UAW v. NLRB

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0050p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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INTERNATIONAL UNION, UNITED AUTOMOBILE,

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AEROSPACE AND AGRICULTURAL IMPLEMENT

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WORKERS OF AMERICA (UAW), AFL-CIO; LEO

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No. 06-2156

ANDRE AHERN, an individual,

,

Petitioners, >

v. -

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Respondent, -

NATIONAL LABOR RELATIONS BOARD,

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Intervenor. -

OGIHARA AMERICA CORP.,

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On Petition for Review of an Order

of the National Labor Relations Board.

Nos. 7-CA-47942; 7-CA-48024.

Submitted: September 14, 2007

Decided and Filed: January 28, 2008

Before: NORRIS, GIBBONS, and ROGERS, Circuit Judges

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COUNSEL

ON BRIEF: Bruce A. Miller, Robert P. Fetter, MILLER COHEN, Detroit, Michigan, for

Petitioners. Aileen A. Armstrong, Robert J. Englehart, Gregory P. Lauro, NATIONAL LABOR

RELATIONS BOARD, Washington, D.C., for Respondent. Sean F. Crotty, HONIGMAN,

MILLER, SCHWARTZ & COHN, Detroit, Michigan, for Intervenor.

GIBBONS, J., delivered the opinion of the court, in which NORRIS, J., joined. ROGERS,

J. (p. 11), delivered a separate dissenting opinion.

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Petitioners International Union, United

Automobile, Aerospace and Agricultural Implement Workers of America (UAW), AFL-CIO (“the

Union”), and individual Leo Andre Ahern seek review of the National Labor Relations Board (“the

1

No. 06-2156 UAW v. NLRB Page 2

Board”) decision1 finding that Ogihara America Corporation (“the Company”) did not violate

section 8(a)(1), (3) and (4) of the National Labor Relations Act (“the Act”), 29 U.S.C. § 158,2 by

discharging petitioner Ahern. Specifically, petitioners challenge the Board’s determinations that:

(1) employee Ahern lost the protection of the Act through his deliberate falsification; (2) the

Company met its burden of showing that it would have discharged Ahern because of his falsification

regardless of his union activity; and (3) petitioners did not meet their burden of establishing that

Ahern’s discharge was related to his board testimony. For the following reasons, we deny the

petition for review and enforce the Board’s order.

I.

In October 2003, the Union began an organizing campaign at the Company and successfully

petitioned for a representation election. In the January 20043 election, the Company employees

narrowly voted against union representation. However, following the Union’s charges and a May

25 hearing, an administrative law judge (“ALJ”) determined that before the election, the Company

had illegally disciplined an employee for protected activities including distribution of union

literature. The ALJ’s July 12 order, which was later upheld by the Board, set aside the original

election and called for a second election.

Ahern worked for the Company as a press maintenance technician on the second (afternoon

and evening) shift and was active in the union campaign. He was also one of several employees who

testified on behalf of the Union at the May 25 hearing. From about May 25 until July 12, Ahern and

fellow second-shift technicians Thomas Griswold and Christopher Simmons became especially

dissatisfied with supervisor, David Gaffka. The three technicians were bothered that Gaffka, an

outspoken union opponent, was complaining to fellow supervisors about the poor work of employees

despite his own poor work. After Simmons witnessed Gaffka harass another employee and then

write him up for poor workmanship, the three technicians resolved to facilitate Gaffka’s demotion

by writing an anonymous letter to the Company President Tokio Ogihara. Ahern drafted the letter

and made revisions based on Griswold’s and Simmons’s suggestions. The letter, dated June 2, and

addressed to Ogihara, stated:

We are writing to you as a group of associates both concerned, and disturbed

by the conduct and behavior of one of your Press Maintenance Facilitators – Dave

Gaffka. On several occasions, Dave has approached Troy Burley and other

managers making accusations of alleged mistakes made by associates in their work.

Dave was threatening that he would have people written up. Dave has been mistaken

in many of these accusations–even accusing people of things that happened on days

they were not even at work. This shows no regard for core values.

We feel that Dave lacks the professionalism, technical skills, and the people

skills necessary to be a facilitator at OAC. As a facilitator, he is a representative of

1

Ogihara Am. Corp., 347 N.L.R.B. No. 10, 2006 WL 1516768 (May 30, 2006).

