Charter Communications, Inc. v. NLRB

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0252p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHARTER COMMUNICATIONS, INC., ┐

Petitioner/Cross-Respondent, │

│

> Nos. 18-1778/1895

v. │

│

│

NATIONAL LABOR RELATIONS BOARD, │

Respondent/Cross-Petitioner. │

┘

On Petition for Review and Cross-Application for Enforcement

of an Order of the National Labor Relations Board;

Nos. 07-CA-140170; 07-CA-145726; 07-CA-147521.

Decided and Filed: September 25, 2019

Before: SILER, STRANCH, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Henry E. Farber, Matthew R. Jedreski, DAVIS WRIGHT TREMAINE LLP,

Bellevue, Washington, Andrea J. Bernard, Matthew T. Nelson, WARNER NORCROSS + JUDD

LLP, Grand Rapids, Michigan, for Petitioner/Cross-Respondent. Linda Dreeben, Kira Dellinger

Vol, Eric Weitz, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Respondent/Cross-Petitioner.

STRANCH, J., delivered the opinion of the court in which SILER, J., joined, and

NALBANDIAN, J., joined in part. NALBANDIAN, J. (pp. 28–32), delivered a separate opinion

concurring in part and in the judgment.

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 2

_________________

OPINION

_________________

JANE B. STRANCH, Circuit Judge. Jonathan French created pro-union flyers and asked

a union organizer to distribute them at his workplace, Charter Communications, Inc. (Charter or

the Company). Three months later, Charter fired French and two of his colleagues, James

DeBeau and Raymond Schoof. In the intervening period, all three employees were temporarily

reassigned to more isolated regions, and Charter supervisors watched French closely, warned

him that the Company was aware of his undisclosed pro-union activities, and threatened him

with discharge.

The National Labor Relations Board (NLRB or the Board) concluded that Charter

repeatedly violated the National Labor Relations Act (NLRA or the Act) during that three-month

period. The Board also found that French was discriminatorily discharged because of his union

activity and that DeBeau and Schoof were discriminatorily discharged because of their perceived

union activity. Charter petitions for review of these decisions. The General Counsel for the

Board, on behalf of French, DeBeau, and Schoof, cross-petitions for enforcement. Because

substantial evidence supported the Board’s decisions, we DENY the petition for review and

GRANT the cross-petition for enforcement.

I. BACKGROUND

A. Union Handbilling and the Aftermath

The parties dispute what happened in the summer and fall of 2014. The record created by

the administrative law judge (ALJ) and adopted by the Board establishes the following.

Until October 2014, French worked as an auditor at Charter, a company providing

television, internet, and telephone services. As an auditor, his job was to visit addresses of

Charter subscribers and confirm they received only those services for which they paid. French

and a few Charter technicians (who install equipment and resolve service problems) decided that

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 3

unionization might help them all receive better pay. So, in the spring of 2014, French reached

out to a local chapter of the International Brotherhood of Electrical Workers (IBEW).

After speaking to an IBEW organizer, French and his wife created a set of pro-union

flyers; one of his wife’s coworkers distributed the flyers at a Charter office in Bay City,

Michigan. That first round of flyers failed to generate responses, in part because Charter

supervisors removed the flyers from unattended vehicles. French then suggested that the union

handbill (that is, personally distribute flyers) outside his Charter office in Saginaw.

From approximately 8 to 9:30 a.m. on July 15, 2014, as the technicians were arriving for

their weekly meeting at the Saginaw office, the union organizer and his team passed out the

handbills French had made. Two supervisors heard the technicians talking and went outside.

One of those supervisors, Shawn Felker, oversaw the region’s auditors, including French,

DeBeau, and Schoof. Felker called his boss, T.J. Teenier, manager of all the auditors and

technicians in Michigan, who immediately drove to Saginaw from his office 15 to 20 minutes

away in Bay City. Teenier also called his boss, Regional Director Greg Culver. According to

Teenier, Culver instructed him “to pay attention to who’s taking the flyers” and “to take notes if

possible.”

Meanwhile, the two supervisors observed the handbilling. When an auditor on Felker’s

team drove into the lot and spoke briefly to the organizers, Felker walked directly to the auditor’s

vehicle and asked if he had taken a flyer. He had not. The two supervisors remained outside,

watching. When Teenier arrived, he reiterated the instructions to “take notes” and see “who is

paying attention and who seemed to be generally interested.” Though neither supervisor took

written notes, Teenier testified that one passed on a couple names. That supervisor denied he

had done so.

The union activity prompted a series of management conference calls. During a call no

more than a day after the handbilling, a regional vice president directed Teenier “to meet with

Jon French because his name had c[o]me up as being a possible instigator for the union activity.”

Company notes from the call state that French “is trouble” and end with a note: “TJ – talk to

Jonathan French.”

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 4

Pursuant to that direction, Teenier visited French in the field the day after the handbilling.

He invited French into his car and, in his words, “tr[ied] to figure out if [French] was involved

with the union.” Teenier testified that he told French that he was being looked at closely by

members of upper management and that if he was involved with the union, it will bring a lot of

unwanted attention onto himself and to the team. Teenier urged that if there was anything

French needed to discuss, he should bring it to Teenier’s attention. French could not recall the

conversation verbatim, but explained that he felt uncomfortable because Teenier was asking if

French “knew of anyone that did anything with union stuff” or could give names of any

employees. Notes from the next day’s conference call indicate that Teenier told French and a

pro-union technician French had been in contact with that both their names were brought up.

On July 17, two days after the handbilling, Teenier’s boss, Culver, took French for an

unscheduled ride-along (or ride-out). Culver testified that it was his practice as a new manager

to go on ride-alongs two to three times a month, whenever time allowed, joining auditors and

technicians in the field for a few hours or a day. But no one had done a ride-along with French

before (or after) that day, and both Felker and Teenier considered it unusual for a regional

director like Culver to go on an unscheduled, one-on-one ride-out. French suggested to Culver

that he was there “because of the mutiny . . . a couple of days ago.” Culver demurred but,

according to French, eventually steered the conversation to the topic of employee complaints.

French testified that he refused to tell Culver any names but was willing to discuss a concern

among the technicians about how they were being evaluated. This evaluation process was not

personally relevant to an auditor like French. The next day, Culver emailed senior management

officials that French “talked about things he had no reason to be involved with.”

The management conference calls continued. In late July, the same vice president who

prompted Teenier’s meeting with French instructed Teenier to isolate the employees and keep

them away from other technicians and other audiences. Teenier reassigned all four auditors on

French’s team (including DeBeau and Schoof) to rural areas on the outskirts of Saginaw. The

move made their work harder, more isolated, and more distant from their homes. And although

the auditors sometimes worked in these outlying areas, DeBeau found his transfer odd because

he had just finished auditing one area he was sent to. When he brought up the oddity, Teenier

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 5

told DeBeau that the transfer was to keep the field auditors separated so that they wouldn’t talk

about the union activity. In the meantime, Charter scheduled several weeks of mandatory union

avoidance meetings.

By August, most of the transferred auditors had returned to work in Saginaw. According

to two Charter officials, the union worries were dying down, with union-related calls ending in

early August. Teenier disagreed, maintaining that though calls became less frequent, they

continued through September and perhaps October.

In early September, Teenier belatedly complied with an order Culver had given him

several months before to even out the size of his supervisors’ teams. Felker, who supervised

French, DeBeau, and Schoof, had a larger team than the supervisor covering the region

immediately to the north, Rob Lothian. When Teenier explained the transfer, Felker suggested

that Teenier move French, in addition to DeBeau and Schoof, so that the union spotlight was off

of Felker’s team. Teenier agreed. When the switch was announced, Felker heard Lothian

mumble, you’re giving me “the problem child” and “the guy that caused all th[e] union

problems.” Teenier disagreed, saying Lothian was pleased to have three of the best guys in the

state on his team.

The record reveals that Lothian, who did not testify, had reason to be both pleased and

concerned. French, DeBeau, and Schoof all had outstanding productivity statistics and no

history of discipline. But Teenier had been displeased with Lothian’s recent performance and

indicated his hope that the extra responsibility might encourage Lothian to retire.

