Autonation, Inc. v. National Labor Relations Board

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 14-2991 & 14-3361

AUTONATION, INC., and VILLAGE MOTORS, LLC,

Petitioners/Cross-Respondents,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent/Cross-Petitioner.

____________________

Petition for Review and Cross-Application

for Enforcement of a Decision and Order of

the National Labor Relations Board.

No. 13-CA-063676

____________________

ARGUED MAY 21, 2015 — DECIDED SEPTEMBER 4, 2015

____________________

Before WOOD, Chief Judge, and ROVNER and WILLIAMS,

Circuit Judges.

WOOD, Chief Judge. Union activity was afoot at Liber-

tyville Toyota late in the summer of 2011. When rumors to

this effect reached it, Libertyville’s owner, a company called

AutoNation, held a series of meetings with the affected staff.

An employee surreptitiously recorded the last of these meet-

ings, a lengthy affair conducted largely by two AutoNation

2 Nos. 14-2991, 14-3361

executives. Around the same time, Libertyville suspended

one of its employees, an automotive painter named Jose

Huerta. The dealership’s manager had received an anony-

mous voicemail accusing Huerta of promoting the union

cause and of receiving a charge of driving under the influ-

ence. Once suspended, Huerta did not return to Libertyville.

It ultimately fired him, but the parties disagree on when that

happened and for what reasons. Both sides concur, however,

that Huerta received a computer-generated letter from a

third party vendor to AutoNation indicating that Huerta’s

employment would not be continued.

A local chapter of the International Association of Ma-

chinists and Aerospace Workers (the Union) filed charges

against AutoNation and Village Motors, LLC (which did

business as Libertyville Toyota—we refer to them in the sin-

gular as AutoNation) with the National Labor Relations

Board in 2011. An administrative law judge (ALJ) concluded

that certain comments by the AutoNation executives at the

recorded meeting violated the National Labor Relations Act

(the Act) in multiple ways. He did not, however, uphold the

accusation that AutoNation had unlawfully suspended and

discharged Huerta because of his union activity. A three-

member panel of the Board, with one member dissenting on

two points, affirmed the judge’s conclusions about the meet-

ing but reversed as to Huerta’s discharge. AutoNation has

filed a petition for review of the Board’s rulings, and the

Board has cross-applied for enforcement. Although we do

not endorse all of the Board’s language in its opinion, we

conclude that substantial evidence supports its findings and

that its decision is entitled to enforcement.

Nos. 14-2991, 14-3361 3

I

Libertyville Toyota is a 140-employee car dealership in

the Village of Libertyville, Illinois. Its service department has

80 employees engaged in tasks such as fixing vehicles, paint-

ing them, and performing shipping and receiving. In August

2011, dealership management learned of discussions among

technicians about unionizing. Not long afterward, Liber-

tyville’s general manager, Taso Theodorou, held a few brief

meetings with workers in the service department to discuss

the topic of unionization. On August 23, two members of

AutoNation’s corporate team joined Theodorou for another

such meeting. We know what was said at this last meeting

because a dealership employee secretly recorded it; the tape

was subsequently transcribed; and the ALJ relied on it.

Theodorou opened the August 23 meeting and then

turned it over to AutoNation vice president and associate

general counsel Brian Davis. Davis was joined by Jonathan

Andrews, one of the company’s regional human resources

directors. The transcript of the discussion among these men

and the dealership’s workers runs 111 pages; we focus here

on those excerpts that concerned the Board and that are per-

tinent to the petitions before us.

On the same day as the meeting among Davis, Andrews,

Theodorou, and the Libertyville employees, Theodorou re-

ceived a voicemail at the dealership. The caller stated that

she was “calling on behalf of the spouse of one of your em-

ployees,” but she refused to identify herself because her

husband was “afraid that if they find out that we’re the ones

who said anything, that they will retaliate.” The caller ac-

cused two employees, Jose Huerta and Hermenegildo Tellez,

of “trying to stir up this whole union and create issues.”

4 Nos. 14-2991, 14-3361

Tellez and Huerta were having arguments with other em-

ployees, she said, and worse, they had “questionable” moral

standards. In particular, she noted that Huerta “doesn’t even

have a license” and “had a DUI.” The caller finished by

opining that the situation with Huerta and Tellez was “defi-

nitely something that needs to be addressed.”