2

Section 158 provides in relevant part:

(a) It shall be an unfair labor practice for an employer

(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in

section 157 of this title;

(3) by discrimination in regard to hire or tenure of employment . . . to encourage or discourage membership in

any labor organization . . . .

(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony

under this subchapter . . . .

3

All dates are in 2004 unless otherwise indicated.

No. 06-2156 UAW v. NLRB Page 3

OAC and creates a bad image of this company. In this time of corporate cost cutting,

we respectfully request that you personally investigate Dave’s usefulness and impact

to OAC. Turning this matter over to your management team will not solve the

problem, as some of your managers promote this behavior. It is your choice to act

on this matter or not to, however many associates would welcome the thought of you

taking a more active part in managing the managers at OAC. If you choose not to

respond please keep this confidential.

Enclosed are photos of Dave’s own poor workmanship.

Thank you for your attention to this problem.

Ahern, Griswold and Simmons enclosed photographs and captions depicting poorly maintained

areas in Gaffka’s workspace. According to Griswold’s and Simmons’s testimony, the three

technicians agreed to transmit the letter and photographs (“the package”) anonymously because they

feared reprisal if they included their names.

On June 9, Ahern visited the FedEx service desk at a Kinko’s store to mail the package. A

Kinko’s employee instructed Ahern to fill out the sender’s name and return address. Given the

letter’s anonymous character and Ahern’s belief that the Company might not open a package from

Ahern due to his union activity, Ahern instead listed Bruce Pierson as the sender of the package.

Pierson was a first-shift employee opposed to union affiliation, and Ahern believed that Ogihara

would be more likely to open a package addressed from Pierson than from himself. Rather than

listing Pierson’s address and phone number, Ahern listed the address for the county courthouse –

which he found in the phonebook at Kinko’s – and a fictitious phone number. Ahern testified that

he used the fictitious address and phone number so that if Ogihara checked, he would realize that

they were not Pierson’s actual address and number.

Upon receiving the package on June 10, Ogihara directed Human Resources Manager

Director Patrick Casady to investigate the letter’s allegations. While Casady delegated investigation

of the package’s substantive allegations to another manager, Casady met with Pierson, who denied

sending the package.4 Casady also testified that either before or close to the same time that he met

with Pierson, he had independently determined that the return address on the package did not match

Pierson’s. Around June 21, Casady contacted Kinko’s and learned that it had videotape surveillance

for the day the package was sent, which it could only release in response to a subpoena. On June

28, the Company commenced a lawsuit on behalf of Gaffka and Pierson, charging “John Doe” with

defamation and tortious interference with their employment by sending the package. On August 2,

after the Company obtained a subpoena, Casady viewed the tape, determined that Ahern had sent

the package, and decided to discharge Ahern. Although Casady testified that he recognized that it

was not improper for an employee to send an anonymous letter criticizing a supervisor, the Board

determined that Casady’s reasons for the discharge were Ahern’s false designation of Pierson as the

sender of the package and false allegations against Gaffka.5 On August 3, Casady met with Ahern.

When Ahern denied sending the package, Casady informed him that he had been seen on the

Kinko’s tape and that his deceptive acts warranted termination under the Company rule of conduct

4

The ALJ found that Casady was not credible in his assertion that he needed to ascertain who sent the package

to “find out what the issues were and try to determine who had the issues so that [the Company] could further investigate

Mr. Gaffka.” Casady recognized that he could have investigated the allegations without speaking to the person who sent

the package. The Board found no basis for overturning this credibility determination.

5

Gaffka maintained that some of the assertions in the letter were inaccurate. Although the Company claimed

that Ahern also lost his protection of the Act due to this falsification, the Board did not reach this issue.

No. 06-2156 UAW v. NLRB Page 4

31.6 Casady’s August 4 letter to Ahern confirmed his termination and included a “rules of conduct

violation form,” which noted violations of rules 19, 21, and 31 and that the rule 31 violation was the

“most severe.”7

After the Union and Ahern filed separate charges with the Board, the Board’s General

Counsel issued a complaint alleging, inter alia, that the Company had violated section 8(a)(1), (3),

and (4) of the Act, 29 U.S.C. § 158(a)(1), (3), and (4). The consolidated cases were heard before

an ALJ, who decided that,8 inter alia, the Company’s discharge of Ahern had violated section 8(a)(1),

(3), and (4) of the Act. The Board reversed the ALJ’s decision with respect to these three

allegations, each of which the Board dismissed. The Board’s decision is before the court.

