Slusher, Nick v. NLRB

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3793

NICK SLUSHER,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

____________

On Application for Review of an Order of

The National Labor Relations Board.

No. 13-CA-40976

____________

ARGUED JUNE 6, 2005—DECIDED DECEMBER 23, 2005

____________

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. Exxon Mobil Corporation (“Exxon

Mobil” or the “Company”) suspended and then terminated

union steward Nick Slusher after he gave certain co-

workers copies of a court record showing that an Exxon

Mobil truck driver previously had been fined, placed under

supervision, and ordered to participate in a remedial

education program for driving under the influence of alcohol

(“DUI”). Exxon Mobil viewed circulation of the record as a

violation of the Company’s anti-harassment policy; it also

concluded that Slusher lied about his conduct in the course

of the Company’s investigation. Slusher filed a charge with

the National Labor Relations Board (“NLRB” or the

“Board”) contending that his suspension and discharge

2 No. 04-3793

amounted to an unfair labor practice. Slusher claimed that

he had distributed the driver’s court record in connection

with a disparate treatment grievance he was pursuing on

behalf of another union member. Whereas the driver whose

DUI record he showed to others was still driving for the

Company, other drivers with prior DUIs on their records

had been suspended from driving duties and reassigned.

Slusher averred that he distributed the record not to harass

the driver in question but rather to demonstrate to union

members that Exxon Mobil was not applying the Company’s

drug and alcohol policy in an evenhanded manner and to

explain why the union was pursuing a disparate treatment

grievance. Given that purpose, Slusher asserted that his

distribution of the record was protected by the National

Labor Relations Act (“NLRA” or the “Act”) and that Exxon

Mobil could not lawfully punish him for it. Following an

evidentiary hearing, an Administrative Law Judge (“ALJ”)

agreed, finding that Slusher’s motive in distributing the

abstract was legitimate. On review, however, a divided

panel of the NLRB found that Slusher’s motive was to

harass the truck driver whose abstract he distributed and

that, consequently, Slusher’s conduct was not protected by

the Act. Based on that finding, the Board ordered that

Slusher’s complaint be dismissed. Exxon Mobil Corp., 343

NLRB No. 44, 2004-05 NLRB Dec. (CCH) ¶ 16,808, 2004

WL 2245467 (Sep. 30, 2004). Slusher petitions for review of

the Board’s decision, contending that it is not supported by

substantial evidence. We grant the petition, reverse the

Board’s order, and direct the reinstatement of the ALJ’s

decision.

I.

Exxon Mobil came into being as the result of the Novem-

ber 30, 1999, merger between Exxon and Mobil Corpora-

tions. Slusher was employed by Mobil and its successor

No. 04-3793 3

Exxon Mobil for a total of about 14 years prior to his

discharge in 2003; Slusher was a truck driver who delivered

gasoline to Mobil, and later Exxon Mobil stations in the

Chicago metropolitan area. Local 705 of the International

Brotherhood of Teamsters, AFL-CIO (“Local 705,” the

“Local,” or the “Union”) had represented fuel truck drivers

and product technicians at the Mobil facilities in (or near)

Des Plaines and Lockport, Illinois since 1996, and it

continued to represent these employees after the merger:

Exxon Mobil executed a new collective bargaining agree-

ment (“CBA”) with the Union effective May 17, 2000

through April 30, 2002.

Slusher, who had been elected chief Union steward of the

Local in January 1998, continued in that capacity until

April 11, 2003. As the chief steward, Slusher was responsi-

ble for enforcing the terms of the CBA, a job which included

the investigation, filing, and processing of grievances on

behalf of Union members. Slusher was known to be an

“extremely aggressive” advocate for the Union who enforced

the CBA “to a T.” Tr. 196. Slusher estimated that he filed at

least 15 to 20 grievances in the two years preceding his

discharge. Steven Matter, the Union representative for the

Lockport and Des Plaines facilities, thought that Slusher

had filed more grievances than most other stewards. In

Matter’s view, Slusher “was very good at what he did.” Tr.

197.

In the wake of the merger between the two companies,

Exxon Mobil decided to implement Exxon’s pre-merger drug

and alcohol policy, which barred employees with drug or

alcohol dependencies or who had drug or alcohol related

incidents in their pasts from performing certain designated

safety-sensitive jobs, including driving fuel tanker trucks.

Upon implementation of this policy, every employee work-

ing in such a position was required to file an initial “State-

ment of Compliance for Designated Positions” in which the

employee disclosed any participation in a drug or alcohol

4 No. 04-3793

rehabilitation program and any prior “DUI incident,” a term

defined (at that time) to include not only convictions but

also arrests for alcohol or drug related traffic violations.1 On

a going-forward basis, employees were again required to

disclose any and all arrests for drug or alcohol related

traffic violations, as well as convictions. According to Exxon

Mobil, if an employee disclosed a current DUI charge, the

employee would be suspended with pay and then reassigned

to a different, non-“designated” position within the Com-

pany pending the resolution of that charge. New charges

that resulted in a conviction, as well as prior DUI convic-

tions less than five years old, would bar the employee from

working as a tanker driver. But, according to the Company,

a single conviction or other incident more than five years

old would not necessarily bar the employee from that

position; rather, Exxon Mobil would exercise its discretion

on a case-by-case basis. In the event the Company discov-

ered that an employee had failed to disclose a conviction or

other DUI incident that should have been reported, the

employee would be terminated.

The Union opposed implementation of this policy because

it was more onerous for employees than Mobil’s pre-merger

policy. Evidently, Mobil had not asked its drivers about

prior incidents or previous participation in rehabilitation

programs; moreover, a single DUI charge, even if it resulted

in a conviction, would not necessarily bar an employee from

working as a driver for Mobil so long as he or she had no

other history of drug or alcohol abuse, agreed to participate

in the Company’s rehabilitation program, and did not re-

offend. Exxon’s policy, by contrast, was described by Matter

as a “zero tolerance” policy. Tr. 237. The Union, believing

that the new policy amounted to a unilateral change in the

terms of employment for drivers, filed an unfair labor

1

The Company’s policy was subsequently revised to require

the disclosure of prior convictions only.

No. 04-3793 5

practices charge challenging the policy. However, the

NLRB’s regional director declined to issue a complaint.

When the new policy was implemented in 2001, two

members of Local 705—Rick Moreno and Dan Wal-

lace—were suspended from driving duties and reassigned

based on their disclosure of prior drug or alcohol related

matters that the Company considered disqualifying.

Wallace later resigned. Slusher filed grievances on behalf

of both drivers. However, the Union declined to take them

to arbitration and, as a result, both grievances lapsed.