After receiving the voicemail, Theodorou contacted An-

drews to acquire a motor vehicle report on Huerta. When it

arrived, the report showed that Huerta had a suspended

driver’s license. This was a problem, because Huerta was

classified as a driving employee at Libertyville. He had

signed copies of a dealership policy that required employees

both to possess a valid license and to inform superiors of

changes to their driving privileges. Davis admitted that The-

odorou consulted him on how to proceed with Huerta. The

ALJ found that Davis “advised Theodorou how to proceed,

with a view toward protecting both Huerta and the Compa-

ny.” Theodorou told Huerta’s immediate supervisor, service

department director David Borre, to suspend Huerta. On

August 26, 2011, Borre called Huerta in for a meeting during

which Huerta admitted that he had received the DUI charge

and that his driver’s license was suspended. Borre told Huer-

ta he was suspended until September 14 and asked him “to

try to get his driver’s license situation corrected.” (Huerta’s

court hearing on his DUI charge was scheduled for Septem-

ber 13.)

One day after meeting with Borre, Huerta received a let-

ter signed “2280-Libertyville Toyota.” The letter informed

Huerta “that information contained in a consumer report, if

accurate, would prevent 2280-Libertyville Toyota from ex-

tending an employment offer, continuing your current em-

Nos. 14-2991, 14-3361 5

ployment or granting a promotion to you at this time” (em-

phasis added). The letter, dated August 25, 2011, invited

Huerta to “contact Sterling within 5 business days” if he

thought the attached background screening report was inac-

curate. Although the letter itself gave no indication of who

“Sterling” was, the attached report indicated that it had been

prepared by a company called Sterling Infosystems. Auto-

Nation contracted with Sterling to furnish motor vehicle re-

ports on its employees, and Sterling automatically sent a let-

ter when it found an adverse notation in an employee’s driv-

ing record. On September 3, Huerta received another letter

(dated September 1), also signed by “2280-Libertyville Toyo-

ta” but prepared by Sterling. This letter told Huerta “that an

offer of employment, a continuation of current employment or

the granting of a promotion will not be made at this time” (em-

phasis added). Not long after receiving this letter, Huerta

applied for unemployment benefits with the State of Illinois.

The Illinois Department of Employment Security promptly

informed AutoNation about Huerta’s filing, and Theodorou

responded that Huerta had been suspended and not termi-

nated. (There is no indication that he ever passed this news

along to Huerta.) Huerta did not return to work, and The-

odorou sacked him on September 21 for “job abandonment.”

At the end of August 2011, the Union filed an unfair la-

bor charge against AutoNation with the Board alleging that

Libertyville had suspended Huerta because of his union ac-

tivity. Three months later, the Union amended this charge to

add a claim about Huerta’s firing and to raise several new

unfair labor claims against AutoNation. In December 2011,

the Board’s general counsel filed a complaint against Village

Motors (later adding AutoNation) raising claims about Au-

toNation employees’ statements at the August 23, 2011,

6 Nos. 14-2991, 14-3361

meeting and about Huerta’s suspension and firing. An ALJ

agreed that comments by Davis and Andrews violated the

Act in multiple ways: (1) threatening that unionizing would

be futile; (2) threatening demotion of unionizing employees;

(3) threatening blacklisting of union supporters; and (4) im-

pliedly promising salary increases if dealership employees

did not vote in the union. The judge decided, however, that

AutoNation had not committed an unfair labor practice in

either firing or suspending Huerta.

After both the Board’s general counsel and AutoNation

filed exceptions to the judge’s ruling, a three-member panel

of the Board issued its decision. The Board affirmed the

ALJ’s findings that the AutoNation employees’ comments at

the August 23 meeting were unfair labor practices and that

Huerta’s suspension was not; it reversed the judge’s finding

on Huerta’s discharge. One member of the panel dissented

because he did not agree that AutoNation had made an im-

plied promise of wage increases or that it had violated the

Act by discharging Huerta.

AutoNation filed a petition for review of the Board’s de-

cision in September 2014. One month later, the Board filed a

cross-application for enforcement of the panel’s order. We

have jurisdiction under 29 U.S.C. § 160(f).