II.

This court reviews determinations of law de novo and findings of fact for substantial

evidence. Harborside Healthcare, Inc. v. NLRB, 230 F.3d 206, 208 (6th Cir. 2000). The substantial

evidence standard also applies to the Board’s application of law to particular facts. Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Turnbull Cone Baking Co. of Tenn. v. NLRB,

778 F.2d 292, 295 (6th Cir. 1985). For this court to affirm under the substantial evidence standard,

the Board’s decision must be supported by “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Universal Camera, 340 U.S. at 477. Courts must

“respect the judgment of the agency empowered to apply the law ‘to varying fact patterns.’” Holly

Farms Corp. v. NLRB, 517 U.S. 392, 399 (1996) (quoting Bayside Enters., Inc. v. NLRB, 429 U.S.

298, 304 (1977)). Thus, “the Board’s reasonable inferences may not be displaced on review even

though the court might justifiably have reached a different conclusion had the matter been before

it de novo.” Harborside, 230 F.3d at 208 (internal quotations and citations omitted). This same

deference applies even if the Board and ALJ relied on the same facts, yet reached different

conclusions. “Our deference to findings of fact runs in favor of the Board, not in favor of the ALJ.”

W.F. Bolin Co. v. NLRB, 70 F.3d 863, 870 (6th Cir. 1995). Still, “the ALJ’s findings are part of the

record we must review[,]” and therefore we take them into account to the extent that they reduce the

weight of the evidence supporting the Board’s conclusion. Id.

III.

Petitioners first argue that the Board erred in determining that Ahern lost protection of the

Act by falsifying the sender’s name on the package. Section 8(a)(1) of the Act establishes that it is

an unfair labor practice for an employer to interfere with an employee’s section 7 rights, which

6

The Company rules of conduct, in relevant parts, provide:

19. Deliberate falsification of work sheets, official Company administrative forms, personnel or employment

records, medical documentation, testimony at a Peer Review hearing, production records, etc.

21. Displaying immoral conduct, participating in harassment of any nature toward or about any Associate of

the company.

31. Posting of materials, or the creating of graffiti with racial, sexist or religious symbols, or threatening

commentary which do not reflect [the Company’s] Core Values and may be intimidating to other Associates.

Casady testified that the “core values” in Rule 31 included integrity and honesty.

7

The rules of conduct violation stated:

On 8/3/04 it was discovered that Andy sent a package from Kinko’s of Novi to Mr. Ogihara. The return address

indicated Bruce Pierson, [but] Andy said Bruce had nothing to do with it. The package contained a letter and pictures

(letter is attached).

8

See Ogihara Am. Corp., 2005 WL 3005607 (Nov. 3, 2005).

No. 06-2156 UAW v. NLRB Page 5

include the right “to engage in . . . concerted activities for the purpose of collective bargaining or

other mutual aid or protection.” 29 U.S.C. § 157. Here, the Board assumed arguendo that Ahern’s

complaints regarding Gaffka were protected but determined that Ahern lost the protection of the Act

as a result of his intentional falsification.

The Board has held that “where an employee is discharged for conduct that is part of the res

gestae of protected activities, the relevant question is whether the conduct is so egregious as to take

it outside the protection of the Act, or of such character as to render the employee unfit for service.”

Guardian Indus. Corp. 319 N.L.R.B. 542, 549 (1995) (quoting Consumers Power Co., 282 N.L.R.B.

130, 132 (1986)). Although some leeway is permitted for impulsive behavior, this must be balanced

against an “employer's right to maintain order and respect. Initially, the responsibility to draw the

line between these conflicting rights rests with the Board, and its determination, unless illogical or

arbitrary, ought not be disturbed.” Ohio Power Co. v. NLRB, 539 F.2d 575, 578 (6th Cir. 1976)

(citing NLRB v. Hartmann Luggage Co., 453 F.2d 178, 183-184 (6th Cir. 1971)).

The Board provided two reasons for determining that Ahern’s actions had lost the protection

of the Act. First, relying on Guardian Industries, 319 N.L.R.B. at 549, the Board explained that a

“deliberate falsity” could cause an employee to lose the protection of the Act. Second, relying on

HCA / Portsmouth Reg’l. Hosp., 316 N.L.R.B. 919, 931 (1995), the Board noted that “activity

designed ‘to destroy the reputation and end the employment of another employee’” could also cause

an employee to lose the Act’s protection. The Board found that Ahern’s use of Pierson’s name on

the package was a deliberate falsity and that this falsity “had the potential of harming Pierson’s

reputation and jeopardizing his employment.” The Board explained that when Ahern sent the

package,

[he] feared that the [Company] would retaliate against the sender of the package.

