CC1 Limited Partnership v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2018 Decided August 3, 2018

No. 15-1231

CC1 LIMITED PARTNERSHIP, DOING BUSINESS AS COCA COLA

PUERTO RICO BOTTLERS,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 15-1467

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Néstor M. Méndez-Gómez argued the cause for petitioner.

With him on the briefs were María D. Trelles Hernández and

Jason R. Aguiló Suro. Carlos Concepción entered an

appearance.

Jeffrey W. Burritt, Attorney, National Labor Relations

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

were Richard F. Griffin, Jr., General Counsel, John H.

Ferguson, Associate General Counsel, Linda Dreeben, Deputy

2

Associate General Counsel, and Usha Dheenan, Supervisory

Attorney.

Before: ROGERS, GRIFFITH, and SRINIVASAN, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: The National Labor Relations

Board (“Board”) determined that CC1 Limited Partnership

(“CC1”) unlawfully fired several employees who had engaged

in work stoppages. Although we agree with the Board that there

was substantial evidence that one of the discharged employees

played no part in a work stoppage, we remand to the Board for

further explanation its conclusion that the later wildcat strike

was protected activity. We also dismiss additional claims CC1

makes but failed to properly preserve for our review.

I

A

CC1 operates a bottling plant under the name of Coca Cola

Puerto Rico Bottlers in Cayey, Puerto Rico. Its warehouse

employees are represented by the Union De Tronquistas De

Puerto Rico, Local 901, International Brotherhood of

Teamsters (the “Union”). Until October 2008, José Adrián

López was the Union’s chief negotiator with CC1 and the

principal representative of the employees. Employees Miguel

Colón, Carlos Rivera, Francisco Marrero, Romián Serrano, and

Félix Rivera were elected to participate in negotiations on the

Union’s behalf as shop stewards. The collective-bargaining

agreement that had been in place between CC1 and the Union

since 2003 expired on July 31, 2008.

3

During the afternoon of September 9, 2008, CC1 and

López met to negotiate a new agreement. López planned to

share the status of the negotiations at an 8:30 p.m. meeting in

CC1’s cafeteria with CC1 employees who worked the late shift.

When López arrived at the plant that night, the security guard

tried to block his entrance. Over the guard’s protests, López

entered the plant anyway and held the meeting. During the

meeting, a CC1 supervisor interrupted López and told him to

leave the plant. López refused, and the two argued. Eventually,

the supervisor left the cafeteria to call security, and López led

the group of employees to the plant’s warehouse to continue

the meeting. The shop stewards on site at the time encouraged

other employees to abandon their workstations and follow

López.

At 8:45 p.m., Colón arrived at the plant to attend the

meeting in the cafeteria with López. By that time, the meeting

had moved to the warehouse. By 9:00 p.m., Colón joined the

meeting at the warehouse, where he found López and about

ninety employees. Soon after, police called by CC1’s security

came, and López told the employees to return to work. All in

all, the work stoppage caused by López’s meeting cost the

company two hours of work from the employees who attended.

On the next day, CC1 suspended Colón and the other shop

stewards. According to the letter each received from the

company, they were suspended for “invading private property,

encouraging others to abandon their job, verbally abusing the

supervisors and intentionally paralyzing the production line”

the night before. App’x 369. In response, the Union called a

meeting at which the CC1 employees unanimously agreed to

strike unless management agreed to three demands: (1)

reinstate the suspended shop stewards; (2) forgo filing any

charges against the Union based on the work stoppage; and (3)

return to the table to negotiate a new collective-bargaining

4

agreement. The next day, a Union officer requested strike

assistance from national headquarters.

One month later, the Union had not yet met with CC1

negotiators or planned a strike. On October 9, Colón and the

other shop stewards circulated a flyer announcing a meeting on

October 12 to discuss a strike. But the meeting was not

authorized by the Union. Upon seeing the flyer, one Union

official asked Colón not to “divide the membership.” Another

Union representative suggested to him that only a strike would

ensure reinstatement of the shop stewards. On October 10, CC1

discharged the suspended shop stewards. Two days later at the

October 12 meeting called by Colón and the other shop

stewards, employees signed a petition authorizing a strike

unless CC1 agreed to the Union’s demands. But the Union had

no part in the meeting. No Union official attended, and the

Union never responded to Colón’s list of employees who had

signed the strike petition.