B. Human Resources Investigation

Just over two weeks after the transfer, on September 19, Lothian went to Charter’s human

resources department and spoke to Stephanie Peters. After discussing an unrelated matter,

Lothian listed an array of complaints about Teenier, Felker, and his three new auditors. Based

on the report that Peters later generated summarizing the conversation, Lothian was concerned

that Teenier had “built his own little world,” populated with close friends and operated without

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 6

regard to normal company policy.1 Lothian claimed that Teenier pulled those friends to work on

special projects, which caused those employees to have bad productivity statistics—statistics that

would now reflect poorly on Lothian.

Lothian told Peters that he had heard from Felker about one special project DeBeau and

Schoof had worked on a week before. Lothian alleged that Felker had a photo of DeBeau,

Schoof, and Teenier laying sod at Schoof’s home on company time (Lothian did not explain to

Peters how he knew when the photo was taken, though the ALJ noted that “[c]ellphones

generally show the time and date a picture was taken.”). Lothian also said that DeBeau and

Schoof fixed plumbing at one of Teenier’s rental homes during work hours. In a follow-up

conversation a week later, Lothian complained that DeBeau had been pulled for a special project,

cleared by Felker, working at a haunted house run by the owner of a car repair shop affiliated

with Charter. Peters told Lothian that she would involve the appropriate individuals and that

their conversations should remain confidential.

Shortly after that conversation, Peters received a call from Regional Director Culver.

Peters described the allegations Lothian had made just moments before. The two agreed to meet

and, together, drew up a list of employees to interview. The investigation started in earnest

immediately after that meeting. Over the next week and a half, Peters (often with Culver)

conducted a series of interviews regarding some—though not all—of Lothian’s accusations.

Culver himself rejected Lothian’s claim that French, DeBeau, and Schoof had bad statistics; he

reported before the interviews began that the team’s numbers were outstanding. And Peters

appears to have ignored some of Lothian’s vaguer accusations, such as lining the baseball fields

on company time and unnecessarily borrowing drill bits. She focused on three of the special

project charges: the sod laying, the haunted house, and the rental home repair.

When questioned about the sod, DeBeau, Schoof, and Teenier readily agreed that they

laid sod at Schoof’s house several weeks before. But all three told Peters that they started after

work hours, between 5 and 6 p.m., and none were aware of any photos. Felker, Lothian’s source,

stated that he knew nothing about laying sod but if it was happening, it would happen after

1Like the ALJ, we do not fully credit Peters’s report. We nonetheless reproduce its contents in detail

because Charter states that the report formed the basis for its subsequent termination decisions.

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 7

hours. When asked about photos, he initially offered his phone, then retracted it, scanned its

contents, and denied taking any pictures. Peters never saw the photo of sod laying that Lothian

had initially described, and at a later hearing, Felker testified that his only photo of the sod was

taken two weeks after the work was completed.

When Peters asked DeBeau about the haunted house, he explained that as he was waiting

for his Charter van to be fixed, the owner of the repair shop (and the haunted house) asked

DeBeau to go to the house to prepare a list of plumbing repairs. Because he was there anyway,

he did. Peters asked if DeBeau had been on his lunch at the time; he said no. Peters did not ask

if a supervisor granted him permission; Teenier later told Peters that he had approved DeBeau’s

request. Peters also did not ask if DeBeau worked eight hours that day; he testified at the hearing

that he did. As for the rental home repair, Teenier’s tenant (himself a Charter employee) was

unaware of anyone from the department working on the house. Both he and Teenier told Peters

that the needed repairs had yet to be completed.

Meanwhile, on September 30, the same day that Peters interviewed DeBeau and Schoof,

Lothian met with French for a routine safety check—and stayed for an extended conversation.

Lothian recounted his complaint to human resources about Felker discovering DeBeau, Schoof,

and Teenier laying sod on company time. Lothian told French that he had been “outed as the

union mastermind” and should get on Lothian’s side with this because “people were going to get

fired,” adding that long ago, he became a supervisor by “squashing a union drive.” Lothian then

discussed his finances and retirement prospects. Over the course of the two-hour conversation,

Lothian may have said that he sometimes brought a gun to work.2

The next night, French called Schoof to discuss the conversation. Because Peters had

told Schoof the day before that the investigation was confidential, Schoof called Peters to tell her

what French had relayed about Lothian’s statements. He told Peters how French kept saying that

Rob Lothian had sat down with French for about two hours and told French everything.

2The ALJ made a factual finding that Lothian discussed having a gun with French during the safety check.

French’s statements about whether Lothian had or discussed a gun during the safety check were inconsistent.

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 8

By the time she received Schoof’s evening call, Peters had already scheduled an

interview with French for the following morning. When that interview began, French told Peters

what he had told Schoof the night before: that he already knew what was going on because

Lothian told him everything about the investigation. French also relayed that Lothian told him

about the gun. Under further questioning, French clarified that he had not seen a gun during that

conversation but that he did see a gun that Lothian brought to work earlier, when French was a

contractor and working for Charter. French went on to describe Lothian’s fear of being fired, the

supposed pictures of DeBeau and Schoof laying sod, and Lothian’s concerns about Teenier’s

favoritism. French did not, however, have any firsthand knowledge of the three special projects.

The next day, Peters called Lothian. She asked Lothian if he had talked with Jon French

this week and if so, whether he disclosed anything about the investigation. Lothian said no and

that he seldom talked to French because of French’s union involvement. Peters also asked if

Lothian had brought a gun on company property or had a gun in his Charter vehicle this week.

Lothian denied that as well, saying he had brought a gun to work only once, years before, in the

trunk of his personal car.

As Peters continued to interview Charter employees about Lothian’s special project

allegations, she did not ask any questions regarding French’s gun allegation. The hearing record,

however, contains the following. Schoof testified that Lothian had shown him a derringer

Lothian kept in his work vehicle. Felker testified that he saw Lothian with handgun ammunition

at work on multiple occasions and that Lothian once went gun shopping during work hours. And

another auditor testified that Lothian showed him a rifle that Lothian was keeping under his desk

and that, another time, the auditor saw the outline of a derringer in Lothian’s pocket.

During the final days of her investigation, Peters called Lothian again. This time, under

specific questioning, Lothian agreed that he had done a safety check with French the week

before, but maintained the check had been a normal, half-hour inspection. Lothian continued to

deny speaking with French about the investigation or showing French a gun during the

conversation. Two days later, as the final act of her investigation, Peters reviewed Lothian’s

disciplinary history and found that Lothian had been disciplined for having a gun at work in May

2000, six years before French began to work as a contractor for the Company. Peters concluded

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 9

that the disciplinary time frame did not coincide with the incident French referenced in his

interview. Peters then finalized her report and met with senior officials to describe her

recommendations. Culver was among the decisionmakers who reviewed her report; he had also

joined five of her interviews and seen the report several times during the investigation.

On October 14, three months after the union handbilling and three weeks after Lothian

brought his complaint to human resources, Charter fired five employees: French, DeBeau, and

Schoof; as well as their bosses, Teenier and Felker. The termination notices for French, DeBeau,

and Schoof stated only that they were fired for “Violation of Charter’s Code of Conduct” and

“Violation of Charter’s Employee Handbook”; DeBeau’s added “Violation of Charter’s

Timekeeping Policy.” The form notices contained no other information or description of the

violations. All three auditors asked Peters why they were being fired and received no answer.

C. Procedural History

French, DeBeau, and Schoof filed charges with the Board alleging discriminatory

discharge in violation of the NLRA. French also alleged discrimination related to Lothian’s

comments during the September 30 safety check. French subsequently amended his charge to

allege additional violations of the Act based on his supervisors’ conduct during and after the

union handbilling.

After a multi-day hearing, the ALJ upheld most of French’s claims, determining that his

termination had violated the Act, as had the meetings with Teenier and Culver after the

handbilling, his reassignment to rural areas, and Lothian’s comments during the safety check.

The ALJ did not find a violation, however, with regard to Charter surveillance of the handbilling.

The ALJ also denied DeBeau and Schoof’s discriminatory discharge claims, finding that Charter

had reason to believe they laid sod on company time.

