Circus Circus Casinos, Inc. v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 28, 2019 Decided June 12, 2020

No. 18-1201

CIRCUS CIRCUS CASINOS, INC., D/B/A CIRCUS CIRCUS LAS

VEGAS,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 18-1211

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Paul T. Trimmer argued the cause for petitioner. With him

on the briefs was Daniel I. Aquino.

Kellie Isbell, Senior Attorney, National Labor Relations

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

were Peter B. Robb, General Counsel, David S. Habenstreit,

Assistant General Counsel, and Julie Brock Broido,

Supervisory Attorney.

2

Before: SRINIVASAN, Chief Judge, RAO, Circuit Judge,

and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RAO.

Opinion concurring in part and dissenting in part filed by

Chief Judge SRINIVASAN.

RAO, Circuit Judge: This case arises out of an employment

dispute between Circus Circus Casinos, Inc. (“Circus”) and

temporary employee Michael Schramm. The National Labor

Relations Board (“NLRB”) determined that Circus committed

three unfair labor practices: threatening Schramm for

exercising statutory rights under the National Labor Relations

Act (“NLRA”), interfering with his right to union

representation during an investigatory meeting, and suspending

and terminating him because of protected union activity. Circus

petitions for review, arguing the Board’s decision misapplied

governing law and lacked substantial evidence. For the reasons

that follow, we grant Circus’s petition for review in full and

deny the Board’s cross-application for enforcement.

I.

Circus Circus is a hotel and casino in Las Vegas, Nevada.

In September 2013, the company hired journeyman carpenter

Michael Schramm into its engineering department on

a temporary basis to upgrade doorjamb security in the hotel’s

guest rooms. As a carpenter, Schramm was represented by the

United Brotherhood of Carpenters and Joiners of America,

Southwest Regional Council of Carpenters Local #1780 (“the

Union”).

In November or early December 2013, Schramm and

about twelve other employees attended one of the engineering

department’s mandatory weekly safety meetings along with

3

department head Rafe Cordell and several other managers.

During the meeting, an engineer named Fred Tenney brought

up the concern that secondhand exposure to marijuana smoke

in guest rooms could cause employees to test positive for illegal

drugs. Schramm echoed this concern, and a discussion ensued

between Cordell, Schramm, and Tenney. According to

Schramm and Tenney, they repeatedly pressed Cordell for

additional commitments by the company and refused to accept

his assurances that employees’ exposure was insufficient to

produce a positive test result. On their account, Cordell

eventually became angry, turned red, and told Schramm “you

know what, maybe we just won’t need you anymore” before

abruptly leaving the meeting. Testimony from Cordell and

other managers and employees also in attendance reported the

weekly safety meeting proceeded just like any other and

concluded without incident. Although some remember

a discussion about marijuana policy, none remember Cordell

making a threatening statement.

Several weeks later, Circus initiated an investigation into

whether Schramm violated company policy with respect to

a medical exam mandated by the Occupational Safety and

Health Administration (“OSHA”). Pursuant to OSHA

regulations, Circus provides custom-fit respirators to

employees likely to encounter airborne hazards during their

work, including virtually all members of the engineering

department. See 29 C.F.R. § 1910.134(a)–(d). Because

respirators can aggravate certain underlying health conditions,

OSHA requires employers to contract with a medical service

provider to review an employee’s medical history and perform

a medical examination prior to the custom-fitting process. See

id. § 1910.134(e)–(f). To assure compliance with OSHA

regulations, Circus maintains written policies that make

submitting to the testing process a mandatory condition of

employment. The company’s General Rules of Conduct

4

specify that “serious violations,” including “insubordination”

and “[f]ailure or refusal to submit to a physical examination …

ordered by Circus,” “will result in disciplinary action up to and

including immediate termination.”

Schramm arrived at an onsite clinic for his scheduled

testing appointment on December 10. He refused, however, to

complete preliminary paperwork without first speaking with

the contract doctor. Although clinic technicians explained he

could not see the doctor without first completing a preliminary

intake process, Schramm left the appointment and returned to

work. Clinic staff relayed the incident to Cordell, who quickly

suspended Schramm pending investigation into his refusal to

take the medical exam. Over the next three days, Circus

personnel interviewed Cordell and several other managers

about the incident and scheduled Schramm for an investigatory

interview. When a Circus human resources representative

contacted Schramm to set up the interview, she provided

a phone number for the Union in the event Schramm desired to

have a Union representative present at the meeting. The record

indicates Schramm attempted to contact the Union twice by

phone, but to no avail.