On October 14, the national headquarters approved the

Union’s request to provide assistance in a strike. The next day,

the Union wrote CC1 to demand that negotiations resume. CC1

agreed, but the Union never replied.

On October 19, the shop stewards met at Colón’s home to

prepare to strike. From October 20 until October 22, more than

100 CC1 employees went on strike. Many of them used picket

signs and loudspeakers to protest the company’s treatment of

López and the firing of the shop stewards. They also demanded

that CC1 reinstate the shop stewards and negotiate a new

collective-bargaining agreement.

On the first day of the strike, CC1 warned the Union that

the company planned to “resort to ulterior actions against the

Union and its representatives” unless the strike stopped. App’x

5

399. Upon receiving CC1’s message, the Union explained that

the strike was an illegal “wildcat” strike because it was not

backed by the Union: “We want to clarify that we have not sent

or authorized the presence of Officers or Union members in

said stoppage; therefore, the presence there of any Union

member would have been of their own accord, not official, and

in violation of the statutes of the Union.” App’x 403. The

Union added that it would take action against the “false

leaders” who were “threatening . . . the welfare of the great

majority of the [CC1] workers in order to promote their own

ignoble interests.” Id. CC1 distributed the Union’s message to

the striking employees, some of whom responded by

abandoning the strike.

Once the strike ended, CC1 suspended or discharged

eighty-six of the striking employees. At the Union’s request,

CC1 agreed to reinstate suspended employees who signed a so-

called “last-chance agreement,” which subjected them to

immediate termination should they violate any of the

agreement’s terms.

B

CC1’s response to the events surrounding the work

stoppage and the strike drew multiple charges. In 2009, the

Board’s General Counsel issued a complaint alleging that CC1

unlawfully discharged its employees for participating in those

actions. After an evidentiary hearing, an Administrative Law

Judge (ALJ) determined that discharging Colón violated the

NLRA because the evidence showed he had not encouraged the

September 9 work stoppage as CC1 claimed. The ALJ

determined that the wildcat strike was protected by the NLRA,

making CC1’s discharge of the striking employees unlawful.

The ALJ also concluded that the last-chance agreements were

unlawful.

6

CC1 challenged the ALJ’s decision, which the Board

affirmed with some exceptions. CC1 Limited Partnership, 358

N.L.R.B. 1233 (2012). As to the firing of Colón, the Board

found that he had not encouraged the work stoppage and, even

if he had, his actions would have been protected by the NLRA.

Id. at 1234 & n.5. As to the wildcat strike, the Board agreed

that it was protected activity because it supported the Union’s

strategy. Id. at 1235-36. To this latter point, the Board looked

at the two factors set forth in Silver State Disposal Service, Inc.,

326 N.L.R.B. 84, 103 (1998): “(1) whether the employees

[attempted] to [bypass their union and] bargain directly with

the employer and (2) whether the employees’ position [was]

inconsistent with the union’s position.” CC1, 358 N.L.R.B. at

1235. The Board determined that the employees were striking

as individuals on behalf of the Union, reasoning the Union

never told the employees not to strike and that they did not

know the Union was pursuing separate negotiations with

management. Id. at 1235-36. The Board also concluded that the

employees’ three demands of CC1 were consistent with the

Union’s position. Id. In its order, the Board required CC1 to

provide backpay to the discharged employees. Id. at 1238.

The Board denied CC1’s motion for reconsideration.

Order Denying Motion for Reconsideration, 2013 WL 298118

(N.L.R.B. Jan. 24, 2013). CC1 sought review in our court, but

we held its petition in abeyance until the Supreme Court

decided NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). In

Noel Canning, the Court held that the recess appointments of

three members of the Board, two of whom were on the 2012

panel, were unlawful. Id. at 2557, 2578. As a result, the Board

set aside the 2012 decision. Order, 2014 WL 2929759

(N.L.R.B. June 27, 2014). Meanwhile, CC1 reached settlement

agreements with all of the employees involved except for four

7

who had been discharged for striking and Colón. CC1 Limited

Partnership, 362 N.L.R.B. No. 125, at 1 n.1 (June 18, 2015).