On appeal, the Board largely agreed with the ALJ’s disposition of French’s claims,

though it added that the Company surveillance of the handbilling had been improper and altered

the rationale for deeming the meetings with Culver and Teenier unlawful. But the Board

concluded that Charter had discharged DeBeau and Schoof based on the mistaken belief that they

were involved with the union. The Board deemed the sod-laying rationale pretextual for two

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 10

reasons: the Company’s “reasons for relying on Lothian’s secondhand account simply do not

withstand reasonable scrutiny,” and offenses of this kind had not resulted in discharge in the

past. Charter petitions for review, and the General Counsel cross-petitions for enforcement.

II. ANALYSIS

The NLRA guarantees the right of employees “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.” 29 U.S.C. § 157. To ensure robust protection of these rights, the Act

forbids “discrimination in regard to hire or tenure of employment or any term or condition of

employment to encourage or discourage membership in any labor organization.” Id. § 158(a)(3).

The Act also makes it unlawful for an employer “to interfere with, restrain, or coerce employees

in the exercise of” their rights under § 157. Id. § 158(a)(1). An employer violates this provision

“when substantial evidence demonstrates that the employer’s actions, considered from the

employees’ point of view, had a reasonable tendency to coerce.” Caterpillar Logistics, Inc. v.

NLRB, 835 F.3d 536, 543 (6th Cir. 2016) (brackets omitted) (quoting Dayton Newspapers, Inc. v.

NLRB, 402 F.3d 651, 659 (6th Cir. 2005)). Actual coercion is unnecessary. See id.

Our review of a Board decision applying these provisions “is quite limited.” Id. at 542

(quoting Torbitt & Castleman, Inc. v. NLRB, 123 F.3d 899, 905 (6th Cir. 1997)). We review the

Board’s legal conclusions de novo, though we “will uphold the Board’s reasonable interpretation

of the [NLRA] where Congress has not spoken to the contrary on the same issue.” Id. (quoting

Dupont Dow Elastomers, LLC v. NLRB, 296 F.3d 495, 500 (6th Cir. 2002)). We review the

Board’s factual conclusions for substantial evidence. “Under that deferential standard, we must

uphold the NLRB’s factual determinations if they are supported by such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion, even if we may have reached

a different conclusion had the matter been before us de novo.” Airgas USA, LLC v. NLRB, 916

F.3d 555, 560 (6th Cir. 2019) (citations and internal quotation marks omitted). And finally, we

may overturn the Board’s credibility determinations “‘only if they overstep the bounds of reason’

or ‘are inherently unreasonable or self-contradictory.’” Id. (quoting Caterpillar Logistics,

835 F.3d at 542).

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 11

A. Pre-Discharge Allegations

We consider Charter’s alleged violations of the Act in the order they occurred, beginning

with the five instances that the Board determined violated § 158(a)(1) of the Act: (1) surveillance

of the July 15 union handbilling; (2) Teenier’s July 16 conversation with French; (3) Culver’s

July 17 ride-along with French; (4) the reassignment of French and his teammates to rural areas

in late July; and (5) Lothian’s September 30 safety check with French.

As a preliminary matter, Charter asserts that most of these claims are barred because they

were not raised in French’s initial charge filed with the NLRB, which listed only French’s

termination and the September 30 conversation with Lothian. French added the first four events

in an amended charge filed approximately a year later.

We have entertained challenges to the Board’s decision to allow amendments in a

handful of cases. See, e.g., Peters v. NLRB, 153 F.3d 289, 296 (6th Cir. 1998); Don Lee Distrib.

Inc. v. NLRB, 145 F.3d 834, 844–45 (6th Cir. 1998); Henry Bierce Co. v. NLRB, 23 F.3d 1101,

1108 n.1 (6th Cir. 1994); Briggs Plumbingware, Inc. v. NLRB, 877 F.2d 1282, 1291 (6th Cir.

1989). These cases confirm, albeit under varying formulations, that our review of this trial

management matter is limited and deferential. See Peters, 153 F.3d at 296 (granting the Board

“latitude” in “interpreting its own rules”); Don Lee, 145 F.3d at 845 (applying the substantial

evidence standard); Henry Bierce, 23 F.3d at 1108 n.1 (emphasizing the Board’s “broad

authority” regarding amendments (citation omitted)).

Our central concern has been compliance with the Act itself, the “statutory basis” for this

argument. Peters, 153 F.3d at 296; see also Don Lee, 145 F.3d at 845; Henry Bierce, 23 F.3d at

1108 n.1. The NLRA prohibits issuing a complaint “based upon any unfair labor practice

occurring more than six months prior to the filing of the charge with the Board.” 29 U.S.C.

§ 160(b). “The intended purpose of [§ 160(b)] is that, in the absence of a properly served charge

on file, a party is assured that on any given day its liability under the Act is extinguished for any

activities occurring more than six months before.” Don Lee, 145 F.3d at 844 (quoting Chemung

Contracting Corp., 291 N.L.R.B. 773, 774 (1988)); see also NLRB v. Fant Milling Co., 360 U.S.

301, 309 n.9 (1959) (“This limitation extinguishes liability for unfair labor practices committed

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 12

more than six months prior to the filing of the charge.”). That purpose is not implicated here.

The earliest alleged violation occurred on July 15, and French filed his charge four months later,

in November.

Another problem arises when the allegations raised against the employer change

significantly during administrative proceedings, such that “the nature of the charges in the

[Board’s] complaint d[oes] not provide notice to the company” of the violations it must defend

against. Henry Bierce, 23 F.3d at 1106. We expressed discomfort, for example, when a

complaint was amended on the final day of the hearing. Id. at 1107–08 & n.1. But French’s

amendment was to his charge and was issued more than five months before the hearings began.

As the Supreme Court has instructed, “[a] charge filed with the Labor Board is not to be

measured by the standards applicable to a pleading in a private lawsuit. Its purpose is merely to

set in motion the machinery of an inquiry.” Fant Milling, 360 U.S. at 307. Thus, neither the six-

month limitation in the NLRA nor the timeliness of amendments to a complaint are at issue here.

Charter urges us nonetheless to scrutinize the Board’s finding that the original and

amended charges are “closely related” under the three-factor test laid out in Redd-I, Inc.,

290 N.L.R.B. 1115, 1118 (1988).3 Assuming for purposes of argument that this test governs the

validity of charge amendments, a long line of Board precedent recognizes that challenges to

different aspects of an employer’s “overall plan” to resist or undermine union organization are

both legally and factually related—the first two Redd-I factors. See, e.g., SKC Elec., Inc.,

350 N.L.R.B. 857, 858 (2007); Carney Hosp., 350 N.L.R.B. 627, 630 (2007); Well-Bred Loaf,

303 N.L.R.B. 1016, 1016 n.1 (1991). As French frames his allegations, Charter responded to his

attempts at organization with a concerted campaign against unionization in general (by

surveilling the handbilling and scheduling union avoidance meetings) and against him in

particular (by questioning, reassigning, threatening, and, ultimately, firing him). As is discussed

below, many of these actions amounted to independent violations of the Act. Each action

emanated from the same protected activity, the union handbilling that French instigated. All but

3At least one of our sister circuits has rejected the Redd-I test as “more rigorous” than required by the law

of that court. New Orleans Cold Storage & Warehouse Co. v. NLRB, 201 F.3d 592, 598 n.6 (5th Cir. 2000) (quoting

Tex. World Serv. Co. v. NLRB, 928 F.2d 1426, 1437 n.10 (5th Cir. 1991)).

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 13

the surveillance itself targeted (at least in part) the same employee, French. Several involved the

same Charter official, Regional Director Culver.

As for the final Redd-I prong and Charter’s submission that it does not assert identical

defenses to each of French’s claims, the Board has emphasized that the “closely related” analysis

does not “rely on a respondent’s proffered reasons where, as here, a judge has already rejected

them as pretextual after hearing all the evidence.” Davis Elec. Constructors, Inc., 291 N.L.R.B.