II

We begin with the heart of the case: the Board’s finding

that AutoNation and Village Motors violated Section 8(a)(1)

of the Act, 29 U.S.C. § 158(a)(1), in four ways. The Act makes

it an unfair labor practice for an employer “to interfere with,

restrain, or coerce employees in the exercise of” their guar-

anteed rights to organize and bargain collectively. We apply

Nos. 14-2991, 14-3361 7

a deferential standard of review to the Board’s findings,

looking only to see whether they are supported by substan-

tial evidence. See 29 U.S.C. § 160(e). This means “such rele-

vant evidence that a reasonable mind might accept as ade-

quate to support the conclusions of the Board.” NLRB v.

Teamsters Gen. Local Union No. 200, 723 F.3d 778, 783 (7th Cir.

2013) (internal quotation marks omitted). Our “task is not to

reweigh the evidence; it is only to determine whether there

is evidence in the record supporting the Board’s outcome

that could satisfy a reasonable fact finder.” NLRB v. KSM In-

dus., Inc., 682 F.3d 537, 543–44 (7th Cir. 2012). We review the

Board’s applications of the law to the facts and its interpreta-

tions of the Act deferentially as well, taking care to ensure

that “its legal conclusions have a reasonable basis in law.”

Roundy’s Inc. v. NLRB, 674 F.3d 638, 645 (7th Cir. 2012) (quo-

tations omitted).

The Board first determined that Davis through his com-

ments at the August 23 meeting implicitly conveyed the

message that it would be futile for the Libertyville employ-

ees to unionize. It supported that conclusion with substantial

evidence. At one point shortly after the start of the meeting,

an employee asked whether every technician at the dealer-

ship would get to vote on unionization. This prompted Da-

vis to launch into a lengthy monologue about unionizing in

general, in which he warned the employees to be “very care-

ful” when listening to the union’s “sales pitch.” Davis con-

tinued: “[I]n many cases, when you enter these negotiations,

if you ever get there, employees tend to lose things. Okay?”

He went on to describe potential negotiations as “a wide

open game of uncertainty” in which “nothing is guaranteed

even if you win the election. All right?” Later in the meeting,

an employee asked if the wage for the dealership’s workers

8 Nos. 14-2991, 14-3361

would be less than $10.50 per hour if they unionized. Davis’s

response: “It’s possible. … [W]hen I say that we sit down

and we start from scratch, we start from scratch. We don’t

start with what you guys are making today. Everything goes

to zero.” Later still, Davis told the employees about “your

brothers and sisters from other dealerships who deal with

[union issues] on a daily basis,” describing in particular a

unionized workplace at an Orlando AutoNation dealership.

There, Davis said, the unionized employees “have been liv-

ing that nightmare for almost three years now with not one

bargaining session, not one contract negotiation.”

It was reasonable for the Board to conclude that Davis’s

message was that unionizing would cut off hope of negotiat-

ing for better working conditions, or, put otherwise, that it

would be futile. As AutoNation points out, Davis said later

in the meeting that if the workers were to unionize, “eventu-

ally the bargaining process will begin.” But he promptly

threw cold water on that thought by telling the employees

that “[t]he bargaining process is—is never automatic” and

that the workers “may never see … in your lifetime at the

dealership” benefits that they think they “may be entitled

to.” Davis drove this point home with his allusion to the

hardships that befell AutoNation workers in Orlando. Au-

toNation concedes that it held no negotiations with a union-

ized group of its employees in Orlando. But it attempts to

turn this fact to its advantage by arguing that “truthful” ex-

amples of activity elsewhere simply illustrate the advantages

and disadvantages of collective bargaining. That may be one

reading, but another is that Davis’s “truthful” example—

indeed, the only example he offered—was an implied threat.

The workers in Davis’s example were AutoNation employ-

ees, not characters from a morality play about the pitfalls of

Nos. 14-2991, 14-3361 9

unionizing. And the Orlando example must be read in con-

nection with the other two comments. Together, they sup-

ported a reasonable inference that Davis was telling the Lib-

ertyville employees that unionizing would likely not pro-

duce the benefits they were seeking.