In 2015, a lawfully appointed panel of the Board reviewed

de novo the ALJ’s decision and “affirm[ed] the [ALJ’s] rulings,

findings, and conclusions . . . to the extent and for the reasons

stated” in the 2012 decision and order. Id. at 1. The new panel

unanimously found that CC1 had unlawfully discharged Colón

“by terminating [him] for his participation in the [September]

walkout.” Id. at 3 n.7. But the panel divided over whether the

October wildcat strike was protected activity. The dissent

argued that the strike was not because it “undermined the

Union’s position as . . . exclusive collective bargaining

representative,” id. at 5, and diluted the “united front” that

gives unions the bargaining power to make their negotiations

effective, id. (quoting Emporium Capwell Co. v. W. Addition

Cmty. Org., 420 U.S. 50, 70 (1975)). In the dissent’s view, the

striking employees were a “dissident” faction that intended to

“usurp” the Union’s exclusive negotiation authority. Id. In the

view of the majority, the striking employees were simply

“ma[king] good on the [Union’s previous] strike threat.” Id. at

3. As with the 2012 order, the Board ordered CC1 to provide

backpay in a lump sum to the unlawfully discharged

employees, id. at 4, but newly required CC1 to reimburse

employees for any tax penalties triggered by the award, id. The

Board also ordered CC1 to “[c]ease and desist from . . .

[c]oercing employees into signing overbroad ‘last chance’

agreements as a condition of their reinstatement” and to

remove any references to those agreements from the files of the

employees who signed one. Id.

In July 2015 CC1 petitioned our court for review, and in

December 2015 the Board cross-applied to enforce its decision.

We consolidated the cases and consider now whether the Board

8

properly determined that CC1 violated the NLRA by firing

Colón and the striking employees.

II

The Board had jurisdiction over this matter pursuant to 29

U.S.C. §§ 151, 160(a), and we have jurisdiction under § 160(f).

Even though “[w]e review the [Board’s] orders under a

deferential standard,” we cannot affirm a decision made

without a “reasoned explanation.” Int’l Transp. Serv., Inc. v.

NLRB, 449 F.3d 160, 163 (D.C. Cir. 2006) (internal quotation

marks omitted). We will affirm a decision that applies a

“reasonably defensible” interpretation of the NLRA, even if we

“might prefer another view of the statute.” Ford Motor Co. v.

NLRB, 441 U.S. 488, 496-97 (1979). And we uphold the

Board’s policy judgments that are not arbitrary or capricious.

Int’l Transp., 449 F.3d at 163.

The Board’s factual findings are “conclusive” if they are

“supported by substantial evidence on the record considered as

a whole.” 29 U.S.C. § 160(e); see also Universal Camera

Corp. v. NLRB, 340 U.S. 474, 477 (1951). “Indeed, the Board

is to be reversed only when the record is so compelling that no

reasonable fact finder could fail to find to the contrary.” Bally’s

Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)

(citations and internal quotation marks omitted). We will

accept the credibility determinations made by an ALJ and

adopted by the Board unless those determinations are

“hopelessly incredible, self-contradictory, or patently

unsupportable.” Stephens Media, LLC v. NLRB, 677 F.3d 1241,

1250 (D.C. Cir. 2012) (internal quotation marks omitted).

9

III

A

CC1 asserts that it fired Colón because he encouraged the

September 9 work stoppage, which was unlawful. * The Board

responds that CC1 was motivated instead by Colón’s support

for the Union. “It is well settled that an employer violates the

NLRA by taking an adverse employment action . . . in order to

discourage union activity.” Tasty Baking Co. v. NLRB, 254

F.3d 114, 125 (D.C. Cir. 2001) (citing Wright Line, 251

N.L.R.B. 1083, 1089 (1980)). To demonstrate that the

employer’s motivation was unlawful, the General Counsel

must present to the Board “a prima facie showing sufficient to

support the inference that protected [i.e., union-related]

conduct was a motivating factor in the . . . adverse action.” Id.

(alterations in original) (quoting TIC-The Indus. Co. Se., Inc. v.