115, 116, n.9 (1988). Both the Board and the ALJ found pretext here. And more fundamentally,

the final prong of the Redd-I analysis does not depend on the respondent’s characterization of its

defenses but instead ensures fairness by asking “whether a reasonable respondent would have

preserved similar evidence and prepared a similar case” prior to the amendments. Redd-I,

290 N.L.R.B. at 1118. Here, because the events added to the charge evidence Charter’s anti-

union animus in the period leading up to French’s discharge, the events would have been at issue

even under French’s initial charge. In sum, “the NLRB has shown substantial evidence” that

French’s old and new charges are closely related. Don Lee, 145 F.3d at 845.

We now turn to the merits of French’s pre-discharge claims. In each instance, we ask

whether substantial evidence supports the Board’s conclusion that the challenged action, placed

in context and “considered from the employees’ point of view, had a reasonable tendency to

coerce.” Caterpillar Logistics, 835 F.3d at 543 (citation omitted).

1. July 15 Surveillance of Handbilling

The Board found Charter unlawfully surveilled the union handbilling. The NLRB has

deemed surveillance objectionable when supervisors stood “close enough to the handbilling that

they could identify not only those employees who passed by the handbillers, but even which

employees took a handbill from the union organizers.” Partylite Worldwide, Inc., 344 N.L.R.B.

1342, 1342 (2005). Charter’s observers took comparable steps to identify employees with union

sympathies, including one supervisor stopping an employee who reported to him to ask whether

he had taken a flyer.

We have likewise held that, although “an employer’s mere observation of open, public

union activity on or near its property does not constitute unlawful surveillance, when

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 14

surveillance activity constitutes more than mere observation, the employer’s conduct violates the

Act.” Clock Elec. v. NLRB, 162 F.3d 907, 918 (6th Cir. 1998) (citation and internal quotation

marks omitted). Employers cross this line when they “engage in behavior that is ‘out of the

ordinary.’” Partylite, 344 N.L.R.B. at 1342 (quoting Arrow Auto. Indus., 258 N.L.R.B. 860, 860

(1981)). In this case, a state-wide manager, Teenier, took the unusual steps of driving over from

his office just to observe the handbilling and calling his Regional Director, Culver. Teenier may

also have relayed instructions from Culver that the supervisors should note which employees

took handbills—another out-of-the-ordinary behavior.

Because a reasonable employee might be dissuaded from engaging in protected activity

under these circumstances, substantial evidence supports the Board’s finding of an unfair labor

practice.

2. July 16 Conversation with Teenier

Next, we turn to Teenier’s visit and discussion with French the day after the handbilling.

The Board determined this conversation violated the Act in four different ways. Because each

potential violation is relevant to the ordered relief, we consider each in turn.

Creating an impression of surveillance violates the Act because “employees should be

free to participate in union organizing campaigns without the fear that members of management

are peering over their shoulders, taking note of who is involved in union activities, and in what

particular ways.” Caterpillar Logistics, 835 F.3d at 544 (quoting Flexsteel Indus., Inc.,

311 N.L.R.B. 257, 257 (1993)). The Act is violated if an “employee would reasonably assume

from [a management] statement that their union activities had been placed under surveillance,”

id. (quoting Flexsteel, 311 N.L.R.B. at 257), as, for example, “when an employer tells employees

that it is aware of their union activities, but fails to tell them the source of that information.”

McClain & Co., 358 N.L.R.B. 1070, 1073 (2012). Teenier did precisely that when, without

naming his source, he informed French that his name had come up as related to union activity

and that he was being “looked at closely by members of upper management.” Because French’s

involvement in the handbilling had been a secret, he could reasonably assume that his union

activities were under Charter surveillance.

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 15

Second, as with surveillance, employers may not interrogate employees in a manner that,

under all the circumstances, “reasonably tends to restrain, coerce, or interfere with rights

guaranteed by the Act.” Caterpillar Logistics, 835 F.3d at 543 (quoting Dayton Typographic

Serv., Inc. v. NLRB, 778 F.2d 1188, 1194 (6th Cir. 1985)). “A finding of ‘actual coercion’ is not

required.” Id. (quoting Dayton Newspapers, 402 F.3d at 659). In assessing the coercive

potential of an interrogation, the Board considers factors including “the background, the nature

of the information sought, the questioner’s identity, and the place and method of interrogation.”

Id. (quoting Dayton Typographic, 778 F.2d at 1194). Here, Teenier went out to the field, spoke

alone with French in Teenier’s car, and asked about French’s undisclosed involvement in union

activities. We have found coercion on materially similar facts, where the employee’s “union

support was private,” a supervisor “sought [the employee’s] position on the union,” and the

supervisor “approached [the employee] on the work floor while [he] was alone.” Id. And

though Teenier and French appear to have enjoyed a friendly working relationship, we have

deemed friendly relations “irrelevant” to the coercion calculus. Seligman & Assocs., Inc. v.

NLRB, 639 F.2d 307, 309 (6th Cir. 1981); see also id. (“Section 8(a)(1) prohibits any conduct,

friendly or not, which interferes with the free exercise by employees of their rights under the

Act.”). Substantial evidence therefore supports the Board’s finding that Charter violated the Act

through coercive interrogation.

Next, “employer threats of closer supervision because of union activity violate” the Act.

Paul Mueller Co., 332 N.L.R.B. 312, 312 (2000). The day after union handbilling, during an

unscheduled one-on-one meeting, Teenier told French that if he was involved with the union, it

will bring a lot of “unwanted attention” onto himself and to the team and that French was being

“looked at closely by members of upper management.” French could not recall the conversation

verbatim, describing only its general investigative tenor. The Board credited Teenier’s explicit

description of his threat of closer supervision, which supports its finding of a violation of the

Act.

And finally, “an employer cannot solicit grievances from employees during a union

organizing campaign with the express or implied suggestion that the problems will be resolved if

the union is turned away.” Ctr. Constr. Co. v. NLRB, 482 F.3d 425, 435 (6th Cir. 2007) (quoting

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 16

NLRB v. V&S Schuler Eng’g, Inc., 309 F.3d 362, 370 (6th Cir. 2002)). The Board has found an

implied suggestion where a supervisor “initiated a conversation with [an employee], inquired

about her union sentiments, threatened adverse consequences from unionization, then

encouraged [the employee] to discuss her problems with” that supervisor. Sweet St. Desserts,

Inc., 319 N.L.R.B. 307, 307 (1995). The context here was materially the same as that in Sweet

Street Desserts. During an interrogation about union activity initiated by the supervisor and

threatening closer supervision, Teenier told French that if there was anything he needed to

discuss, he needed to bring it to Teenier’s attention. In addition, the inference of impropriety is

“particularly compelling” when an employer changes its practices regarding grievances “during a

union organizational campaign.” Amptech, Inc., 342 N.L.R.B. 1131, 1137 (2004). Here,

Teenier, a manager over all auditors and technicians in Michigan who is two levels above French

in seniority, spontaneously visited him in the field and there suggested French bring any issues

directly to Teenier. The Board’s finding of improper solicitation of grievances was therefore

supported by substantial evidence.

3. July 17 Ride-Along with Culver

The Board found that Charter violated the Act again the next day, when Regional

Director Culver initiated an unscheduled ride-along with French. Just as an employer may not

threaten closer supervision due to union activity, it may not follow through on that threat. Thus,

an employer violates the Act “by more closely monitoring employees who had engaged in union

activity.” Gold Kist, Inc., 341 N.L.R.B. 1040, 1040 (2004). Contrary to Charter’s argument,

union activity need not be “personally seen” during the close supervision; the question is whether

the supervision is motivated by earlier union activity. Id. Here, Culver spent two hours

observing French one-on-one. This observation occurred two days after union handbilling and

one day after Teenier threatened French with closer supervision. No supervisor had ever gone on

a ride-along with French before. In light of these suggestive facts, the Board was not required to

credit Culver’s explanation that “he was new to the department and wanted to learn the operation

he was supervising”—just as that explanation was not credited in Stabilus, Inc., 355 N.L.R.B.

836, 864 (2010); see also id. at 837 & n.7 (adopting the ALJ’s findings regarding monitoring).

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 17

In addition, Culver reported back to senior management about the ride-along,

highlighting that French “talked about things he had no reason to be involved with,” such as the

way technicians were evaluated. Because French was an auditor, the technicians’ complaints

would presumably be of interest to him only if he had been discussing grievances with

technicians—as, indeed, he had. On this record, the Board could draw the same conclusion that

French himself did: that he was being monitored more closely because of his protected activity.