The Board concluded next that Davis and Andrews made

implied promises of wage increases to deter workers from

supporting the Union. During the meeting, Theodorou had

read aloud a question a worker had submitted previously on

the topic of worker pay. The worker wanted to know if it was

“possible without voting the union into the dealership that

the dealers’ [sic] current pay plan can be evaluated or updat-

ed more for progressing technicians whose current pay plan

has a low pay ceiling.” Andrews responded that such a thing

was “absolutely possible,” then added, “it’s something we

try to do every year,” and that “the first thing we need to

do” is to “look at that.” Later, Davis said that “if we’re not

being fair or we’re not being competitive to what you guys

could get on the open marketplace on your own, I think

there would be a definite willingness to consider making ad-

justments for those of you who are negatively impacted by

that,” adding, “we want a chance to address them [your con-

cerns] before you pay somebody else to address them.”

Although not everyone would understand these com-

ments as implicitly interfering with the unionization effort

or coercing employees, that is one interpretation, and the

Board was authorized to adopt it. AutoNation contends that

the statements were merely conditional, and that the Board’s

view leaves employers in the bind of not even being able to

answer “maybe” when employees ask whether they will get

a raise without a union. Yet AutoNation fails to acknowledge

10 Nos. 14-2991, 14-3361

the context that convinced the Board that these comments

were implied promises. As we have noted, Davis said else-

where in the meeting that the dealership’s employees would

probably not get to negotiate for better pay if they chose to

bargain collectively. Yet when an employee asked whether

better pay was possible without unionizing, Andrews’s re-

sponse was overwhelmingly positive. The Board reasonably

saw Davis’s subsequent comment (that he and Andrews

wanted to address the employees’ concerns about pay “be-

fore you pay somebody else”—the “somebody else” clearly

referring to the Union) as a direct link between helping the

employees and their rejection of the Union. The contrast, the

Board thought, was sharp enough to imply to dealership

workers that unionizing or not unionizing could mean the

difference in positive consideration of a pay increase. As we

said long ago, such implied promises “have a tendency to

discourage employees from joining a union or engaging in

union activities.” NLRB v. Colonial Haven Nursing Home, Inc.,

542 F.2d 691, 700 (7th Cir. 1976); see also Beverly Enters., Inc.

v. NLRB, 139 F.3d 135, 143 (2d Cir. 1998) (“A finding of an ac-

tual or express promise is not necessary as an implied prom-

ise can suffice to establish the necessary element of an unfair

labor practice.”).

The Board’s third conclusion was that Davis threatened

the dealership’s workers with demotions if they chose to

pursue union activities. A worker asked whether the em-

ployees would “get demoted if we become a union shop.”

Davis first responded “I don’t know,” explaining that there

was no way to predict the result of theoretical future negoti-

ations with the union. An employee then surmised that un-

der union rules, those workers who are not “journeymen”

would be “dropped down or demoted” to “apprentice” sta-

Nos. 14-2991, 14-3361 11

tus. Davis responded, “That’s exactly how it would be nego-

tiated.” Andrews appeared to cut Davis off and attempt to

qualify this statement by telling the workers, “That’s how a

lot of them are.” Davis then said, “[Y]ou need that structure.

If not that identical structure, something similar to that

would be negotiated … .”

The Board’s finding that Davis threatened the workers

with demotions reflected a permissible view of this evi-

dence. His comments reasonably can be viewed as promis-

ing demotion for certain workers (those classified as jour-

neymen) if the employees voted for the union. AutoNation

argues that Davis and Andrews never guaranteed that an

apprentice/journeyman classification system would be part

of any eventual collective bargaining agreement between

AutoNation and the union. It also argues that the appren-

tice/journeyman distinction was suggested by an employee,

not by Davis or Andrews. Yet this is what the employee in

question asked: “[I]sn’t it also true that in the union, you

have basically apprentices and journeymen?” Davis re-

sponded, “Yeah, that’s basically how it works.” Thus Davis

more or less confirmed the employee’s assumption that the

union had exactly this system. The fact that Davis did so af-

ter Andrews injected some ambiguity into the discussion

provides further support for the Board’s conclusion.