In early August 2002, driver Frank Blommaert disclosed

that he recently had been arrested and charged with DUI.

Exxon Mobil immediately suspended Blommaert with pay

from driving. On November 22, 2002, the Company discon-

tinued Blommaert’s pay based on his failure to cooperate

with its efforts to place him in a non-driving position.

(Blommaert had failed to appear for a test to assess his

qualification for an opening at Exxon Mobil’s Joliet refin-

ery.) On December 20, 2002, Slusher filed a grievance on

Blommaert’s behalf asserting that the Company’s decision

to suspend him without pay pursuant to the drug and

alcohol policy amounted to a “unilateral change in terms of

employment.” GC Ex. 2. On January 10, 2003, while that

grievance remained pending, Exxon Mobil terminated

Blommaert for his failure to cooperate with the Company’s

efforts to reassign him and for his failure to provide the

Company with information regarding the disposition of the

DUI charge. (Evidently Blommaert was not convicted on the

charge.)

In February 2003, during the investigation phase of the

grievance regarding Blommaert’s suspension, Slusher

reviewed the personnel files of other unit employees to look

for any evidence of disparate treatment in enforcement of

Exxon Mobil’s drug policy. Slusher had asked to see the

files after hearing a rumor that driver Dan Breneisen had

6 No. 04-3793

a DUI incident in his past but was permitted to continue

driving. Slusher discovered that Breneisen had indeed

“checked off that box” on his compliance statement, indicat-

ing that he had a prior DUI incident. Tr. 25. On February

10, 2003, the Union’s legal counsel notified Exxon Mobil

that the Union would take the grievance over Blommaert’s

suspension to arbitration. The decision to arbitrate ended

Slusher’s involvement with the grievance.

Meanwhile, the 2000 CBA between the Union and Exxon

Mobil had expired in April 2002, and by mid-February 2003,

negotiations for a new agreement had reached an impasse.

According to Matter, the drug and alcohol policy as well as

the cost of health benefits were two of the primary issues

that the Company and the Union could not agree upon.

The stalemate prompted the Union to schedule a strike

vote among the members of the Local. Some unit members

were opposed to a strike. One such individual, Michael

Ostergaard, distributed flyers urging his fellow employees

to vote against a strike. Slusher, who served on the Union’s

negotiating committee, confronted Ostergaard on February

11, 2003, and warned him that the Union might discipline

him because the Union felt that the no-strike campaign was

undermining its negotiating position with the Company.

That confrontation prompted Ostergaard to complain to

Exxon Mobil Fleet Supervisor Kevin Lozinak that Slusher

had harassed him. Lozinak, who “had a million things going

on at once,” told Ostergaard to put his complaint in writing,

which Ostergaard did on February 21, 2003. Tr. 323. On

February 16, 2003, Local 705 members voted not to go out

on strike.

On February 20, 2003, Slusher asked Breneisen whether

he had a prior DUI. Breneisen acknowledged that he did.

Slusher would later testify that he told Breneisen that he

was interested in the DUI because he believed that the

Company was enforcing its drug policy unevenly. Later that

No. 04-3793 7

same day, Breneisen complained about Slusher’s inquiry to

Lozinak. On Lozinak’s advice, Breneisen put his complaint

in writing.

On February 26, 2003, Breneisen filed a petition with the

Board seeking to decertify the Union as the representative

of Exxon Mobil employees at the Des Plaines and Lockport

facilities. A vote on the decertification petition was sched-

uled for April 11, 2003.

In anticipation of the decertification vote, Tom Kaukialo,

Exxon Mobil’s Area Manager, met with Slusher on March

10 and engaged in a “give and take” regarding the parame-

ters for decertification elections. Tr. 96. During that

meeting, Kaukialo informed Slusher that he had “heard

some complaints” that Slusher was harassing drivers with

warnings that they would lose their jobs if the Union was

decertified. Tr. 33.

On or about March 3, Slusher telephoned Matter and

advised him of Breneisen’s DUI. Matter instructed Slusher

to “go do his research” and confirm the DUI through public

records. Tr. 199. “[W]e don’t want to make allegations that

are not true,” Matter would later testify. “[W]e wanted to be

positive . . . .” Tr. 203. The Union subsequently asked

Blommaert, who lived in the same town as Breneisen, to

check the records at the local county courthouse.

On March 12, Matter met with 10 to 12 unit employees to

discuss the status of contract negotiations and the upcom-

ing decertification election. The subject of Exxon Mobil’s

drug and alcohol policy was broached, Matter would later

recall, “because during negotiations it was such a heavy

issue.” Tr. 205. Breneisen was among the employees

present at that meeting, and when the subject came up,

Breneisen “got upset,” informed the others that he had had

a DUI, and advised them that “[i]t’s nobody’s business but

my own.” Tr. 205.

8 No. 04-3793

On April 5, Matter again met with Slusher and other unit

members regarding the decertification election. Blommaert

attended the meeting and produced to Slusher and Matter

a copy of court record regarding Breneisen’s prior DUI

incident (the “abstract”). The abstract showed that

Breneisen had been charged with driving under the influ-

ence of alcohol on September 24, 1995. Pursuant to an order

entered on October 17, 1995, Breneisen had been placed on

one year of supervision, fined in the amount of $995,

required to attend a DUI school for six months, and also to

participate in a victim-impact program. GC Ex. 4.2

Blommaert asked Slusher why he had been fired and yet

Breneisen was still driving. After reviewing the abstract,

Matter instructed Slusher to pursue a new claim of dispa-

rate treatment on Blommaert’s behalf. “Let’s file our

grievance on it,” Matter told him. Tr. 213. The purpose of

that grievance, Matter testified, “wasn’t to take Dan

[Breneisen] off the truck. It was to put Frank [Blommaert]

back to work.” Tr. 204. “[O]ur goal was to set preceden[ts],”

he added. Tr. 204.

The following day, Sunday April 6, was Slusher’s day off.

Slusher went to the Des Plaines facility that morning

looking for other drivers to talk with about the decertifica-

tion election and to hand out materials concerning the

competing proposals that the Company and the Union had

made in the stalemated contract negotiations. While there,

he gave copies of Breneisen’s DUI abstract to unit members

Rich Moreno and Roy Moscinski. Slusher would later testify

that he showed the abstract to Moreno because he, like

Blommaert, had been removed from driving duties due to a

2

The charge apparently was resolved by agreement between

the parties, although that is not entirely clear. The abstract

makes reference to a “nolle prosequi bench trial,” GC Ex. 4, which

we gather was an alternative to resolution by way of a full-blown

trial.