4. Late July Reassignment

The Board also sustained French’s charge that Teenier discriminatorily reassigned

French’s entire group to rural areas in the weeks after the handbilling. “It is well settled that an

employer may not transfer employees for the purpose of discouraging union activity.” Temp-

Masters, Inc. v. NLRB, 460 F.3d 684, 690 (6th Cir. 2006). For example, employers may not

transfer pro-union employees to “limit[] their contact with other employees.” Am. Red Cross

Mo.-Ill. Blood Servs. Region, 347 N.L.R.B. 347, 348 n.12 (2006). In this case, Teenier, who

ordered the reassignment, admitted unlawful motivation, saying a Company vice president told

him “to isolate the employees and keep them away from other technicians, other audiences so to

speak.” And although another manager, Culver, testified that he never heard that instruction,

Charter did not establish that Culver was present on the call when Teenier received his

impermissible instructions. Even if he was, the decision to credit Teenier over Culver was

reasonable in light of the ALJ’s cogent and well-supported explanation of how Culver’s

testimony is “riddled with what are at best inaccuracies.”

Charter points out that the transferred auditors had some post-transfer contact with other

employees. But a contact-limiting transfer is impermissible even if the employer does not

“isolate [the transferred employees] from every other employee on every day of employment.”

Id. Charter also submits that it had a valid business reason for the transfer, as periodic audits of

rural areas are necessary. But again, the Board was entitled to credit Teenier’s testimony about

impermissible motivation. And without regard to that testimony, the Board could infer pretext

from French’s testimony that he was reassigned before completing his in-city assignment and

DeBeau’s testimony that he was reassigned to an area he had already completed. The Board’s

decision is supported by substantial evidence.

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 18

5. September 30 Safety Check with Lothian

Turning to the final pre-discharge allegation, the Board concluded that Lothian’s

conversation with French during the September 30 safety check violated the Act in two different

ways. French described the relevant portion of the conversation as follows:

[Lothian] told me that the landscape of the department was going to change. You

know, being as that you’re the—you know, you were outed as the union

mastermind, you know, you should get on my side with this because people were

going to get fired. He told me that years ago, he became supervisor by squashing

a union drive . . . .

(Administrative Record at 74–75) Charter urges that French’s description of the conversation is

not credible. But Lothian was not called to testify, and French’s account stands uncontradicted

in the record. The Board’s decision to credit the only evidence before it does not overstep the

bounds of reason. See Airgas, 916 F.3d at 560.

Turning to the substance of the violations, Lothian’s unexplained “union mastermind”

comment, like Teenier’s July 16 statement, created an impermissible impression of surveillance.

See Caterpillar Logistics, 835 F.3d at 544. Once again, a Charter supervisor told French that the

Company was “aware of [his] union activities, but fail[ed] to tell [him] the source of that

information.” McClain & Co., 358 N.L.R.B. at 1073. For the reasons described in the context of

the July 16 violation, the Board could conclude that this statement created an impermissible

impression of surveillance.

The Board also held that these statements amounted to an impermissible threat of

discharge. The NLRA prohibits employers from “threatening employees with reprisals. In

determining whether a statement is a coercive threat, the Board considers the total context of the

situation and is justified in determining the question from the standpoint of employees over

whom the employer has a measure of economic power.” Torbitt & Castleman, 123 F.3d at 906

(citations, ellipsis, and internal quotation marks omitted). The total context of Lothian’s

statement that French should “get on [Lothian’s] side with this because people were going to get

fired” would concern a reasonable employee. In the months leading up to this conversation,

Charter had committed numerous violations of the Act, many against French personally. Then

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 19

Lothian, French’s direct supervisor, engaged him in a lengthy, one-on-one conversation to

discuss French’s union involvement, Lothian’s anti-union history, and upcoming firings. The

Board could reasonably find that an employee hearing those statements would believe his job

was in danger because of his protected union activity.

In sum, the Board’s decisions finding violations of 29 U.S.C. § 128(a)(1) are all

supported by substantial evidence.

B. Discriminatory Discharge of French

We now turn to the Board’s determination that French was terminated in violation of the

Act, 29 U.S.C. § 158(a)(3). We review a discriminatory discharge claim “under the burden-

shifting framework articulated in Wright Line, 251 N.L.R.B. 1083 (1980), and adopted by the

Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).” Airgas,

916 F.3d at 560; see also FiveCAP, Inc. v. NLRB, 294 F.3d 768, 777 (6th Cir. 2002).

1. Prima Facie Case

Under the Wright Line rubric, the General Counsel bears the initial burden of establishing

a prima facie case of discrimination. Airgas, 916 F.3d at 561. The prima facie case has three

elements: “(1) [that] the employee was engaged in protected activity; (2) that the employer knew

of the employee’s protected activity; and (3) that the employer acted as it did on the basis of anti-

union animus.” Id. (quoting FiveCAP, 294 F.3d at 777). Charter concedes that the first two

elements are satisfied here. French reached out to union organizers, made pro-union flyers, and

suggested the organizers distribute them. And though his protected activity was private, Charter

concluded that French was involved within a day.

Turning to the third element, anti-union animus, we examine the record for either

circumstantial or direct evidence on point. Id. Circumstantial evidence inviting an inference of

animus includes, among other examples, “the company’s expressed hostility towards

unionization combined with knowledge of the employees’ union activities” and “proximity in

time between the employees’ union activities and their discharge.” FiveCAP, 294 F.3d at 778

(quoting W.F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995)). Both are present here.

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 20

French was terminated three months after his protected activity, a temporal proximity that

alone may raise concerns. See Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 563 (6th

Cir. 2004) (concluding, in the context of a Title VII retaliation claim, that the three-month

proximity between filing a charge and termination sufficed to infer a retaliatory motive); see also

Dish Network, LLC, 363 N.L.R.B. No. 141, 2016 N.L.R.B. LEXIS 172, at *49 (Mar. 3, 2016).

That three-month period included numerous Company violations of the Act. As discussed

above, French was interrogated, threatened, and reassigned, all because of his protected activity.

One of the supervisors involved in those violations, Regional Director Culver, was also involved

in the decision to terminate French. And perhaps most tellingly, just two weeks before French

was discharged, his immediate supervisor threatened that French, as the “union mastermind,”

would be discharged. “[W]here an employer’s representatives have announced an intent to

discharge or otherwise retaliate against an employee for engaging in protected activity, the Board

has before it especially persuasive evidence that a subsequent discharge of the employee is

unlawfully motivated.” Turnbull Cone Baking Co. v. NLRB, 778 F.2d 292, 297 (6th Cir. 1985)

(per curiam). This record amply demonstrates anti-union animus.

2. Nondiscriminatory Reasons

Under Wright Line, the burden next “shifts to [Charter] ‘to prove that it would have made

the same employment decision regardless of [French’s] protected activity.” Airgas, 916 F.3d at

565 (quoting Ctr. Constr., 482 F.3d at 435). Charter offers two nondiscriminatory reasons for

French’s discharge: first, that French lied to Peters about Lothian telling him “everything” about

the investigation, and second, that French lied to Peters about Lothian having a gun at work. If

these justifications are “determined to be pretextual, the Board need not consider [them].” Id.

And, in light of our deferential standard of review, “[s]imply showing that the evidence supports

an alternative story is not enough. [Charter] must show that the Board’s story is unreasonable.”

NLRB v. Galicks, Inc., 671 F.3d 602, 608 (6th Cir. 2012).

In evaluating Charter’s two rationales, the dispositive question is not whether French

“committed the alleged offense.” NLRB v. Consol. Biscuit Co., 301 F. App’x 411, 432 (6th Cir.

2008) (quoting McKesson Drug Co., 337 N.L.R.B. 935, 937 n.7 (2002)). Rather, Charter “must

show that it had a reasonable belief that [French] committed the offense, and that it acted on that

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 21

belief when it discharged him.” Id. at 432–33 (quoting McKesson, 337 N.L.R.B. at 937 n.7).