Finally, the Board affirmed in a footnote the conclusion of

the ALJ that AutoNation threatened employees with black-

listing if they supported the union. Toward the end of the

meeting, Davis responded to an employee who asked if un-

ionization of the Libertyville dealership would be “some-

thing that’s going to follow you through your lifetime if you

transfer to another store.” Davis began inauspiciously by

12 Nos. 14-2991, 14-3361

telling the workers that “[t]he union will tell me that I’m

threatening you by bringing this up. The bottom line is,

that’s the reality.” He then said that other employers would

likely be suspicious of job applicants who had worked in un-

ion shops, and that such employers could “be inclined to

pass on you … because of that badge or that scarlet letter” of

prior union membership, or even having “gone through” a

campaign to enter a workplace that the union loses. The em-

ployee followed up by asking if “certain people’s careers

may be affected by this.” Davis responded, “Absolutely.”

The Board’s finding that these comments amounted to a

threat of blacklisting, far from being unreasonable, strikes us

as the most natural understanding. Davis’s statements were

fairly unequivocal. He also told the workers, for example,

that “[e]mployers don’t want unions in their shops. …

[T]hey’re going to think twice about hiring you, even if they

think you’re a superstar. … If you commit yourself to [union

representation], you’ve got to commit yourself to all of it, in-

cluding those consequences.” AutoNation’s argument to the

contrary turns on a distinction between threatening to black-

list employees for their union activity and warning of the

“possible negative outcome” that other companies may not

hire them for the same reason. That hair-splitting reading,

however, was far from the only reasonable one. The ALJ ad-

dressed this criticism in noting that although Davis did not

directly threaten anyone, he described the dim future career

problems for unionized AutoNation employees as a certain-

ty, not a possibility.

AutoNation’s fixation on what it depicts as the tentative

or merely factual nature of Davis’s comments fails to take

into account the applicable standard of review. The Act is

Nos. 14-2991, 14-3361 13

especially concerned with the economic power that an em-

ployer has over employees. The underlying message of Sec-

tion 8(a)(1) is that an employer such as AutoNation needs to

take care in the rhetoric it uses when discussing union issues

with its workers. The standard of review makes irrelevant

the question whether an employer’s comments might have

been viewed in a manner different from the way the Board

understood them. We have often remarked on our deference

to “the Board’s expertise in matters of labor relations.” See,

e.g., Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 502 (7th

Cir. 2008) (internal quotation marks omitted). We need eval-

uate only whether substantial evidence supported the

Board’s finding—here, that Davis and Andrews’s comments

left the dealership’s employees with the impression that they

would experience a series of setbacks if they chose to vote

for the Union. It was reasonable to believe that manage-

ment’s comments produced this impression. We therefore

conclude that the Board’s decision that the comments of Da-

vis and Andrews at the August 23, 2011, meeting violated

Section 8(a)(1) of the Act must be enforced.

III

The remaining question is whether the Board’s decision

that AutoNation fired former dealership employee Jose

Huerta because of his union activity is also entitled to en-

forcement. The Board concluded that Huerta’s termination

violated Sections 8(a)(1) and 8(a)(3) of the Act. The latter

provision forbids “discrimination in regard to hire or tenure

of employment or any term or condition of employment to

encourage or discourage membership in any labor organiza-

tion.” 29 U.S.C. § 158(a)(3). AutoNation’s challenge to this

finding was the only point it addressed at oral argument. It

14 Nos. 14-2991, 14-3361

contends that the Board misconstrued its own test for de-

termining whether an employer’s action violated Section

8(a)(3). Although there are isolated bits of language in the

Board’s opinion that could be clearer, we conclude that taken

as a whole the Board applied the correct legal standard and

that substantial evidence supported its conclusion.

In order to assert a prima facie case of discrimination un-

der Section 8(a)(3), there must first be a “showing sufficient

to support the inference that protected conduct was a ‘moti-

vating factor’ in the employer's decision.” Wright Line,

251 N.L.R.B. 1083, 1089 (1980); see also Teamsters Gen. Local

Union No. 200, 723 F.3d at 786. There must be “a causal con-

nection between the animus and the implementation of the

adverse employment action.” See, e.g., Huck Store Fixture Co.

v. NLRB, 327 F.3d 528, 533 (7th Cir. 2003); Carry Cos. of Ill.,

Inc. v. NLRB, 30 F.3d 922, 927 (7th Cir. 1994). Once the Board

makes such a showing, the burden under Wright Line “shifts

to the employer to prove that it had a legitimate business

reason for making its decision.” Loparex, LLC v. NLRB,

591 F.3d 540, 546 (7th Cir. 2009). At each step, the Board may

rely upon circumstantial evidence. Id.