NLRB, 126 F.3d 334, 337 (D.C. Cir. 1997)). “Once a prima

facie case has been established, the burden shifts to the

company to show that it would have taken the same action in

the absence of the unlawful motive.” Id. at 126. “[O]ur review

of the Board’s conclusions as to discriminatory motive is

[especially] deferential, because most evidence of motive is

circumstantial.” Fort Dearborn Co. v. NLRB, 827 F.3d 1067,

1075-76 (D.C. Cir. 2016) (internal quotation marks omitted).

Before the ALJ, the General Counsel argued that CC1’s

reason for discharging Colón must have been unlawful because

the company’s professed explanation, his encouragement of the

work stoppage, never happened. The ALJ found that Colón

arrived at the plant after the employees had already left their

*

We do not reach the issue of whether the conduct CC1 alleges

was protected activity because, as we determine below, this conduct

was a pretext to discharge Colón and not CC1’s true motivation.

10

work stations to gather at the warehouse, leaving no

opportunity for Colón to encourage the work stoppage. Only

Armando Troche, a CC1 supervisor, testified that he saw Colón

telling employees to stop working. The ALJ did not credit this

testimony because he believed, mistakenly as it turned out, that

Troche hadn’t mentioned Colón’s conduct in his pretrial

affidavit. Despite the ALJ’s mistake, he found other reasonable

grounds to discount what Troche claimed. Colón and two

corroborating witnesses testified that he had not encouraged the

work stoppage. Moreover, Troche’s testimony focused on the

shop stewards as a group, mentioning Colón only to say that

when he arrived he joined in the other shop stewards’ conduct.

App’x 307.

We cannot second-guess “the ALJ’s credibility

determinations, as adopted by the Board, unless they are

patently insupportable.” Gold Coast Rest. Corp. v. NLRB, 995

F.2d 257, 265 (D.C. Cir. 1993) (quoting NLRB v. Creative

Food Design Ltd., 852 F.2d 1295, 1297 (D.C. Cir. 1988)).

Because there is scant evidence that Colón encouraged the

work stoppage and plenty of evidence that he did not, we defer

to the Board.

If Colón did not encourage the work stoppage, as we

conclude, the Board was justified to infer that some other

conduct must have motivated CC1, and the General Counsel

successfully made a prima facie case that such conduct was

protected activity. See Prop. Res. Corp. v. NLRB, 863 F.2d 964,

967 (D.C. Cir. 1988) (stating that the Board “can infer from

falsity of employer’s stated reason for discharge that motive is

unlawful” (citing Shattuck Denn Mining Corp. v. NLRB, 362

F.2d 466, 470 (9th Cir. 1966))). The burden shifted to CC1 to

present an alternative, lawful motivation, but the company still

offers none, instead standing behind its argument that “Colón

11

did indeed encourage employees to engage in a work

stoppage.” CC1 Br. 44.

It is possible of course that CC1 fired Colón based on a

mistaken but good-faith belief that he had encouraged the work

stoppage. See Sutter E. Bay Hosps. v. NLRB, 687 F.3d 424,

435-36 (D.C. Cir. 2012). But CC1 does not make this

argument. See N.Y. Rehab. Care Mgmt. v. NLRB, 506 F.3d

1070, 1076 (D.C. Cir. 2007). Regardless, the Board concluded

from the ALJ’s findings that CC1 did not believe in good faith

that Colón had encouraged the work stoppage. For example,

the ALJ determined that CC1 “conducted a superficial

investigation as it concerned Shop Steward Col[ó]n, and

manufactured evidence in its desire to lump together the

actions of the four other Shop Stewards with those of Col[ó]n.”

App’x 21. The ALJ also found that “none of the Shop Stewards

including Col[ó]n were ever provided the opportunity to state

their position concerning the events of September 9, but rather

were summarily suspended on September 10.” Id. These

findings certainly cast suspicion on the possibility that CC1

fired Colón because it made a good-faith mistake. See Inova

Health Sys. v. NLRB, 795 F.3d 68, 84 (D.C. Cir. 2015)

(doubting that a company fired its employee for her

unprofessional conduct, as it claimed, when that company’s

investigation into her behavior was “one-sided” and

incomplete).