Schramm returned to the Circus facility on December 13

for the interview. Cordell and two human resources

representatives attended on behalf of Circus. According to

Schramm, he looked around the hallway for a Union

representative before entering the meeting and began by

stating: “I called the Union three times [and] nobody showed

up, I’m here without representation.” Circus’s witnesses deny

Schramm made this statement at the beginning of the meeting

but acknowledge continuing the interview without offering

Schramm union representation.

5

In late December, Cordell and human resources met once

again with Schramm to terminate his employment; this time he

was accompanied by a Union steward. Circus represented

during the administrative proceedings that it fired Schramm for

violating the company’s rules against insubordination and

refusing to submit to mandatory testing.

Schramm subsequently filed unfair labor practice charges

on his own behalf with the NLRB. After overriding the regional

director’s decision not to pursue the charges, the Board’s

general counsel issued a complaint alleging Circus violated

three standards established under Section 8(a)(1) of the Act.

See 29 U.S.C. § 158(a)(1). The complaint first alleged

Cordell’s comment to Schramm during the weekly safety

meeting interfered with NLRA rights by discouraging

employees from voicing shared concerns about the terms and

conditions of employment. Second, the complaint alleged

Schramm’s statement at the beginning of the investigatory

meeting was a request for union representation under NLRB v.

J. Weingarten, Inc., 420 U.S. 251 (1975), and that Circus

violated the Act by ignoring the request. Finally, the complaint

alleged that under the test for mixed-motive termination in

Wright Line, 251 NLRB 1083 (1980), Circus unlawfully

suspended and terminated Schramm because of activity

protected under the Act and not because of his alleged

workplace misconduct. After a hearing, an administrative law

judge (“ALJ”) issued a recommended decision finding that

Circus committed the unfair labor practices brought by the

general counsel.1

1

Circus does not contest the finding that Schramm engaged in

protected activity under Section 7 of the Act by seconding Tenney’s

marijuana smoke concern during the safety meeting. See 29 U.S.C.

§ 157. The Board must identify protected activity to invoke NLRA

jurisdiction in the first instance. In the absence of an objection by

6

The Board, sitting as a delegated three-member panel, see

29 U.S.C. § 153(b), adopted the ALJ’s decision in all material

respects and rejected a request by Circus to reopen the record

for additional evidence tending to impeach Tenney, Schramm’s

key corroborating witness. See Circus Circus Casinos, Inc.,

366 NLRB No. 110 (June 15, 2018). The Board noted

Chairman Ring dissented as to the Weingarten violation on the

ground that the majority was wrong to find a request for

representation “subsumed” in Schramm’s statement, which

described prior requests to the Union rather than a request to

the company. Id. at *1 n.2. To remedy these unfair labor

practices, the Board ordered Circus to reinstate Schramm with

backpay, cease and desist from similar violations, and post

a workplace notice describing the agency’s findings. Id. at *2.

Circus petitioned for review of the Board’s unfair labor

practice findings and refusal to reopen the record, arguing the

order is inconsistent with the NLRA and the Administrative

Procedure Act (“APA”). The Board cross-petitioned for

enforcement of the order.

II.

Judicial review of the Board’s decisions and orders must

evaluate both the Board’s statements of law and application of

law to the facts. Congress combined within the NLRB the

authority to make rules, enforce rules, and adjudicate whether

rules were violated in individual cases. See 29 U.S.C. § 160(a)–

(c). The Supreme Court upheld the constitutionality of the

NLRB against due process challenges notwithstanding this

combination of functions in part because appellate review

would afford “adequate opportunity to secure judicial

Circus, however, we will not consider this jurisdictional issue and

express no opinion on the Board’s finding.

7

protection against arbitrary action.” NLRB v. Jones & Laughlin

Steel Corp., 301 U.S. 1, 47 (1937). Orders of the Board cannot

be enforced without Article III approval, see 29 U.S.C.

§ 160(e)–(f), and reviewing courts “are not to abdicate the

conventional judicial function” because “Congress has

imposed on them responsibility for assuring that the Board

keeps within reasonable grounds,” Universal Camera Corp. v.

NLRB, 340 U.S. 474, 490 (1951). Judicial review ensures that

the Board stays within statutory and constitutional limits.

The Board rarely promulgates regulations through notice

and comment but instead sets standards through adjudication.