No. 04-3793 9

DUI incident and Moreno had a pending grievance chal-

lenging his reassignment. Slusher said that he showed the

document to Moscinski to demonstrate why, from the

Union’s perspective, Exxon Mobil was applying its drug and

alcohol policy in an uneven manner; indeed, according to

Slusher, Moscinski asked to see the abstract. However,

after looking at the abstract, both of the men told Slusher

that they thought it was a confidential record, and Moreno

actually returned his copy to Slusher. Slusher later ac-

knowledged that he may also have given a copy of the

abstract inadvertently to Michael Schaeffer, to whom he

had handed a collection of papers regarding contract

negotiations. Finally, Slusher also gave a copy of the

abstract to Fleet Foreman Heisen, and he left a copy under

Fleet Superviser Lozinak’s door. Slusher later testified that

he wanted them to be aware of Breneisen’s record but did

not want Breneisen removed from his driving position.

On April 7, Matter called Human Resources director Ellis

and asked her if she was aware that Breneisen had a DUI

in his history. Ellis said she was not aware of that. “If that

[is] the case,” Matter testified that he asked Ellis, “then

why isn’t Frank [Blommaert] put back to work[?] You have

one fellow working with a DUI, yet another one’s been

suspended for it.” Tr. 214. Ellis replied that she would get

back to him.

On April 10, four days after Slusher circulated copies of

Breneisen’s abstract, Breneisen filed a complaint with

Lozinak and Heisen alleging that Slusher had disclosed

personal and confidential information about him to cowork-

ers.

Nick Slusher has taken personal and confidential

records about me and has passed out photocopies to my

fellow co-workers. This information was not given to

him by me. This has caused me a great deal of stress

because now co-workers are questioning my employ-

10 No. 04-3793

ment with Exxon Mobil. Nick has created a hostile work

environment. He is trying to use this information to get

me fired. I also believe his actions are a direct result of

me filing for decertification from Local 705. Nick has

made a point of bashing me both professionally and

personally.

GC Ex. 11, Attach. 5. On the same day, Lozinak prepared

a letter to Slusher formally notifying him that the Company

had received “another complaint of harassment” but that,

in order to avoid disrupting the forthcoming decertification

vote, the Company would postpone its investigation into the

complaint until after the election. GC Ex. 6. When he

handed the letter to Slusher, Lozinak told him that

Breneisen’s complaint had been triggered by Slusher’s

circulation of the abstract.

On the following day, April 11, Slusher filed a second

grievance on Blommaert’s behalf. The grievance charged

Exxon Mobil with “d[i]sp[a]rate treatment, unequal punish-

ment, [and] bias.” GC Ex. 5.

April 11 was also the date of the decertification vote. The

members of the unit voted to decertify the Union as their

representative. On April 14, the Board certified the result

of the vote and thereby terminated the Union’s representa-

tional status.

On April 14, Lozinak and Heisen met with Slusher to ask

him about the distribution of Breneisen’s abstract. There is

a conflict in the testimony about what precisely Lozinak

and Heisen asked him about distribution of the abstract

and, more to the point, what Slusher said in reply. Lozinak

testified that Slusher was twice asked whether he gave

copies to anyone other than the two supervisors, and

Slusher had replied that he did not. Slusher, on the other

hand, testified that he was asked to name the individuals

to whom he had given copies of the abstract, and that in

response he said that he had given copies of the abstract to

No. 04-3793 11

Moreno and Moscinski in addition to both Lozinak and

Heisen. Slusher also testified that he denied having

distributed any copies of the abstract at the Lockport

facility (where, according to Lozinak, a copy had been

found). Slusher was told at the interview that the Company

was suspending him pending the outcome of the investiga-

tion. Actually, by that point, the investigation was essen-

tially complete: Lozinak already had obtained affidavits

from both Moscinski and Schaeffer averring that Slusher

had given them copies of the abstract. In the aftermath of

the interview, Lozinak proposed that Slusher be terminated

for lying about the persons to whom he had distributed

Breneisen’s abstract. All that remained is for the Com-

pany’s Legal and Human Resources Departments to sign off

on his recommendation, which they subsequently did.

Lozinak spoke by telephone with Slusher on April 23 and

informed him that the Company was firing him for distrib-

uting the DUI abstract. Slusher’s termination was con-

firmed in a letter that Lozinak issued that same day. The

letter indicated that Exxon Mobil considered his circulation

of Breneisen’s abstract to be a violation of the Company’s

anti-harassment policy:

Your mass distribution of personal information regard-

ing a co-worker was designed to embarrass and humili-

ate him; to affect his employment opportunities; and to

create a hostile work environment in violation of the

policy. . . .

GC Ex. 7. In addition to harassment, the letter identified a

second reason for Slusher’s discharge, namely “lying in a

Company investigation”:

[D]uring our official Company investigation, on April

14, 2003, you denied distributing the criminal abstract[

] in question. Based on your statements, the Company

has concluded that you lied during a Company investi-

gation. As you know, lying in a Company investigation

12 No. 04-3793

is a serious, terminable offense and a violation of the

Company ethics policy.

Id. At the subsequent hearing before the ALJ, both Lozinak

and Ellis testified that lying was the sole reason for the

Company’s decision to discharge Slusher. “He lied, that’s it,”

Lozinak testifed. Tr. 378.

Slusher filed a charge on April 16 alleging that his

suspension amounted to an unfair labor practice. He later

amended the charge to cover his termination as well. On

June 3, 2003, the Board’s General Counsel issued a com-

plaint alleging that Exxon Mobil had suspended and fired

Slusher for filing, investigating, and otherwise processing

grievances on behalf of the Company’s employees and that

because these are protected concerted activities under

section 7 of the NLRA,3 the Company had violated section

8(a)(1) and (3) of the Act.4 The ALJ conducted a hearing on

3

In relevant part, section 7 of the NLRA provides:

Employees shall have the right to self-organization, to form,

join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to en-

gage in other concerted activities for the purpose of collec-

tive bargaining or other mutual aid or protection . . . .

29 U.S.C. § 157 (emphasis added). The pursuit of a grievance

in accordance with the provisions of a collective bargaining

agreement is one of the concerted activities protected by section 7.

NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 836, 104 S. Ct.

1505, 1513 (1984). “Naturally, this protection extends to a union

steward or official who aids another employee in filing a griev-

ance.” Roadmaster Corp. v. NLRB, 874 F.2d 448, 452 (7th Cir.

1989) (citing Caterpillar Tractor Co. v. NLRB, 638 F.2d 140, 141

(9th Cir. 1981)).