In these circumstances and given our deferential standard

of review, we affirm the Board’s conclusion that CC1 did not

fire Colón because it believed that he had encouraged the

September 9 work stoppage. See Fort Dearborn Co., 827 F.3d

at 1072. And because CC1 didn’t satisfy its burden to

demonstrate an alternative, lawful reason for firing him, we

affirm the Board’s conclusion that CC1 fired Colón for

unlawful reasons. See Shamrock Foods Co. v. NLRB, 346 F.3d

12

1130, 1135 (D.C. Cir. 2003) (explaining that once the General

Counsel shows that a company had unlawful motivations, the

burden to demonstrate a lawful motivation shifts to the

company) (citing Wright Line, 251 N.L.R.B. at 1089).

B

CC1 argues that it was lawful to fire the employees who

participated in the October strike because it was a wildcat

strike, which is not protected by the NLRA. The Board agrees

that the October strike was a wildcat strike, but believes that it

was protected by the NLRA.

Wildcat strikes are governed by sections 7 and 9 of the

NLRA. In most circumstances, section 7 protects an employee

who claims his labor rights through “concerted activities,” such

as strikes. 29 U.S.C. § 157 (“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 engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or

protection . . . .”); see also NLRB v. Erie Resistor Corp., 373

U.S. 221, 233 (1963). An employer who disciplines an

employee for exercising a protected right to strike violates the

NLRA. 29 U.S.C. § 158(a)(1); Consolidated Commc’ns, Inc. v.

NLRB, 837 F.3d 1, 7 (D.C. Cir. 2016). Section 9 provides that

a lawfully elected union is the exclusive bargaining

representative of the employees. 29 U.S.C. § 159(a)

(“Representatives . . . selected for the purposes of collective

bargaining . . . shall be the exclusive representatives of all the

employees in such unit for the purposes of collective

bargaining in respect to rates of pay, wages, hours of

employment, or other conditions of employment . . . .”).

13

The exclusive bargaining authority granted unions by

section 9 sometimes creates a tension, which the NLRA does

not clearly resolve, with labor rights granted employees by

section 7. The Supreme Court addressed this tension in

Emporium Capwell Co. v. Western Addition Community

Organization, holding that a strike is not protected activity

when it interferes with an elected union’s exclusive

representation. 420 U.S. at 62. Even so, the Court did not strip

the NLRA’s protection from all wildcat strikes. By electing a

union, employees do not “waive[] all rights to protect

themselves against an employer’s unlawful actions.” Jones &

McKnight, Inc. v. NLRB, 445 F.2d 97, 105 (7th Cir. 1971); see

also Bridgeport Ambulance Serv., Inc., 302 NLRB 358, 363-

64 (1991) (explaining that a wildcat strike was still protected

activity because “the employees’ demands and statements

during this period w[ere] not in derogation of the Union or

contrary to, or inconsistent with, the Union’s bargaining

position”), enf’d, 966 F.2d 725, 729 (2d Cir. 1992) (agreeing

that Emporium Capwell does not transform all unauthorized

concerted activity into unprotected activity). It is only when

employees’ activity undermines the Union’s objectives or

position as bargaining authority that it loses NLRA protection.

In light of Emporium Capwell and Silver State, the Board

looked at whether the negotiation efforts of the CC1 employees

were independent of the Union or inconsistent with its strategy.

CC1, 362 N.L.R.B. No. 125 at 1. “The resolution of any

statutory ambiguity latent in the NLRA is a task that the

Congress, in the first instance, has entrusted to the Board, not

this Court,” Children’s Hosp. & Research Ctr. of Oakland, Inc.