The Board, “uniquely among major federal administrative

agencies, has chosen to promulgate virtually all the legal rules

in its field through adjudication rather than rulemaking.”

Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,

374 (1998) (citing NLRB v. Bell Aerospace Co., 416 U.S. 267,

294–95 (1974)). Thus, an order of the Board might simply

apply an existing standard, or alternatively, it might set forth

a new standard while deciding a particular case. Nonetheless,

as with other administrative agencies, the Board is subject to

the APA’s requirement of “reasoned decisionmaking.” Id.

(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 52 (1983)). Legal standards promulgated

by the Board under the NLRA must be “rational and consistent

with the Act,” id. at 364 (citation omitted), and applications of

those standards in individual cases must be “reasonable and

reasonably explained,” Carlson v. PRC, 938 F.3d 337, 343–44

(D.C. Cir. 2019) (citation omitted).

Because Board adjudications may establish new rules or

apply existing rules, “[o]ur standards for arbitrary and

capricious review distinguish between an agency’s burden of

explanation when announcing new rules and when applying

existing rules in individual cases.” Baltimore Gas & Elec. Co.

8

v. FERC, 954 F.3d 279, 286 (D.C. Cir. 2020). New rules set

through adjudication must meet the same standard of

reasonableness as notice and comment rulemaking. See

Allentown Mack, 522 U.S. at 374 (citing State Farm, 463 U.S.

at 52). When the Board seeks to change applicable standards

through an adjudication, the Board must “display awareness

that it is changing position,” demonstrate the rule is

“permissible under the statute,” and show “there are good

reasons for the new policy.” FCC v. Fox Television Stations,

Inc., 556 U.S. 502, 515 (2009). By contrast, Board orders

applying existing policy must be consistent with precedent and

cannot be enforced when the agency “erred in applying

established law to the facts of the case.” Fred Meyer Stores,

Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir. 2017) (citation

omitted); see also Rapoport v. SEC, 682 F.3d 98, 104 (D.C.

Cir. 2012) (“[A]gencies must apply their rules consistently.

They may not depart from their precedent without explaining

why. If they do, we have no choice but to remand for a reasoned

explanation.” (citation and internal quotation marks omitted)).

Orders of the Board are arbitrary and capricious when they

“simply disregard rules that are still on the books.” Fox

Television, 556 U.S. at 515. Rule of law principles require that

parties have fair notice and an opportunity to conform their

behavior to legal rules.2 As the Supreme Court has explained,

“the Board must be required to apply in fact the clearly

2

Administrative law’s reasonable explanation requirement balances

the need for definite standards with respect for agency discretion.

Insisting on definite standards recognizes “the basic human claim

that the law should provide like treatment under like circumstances,”

and “a clear statement of the standards the agency is applying is

necessary if administrative adjudication is to be consistent with the

democratic process.” Henry J. Friendly, The Federal Administrative

Agencies: The Need for Better Definition of Standards, 75 HARV. L.

REV. 863, 878, 880 (1962).

9

understood legal standards that it enunciates in principle,” and

“courts are entitled to take those standards to mean what they

say.” Allentown Mack, 522 U.S. at 376–77. Reviewing courts

cannot simply take the Board’s orders in isolation. Instead, we

must identify the standard at issue, examine its application in

prior adjudications, and then determine whether the instant

case is a faithful application of existing law or instead a sub

silentio revision. See, e.g., ABM Onsite Servs.-West, Inc. v.

NLRB, 849 F.3d 1137, 1146 (D.C. Cir. 2017) (“[W]hen the

Board fails to explain—or even acknowledge—its deviation

from established precedent, its decision will be vacated as

arbitrary and capricious.” (citation and internal quotation

marks omitted)).

Two provisions of the NLRA govern this case. Section

8(a)(1) makes it unlawful for employers to “interfere with,

restrain, or coerce employees” in the exercise of protected

rights. 29 U.S.C. § 158(a)(1). Section 7 protects the right of

employees to organize, bargain collectively, and “refrain from”

or “engage in other concerted activities for the purpose of

collective bargaining or other mutual aid or protection.” Id.

§ 157. In this case, the Board purported to apply three well

established standards to determine Circus committed unfair

labor practices by unlawfully threatening, investigating,

suspending, and terminating Schramm. Circus contests both

the factfinding and legal analysis supporting the Board’s

findings. We take each alleged violation in turn.

A.