Nevertheless, Ahern engaged in a deliberate deception by listing Pierson as the

sender of the package, even though Ahern knew that Pierson had not authorized the

use of his name. Ahern thereby implicated Pierson in activity that Ahern himself

believed would anger [the Company]. That Ahern may not have affirmatively

intended to harm Pierson, and may have believed that the use of a fictitious address

would ultimately absolve Pierson of any actual repercussions from the sending of the

package is not determinative. The fact remains that Ahern’s deliberate falsification

posed a substantial risk to Pierson’s reputation and employment status.

Consequently, the Board found that Ahern’s misconduct was “sufficiently egregious to cause him

to lose protection of the Act.”

Petitioners essentially claim that the Board erred: (1) by misrepresenting the evidence; and

(2) by determining that Ahern’s “deliberate falsity” was egregious enough to cause him to lose

protection of the Act.

Petitioners claim the Board misrepresented the evidence in two ways. First, petitioners

contend that the Board erred by finding that when Ahern used Pierson’s name on the package, he

feared the Company would retaliate against the sender of the package. Petitioners assert that Ahern

only feared retaliation against himself based on his union participation. But substantial evidence

supports the Board’s factual finding. Both Griswold and Simmons testified that the three technicians

had sent the package anonymously based on their fear of repercussions. Moreover, Simmons

acknowledged that these repercussions might exist for whoever put their names on the package.

Petitioners also challenge the Board’s determination that Ahern’s falsification had the

potential to harm Pierson’s reputation and employment status. Yet substantial evidence supports

the Board’s determination on this point as well. Although Ahern’s inclusion of a false address and

No. 06-2156 UAW v. NLRB Page 6

telephone number may have reduced the risk that Pierson would be implicated, the Board reasonably

determined that Ahern “implicated Pierson in activity that Ahern himself believed would anger [the

Company].” That Ahern’s falsification did not actually harm Pierson does not mean that it did not

still pose a “substantial risk” at the time.9

Petitioners’ stronger argument is that Ahern’s falsification was not sufficiently egregious to

cause him to lose protection of the Act. Specifically, petitioners contend that an employee’s

falsification must be deliberate and malicious to lose protection of the Act and that Ahern’s

falsification should remain protected because it was not malicious.

The narrow question of whether prior Board decisions have established that a deliberate

falsification must be malicious to lose protection of the Act is a pure question of law that the court

reviews de novo, see Harborside Healthcare, 230 F.3d at 208, subject to whatever deference is

required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

However, if there is no such legal requirement, then the Board’s application of the law to the facts

– i.e. whether Ahern’s conduct was sufficiently egregious to cause him to lose protection of the Act

– is a line-drawing exercise, in which the Board’s line should not be disturbed unless it is “illogical

or arbitrary.” See Ohio Power, 539 F.2d at 578.

Although the Board has consistently provided that a deliberate falsification may lose the

protection of the Act, it has not clarified whether malice must accompany the deliberate falsification.

See, e.g., Puerto Rico Sheraton Hotel, 248 N.L.R.B. 867, 874 (1980) (enforcement denied on other

grounds by N.L.R.B. v. Sheraton Puerto Rico Corp., 651 F.2d 49 (1st Cir. 1981)) (noting that

disqualifying conduct might include, inter alia, “malice, deliberate intention to falsify . . . [or]

deliberate and malicious falsehood.”) (emphasis added); Am. Hosp. Assn., 230 N.L.R.B. 54, 56

(1977) (listing “malice or deliberate intention to falsify” and “deliberately and maliciously false”

as conduct that could lose protection of the Act) (emphasis added); Am. Shuffleboard Co., 92

N.L.R.B. 1272, 1274 (1951) (employee remained protected where his statements were not

“deliberately or maliciously false”) (emphasis added).