v. NLRB, 793 F.3d 56, 59 (D.C. Cir. 2015), and we think the

Board’s interpretation is “reasonably defensible,” Ford Motor

Co., 441 U.S. at 497. See Children’s Hosp., 793 F.3d at 59

(deferring to the Board’s understanding of the “interplay”

between NLRA provisions that, on their faces, seemed to

14

conflict); E. Chi. Rehab. Ctr., Inc. v. NLRB, 710 F.2d 397, 402-

03 (7th Cir. 1983) (“[I]f the Board chooses to distinguish

between wildcat strikes that undermine the union’s position as

exclusive collective bargaining representative and ones that do

not . . . we must let it.” (citations omitted)). However, the Board

failed to explain how it applied Silver State to the employees

who continued to strike after learning the Union disavowed it

as a move by “false leaders.” Because the employees knew the

Union disapproved of the strike, it seems that the employees

who continued to strike might have been doing so on their own

behalf for their own reasons. The Board dismissed this

suggestion because “[t]he Union sent a letter to [CC1] stating

that the strike was not authorized, but it was [CC1]—not the

Union—that photocopied the letter and asked security guards

to give it to the strikers.” CC1, 362 N.L.R.B. at 2 n.6.

It is unclear to us how CC1’s distribution of the letter

affected the Board’s decision. Perhaps the Board thought the

striking employees’ knowledge of the Union’s position wasn’t

important unless that knowledge came from the Union itself.

But that’s just a guess, and we can’t rely on guesses. We cannot

determine if the Board based its decision on a reasonably

defensible interpretation of the NLRA if we do not know how

the Board reached its conclusions. See Int’l Transp., 449 F.3d

at 163. In short, we cannot determine if there was substantial

evidence for the Board to find that the wildcat strike was

protected activity. We remand this issue so that the Board can

explain the importance of the provenance of the letter and also

whether the Union’s message to CC1 accurately represented its

position.

C

CC1 makes two additional arguments, one about the

remedy granted by the Board and another about the Board’s

15

decision that the last-chance agreements were unlawful. But we

dismiss them both without considering their merits because

CC1 fails to properly raise them on appeal.

First, CC1 argues that we should reverse the Board’s order

to compensate Colón and the striking employees for the tax

consequences of the backpay award. CC1 failed to raise this

argument before the Board, and section 10(e) of the NLRA

provides that “[n]o objection that has not been urged before the

Board . . . shall be considered by the court, unless the failure or

neglect to urge such objection shall be excused because of

extraordinary circumstances.” 29 U.S.C. § 160(e); see also

Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-

66 (1982) (“[T]he Court of Appeals lacks jurisdiction to review

objections that were not urged before the Board.”).

CC1 argues that the exception for “extraordinary

circumstances” applies here because the Board did not impose

the tax remedy until its 2015 decision. But the unusual

procedural history in this case that led to a second Board

decision did not deprive CC1 of an opportunity to timely

challenge the ordered remedy. And CC1 does not offer an

excuse for failing to move for reconsideration of the Board’s

2015 order on this ground. See Woelke, 456 U.S. at 665-66

(noting that the section 10(e) bar applies to issues that the

parties did not raise before the Board but were nonetheless

decided by the Board if the parties failed to object to the

findings in a petition for reconsideration or rehearing); see also

Enter. Leasing Co. of Fla. v. NLRB, 831 F.3d 534, 551 (D.C.

Cir. 2016). We are therefore “powerless” to review it. Enter.

Leasing, 831 F.3d at 550 (internal quotation marks omitted).

Second, CC1 argues that because it hadn’t realized the

last-chance agreements were at issue in this case, we should not

enforce the Board’s finding that they were unlawful. But CC1

16

raised this for the first time in its reply, not opening, brief and

thus forfeited this claim. See N.Y. Rehab. Care Mgmt., 506 F.3d

at 1076; New York v. EPA, 413 F.3d 3, 20 (D.C. Cir. 2005)

(stating that petitioners waive arguments that they fail to raise

in their opening briefs) (citing Verizon Tel. Cos. v. FCC, 292

F.3d 903, 911-12 (D.C. Cir. 2002)). As a result, summary

enforcement is appropriate. See Carpenters & Millwrights,

Local Union 2471 v. NLRB, 481 F.3d 804, 808 (D.C. Cir. 2007)

(“[I]t is our longstanding rule that ‘[t]he Board is entitled to

summary enforcement of the uncontested portions of its

order[s].’” (second and third alterations in original) (quoting

Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 181 (D.C. Cir.

2006))).

IV

We vacate and remand for further explanation the Board’s

conclusion that the striking employees were unlawfully

terminated for engaging in protected activity. In all other

respects, we deny CC1’s petition for review and grant the

Board’s cross-application for enforcement.

So ordered.