We begin with the Board’s conclusion that Circus violated

the Weingarten rule by denying Schramm’s request for union

representation at the investigatory meeting. In NLRB v. J.

Weingarten, Inc., the Supreme Court approved the Board’s

construction of Section 7 of the Act as guaranteeing an

10

employee the right “to refuse to submit without union

representation to an interview which he reasonably fears may

result in his discipline.” 420 U.S. at 256. The Weingarten right

“arises only in situations where the employee requests

representation,” id. at 257, and leaves employers free to

investigate and discipline pursuant to “legitimate employer

prerogatives” short of compelling unrepresented attendance,

id. at 258. To prove a Weingarten allegation, the general

counsel must show (1) the employee made a valid request for

a union representative to be present during an investigatory

interview; (2) the employee reasonably believed the interview

might result in disciplinary action; and (3) the employer

compelled the employee to attend the interview without union

representation. 420 U.S. at 256–58 (citing Mobil Oil Corp., 196

NLRB 1052, 1052 (1972), and Quality Mfg. Co., 195 NLRB

197, 198–99 (1972)); see also Costco Wholesale Corp., 366

NLRB No. 9, at *1 (Feb. 2, 2018).

The Board maintains Schramm triggered Weingarten by

stating at the beginning of the meeting: “I called the Union

three times [and] nobody showed up, I’m here without

representation.” As the Board explained, “[s]ubsumed in the

statement is a reasonably understood request to have someone

present at the meeting.” Circus Circus, 366 NLRB No. 110, at

*1. Further, the Board concluded Circus unlawfully compelled

Schramm when the company failed to offer him the choice

between continuing unassisted or foregoing the interview

altogether. Id. at *2 n.10; see also Bellagio, LLC v. NLRB, 854

F.3d 703, 708 (D.C. Cir. 2017) (“[O]nce an employee validly

requests a union representative, an employer has three paths

open to it: it may grant the request, end the interview, or offer

the employee the choice between having an interview without

a representative or having no interview at all.”). Noting his

dissent, Chairman Ring would have concluded Schramm’s

statement fell short of a valid request for representation under

11

any formulation previously recognized by the Board. Circus

Circus, 366 NLRB No. 110, at *1 n.2. Circus argues the

Board’s conclusion that Schramm made a valid request is

a serious departure from the Weingarten rule. We agree, and

conclude the Board acted in an arbitrary and capricious manner

by significantly altering the test for valid Weingarten requests

to cover the facts of this case.

The Weingarten allegation should have been dismissed

because Schramm did not make an affirmative request for

union representation. To invoke the Weingarten right, an

employee’s utterance must be “reasonably calculated” to put

the employer “on notice of the employee’s desire for union

representation.” Houston Coca Cola Bottling Co., 265 NLRB

1488, 1497 (1982); Consol. Edison Co. of N.Y., 323 NLRB

910, 916 (1997). Under the reasonably calculated notice

standard, the Board has long required an employee to

affirmatively request representation in order to invoke the

protections of the Act. Valid requests may take the form of

straightforward demands, see, e.g., Consol. Edison, 323 NLRB

at 914 (“I need a Union Steward.”); questions about the need

for assistance, see, e.g., NLRB v. N.J. Bell Tel. Co., 936 F.2d

144, 145 (3d Cir. 1991) (“[S]hould [I] have a union

representative present[?]”); or requests for delay or an

alternative representative, see, e.g., Montgomery Ward & Co.,

273 NLRB 1226, 1227 (1984). In this case, Schramm merely

recited facts about his past communication with the Union and

the circumstances of his attendance at the meeting: “I called the

Union three times [and] nobody showed up, I’m here without

representation.” Any affirmative request by Schramm was

made to the Union rather than to a Circus representative—there

was no valid request here to trigger Weingarten’s requirements.

None of the Board’s prior decisions construe Weingarten’s

reasonably calculated notice standard broadly enough to cover

12

mere statements of fact, and we were unable to find a precedent

accepting similar remarks as an affirmative request. Nor was

our dissenting colleague. See Dissenting Op. 2. Instead,

affirmative requests have always taken the form of demands

for representation, questions, or related requests. See, e.g., Gen.

