’n. of Am. v. U.S.

Postal Serv., 2 F.3d 408, 434 (D.C. Cir. 1993)) (additional

internal quotation marks omitted).

To be sure, the NLRB could have credited Bally’s’

argument that it would have fired Justiniano regardless of his

support for the union. See Traction Wholesale Ctr., 216 F.3d at

100. “The only question before us, however, is whether

substantial evidence supports the Board’s view of the disputed

events, not [the petitioner’s].” Id. Indeed, “‘[w]e are even more

deferential when reviewing the Board’s conclusions regarding

discriminatory motive, because most evidence of motive is

16

circumstantial.’” Id. at 99 (quoting Vincent Plastics Inc. v.

NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000)); see Progressive

Elec., 453 F.3d at 549. Under this standard of review, we have

no warrant for disturbing the Board’s conclusion that

Justiniano’s termination was unlawful.

III

For the foregoing reasons we deny the petition for review

and grant the Board’s cross-application for enforcement.

So ordered.