In finding that deliberate falsity could be disqualifying, the Board cited Guardian Industries,

319 N.L.R.B. at 549. In that case, an employee criticized his employer for requiring a co-employee

to submit to drug testing “without cause at all.” Id. at 545. The employee’s statement was

inaccurate in that the co-employee eventually failed the drug test. Id. at 549. But the Board held

that “protection is not denied to an employee regardless of the inaccuracy or lack of merit of

employee’s statements absent deliberate falsity or maliciousness. . ..” Id. (emphasis added). Taken

out of context, this statement might suggest that a deliberate falsity alone could be disqualifying –

regardless of whether malice was present. But the Board emphasized that the employee’s statements

were not “maliciously calculated or uttered in anything but a good-faith belief in [the co-

employee’s] cause.” Id.

9

Petitioners also suggest that the Board’s statement of facts was incomplete because it omitted Ahern’s

explanation that he used Pierson’s name “only to make sure that the letter would be opened and looked at.” The Board

characterized Ahern’s decision as follows:

Due to the anonymous nature of the package and Ahern’s belief that the Respondent

would be hostile to him because of his union activity, Ahern decided against using

his own name and address. . . . Ahern believed that listing Pierson’s name on the

return address would be more likely to evoke a response from Ogihara concerning

the employee’s complaints.

Substantial evidence, including the testimony of Ahern, Griswold, and Simmons, supports the Board’s characterization.

No. 06-2156 UAW v. NLRB Page 7

Consistent with Guardian Industries, the Board has found that deliberate falsifications

remain protected by the Act when the falsifications have been made in good faith. For example, in

Roadmaster Corp., the Board determined that an employee acting as grievance committeeman

remained protected despite forging the names of other employees on grievance forms in an effort

to preserve their grievances before an impending deadline. 288 N.L.R.B. 1195, 1197 (1988)

(finding employee’s actions were “reasonable responses” to the situation.) Enforcing the Board’s

order, the Seventh Circuit further emphasized that the employer had not tried to deceive his

employer. Roadmaster Corp. v. NLRB, 874 F.2d 448, 453-454 (7th Cir. 1989). Likewise, in OPW

Fueling Components, where a union steward signed the names of two employees on a formal

grievance, this court, in upholding the Board’s determination that the steward did not lose the

protection of the Act, emphasized that the steward had “(1) acted in good faith and for legitimate

reasons and (2) did not have an intent to deceive his employer.” 443 F.3d 490, 496 (6th Cir. 2006).

By contrast, in HCA/ Portsmouth, the Board found that a falsification was disqualifying

where it was, among other things, “deliberate and malicious.” 316 N.L.R.B. at 930 (emphasis

added) (also finding that the conduct was “defamatory,” and in “bad-faith.) In that case, an

employee purposefully spread false and damaging rumors about a supervisor in an attempt to destroy

the supervisor’s reputation and have her fired. Id.

Reading these Board decisions together, we think the determinative question is whether an

employee’s conduct is sufficiently “egregious” to cause him to lose protection of the Act. Guardian

Indus., 319 N.L.R.B. at 549; Consumers Power Co., 282 N.L.R.B. at 132. Although a deliberate and

malicious falsification will likely be sufficiently egregious, we cannot say that the Board must

necessarily find malice per se to find a falsification disqualifying. Absent good faith, deliberate

falsifications may lose the protection of the Act if the circumstances suggest that the falsification

was sufficiently egregious. See HCA/ Portsmouth, 316 N.L.R.B. at 930.

Nor can we say that the Board’s determination here – that Ahern’s deliberate falsification

was sufficiently egregious to lose protection of the Act – was illogical or arbitrary. See Ohio Power,

539 F.2d at 578. To be sure, arguably Ahern’s inclusion of Pierson’s name on the package was

closer in nature to the forgeries in Roadmaster and OPW (which were not disqualifying) than to the

conduct in HCA / Portsmouth (which was disqualifying). After all, whatever risks Ahern’s conduct

created for Pierson, Ahern’s primary objective – like the objective of employees in Roadmaster and

OPW – was to effectively advance his grievance. But the Board distinguished Roadmaster and

OPW from the instant case because: (1) neither of those cases involved falsehoods intended to

implicate another individual in activity that the employee feared would provoke employer reprisals;

and (2) the falsehoods in Roadmaster and OPW were connected to, and arguably necessary for,

preserving employees’ grievances.

Petitioners argue that Ahern’s falsification was also necessary for his complaint to be heard.