In this case, the Board said that the elements required to

support a showing that an employee’s union activity was a

“motivating factor” for an adverse employment action are

“[1] union or protected concerted activity, [2] employer

knowledge of that activity, and [3] union animus on the part

of the employer.” The confusion on which AutoNation has

seized comes from footnote 10 in the Board’s opinion, where

it said that Wright Line “does not require the General Coun-

sel to make some additional showing of particularized moti-

vating animus towards the employee’s own protected activi-

Nos. 14-2991, 14-3361 15

ty or to further demonstrate some additional, undefined

‘nexus’ between the employee’s protected activity and the

adverse action.” The Board then found “that Huerta’s union

activity was a motivating factor in his discharge,” citing two

reasons: first, that comments by Andrews and Davis at the

August 23 meeting established AutoNation’s anti-union an-

imus, and second that AutoNation’s proffered reason for fir-

ing Huerta was pretextual.

AutoNation contends that the Board misconstrued its

own Wright Line test in finding that anti-union animus moti-

vated the termination decision. This court has held, correctly

in AutoNation’s view, that there must be a showing of a

causal connection between the employer’s anti-union animus

and the specific adverse employment action on the part of

the decisionmaker. We have no quarrel with that abstract

proposition. See also Nichols Aluminum, LLC v. NLRB, Nos.

14-3001, 14-3202, 2015 WL 4760303, at *5 (8th Cir. Aug. 13,

2015). Where we part company with AutoNation is with its

insistence that the Board failed to find that precisely this

causal connection existed here, or that any such finding was

not supported by substantial evidence.

The rule that union activities must motivate a particular

adverse employment action in order to make out a Section

8(a)(3) violation is well established; an abstract dislike of un-

ions is insufficient. What the Board was saying in footnote 10

was that there was no need to prove additional animus be-

yond whatever animus lay behind the contested action.

Thus, for example, if the company took the position that it

would fire all union organizers, and then it fired Union Or-

ganizer A, there would be no need to show that it had an ex-

tra grudge against A related to union activity. In that exam-

16 Nos. 14-2991, 14-3361

ple, there is a clear nexus between the employer’s anti-union

animus and the particular action it took.

Even if one thought that evidence of additional particu-

larized animus is necessary in every case, the result here

would be the same. The Board pointed to circumstantial evi-

dence that AutoNation’s anti-union views played a central

role in its decision to fire Huerta. This evidence began with

the anonymous voicemail to Theodorou singling out Huerta

for his pro-union activity and then accusing him of bad mor-

al character because of his driving infraction. This call

prompted Theodorou to act against Huerta. AutoNation ar-

gues repeatedly that Theodorou himself betrayed no anti-

union animus, but that fails to take account of the whole sto-

ry. The Board analyzed in detail Davis’s comments at the

August 23 meeting; it was well within its rights to conclude

that Davis displayed his hostility toward union activity at

this particular dealership, activity of which Huerta was an

essential part. If Davis had not been involved, perhaps this

would be a different case. But as Theodorou’s consultation

with Davis on the Huerta matter shows, Davis was The-

odorou’s superior—a person Theodorou turned to before

taking adverse action against Huerta, whom Theodorou

knew from the voicemail to be involved in union activity.

The Board was not required to accept AutoNation’s position

that Theodorou’s action to terminate Huerta was untainted

by Davis’s anti-union bias. Davis’s involvement and the na-

ture of the initial accusation against Huerta were such that

we cannot disturb as unreasonable the Board’s finding that

Huerta’s “protected conduct was a ‘motivating factor’ in the

employer's decision.” Wright Line, 251 N.L.R.B. at 1089. The

Board also found that the pretextual nature of Theodorou’s

termination of Huerta established animus; we likewise de-

Nos. 14-2991, 14-3361 17

cline to disturb this conclusion, as we will discuss momen-

tarily. See Suburban Elec. Eng’rs/Contractors, Inc., 351 NLRB 1,

5 (2007) (“It is axiomatic that findings of antiunion animus

and discriminatory motive may be predicated on pretextual

reasons advanced for a personnel action.”).