Charter may not, however, rest on an argument that a senior decisionmaker had a reasonable

belief if “one of [the Company’s] supervisors was a primary actor in the fabrication leading to

the discharge.” JMC Transp., Inc. v. NLRB, 776 F.2d 612, 619 n.6 (6th Cir. 1985). Because

Charter has consistently maintained that the discharge decision rested on the facts laid out in

Peters’s investigative report, our analysis focuses on the contents of and omissions from that

report.

We begin with the first rationale, that French lied about Lothian discussing the

investigation. Charter’s invocation of this justification has been inconsistent over time. When

Peters initially told French he was fired, she handed French a termination form that contained

two phrases, with no detail: “Violation of Charter’s Code of Conduct” and “Violation of

Charter’s Employee Handbook.” When French responded that the handbook is long and asked

for specifics, Peters refused. During the administrative proceedings, the ALJ asked Peters why

she concluded French was dishonest; Peters cited only the gun comment. In its briefing before

the ALJ, Charter did not discuss its belief that French was lying about Lothian having violated

Peters’s confidentiality instruction. Because Charter’s “asserted justification is shifting and

unreliable, its case is weakened, and the conclusion that the true reason [that French was

discharged] was for union activity is correspondingly strengthened.” Airgas, 916 F.3d at 566

(quoting Healthcare Emps. Union, Local 399 v. NLRB, 463 F.3d 909, 922 (9th Cir. 2006)).

Moreover, Peters’s report reflects that French knew about Lothian’s fear of being fired,

the concerns about Teenier’s favoritism, and Felker’s purported pictures of DeBeau and Schoof

laying sod on company time. The simplest explanation for how French knew this information is

the one French gave that day and Schoof gave the night before: Lothian talked. Indeed, another

employee told Peters that Lothian had started to discuss the investigation with him before that

employee told Lothian that they should not discuss it further. A third employee described a

lengthy conversation he had with Lothian about one of the special projects that was the subject of

the investigation. And yet Peters testified that she credited Lothian’s version of events simply

because “he was always very honest, even if he knew he might get into trouble.” Her report

belies that assertion. When Peters asked Lothian if he had spoken to French during the week of

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 22

the safety check, Lothian denied it; then, a week later, he reversed course and said they had

spoken, but not about the investigation.

In sum, the report Charter relied on caught Lothian in a lie and substantially corroborated

French’s version of events. Charter has therefore failed to demonstrate that the Board’s finding

of pretext is unreasonable. Galicks, 671 F.3d at 608.

Next, Charter asserts that it fired French because he lied about Lothian bringing guns to

work. As Peters testified, bringing a gun to work is a serious violation of company policy.

Charter’s employee handbook strictly prohibits guns at the workplace, warning that “immediate

termination” will result if employees have weapons “on their person, in their personal vehicle, or

in a Company vehicle at any time while on property owned or leased by Charter, or while

conducting Charter business, regardless of the location.” For example, Teenier remembered one

employee who was issued a final warning for keeping a gun in his van. And yet, after hearing

this serious allegation, Peters did nothing to investigate except ask Lothian if he had a gun at

work that week and, more than a week later, review Lothian’s disciplinary file—which revealed

past discipline for bringing a gun to work. Peters did not ask Lothian if he had brought a gun to

work on other occasions, instead limiting her inquiries to the week of the safety check. On that

basis, she (and, ultimately, Charter) concluded that French, not Lothian, was lying.

Because an employer’s “failure to conduct a meaningful investigation” into allegations

leading to discharge may give rise to an inference that anti-union sentiment was the true cause of

the employer’s actions, Airgas, 916 F.3d at 563 (quoting Bantek West, Inc., 344 N.L.R.B. 886,

895 (2005)), we consider whether Peters’s limited investigation was “meaningful.” Even though

Peters spent the days after French’s accusation interviewing employees who worked closely with

Lothian, her report does not reference a single question about whether Lothian had guns at work.

The director of human resources confirmed that no one questioned other employees about the

allegation or checked Lothian’s office or vehicle for guns. Peters simply concluded that, because

of the date mismatch between French’s allegation and Lothian’s discipline, French was

dishonest. When the ALJ asked Peters the obvious follow-up question—“what about the

possibility that [French] saw a gun on another occasion other than the one for which Mr. Lothian

was disciplined . . .?”—Peters could say only that she would not have concluded that Lothian

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 23

brought guns on company property any other time because she “believed [Lothian] was honest

and truthful.” As discussed above, the record shows that this faith in Lothian’s honesty was not

warranted.

If the Company had asked the follow-up questions that would be expected in a

meaningful investigation, it likely would have uncovered helpful information regarding the

honesty of those involved. For example, Peters interviewed one of French’s teammates, Kent

Payne, the afternoon after she spoke to French. When Payne was asked about Lothian’s guns

during the administrative hearing, he testified that he had seen a rifle in Lothian’s office and the

outline of a derringer in his pocket. Felker, who Peters re-interviewed a few days later,

subsequently testified about Lothian bringing ammunition to work and going gun shopping on

company time. Schoof too could have told Peters about the time Lothian had a derringer in his

company truck.

At issue is Charter’s decision to discharge French for dishonesty without meaningfully

investigating the issue upon which the discharge rested. See Airgas, 916 F.3d at 563. The

critical point is that, if Charter had investigated, it could have either corroborated French’s

accusation with information from Payne, Felker, and Schoof or determined, as the ALJ later did,

that French’s statements about Lothian and guns were “somewhat confusing and/or

contradictory.” But Charter failed to conduct even a rudimentary investigation on the stated

basis for French’s discharge. Therefore, the Board could conclude that Charter did not

reasonably believe, see Consol. Biscuit Co., 301 F. App’x at 432–33, that the report proved

French was lying. The finding of pretext is supported by substantial evidence.

C. Discriminatory Discharge of DeBeau and Schoof

Charter next challenges the Board’s determination that DeBeau and Schoof were also

discharged in violation of the Act. As with French’s discriminatory discharge claim, we apply

the Wright Line burden-shifting test.

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 24

1. Prima Facie Case

DeBeau and Schoof, unlike French, were not involved in the union handbilling. But the

Board has recognized for decades that it is “immaterial that the employee was not in fact

engaging in union activity as long as that was the employer’s perception and the employer was

motivated to act based on that perception.” Dayton Hudson Dep’t Store Co., 324 N.L.R.B. 33,

35 (1997); see also NLRB v. Link-Belt Co., 311 U.S. 584, 589–90 (1941) (finding a violation of

the Act when a supervisor mistakenly believed an employee was involved with the union and

discharged him “because of his alleged union activities”). This is the logical corollary to the

proposition, discussed above, that an employer may discharge an employee based on a

reasonable, but mistaken, belief that the employee engaged in misconduct. In both

circumstances, the employer’s liability turns on its intentions.

We therefore look to evidence of Charter’s perceptions about DeBeau and Schoof. In the

immediate aftermath of the handbilling, both names came up in management discussions.

During the same call in which Teenier reported that he had told French and a technician that their

“names were brought up,” only one other employee’s name is listed on the page: Schoof. And

although the note reads that Schoof loves Charter, singling him out is itself significant—

especially because Culver originally intended to go on a ride-along with Schoof the same day as

his unlawful ride-along with French. And around the same time Teenier was asking French

about his union sympathies, Teenier also asked DeBeau how he felt about the union and urged

him to steer clear of it.

Then, a senior vice president told Teenier that “it seemed a little funny” that everything

seems to be coming out of one team (the “team” appears to have consisted of everyone reporting

to Felker—including French, DeBeau, and Schoof). French, DeBeau, and Schoof, along with the

one remaining Saginaw auditor, were all reassigned to rural locations. As discussed above,

French’s reassignment violated the Act. Lumping DeBeau and Schoof in with French raises an

inference that they, too, were being punished for perceived pro-union activity. That inference is

supported by Teenier’s statement to DeBeau that the isolation was necessary because “there was

a lot of attention on us from upper management because of union activity” and because

DeBeau’s name had come up. Finally, in early September, Felker and Teenier agreed to reassign

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 25

all three auditors—French, DeBeau, and Schoof—to Lothian so that the union spotlight was off

of Felker’s team.