Die Casters, Inc., 358 NLRB 742, 742 (2012) (finding request

where employee asked twice if he should “get somebody in

here”); Bodolay Packaging Mach., Inc., 263 NLRB 320, 325

(1982) (finding request where employee asked if he “needed

a witness”). In the absence of an affirmative request, the Board

must dismiss Weingarten charges because there is no protected

concerted activity by the employee and the NLRA does not

apply. See, e.g., Costco Wholesale, 366 NLRB No. 9, at *1

(dismissing unfair labor practice charge for lack of employee

request); USPS, 360 NLRB 659, 660 (2014) (same); Kohl’s

Food Co., 249 NLRB 75, 78 (1980) (same).

The text and structure of the NLRA demonstrate why an

affirmative request is an indispensable element of a Weingarten

violation. As the Supreme Court explained in Weingarten, the

affirmative request requirement “inheres in [Section] 7’s

guarantee of the right of employees to act in concert for mutual

aid and protection.” 420 U.S. at 256. Employee requests for

union representation trigger an employer’s duty to respond

under Section 8(a)(1) when they amount to protected “other

concerted activities” under Section 7. The phrase “other

concerted activities” must be read in context and is preceded

by a series of affirmative rights: “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.” 29 U.S.C. § 157. Under the ejusdem

generis canon, an enumerated list of specific, affirmative

actions preceding the general term “other concerted activities”

13

creates an inference that the catch-all phrase is similarly limited

to affirmative acts. See Wash. Dep’t of Soc. & Health Servs. v.

Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003)

(“[W]here general words follow specific words in a statutory

enumeration, the general words are construed to embrace only

objects similar in nature to those objects enumerated by the

preceding specific words.” (quoting Circuit City Stores, Inc. v.

Adams, 532 U.S. 105, 114–15 (2001))). As there was no

affirmative request on these facts, Circus was not required to

offer Schramm representation or to take any other action under

the Weingarten rule.

By deviating from established practice in this case, the

Board expanded the reach of Weingarten without accounting

for employee choice, a central policy of the NLRA. Cf. Colo.

Fire Sprinkler, Inc. v. NLRB, 891 F.3d 1031, 1040–41 (D.C.

Cir. 2018) (emphasizing the importance of employee choice in

the selection of a union representative under Section 9(a)).

Weingarten’s emphasis on affirmative employee requests

serves not only to notify the employer that the employee is

invoking statutory rights, but also to protect the employee’s

choice not to invoke the right when he believes doing so would

be against his interests. Union representatives serve the union’s

interest rather than those of any single member, and

representatives may be called upon to testify on behalf of the

employer as well as the employee. See Appalachian Power Co.,

253 NLRB 931, 933 (1980) (emphasizing an employee’s

“choice of deciding whether the presence of the representative

was more or less advantageous to his interests” is “one of the

fundamental purposes of the rule as articulated in

Weingarten”); USPS, 241 NLRB 141, 152–53 (1979)

(contrasting role of union representative to that of a criminal

attorney). Thus, one consequence of the Board’s finding that

14

Schramm’s request was “subsumed” in a simple statement of

fact would be to limit employee choice.3

If “requests” were interpreted as broadly as the Board

elected to do here, the Weingarten right would transform from

one that must be invoked by an employee to one that cautious

employers must assume automatically applies to all covered

investigatory meetings. Yet nothing in Weingarten or the

Board’s subsequent application of the rule obligates employers

prophylactically to inform employees of their right to

representation. See El Paso Healthcare Sys., 358 NLRB 460,

467 (2012) (“The employee’s right to the assistance of a union

representative arises only upon the request of the employee; the

employer has no duty to inform the employee of the right.”);

USPS, 241 NLRB at 152 (“[T]he Weingarten class of cases

implicitly hold that the employer is under no obligation

affirmatively to advise the employee of his Weingarten

rights.”).

Consistent with the Board’s precedents, we hold

Weingarten requires an employee to affirmatively request

union representation in a manner reasonably calculated to put

3

Our dissenting colleague believes the Board’s decision here would

not disturb Weingarten’s treatment of employee choice. See

Dissenting Op. 3. It is true that after a valid request, the employer

may offer the employee a choice between formally waiving

representation or forgoing the interview. See Weingarten, 420 U.S.

at 258–59; Bellagio, 854 F.3d at 708. Yet a rule that requires such

a choice after any type of open-ended statement would in practice

change the Weingarten right from one invoked by the employee to

a choice framed by the employer and requiring an affirmative waiver

by employees. Such a standard is wholly different from the

Weingarten framework and would impose a distinct set of burdens

on employees and employers not contemplated by longstanding

precedent.