4

Section 8 of the NLRA provides, in relevant part:

It shall be an unfair labor practice for an employer—

(continued...)

No. 04-3793 13

the complaint on October 20 and 21, 2003.

Based on the evidence, the ALJ concluded that Slusher’s

conduct in showing and distributing copies of Breneisen’s

DUI abstract to members of the bargaining unit was in

furtherance of his duties as a steward, was properly

undertaken in a manner consistent with the NLRA, and

was therefore a concerted activity protected by section 7

of the Act. Consequently, Exxon Mobil’s suspension and

discharge of Slusher (whether based on the notion that

Slusher was harassing Breneisen and/or that he was not

candid in answering the Company’s questions about his

distribution of the abstract) violated section 8(a)(1) of the

Act. Underlying this conclusion was the ALJ’s factual

determination that Slusher distributed the abstract not to

harass Breneisen but in order to demonstrate to Union

members that the Company was not applying the drug and

alcohol policy consistently and that the Union therefore had

a meritorious claim of disparate treatment, the very type of

claim that Slusher subsequently filed on behalf of

Blommaert. Among other things, the ALJ found that:

(a) Slusher was a dedicated steward who “was punctilious

in enforcing the [CBA].” Exxon Mobil, 2004 WL 2245467, at

*9. The ALJ noted that the Union had opposed the applica-

tion of Exxon’s pre-merger drug and alcohol policy to Mobil

4

(...continued)

(1) to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in section [7 of the

NLRA, 29 U.S.C. § 157];

...

(3) 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 . . . .

29 U.S.C. § 158(a).

14 No. 04-3793

facilities on the ground that this was a change in working

conditions that should have been negotiated between the

Union and the Company. Slusher had filed at least three

grievances challenging the enforcement of the drug policy

vis-à-vis drivers in the bargaining unit. Id. at *8.

(b) Slusher had become aware of Breneisen’s DUI incident

in February 2003 while investigating Blommaert’s first

grievance. Once the incident had been confirmed, through

public records as well as by Breneisen’s own acknowledg-

ment, Slusher concluded that the incident was evidence

that the Company was treating some drivers like Breneisen

more favorably under the drug and alcohol policy than it

was Blommaert and other members of the bargaining unit.

Id. at *10-*11.

(c) Once Slusher had obtained a copy of the abstract,

“there was sufficient evidence to file the [disparate treat-

ment] grievance, if not to oblige Slusher to pursue it.” Id. at

*24.

(d) The fact that Slusher distributed copies of the abstract

after Breneisen moved to decertify the union, and the

additional fact that it was a number of days after Slusher

received and circulated the abstract before he filed the

disparate treatment grievance, did not suggest that Slusher

was out to harm Breneisen rather than to help Blommaert.

Slusher had waited until he had proof of Breneisen’s DUI

incident before he disclosed it to other union members; and,

at the same time, he filed the grievance within one week of

receiving the abstract. “Thus, timing points more toward a

proper, protected . . . purpose rather than a retaliatory

purpose.” Id.

(e) Slusher’s motive in distributing the abstract was, in

fact, legitimate rather than invidious. “In distributing the

abstract, Slusher was not motivated by an intent to retali-

ate against or harm Breneisen, but rather to properly

No. 04-3793 15

pursue a claim of disparate treatment on behalf of a

bargaining unit member.” Id.

(f) Other employees, in the ALJ’s view, had a right to

know that the Company might be applying the drug and

alcohol policy in a disparate manner. Those employees

included not just individuals who, like Moreno, had pending

grievances regarding the policy, but all members of the

bargaining unit. Id. at *12.

(g) “Slusher had no reason to lie about whether he

distributed the abstract to his bargaining unit members”

and “Slusher did not lie when he was asked by Lozinak to

name the persons to whom he had given the abstract, and

he replied that he had given it to Moreno, Machinski [sic],

Lozinak, and Heisen.” Id. at *14 (footnote omitted). Slusher

credibly testified that, inadvertently, he also may have

given a copy of the abstract to Schaeffer. Id. However, the

most that could be said with respect to his failure to name

Schaeffer during the interview with Lozinak and Heisen

was that he was simply mistaken. Id. at *14 & *26 n.10.

(h) “Slusher was a credible witness and his testimony on

this matter was given in a candid, forthright manner.” Id.

at *14.

(i) By contrast, Lozinak, whose termination letter to

Slusher had said that the discharge was based in part on

the “mass distribution” of Breneisen’s abstract, gave “con-

trived and incredible” testimony of what he meant by

that description and, ultimately, “was not worthy of belief.”

Id. at *15.

(j) Exxon Mobil had changed its position as to the reason

or reasons for Slusher’s discharge. When Lozinak tele-

phoned Slusher to inform him of his termination, he told

Slusher that he was being fired for circulating Breneisen’s

abstract. The official termination letter that Lozinak

subsequently wrote to Slusher then added lying as a second

reason for the discharge. By the time of the hearing,

16 No. 04-3793

however, the Company was insisting that lying was the only

reason for the discharge. “These shifting explanations

undercut any claim of a lawful basis for Slusher’s discharge,

and make incredible the differing explanations put forward

by the Respondent.” Id. at *23.

By a 2 to 1 vote, the Board reversed the ALJ and ordered

the dismissal of the General Counsel’s complaint, conclud-

ing that Slusher had intended to harass Breneisen. The

Board majority acknowledged the ALJ’s finding that

Slusher did not distribute Breneisen’s abstract with the

intent to harass Breneisen but rather to share with other

members of the bargaining unit the basis for the disparate

treatment grievance Slusher was pursuing on Blommaert’s

behalf. However, the majority believed that “[t]he record .

. . supports a different interpretation.” Id. at *1. In its view,

the chronology of events indicated that Slusher’s motive in

distributing the abstract was to harm Breneisen. The

majority emphasized the following sequence of events:

(1) On April 10, Breneisen filed a complaint with Exxon

Mobil regarding Slusher’s distribution of a personal and

confidential record among his coworkers; and on that

same day, the Company notified Slusher that it had re-

ceived another complaint of harassment against him that it

would investigate following the decertification election.

(2) On April 11, just prior to that election, Slusher filed

the disparate treatment grievance.

(3) Slusher had learned of Breneisen’s DUI by February

20 (when he asked Breneisen about it), yet he “took no steps

to file a grievance until nearly 2 months later on the date of

the decertification election.” Id. at *2. The substantial delay

“shows that Slusher’s object in circulating the DUI record

was to harass Breneisen, who he knew was subject to

discharge under [Exxon Mobil’s] strict drug and alcohol

policy if it was determined by the [Company] that

Breneisen had failed to disclose the DUI-incident.” Id.