Despite its discourse on the Wright Line factors in foot-

note 10 of its decision, the Board referred repeatedly in the

text of its opinion to the correct “motivating factor” re-

quirement of Wright Line. It opened its analysis of AutoNa-

tion’s actions toward Huerta by stating that under Wright

Line “the General Counsel must prove that an employee’s

union or other protected activity was a motivating factor in the

employer’s action against the employee” (emphasis added). It

later found that “the General Counsel met his burden of

showing that Huerta’s union activity was a motivating factor

in his discharge” (emphasis again added). To the extent that

the footnote may have deviated from Wright Line or intro-

duced imprecision, that is regrettable but not fatal to the

outcome in this case. We have no need to wade into an in-

tramural dispute between Board members if it makes no dif-

ference to the outcome.

The next question that we must address is whether, ap-

plying Wright Line, substantial evidence supported the

Board’s finding that AutoNation’s proffered reason for dis-

charging Huerta was pretextual. AutoNation asserted that

Huerta was fired for “job abandonment” when it terminated

his employment on September 21, 2011. The Board thought

this was pretext given the events that led Huerta reasonably

to believe that he had been fired before that date. Huerta

understood that he had been fired no later than September 3,

when he received the second letter prepared by Sterling on

18 Nos. 14-2991, 14-3361

behalf of Libertyville Toyota (whose name appeared in the

signature block). The letter said that “a continuation of cur-

rent employment … will not be made at this time.” This is

not an exemplar of clear prose, but it is not surprising that

an auto technician understood it to mean that Libertyville

(the signer of the letter and the only entity for which he

worked) had fired him as of “this time.” The fact that Huerta

applied for unemployment benefits right after he received

that letter and stated in the application that he had been dis-

charged is also good evidence that Huerta thought he no

longer had his job. There was reason to believe that AutoNa-

tion, through Theodorou and Davis, knew of Huerta’s filing,

as the State of Illinois contacted it to inquire about that

claim. “Thus, before terminating Huerta on September 21

(effective September 15) purportedly for abandoning his

job,” the Board found, “the Respondent knew that Huerta

believed he had already been discharged, and the Respond-

ent should have known why.”

Substantial evidence supports this finding. AutoNation’s

argument to the contrary does not undermine the Board’s

reasoning. AutoNation insists that Theodorou could not

have known about Huerta’s belief that he was fired because

Theodorou was not aware of the Sterling letters. This ignores

the fact that Theodorou did know that Huerta had filed for

unemployment, a fairly obvious indicator of Huerta’s

thoughts on whether he still had a job. This fact was central

to the Board’s finding: it stated that even if Theodorou did

not know of the Sterling letters, he knew of Huerta’s unem-

ployment claim. It was therefore reasonable for the Board to

find that Theodorou’s subsequent firing of Huerta for “job

abandonment” was pretextual. One does not abandon a job

from which he already has been fired.

Nos. 14-2991, 14-3361 19

Finally, AutoNation challenges the remedy of reinstate-

ment and back pay that the Board awarded to Huerta. This is

because, AutoNation argues, “it is uncontested that [Huerta]

would have been discharged for legitimate reasons.” Noth-

ing in the record supports such a flat assertion. AutoNation’s

argument is based on the fact that Huerta’s failure to obtain

a valid driver’s license by the time he lost his job would inev-

itably have resulted in his firing. That is not so clear. If Huer-

ta had not thought he was already out of work, he may have

prevailed at his September 13 hearing to the extent of having

even a limited driver’s license for work purposes. The record

also does not show how consistently AutoNation fired peo-

ple who had a temporary problem with their license. Our

consideration of this point is hampered by the fact that the

parties did not develop the argument. It may, however, be

raised at the compliance stage, as recommended in a case on

which AutoNation is relying. See Berkshire Farm Ctr. & Servs.

for Youth, 333 N.L.R.B. 367, 367 (2001) (leaving issue of rein-

statement and back pay to compliance hearing, where re-

spondent “will have the burden of establishing that [an em-

ployee] engaged in misconduct for which it would have dis-

charged any employee”).

IV

We conclude that substantial evidence supports the find-

ings of the Board that AutoNation challenges here: that its

comments through Davis and Andrews at the August 23,

2011, meeting violated Section 8(a)(1) of the Act, and that

Huerta’s termination violated Sections 8(a)(3) and (1). We

therefore ENFORCE the decision of the Board.