Turning to the question of anti-union animus, the Board emphasized that, like French,

DeBeau and Schoof were discriminatorily reassigned in violation of the Act. In addition,

Charter’s “contemporaneous unfair labor practices clearly support a finding of animus.” Bates

Paving & Sealing, Inc., 364 N.L.R.B. No. 46, 2016 WL 3853833, at *4 (July 14, 2016); see also

Contemporary Cars, Inc. v. NLRB, 814 F.3d 859, 876 (7th Cir. 2016); NLRB v. Interstate

Builders, Inc., 351 F.3d 1020, 1036 (10th Cir. 2003); NLRB v. Grand Canyon Mining Co.,

116 F.3d 1039, 1048 (4th Cir. 1997). In addition to the coercive tactics employed during the

months between the handbilling and the discharges, French was discriminatorily discharged on

the very same day that DeBeau and Schoof were discharged. A reasonable mind could conclude

from this evidence that the General Counsel made out a prima facie case of discriminatory

discharge. See Airgas, 916 F.3d at 560.

2. Nondiscriminatory Reason

Moving to the second stage of the Wright Line analysis, Charter submits that it would

have fired DeBeau and Schoof regardless of their perceived union activity because they

performed non-company work on company time and then lied to Peters about what they had

done.

The Board deemed this reason pretextual in part because other employees who committed

similar offenses in the past were not discharged. Disparate disciplinary decisions may establish

pretext. See, e.g., United Nurses Ass’ns of Cal. v. NLRB, 871 F.3d 767, 781 (9th Cir. 2017)

(“Such disparate treatment is enough to establish pretext.”); Ozburn-Hessey Logistics, LLC v.

NLRB, 833 F.3d 210, 223 (D.C. Cir. 2016) (finding pretext where the company’s discharge

decision was “inconsistent with” other disciplinary decisions and “deviated from the Company’s

progressive disciplinary policy”); Bates Paving, 2016 WL 3853833, at *5 (finding pretext

because “[t]he discharge was both a departure from established disciplinary practice and

disparate treatment”).

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 26

Charter addresses the Board’s finding of disparate treatment only in two short paragraphs

of its reply brief, without citation to caselaw or record evidence. This suggests that consideration

of the disparate treatment finding is forfeited. See Kovacic v. Cuyahoga Cty. Dep’t of Children

& Family Servs., 606 F.3d 301, 307 (6th Cir. 2010) (“[I]t is a settled appellate rule that a party

forfeits issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation.” (brackets and citation omitted)); United States v. Carson, 560 F.3d 566, 587 (6th

Cir. 2009) (“The appellant cannot raise new issues in a reply brief; he can only respond to

arguments raised for the first time in appellee’s brief.” (brackets and citation omitted)).

Even if the issue is not forfeited, the record is replete with employees who were not fired

despite misusing working hours in a manner similar to, or more serious than, DeBeau and

Schoof. For example, Teenier testified that an employee who frequently returned home several

hours before he clocked out was not terminated. Among Charter’s disciplinary reports for

violations related to timekeeping and attendance, most resulted in a verbal warning. The rare

instances that resulted in written warnings followed many informal coachings and verbal

warnings. For example, one employee slept on the job and failed to arrive at his first worksite on

time. He received a written warning even though he had received three coachings about

attendance and performance in the preceding two months; in his 13 years of employment with

Charter, he had received three coachings, five verbal warnings, five written warnings, and one

final warning. Four months later, when that same employee failed to use company time

appropriately while on the job, he received a final warning.

Violations related to dishonesty similarly failed to result in termination. For example,

falsifying documents about work that had been completed led to a verbal warning or, when

preceded by many coachings, a written warning. Intentionally providing false information

to a supervisor and being dishonest about his actions when questioned resulted in a final

warning—even though it followed a verbal warning for falsifying documents from the month

before. In essence, the records make clear that Charter generally adheres to its progressive

disciplinary policy in cases involving both misuse of company time and dishonesty.

And yet, even though DeBeau and Schoof had no prior disciplinary history, Charter

terminated them both. Charter’s bare allegation that DeBeau and Schoof’s situation might be

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 27

different than other instances of dishonesty, does not render the Board’s finding of disparate

treatment—and so of pretext—unreasonable. Because substantial evidence supports this

conclusion, we do not reach the Board’s alternate conclusion that Charter did not reasonably

believe that DeBeau and Schoof performed non-company work on company time.

III. CONCLUSION

For the foregoing reasons, we DENY Charter’s petition for review and GRANT the

General Counsel’s cross-petition for enforcement.

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 28

__________________________________________________

CONCURRING IN PART AND IN THE JUDGMENT

__________________________________________________

NALBANDIAN, Circuit Judge, concurring in part and concurring in the judgment.

I concur in the majority’s opinion and write separately on one issue: Charter’s surveillance of

the union handbilling on July 15, 2014. Although I agree with the majority that there is

substantial evidence supporting the Board’s conclusion that Charter violated 29 U.S.C.

§ 158(a)(1), I write separately to discuss the distinction between lawful observation and unlawful

surveillance of union activity—and to explain why only some of the challenged conduct

amounted to unlawful surveillance.

As the majority notes, supervisors may lawfully observe union activity “on or near

[company] property,” without violating § 158(a)(1). Clock Elec., Inc. v. N.L.R.B., 162 F.3d 907,

918 (6th Cir. 1998). But the majority also cites a Board decision finding that an employer had

engaged in unlawful surveillance when its supervisors stood “close enough to the handbilling

that they could identify not only those employees who passed by the handbillers, but even which

employees took a handbill from the union organizers.” PartyLite Worldwide, Inc., 344 N.L.R.B.

1342, 1342 (2005). This leaves supervisors seeking to observe union activity for lawful purposes

(e.g., preventing trespass on company property or ensuring safe egress for employees) in a bind.

If those two rules are compatible, it would suggest that a supervisor may observe union

activity—but only if he stands so far away that he cannot identify any employees who happen to

pass by. At that point, the rule might as well prohibit all observation of union activity, no matter

how far away the supervisor stands. But other Board decisions tell us that cannot be the case. In

fact, the Board has remarked that “even an employer’s close, as opposed to casual, observation

of union activity at or near his premises in order to preclude trespass cannot be found to

constitute unlawful surveillance of that activity.” Brown Transp. Corp., 294 N.L.R.B. 969, 971

(1989); see also Aladdin Gaming, LLC, 345 N.L.R.B. 585, 585–86 (2005); Emenee Accessories,

Inc., 267 N.L.R.B. 1344, 1344 (1983); Porta Sys. Corp., 238 N.L.R.B. 192, 192 (1978).

So how do we draw the line between lawful observation and unlawful surveillance—and

how can employers be sure not to cross it? The majority points to a line of Board decisions

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 29

explaining that an employer violates § 158(a)(1) by engaging “in behavior that is ‘out of the

ordinary.’” Partylite, 344 N.L.R.B. at 1342 (quoting Arrow Auto. Indus., 258 N.L.R.B. 860, 860

(1981)). But that test is not the most reliable way to determine whether an employer has engaged

in unlawful surveillance. For one, the union activity itself may be unusual, meaning that any

otherwise lawful response on the part of the employer would be out of the ordinary, too. But the

NLRA makes it an unlawful labor practice to “interfere with, restrain, or coerce employees in the

exercise of” their rights under the Act. 29 U.S.C. § 158(a)(1). Just because an action is unusual

(e.g., supervisor stands in company parking lot to ensure nearby union representatives do not

trespass) does not necessarily imply that it is coercive.

Several federal appellate courts have cautioned against the “out of the ordinary test” to

distinguish lawful observation from unlawful surveillance. The Fourth Circuit, for example,

explained that the NLRA “requires more than mere ‘out-of-the-ordinary’ conduct in an area

where employees can be seen; the Act requires conduct that could have reasonably been

construed in the totality of the circumstances as coercive, intimidating, or threatening in nature.”

Intertape Polymer Corp. v. N.L.R.B., 801 F.3d 224, 239 (4th Cir. 2015). And the Eighth Circuit

noted that some of the Board’s more recent decisions overlook the fact that § 158(a)(1) prohibits

coercion, not simply behavior that is unusual or out of the ordinary. Greater Omaha Packing

Co., Inc. v. N.L.R.B., 790 F.3d 816, 823 (8th Cir. 2015). As the Eighth Circuit explained, an

employer has the right to “non-coercively gather information, even about union activities.” Id.