No. 04-3793 17

(4) “The grievance filing itself came only after Slusher

was told of [Exxon Mobil’s] investigation of the harass-

ment complaint against him, and as the Union was being

decertified.” In that context, “the April 11 grievance filed by

Slusher was a cloak to provide cover for the circulation of

the DUI report.” Id.

(5) Finally, although Slusher filed the disparate treat-

ment grievance purportedly on Blommaert’s behalf, the

CBA required that a grievance be filed within 30 days of the

underlying occurrence. Yet Blommaert had been discharged

on January 10, and Slusher did not file the disparate

treatment grievance until more than 90 days later. Slusher

as a veteran steward surely knew that the grievance was

beyond the deadline established by the CBA.

The dissenting member of the Board, having in mind the

credibility assessments and factual findings rendered by the

ALJ, believed that the majority had gone astray in ascrib-

ing an improper motive to Slusher. “The majority’s depic-

tion of steward Slusher’s protected grievance activity as

unprotected harassment of Breneisen is simply unfounded.”

Id. at *5. The dissent pointed out that the ALJ had consid-

ered the timing of Slusher’s conduct and rejected the notion

that it bespoke retaliation on Slusher’s part.

The record fully explains, and the judge specifically

addressed, the chronology the majority posits as sus-

pect. Slusher waited to file the grievance until he

received confirmation of Breneisen’s DUI incident. He

did not obtain that confirmation via the court abstract

until April 5, and he filed the grievance within 1 week

of his receipt of it, and showed the abstract within that

same week. As the judge found, “timing points more to

a proper, protected purpose than a retaliatory purpose.”

The fact that Slusher filed the grievance on the date of

the decertification election is easily explained; there is

no dispute that Slusher was an extremely aggressive

steward who would continue representing employ-

18 No. 04-3793

ees—and filing grievances—until the very minute that

representation ceased. And that is what he did.

Id. The dissent noted further that the ALJ had expressly

credited Slusher’s testimony that his intent in circulat-

ing the abstract was not to harass Breneisen for his anti-

union stance but to pursue relief on behalf of Blommaert

and to force Exxon Mobil to treat employees equitably. “The

majority’s speculation that Slusher sought to have

Breneisen fired is baseless, and ignores that Slusher

initiated the entire sequence of events—by asking

Breneisen whether he had a DUI—before Breneisen had

even filed the decertification petition.” Id. (emphasis in

original).

II.

This court will uphold the Board’s dismissal of a com-

plaint so long as its factual findings are supported by

substantial evidence and its legal conclusions have a

reasonable basis in law. NLRB v. Int’l Bhd. of Elec. Work-

ers, Local Union 16, 425 F.3d 1035, 1039 (7th Cir. 2005); 29

U.S.C. § 160(e). By “substantial evidence,” we mean such

relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. NLRB v. Erie Brush &

Mfg. Corp., 406 F.3d 795, 801 (7th Cir. 2005); NLRB v.

Midwestern Pers. Servs., Inc., 322 F.3d 969, 976 (7th Cir.

2003); Kopack v. NLRB, 668 F.2d 946, 951 n.3 (7th Cir.

1982). Where the record evidence is susceptible of different

interpretations, it is not our province to decide which of

them is correct. Thus, we cannot “ ‘displace the Board’s

choice between two fairly conflicting views, even though the

court would justifiably have made a different choice had the

matter been before it de novo.’ ” NLRB v. United Ins. Co. of

Am., 390 U.S. 254, 260, 88 S. Ct. 988, 991-92 (1968) (quot-

ing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71

S. Ct. 456, 465 (1951)); Midwestern Pers. Servs., 322 F.3d at

No. 04-3793 19

976. A party challenging the Board’s factual assessments

thus bears the burden of showing that they are not sup-

ported by substantial evidence. Erie Brush & Mfg. Co.; 406

F.3d at 801; NLRB v. Tom Wood Datsun, Inc., 767 F.2d 350,

352 (7th Cir. 1985).

As the Board’s order makes plain, the key issue in this

case is Slusher’s motive in distributing copies of Breneisen’s

abstract. Whereas the ALJ found that Slusher circulated

the abstract in order to demonstrate to other members of

the bargaining unit the basis for pursuing a disparate

treatment grievance against Exxon Mobil, the Board

majority found that he did it in order to harass Breneisen

for opposing and seeking to decertify the Union.

The nature of a party’s motivation in committing a

particular act is, of course, a question of fact. E.g., SCA

Tissue N.A. LLC v. NLRB, 371 F.3d 983, 988 (7th Cir.

2004); E & L Transp. Co. v. NLRB, 85 F.3d 1258, 1268 (7th

Cir. 1996); Central Transp., Inc. v. NLRB, 997 F.2d 1180,

1191 (7th Cir. 1993). Like other aspects of a person’s state

of mind, one’s motive is rarely proved directly. See, e.g.,

Mannie v. Potter, 394 F.3d 977, 983 (7th Cir. 2005); Justak

Bros. & Co. v. NLRB, 664 F.2d 1074, 1077 (7th Cir. 1981).

Typically, a mental state is established inferentially based

on the totality of the evidence, including the credibility of

the witnesses who testify before the finder of fact. See,

e.g., Market St. Assocs. Ltd. P’ship v. Frey, 941 F.2d 588,

597-98 (7th Cir. 1991); Thor Power Tool Co. v. Weintraub,

791 F.2d 579, 583-84 (7th Cir. 1986).

As a factual determination, then, the Board’s finding as

to one’s motive is conclusive if it is supported by substantial

evidence on the record considered as a whole. In its

factfinding, however, the Board “is not free to prescribe

what inferences from the evidence it will accept and reject,

but must draw all those inferences that the evidence fairly

demands.” Allentown Mack Sales & Serv., Inc. v. NLRB, 522

20 No. 04-3793

U.S. 359, 378, 118 S. Ct. 818, 829 (1998). “Courts perform-

ing substantial evidence review, therefore, must examine

whether the Board considered all of the reasonable infer-

ences compelled by the evidence in reaching its decision.”

Pirelli Cable Corp. v. NLRB, 141 F.3d 503, 514 (4th Cir.

1998) (citing Allentown Mack Sales & Serv., 522 U.S. at

378-79, 118 S. Ct. at 829).