But even if signing his own name would have reduced the likelihood of Ogihara opening the

package, falsifying Pierson’s name was hardly Ahern’s only alternative. Ahern could have listed

a fictional name to satisfy Kinko’s request, or used regular mail without including any sender’s

name or address. Both methods would have been consistent with the technicians’ original plan to

send the package anonymously. Thus, the Board reasonably concluded that “there was no necessary

link between [Ahern’s] falsity and the complaints raised by the employees.”10

10

NLRB v. Allied Aviation Fueling of Dallas LP, 480 F.3d 374 (5th Cir. 2007), and CDA Inc., 349 N.L.R.B.

No. 58, 2007 WL 950940 (March 26, 2007), are both distinguishable on the same bases that the Board distinguished

Roadmaster and OPW: (1) neither involved falsehoods intended to implicate another in activity that the employee feared

would provoke employer reprisals; and (2) the falsehoods in those cases were at least more connected to, if not necessary

for, initiating a grievance.

No. 06-2156 UAW v. NLRB Page 8

This court must “respect the judgment of the agency empowered to apply the law to varying

fact patterns,” Holly Farms, 517 U.S. at 399 (internal quotation and citation omitted). Because we

cannot say that the Board’s distinctions were illogical or arbitrary, see Ohio Power, 539 F.2d at 578,

substantial evidence supports the Board’s determination that Ahern’s conduct lost the protection of

the Act.

IV.

Petitioners next claim that the Board erred in dismissing their allegation that the Company

violated section 8(a)(3) of the Act, 29 U.S.C. § 158. Section 8(a)(3) prohibits11an employer from,

inter alia, discharging an employee for engaging in protected union activities.

To establish a violation of section (a)(3), the General Counsel must first show that an

employee’s protected activity was a motivating factor in his discharge. OPW, 443 F.3d at 498. Upon

this showing, the burden shifts to the employer to show that the discharge would have occurred

regardless of the protected conduct. Id.12

Here the ALJ determined that the General Counsel had met its burden of showing that

Ahern’s union activity was a motivating factor and that the Company had not met its burden of

showing that it would have discharged Ahern for sending the package absent his union activity. In

reaching this conclusion, the ALJ noted that, inter alia: (1) the Company’s reasons for tracking

down the package’s sender were “shifting and pretextual”; (2) the sanction (discharge) was severe;

(3) the timing of the discharge (shortly after the Union overturned the previous election result) was

suspicious; and (4) Ahern had no prior disciplinary record.

On review, the Board found that the Company had met its burden13 by establishing that it

had a legitimate reason for discharging Ahern – his unprotected act of writing Pierson’s name on

the package. The Board reached this conclusion by finding that: (1) the Company had consistently

maintained that it fired Ahern for his actions related to the package; (2) the Company considered

Ahern’s actions to have violated its rules of conduct; and (3) there was no evidence that the

Company had failed to discharge other employees for similar conduct.

In Allied Aviation, a union representative facing an impending deadline signed a fellow employee’s name to

a grievance filed on behalf of the fellow employee. 490 F.3d at 376-77. After explicitly finding that the representative

had acted upon the good faith belief that his falsification was necessary to maintain the employee’s claim, the Board

found that he remained protected under the Act. Id. at 380. In CDA, the Board determined that an employee remained

protected by the Act despite filing a grievance on behalf of other employees without their consent. 2007 WL 950940,

at *9. There was no evidence that the employee feared reprisals based on her actions. Moreover, the Board emphasized

that the falsified document was an official union grievance form, id., and so arguably the falsification was more

connected to the filing of an official grievance than Ahern’s falsification in this case.

11

29 U.S.C. § 158(a) provides:

It shall be an unfair labor practice for an employer . . . by discrimination in regard

to hire or tenure of employment or any term or condition of employment to

encourage or discourage membership in any labor organization.

12

This test was articulated by the Board in Wright Line, 251 N.L.R.B. 1083, 1985 (1980), and approved by the

Supreme Court in NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 397-403 (1983) (overruled on other grounds by Office

of Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S. 267, 277-78 (1994)).

13

The Board assumed arguendo that the General Counsel had met its burden by showing that Ahern’s union

activity was a motivating factor in his discharge.

No. 06-2156 UAW v. NLRB Page 9

Petitioners challenge the Board’s determination in two ways. First, petitioners contend that

Ahern did not actually violate the Company’s rules of conduct. This argument misses the point.