So “absent a tendency to coerce, surveillance or creating the impression of surveillance does not

constitute a [§ 158(a)(1)] violation.” Id. (quoting Belcher Towing Co. v. N.L.R.B., 726 F.2d 705,

708 (11th Cir. 1984)).

Instead of merely asking whether the challenged conduct was unusual, we must

determine whether the employer’s observation, “considered from the employees’ point of view,

had a reasonable tendency to coerce.” Caterpillar Logistics, Inc. v. N.L.R.B., 835 F.3d at 536,

543 (6th Cir. 2016) (quoting Dayton Newspapers, Inc. v. N.L.R.B., 402 F.3d 651, 659 (6th Cir.

2005)). Several factors help guide that inquiry, including the duration of the observation, the

distance between the observing employer and the union activity, whether the employer engaged

in other coercive or intimidating behavior during the observation, and whether the employer had

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 30

a legitimate reason for observing the activity. Intertape, 801 F.3d at 236; see also Aladdin

Gaming, LLC, 345 N.L.R.B. at 585 (whether supervisors unlawfully surveilled employees

“depends on the nature and duration of their observation”).

Using those factors as a guide, I disagree with the Board’s conclusion (which the

majority upholds) that Charter supervisor T.J. Teenier engaged in unlawful surveillance of the

union handbilling. Teenier testified that he spent about fifteen to twenty minutes observing the

union activity. (Administrative Record at 387–88.) But a prior Board decision found that a Wal-

Mart supervisor did not violate § 158(a)(1) when the supervisor “sat on a bench outside the store

entrance for about 30 minutes, watching the organizers distribute handbills.” Wal-Mart Stores,

Inc., 340 N.L.R.B. 1216, 1217 (2003). That Teenier spent about half that time observing the

union activity weighs against finding a violation of § 158(a)(1).

There is no record evidence about how close Teenier came to the union handbillers and

no evidence that he was so close to the handbillers that his presence was physically intimidating.

Nor is there evidence that Teenier engaged in other behavior that courts and the Board have

found to be coercive, such as photographing employees interacting with the union

representatives, (see, e.g., Clock Elec., 162 F.3d at 917–18), verbally harassing employees who

took union literature (see, e.g., Arrow Auto. Indus., 258 N.L.R.B. at 863), or giving the

impression—whether accurate or not—that he was recording which employees were engaging

with the union representatives (see, e.g., Eddyleon Chocolate Co., 301 N.L.R.B. 887, 888

(1991)).

One additional factor to consider is whether Teenier had a legitimate reason for being in

Saginaw. At the time of the handbilling, Teenier managed Charter’s plant security for the state

of Michigan. Given this role, Teenier would not have seemed out of place, even though he drove

fifteen minutes from his home office in Bay City. To be sure, several Board decisions have

found a violation of § 158(a)(1) when a supervisor traveled to observe union activity, but those

decisions do not align with this case. In Sprain Brook Manor Nursing Home LLC, the Board

found a violation when a nursing-home administrator traveled to work early in the morning on a

Saturday—her day off—because she thought there might be union activity at the nursing home.

351 N.L.R.B. 1190, 1191 (2007). The administrator stood at the entryway nearest to where the

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 31

union organizers were meeting for two hours, simply to make her presence known. Id. There

was no evidence that the administrator held any kind of security role, nor was there any other

legitimate explanation for her presence on her day off.

The Fourth Circuit also enforced an NLRB order finding that several supervisors engaged

in unlawful surveillance when they traveled to a local high school, thinking that their employees

were participating in a union meeting there. N.L.R.B. v. Nueva Eng’g, Inc., 761 F.2d 961, 967

(4th Cir. 1985). The supervisors arrived at the high school to find that the meeting had been

canceled, but they happened to spot three employees driving on an adjacent road and followed

them to a nearby home. Id. But here, of course, Teenier observed the union handbillers from

Charter’s parking lot, not an offsite location.

Applying all of the Intertape factors to these facts suggests that Teenier’s observation did

not violate § 158(a)(1). But even if we were to set aside those factors and rely exclusively on the

Board’s “out of the ordinary” test to distinguish lawful observation from unlawful surveillance,

there is no evidence that Teenier’s presence in Saginaw was unusual. The Board simply infers

that Teenier’s “presence was out of the ordinary” because Teenier drove fifteen minutes from his

home office in Bay City to Charter’s facility in Saginaw to observe the union activity. Nothing

in the record, however, establishes that Teenier rarely visited Saginaw. To the contrary, we

know that Teenier managed Charter supervisors (including Shawn Felker) based in Saginaw—

and that Teenier oversaw Charter’s plant security for the state of Michigan. For all we know,

Teenier could have made the fifteen-minute drive to Saginaw each morning, as he did on July 15

to observe the union activity. The record, however, is silent as to how often Teenier visited the

Saginaw plant. In sum, there is insufficient evidence to support the Board’s conclusion that

Teenier’s presence violated the NLRA.

If Teenier’s presence in Saginaw cannot support the Board’s conclusion that Charter

violated § 158(a)(1), that leaves another potential violation: the conversation between Charter

supervisor Shawn Felker and technician Kent Payne on the morning of July 15. Payne testified

that after he passed the union representatives and entered Charter’s parking lot, Felker

approached him and asked whether he had taken a pro-union flyer. According to Payne, Felker

“just let me know that the Union was there, and he asked me if I took a flyer.” (Administrative

Nos. 18-1778/1895 Charter Commc’ns, Inc. v. NLRB Page 32

Record at 1330.) Payne testified that Felker said nothing else about the union and that he did not

feel reluctant to tell Felker the truth, even if he had taken a flyer.1 The Board concluded—and

the majority agrees—that Felker’s question violated § 158(a)(1).

I agree with the majority that substantial evidence supports the Board’s conclusion and

write separately only to underscore that mere “[q]uestioning or interrogation of employees by the

employer is not per se unlawful.” N.L.R.B. v. Homemaker Shops, Inc., 724 F.2d 535, 548 (6th

Cir. 1984) (citing N.L.R.B. v. Dale Indus., 355 F.2d 851, 852–53 (6th Cir. 1966)). Homemaker

Shops makes clear that “[i]nfrequent, isolated and innocuous inquiries of a relatively small

number of employees, standing alone, do not constitute interference, restraint or coercion within

the meaning of section 8(a)(1) of the Act.” Id. at 548–49 (quoting N.L.R.B. v. Elias Bros. Big

Boy, Inc., 325 F.2d 360, 364 (6th Cir. 1963)); see also N.L.R.B. v. Okun Bros. Shoe Store, Inc.,

825 F.2d 102, 108 (6th Cir. 1987). So when an employee alleges unlawful interrogation,

Homemaker Shops instructs us to consider “all the surrounding circumstances” and ask whether

that interrogation “reasonably tended to interfere with the free exercise of employee rights.”

Homemaker Shops, 724 F.2d at 548 (citations omitted).

Felker’s question, by itself, seems benign. Payne testified that Felker asked no other

questions about the union, nor did Felker threaten Payne with repercussions if he engaged with

the union. But the “surrounding circumstances” cast Felker’s question in a different light.

Felker stood guard in Charter’s parking lot for 90 minutes, about three times as long as Teenier.

Felker also testified that Charter supervisor Chad Erskine told him to “make a mental note” of

anyone who had taken a flyer—and to notify Charter’s human resources department about those

employees. (Administrative Record at 868.) Felker, it seems, was not simply in the parking lot

to observe the union activity for security purposes.

So although a standalone, non-threatening question about participation in union activity is

not a per se violation of the NLRA, there is enough evidence here to conclude that Felker’s

question was not one of pure curiosity and that it violated the NLRA.

1To be clear, whether the employer’s questioning or interrogation violated the NLRA is an objective

inquiry. See, e.g., Wyman-Gordon Co. v. N.L.R.B., 654 F.2d 134, 145 (1st Cir. 1981); Frito-Lay, Inc. v. N.L.R.B.,

585 F.2d 62, 65 (3d Cir. 1978).