In this case it is the Union that is challenging the Board’s

decision, and so, as we have noted, the Union bears the

burden of convincing us that the Board’s findings lack the

support of substantial evidence. The fact that the Board

assessed the evidence differently than did the ALJ does not

alter that burden, because it is the independent validity of

the Board’s order that we examine. See Universal Camera,

340 U.S. at 496, 71 S. Ct. at 469; U.S. Marine Corp. v.

NLRB, 944 F.2d 1305, 1319 (7th Cir. 1991) (en banc); NLRB

v. Roll & Hold Warehouse & Distrib. Corp., 162 F.3d 513,

517 (7th Cir. 1998); Weather Shield Mfg, Inc., Millwork Div.

v. NLRB, 890 F.2d 52, 57 (7th Cir. 1989). Yet, the Board’s

decision to reject the ALJ’s factual findings does give rise to

“ ‘a special problem of administrative review.’ ” NLRB v.

Stor-Rite Metal Prods. Inc., 856 F.2d 957, 964 (7th Cir.

1988) (quoting Stokley-Van Camp, Inc. v. NLRB, 722 F.2d

1324, 1328 n.8 (7th Cir. 1983)). On consideration of the

record, the Board enjoys the prerogative to make factual

findings independent of and even contrary to those of the

ALJ. E.g., Universal Camera, 340 U.S. at 492, 71 S. Ct. at

467. However, “on matters which the [ALJ], having heard

the evidence and seen the witnesses, is best qualified to

decide, the agency should be reluctant to disturb his

findings unless error is clearly shown.” Id. at 494, 71 S. Ct.

at 468.5 For purposes of our review, the ALJ’s decision

5

The Board itself has a long-established policy “not to over-

(continued...)

No. 04-3793 21

(including his findings of fact) is as much a part of the

record as the evidence put before the ALJ, and we must

consider the ALJ’s views in deciding whether the Board’s

order is supported by substantial evidence. Universal

Camera, 340 U.S. at 493, 71 S. Ct. at 467; see also Stor-Rite,

856 F.2d at 964.

Cognizant of the special concerns raised by the Board’s

rejection of an ALJ’s factual findings, we have articulated

the following “general propositions to guide our review of a

Board decision”:

1. In all cases, the standard of review is the “substan-

tial evidence” standard.

2. Because the ALJ’s report is a part of the record

with independent significance, a factual determina-

tion of the Board that departs from the findings of

the ALJ stands on weaker ground than one that

does not.

3. Because only the ALJ can view the demeanor of the

witnesses, any of the ALJ’s findings that turn on

express or implied credibility determinations take

on particular significance on review.

Weather Shield Mfg., 890 F.2d at 57 (quoting Stor-Rite, 856

F.2d at 964); see also U.S. Marine Corp., 944 F.2d at 1319

n.16. We have added that when the Board has rejected an

ALJ’s credibility assessment (express or implied) in reach-

ing a particular determination, “then the Board’s conclusion

5

(...continued)

rule a hearing officer’s credibility resolutions unless a clear

preponderance of all the relevant evidence convinces [the Board]

they are incorrect.” Robert F. Kennedy Med. Ctr., 336 NLRB

765, 765 n.2 (NLRB 2001) (citing Stretch-Tex Co., 118 NLRB 1359,

1361 (NLRB 1957)); see also Standard Dry Wall Prods., Inc., 91

NLRB 544, 545 & n.3 (NLRB 1950) (coll. cases), enforced, 188 F.2d

362 (3d Cir. 1951) (per curiam).

22 No. 04-3793

is subject to special scrutiny rather than merely the

substantial evidence test.” Weather Shield, 890 F.2d at 58.

See Mobil Exploration & Producing U.S., Inc. v. NLRB, 200

F.3d 230, 261 n.2 (5th Cir. 1999) (Garza, J., dissenting)

(collecting cases holding that court engages in heightened

scrutiny when Board rejects ALJ’s factual findings); see

also, e.g., Pirelli Cable Corp., 141 F.3d at 515 (Board

decision based on credibility determinations different from

those of the ALJ are subject to “closer scrutiny”).

A person’s motive is, as we have said, a factual matter,

and the ALJ’s finding as to Slusher’s motive necessarily

rests in significant part on the judge’s assessment of

Slusher’s credibility. Slusher, of course, testified before the

ALJ that he did not intend to harm Breneisen when he

distributed the abstract, and the ALJ found Slusher

believable in that regard. By contrast, the ALJ found

Lozinak, who had interviewed Slusher on the subject of the

distribution and concluded that Slusher was lying about it,

not credible. So to the extent that the Board’s decision, in

finding that Slusher was motivated by a desire to punish

Breneisen for his anti-Union views, rejected the ALJ’s

credibility assessment, it stands on weaker ground with us

than it otherwise might and we must give it special scru-

tiny. Weather Shield, 890 F.2d at 57-58; see also Universal

Camera, 340 U.S. at 496, 71 S. Ct. at 469 (significance of

hearing officer’s findings depends on extent to which

witness credibility is important).

Initially, in an effort to fend off such scrutiny, the Board’s

General Counsel suggests that the Board did not, in fact,

reject any of the ALJ’s factual findings, including his

credibility assessments. General Counsel Br. 38. As the

General Counsel points out, the Board did not say that it

was rejecting any of the ALJ’s credibility determinations,

and a footnote in its order includes boilerplate language

indicating that the Board was adopting the ALJ’s findings

insofar as they were consistent with the Board’s own

No. 04-3793 23

decision. 2004 WL 2245467, at *1 n.1. But, as the Union is

quick to add, that language makes clear that the Board was

adopting the ALJ’s findings “only” to the extent they were

consistent with the Board’s own order. Id. The ALJ’s finding

as to Slusher’s motive cannot plausibly be described as

being “consistent” with the Board’s decision. It simply is not

possible to reconcile the Board’s finding that Slusher meant

to harass Breneisen with the ALJ’s finding that Slusher’s

testimony disavowing any such motive was forthright,

candid, and ultimately credible. Thus, although it did not

say so expressly, the Board necessarily rejected the ALJ’s

finding that Slusher’s motive was benign and his related

determination that Slusher’s testimony on this point was

credible. See Weather Shield, 890 F.2d at 58-59 (rejecting

contention that Board had accepted ALJ’s credibility

assessments, when in overruling ALJ’s determination,

Board relied on witnesses that ALJ had implicitly discred-

ited and necessarily rejected other testimony that ALJ had

expressly credited); NLRB v. Hawkins Constr. Co., 857 F.2d

1224, 1228 (8th Cir. 1988) (rejecting Board’s effort to

“evade” credibility-based assessment of whether union’s

request for information as to Company’s hiring and subcon-

tracting practices was made in good faith or to harass

Company in retaliation for suit against union); Ewing v.