Although Casady’s application of the Company’s rules may have been questionable, the Board

found that Casady considered Ahern to have violated company policies. This perceived violation

(as opposed to Ahern’s union activity) was a legitimate reason for Ahern’s discharge.

Petitioners also argue that the Board ignored the circumstantial evidence surrounding

Ahern’s discharge. But the board did not ignore this evidence. Rather, it found that because the

Company consistently maintained in its termination letter and at trial that Ahern’s falsification of

Pierson’s name alone caused the termination, it “disagree[d] with the [ALJ’s] finding that [the

Company’s] reasons were shifting and pretextual.” Although the circumstantial evidence relied

upon by the ALJ might have also supported a determination that the Company had not met its

burden, substantial evidence still supports the Board’s determination that the Company would have

discharged Ahern for falsifying Pierson’s name regardless of his union involvement.

V.

Finally, petitioners argue that the Board erred in finding that the Company did not violate

section 8(a)(4), which prohibits an employer from discharging an employee for testifying at a Board

proceeding.14 Section 8(a)(4) claims are analyzed under the same burden shifting framework as

section 8(a)(3) claims. OPW Fueling Components, 343 N.L.R.B. 1034, 1039 (2004). Applying this

test, the Board determined that the petitioners did not establish that Ahern’s Board testimony was

a motivating factor in his discharge.

Petitioners contend that they met their burden based on the suspicious timing of Ahern’s

discharge (August 3) following his testimony (May 25) and the ALJ’s order authorizing new

elections (July 12). Based on this timing, petitioners note that the ALJ in this case determined that

Ahern’s likely union support in an upcoming election combined with Casady’s “shifting and

pretextual” reasons for investigating the package’s sender15 suggest that Ahern’s testimony was a

motivating factor.

But substantial evidence supports the Board determination that the timing of Ahern’s

discharge did not establish a nexus between Ahern’s testimony and discharge. As the Board noted,

Ahern’s discharge was more temporally related to the Company discovering Ahern’s deceptive act

(August 2) than to his May 25 testimony or the June 12 order. Moreover, as discussed above, the

Board rejected the ALJ’s conclusion that Casady’s motivations were “shifting and pretextual.”

Again, although the evidence might also support the ALJ’s determination, substantial evidence still

supports the Board’s determination that petitioners did not meet their burden of showing that

Ahern’s testimony was a motivating factor.

VI.

For the foregoing reasons, we enforce the Board’s order dismissing petitioners’ section

8(a)(1), (3), and (4) allegations.

14

Section 8(a)(4) specifically prohibits an employer from discharging or discriminating against an employee

“because [he or she] has filed charges or given testimony under the Act.” 29 U.S.C. §158(a)(4).

15

The ALJ found that the Company, upon learning there would be another election, “had to reasonably expect

that Ahern would, once again, provide critical support to the Union. That reality, coupled with the pretextual and shifting

reasons given for Casady’s investigation of the package, provides compelling evidence of a connection between Ahern’s

previous Board testimony and his discharge.”

No. 06-2156 UAW v. NLRB Page 10

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DISSENT

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ROGERS, Circuit Judge, dissenting. This case presents both a close factual issue and a close

legal issue. Because on balance I would resolve both issues in favor of the union, I respectfully

dissent.

When Ahern put down his co-worker’s name as the sender of a complaint, he may have

contemplated that the co-worker would get in trouble. But the ALJ explicitly found that Ahern did

not so contemplate, and I would accept that conclusion. JA 10. I recognize that deference regarding

fact-finding under the substantial evidence standard is accorded to the Board and not to the ALJ.

But where the factual determination of an ALJ is based on a credibility determination, we may more

readily conclude that the Board’s determination, if indeed contrary, lacks substantial evidence. See

NLRB v. Universal Camera Corp., 190 F.2d 429, 430–31 (2d Cir. 1951) (L. Hand, J., on remand);

see also Tel Data Corp. v. NLRB, 90 F.3d 1195, 1198 (6th Cir. 1996).

Assuming then that Ahern did not intend, but at most created a small possibility, that his co-

worker would get in trouble, Ahern did not lose the statutory protection afforded his sending an

anonymous work-related complaint. The Board of course has primary responsibility for defining

what types of actions are sufficient to lose protection of the Act. But such definitional power

cannot—in light of the apparent congressional policy—be so broad as to let the Board permit the

termination of an employee for otherwise-protected conduct because of such a minor risk.