NLRB, 732 F.2d 1117, 1122 (2d Cir. 1984) (rejecting Board’s

attempt to divorce trial examiner’s credibility assessment

from analysis of evidence and derivative inferences as to

whether Company’s failure to recall employee from layoff

was motivated by suspicion that employee had reported

Company to regulators and triggered inspection); Leviton

Mfg. Co. v. NLRB, 486 F.2d 686, 690 (1st Cir. 1973) (revers-

ing Board in case turning on whether ousted union officials

had filed suit against Company, union and their officers in

good faith or for purpose of harassment, where Board’s

decision did “not respond[ ] at all to the credibility aspect of

the trial examiner’s findings and . . . seemingly rejected out

24 No. 04-3793

of hand the testimony which he credited as to the employ-

ees’ continued harassment activities”).

Unavoidably, then, this is a case where we must give the

Board’s decision the special scrutiny we alluded to in

Weather Shield. As always, the ultimate question is

whether the Board’s decision, including its finding as to

Slusher’s motive, is supported by substantial evidence; but

in answering that question, we must consider whether the

Board had a plausible basis for rejecting the ALJ’s own

finding as to Slusher’s motive and his subsidiary assess-

ment of Slusher’s credibility. The ALJ’s decision constitutes

an important part of the record that we look to in deciding

whether the Board’s own decision is supported by substan-

tial evidence, and to the extent that the ALJ evaluated the

evidence differently than the Board did, the Board cannot

simply ignore his findings.

Notably, the Board did not, in its decision, recount the

evidence, derivative inferences, and credibility assessments

that led the ALJ to conclude that Slusher’s motive in

distributing Breneisen’s abstract was a proper, protected

motive. After acknowledging the ALJ’s finding, the Board

simply said that “the record . . . supports a different conclu-

sion.” 2004 WL 2245467, at *1. So the Board did not

articulate a basis for its decision to reject the ALJ’s reason-

ing on this subject. The General Counsel, in his brief, has

made some effort to reconcile the Board’s decision with the

evidence that led the ALJ to reach a different assessment

of Slusher’s motive. On its face, however, the Board’s order

reflects no such effort, and it is the Board’s decision alone

that we review. See Burlington Truck Lines, Inc. v. United

States, 371 U.S. 156, 168-69, 83 S. Ct. 239, 246 (1962) (“The

courts may not accept appellate counsel’s post hoc rational-

izations for agency action; . . . an agency’s discretionary

order [may] be upheld, if at all, on the same basis articu-

lated in the order by the agency itself . . . .”); S.E.C. v.

Chenery Corp., 318 U.S. 80, 87-88, 63 S. Ct. 454, 459 (1943);

No. 04-3793 25

NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 517-18 &

n.16 (7th Cir. 1991).

What the Board focused on in its order was the chronol-

ogy of events surrounding Slusher’s distribution of the

abstract. In the Board’s view, it was significant that Slusher

was aware no later than February 20 that Breneisen had a

DUI incident in his past, yet nearly two months passed

before Slusher filed the disparate treatment grievance on

Blommaert’s behalf. By that point, the Board believed, any

grievance related to Blommaert’s discharge in January was

untimely. The Board also thought it significant that Slusher

filed the grievance on April 11, the day after he was notified

that the Company had received another complaint of

harassment against Slusher and that it would be investigat-

ing his circulation of Breneisen’s abstract following the

decertification vote. This sequence of events suggested to

the Board that Slusher’s real purpose in circulating

Breneisen’s abstract was to penalize Breneisen for seeking

to decertify the union, and that Slusher filed the disparate

treatment grievance in an effort to provide cover for his

harassment of Breneisen.

As the timing of events is the sole reason identified by the

Board for its finding as to what Slusher’s motive was, and

the Board gave no independent reasons for rejecting the

ALJ’s contrary assessment of Slusher’s motive, we must

consider whether the chronology cited by the Board is so

compelling as to permit the Board to reject the ALJ’s

evaluation of the evidence (including his credibility assess-

ments) without further explanation. Having considered the

record as a whole, we conclude for the following reasons

that the chronology of events is not so compelling as to

relieve the Board of this obligation.

It is undisputed on this record that Exxon Mobil’s drug

and alcohol policy was a subject of interest to both Slusher

and other members of the Union. The merger between

26 No. 04-3793

Mobil and Exxon had resulted in the extension of Exxon’s

stricter pre-merger policy to Mobil’s workforce and had

resulted in the reassignment and discharge of Union

members. Slusher, who was an aggressive Union advocate,

had filed multiple grievances involving the policy. The

policy was an issue in the stalemated negotiations between

Local 705 and the Company over a new CBA. Against that

backdrop, evidence that Exxon Mobil might be applying the

drug and alcohol policy inconsistently—particularly in a

manner that might favor drivers like Breniesen who were

opposed to the Union—was of genuine interest to Union

members. Slusher’s testimony on this point is supported by

the testimony of both Matter (who instructed Slusher to

obtain proof of Breneisen’s DUI and, after seeing the

abstract, to file a grievance) and Blommaert (who said that

he wanted the disparate treatment grievance pursued on

his behalf).

Slusher’s actions could be viewed as consistent with

pursuing a disparate treatment grievance in good faith,

notwithstanding the sequence of events that the Board

chose to highlight in its order. Although Slusher learned

that Breneisen had a DUI incident in February 2003, he

was instructed by Matter to obtain proof of that incident by

checking public records, and Slusher did not have that proof

in hand until April 5. The desire for documentation is not

inherently suspicious; on the contrary, the record suggests

that the court abstract may have provided a number of

details about the incident that Slusher did not otherwise

learn from reviewing Company records and speaking with

Breneisen. On Matter’s instruction, Slusher filed the

grievance six days after he received the abstract from

Blommaert, with two of those days being a weekend

(Slusher received the grievance on a Saturday). Like the

ALJ, we cannot see anything inherently suspicious in

Slusher’s failure to file the grievance more quickly. It is

easy to imagine any number of innocent explanations for

the short delay, particularly in view of the impending

No. 04-3793 27

decertification vote. There certainly was no emergency at

that juncture: Blommaert, as the Board majority pointed

out, had been discharged in January, so waiting a few more

days was not going to make a difference in terms of the

relief available to Blommaert. And although the Board

majority suggested that Slusher must have appreciated the

likelihood that any grievance filed in April challenging

Blommaert’s discharge in January would be deemed

untimely in view of the CBA’s 30-day time limit on griev-

ances, the Board itself abstained from judgment as to

whether the grievance was contractually time-barred. 2004

WL 2245467, at *2 n.4. It appears at least arguable that it

was not, as the Board dissenter pointed out, given that the

Union did not learn of Breneisen’s DUI history until

February (possibly after the 30-day period had already

expired) and did not have proof of the incident until April.

Id. at *6 n.8.

In gross respects, at least, the abstract of Breneisen’s DUI

incident arguably did suggest that the Company might not

be applying its drug and alcohol policy in an evenhanded

fashion. The abstract revealed that Breneisen, pursuant to

the disposition of the 1995 DUI charge, was ordered to pay

a substantial fine and to participate in a remedial DUI

“school.” The abstract’s description of the proceeding

suggests that this may not have been a conviction in the

usual sense, as Slusher thought it was, but rather an

alternative disposition. See supra n.2. Moreover, as the

General Counsel points out, the incident was more than five

years old, and as such the policy would have left it to the

Company’s discretion whether to reassign Breneisen rather

than automatically bar him from driving tankers. But the

record contains no evidence as to what Exxon Mobil’s

rationale actually was in dealing with Breneisen’s incident.

In fact, when Matter contacted Ellis after seeing the

abstract and asked her if she was aware of the incident, she

said (according to Matter) that she was not. On this record,

28 No. 04-3793

one cannot say that Slusher had no good faith basis for

pursuing a disparate treatment grievance.

The facts are also consistent with the possibility that

Slusher, in circulating copies of Breneisen’s DUI abstract,

meant not to harass Breneisen for his opposition to the

Union but rather to alert members of the bargaining unit,

and in addition Exxon Mobil management, that the Com-

pany might be enforcing its drug and alcohol policy in

an inconsistent manner. Slusher testified that he was

initially able to confirm the rumor that Breneisen had a

DUI history because Breneisen himself had “checked off

that box” on his compliance statement, indicating that he

had a DUI incident in his past. Tr. 25. The record admit-

tedly does not tell us how much detail Breneisen had

provided about the incident on that statement—whether,

for example, he disclosed his participation in a DUI school.

See 2004 WL 2245467, at *11.6 And according to Matter,

Ellis had expressed ignorance when he raised Breneisen’s

DUI with her. But the record is uncontradicted on the point

that Breneisen had disclosed the fact of his prior DUI on

the compliance statement and that Breneisen himself had

acknowledged the DUI to Slusher. So there is no reason to

think, as the Board majority apparently did, that this was

an entirely undisclosed incident and that Slusher’s circula-

tion of the abstract might expose Breneisen to discharge for

a lack of candor. Moreover, while insisting that the incident

was no one’s business but his own, Breneisen himself had

acknowledged the incident not only to Slusher but also to

6

Breneisen’s compliance statement is not in the record, and

because Breneisen himself was not called as a witness, we do

not have the benefit of his testimony as to precisely what he

said about the DUI incident on his compliance statement. See

2004 WL 2245467, at *11. Slusher’s testimony discloses only

that Breneisen checked the box indicating that he had a prior

DUI.

No. 04-3793 29

the 10 or 12 persons present at the March 12 meeting of the

bargaining unit, so the incident was by no means a secret

by the time Slusher circulated the abstract. The abstract

itself was a public record, and in view of the discontent

among members of Local 705 regarding the Company’s drug

and alcohol policy, the stalemated contract negotiations,

and the upcoming decertification vote, the possibility of

disparate treatment under the policy, particularly as

between pro and anti-Union drivers, was (at least arguably)

of interest to members of the Union other than Slusher and

Blommaert. And the fact that two of the people to whom

Slusher circulated copies of the abstract—Lozinak and

Heisen—were members of management reasonably could be

viewed as evidence that Slusher’s aim was indeed to

challenge Company policy rather than to harm Breneisen.

We certainly agree with the Board that the evidence does

not foreclose the possibility that Slusher’s actual motive in

distributing the abstract was to harass Breneisen; but

neither does it preclude the ALJ’s contrary finding. And as

this was a case where there was no smoking gun that

supplied definitive proof of what Slusher’s motive was,

Slusher’s own testimony as to his state of mind and, in

turn, his credibility as a witness, were crucial, along with

the testimony and credibility of other individuals (such as

Matter and Blommaert) who were involved in the investiga-

tion of Breneisen’s DUI history and pursuit of the disparate

treatment grievance.

The credibility component of this case, in short, cannot be

ignored. Of all the adjudicators who have considered the

evidence in this case, the ALJ has the distinct advantage of

being the only one to have heard these witnesses and

observed their demeanor on the witness stand. His credibil-

ity assessments were inextricably intertwined with his

finding that Slusher’s motive in circulating the abstract was

benign. The Board has supplied us with no reason to

question (let alone reject) the ALJ’s credibility-based

30 No. 04-3793

findings, and having reviewed the record ourselves, we have

discerned none. Instead, the Board’s decision reads as if,

given the sequence of events, there is only one plausible

answer as to what Slusher’s motive was, regardless of what

Slusher and the other witnesses had to say about his

motive. For the reasons we have discussed, however, that

chronology leaves room for the conclusion that Slusher

distributed Breneisen’s abstract for a lawful and protected

purpose. Because the Board articulated no other basis on

which to reject the ALJ’s credibility-based finding that

Slusher did not mean to harass Breneisen, we can only

conclude that the Board’s contrary assessment of Slusher’s

motive lacks the support of substantial evidence on the

record as a whole.

The Board’s sole basis for reversing the ALJ’s decision

and ordering the dismissal of Slusher’s complaint was that

Slusher’s distribution of the abstract was not activity that

fell within the protection of NLRA section 7, a conclusion

dependent on the Board’s finding that Slusher’s motive was

illicit. For the reasons we have discussed, the Board’s

finding as to Slusher’s motive cannot stand. The ALJ, who

permissibly found that Slusher was not motivated by a

desire to harass Breneisen, concluded that Slusher’s

conduct was protected by section 7 and that Exxon Mobil

had suspended and discharged Slusher based on that

protected conduct in violation of section 8(a)(1) of the Act.

The Board did not otherwise address, let alone find fault

with, those aspects of the ALJ’s decision. Notably, the ALJ’s

assessment of the Company’s reason for discharging

Slusher was also based on the judge’s assessment of the

credibility of the witnesses. Having been given no reason to

question the balance of the ALJ’s decision, the order of the

ALJ granting relief to Slusher must be reinstated.

No. 04-3793 31

III.

Because the Board’s order lacks the support of substantial

evidence on the record as a whole, we grant the petition for

review, reverse the Board’s order, and direct that the ALJ’s

order be reinstated.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-23-05