15

the employer on notice. See USPS, 360 NLRB at 660 (“Even

assuming [an employee] had an objectively reasonable basis to

fear discipline, the right to Weingarten representation is

triggered when the employee requests it.” (citing 420 U.S. at

257)); Consol. Edison, 323 NLRB at 916 (requests “need only

be sufficient to put the employer on notice”); Houston Coca

Cola Bottling, 265 NLRB at 1497 (language must be

“reasonably calculated to apprise the [e]mployer”). Under the

reasonably calculated notice standard, valid requests may take

the form of demands, questions, or related requests for delay or

for a specific representative. On this record, Schramm’s

statement of fact standing alone was insufficient to trigger the

protections of the Act. Because the Board erred by concluding

otherwise, we set aside this unfair labor practice finding and

vacate the corresponding part of the Board’s order. See

Midwest Div.-MMC, LLC v. NLRB, 867 F.3d 1288, 1297 (D.C.

Cir. 2017) (granting review for misapplication of Weingarten);

Bellagio, 854 F.3d at 709 (same).4

B.

Next, we review the Board’s conclusion under Wright Line

that Circus violated Section 8(a)(1) of the Act by suspending

4

Even if Schramm’s statement could be construed as an affirmative

request, the general counsel must also show Circus compelled his

attendance at the interview. “[T]he mere fact that an employee’s

request for union representation is not met does not, without more,

mean that the employer has committed an unfair labor practice.”

Bellagio, 854 F.3d at 708–09. The Weingarten right gives an

employee the choice to “forgo his guaranteed right and … participate

in an interview unaccompanied by his union representative.” 420

U.S. at 256–57. Because Circus rested its petition for review on other

grounds, however, we express no opinion on whether the record

suggests that Schramm elected not to participate in the interview but

was compelled to do so by his employer.

16

and terminating Schramm because of protected activity.

Employers violate Section 8(a)(1) when they terminate or

otherwise discipline an employee because of conduct protected

by the Act. See Inova Health Sys. v. NLRB, 795 F.3d 68, 80

(D.C. Cir. 2015).5 At the same time, “employers retain the right

to discharge workers for any number of other reasons unrelated

to the employee’s union activities.” NLRB v. Transp. Mgmt.

Corp., 462 U.S. 393, 394 (1983); see also Jones & Laughlin,

301 U.S. at 45–46 (“The [A]ct does not interfere with the

normal exercise of the right of the employer to select its

employees or to discharge them. … [T]he Board is not entitled

to make its authority a pretext for interference with the right of

discharge.”). When an employer asserts a legitimate basis for

its disciplinary decision, the line between employer prerogative

and unlawful infringement of employees’ rights is a question

of motive.

In Wright Line, the Board adopted the Supreme Court’s

burden-shifting framework from Mt. Healthy City School

District Board of Education v. Doyle, 429 U.S. 274, 286–87

(1977), to accommodate “the legitimate competing interests

inherent in dual motivation cases.” 251 NLRB at 1088. Under

the Wright Line standard, the general counsel must first

establish a prima facie case that animus against protected

activity was “a motivating factor” in the employer’s decision.

Inova, 795 F.3d at 80; Wright Line, 251 NLRB at 1090.

Second, the burden of persuasion shifts to the employer to

show it “would have taken” the same action even in the absence

of protected conduct. Inova, 795 F.3d at 80 (citation omitted);

Wright Line, 251 NLRB at 1091; see also Transp. Mgmt., 462

5

Employer discipline violates Section 8(a)(1) and (3) when the

protected activity at issue is union participation. Section 8(a)(3) bars

employers from discriminating in order “to encourage or discourage

membership in any labor organization.” 29 U.S.C. § 158(a)(3).

17

U.S. at 403–04 (approving Wright Line as a valid interpretation

of the Act).

Purporting to apply Wright Line to the facts of this case,

the Board concluded Circus acted with animus against

Schramm’s exercise of NLRA rights and rejected the

company’s explanation that it would have fired Schramm

regardless because he refused to comply with the medical

examination requirement. The Board reasoned that if Circus’s

“true concern” was that Schramm undergo testing, “he would

have been allowed to speak to the doctor prior to testing or, at

a minimum, sent back for testing” before discipline. See Circus

Circus, 366 NLRB No. 110, at *4. Circus disputes the Board’s

legal analysis under both prongs of Wright Line, arguing the

Board accepted the general counsel’s prima facie case despite

an absence of evidence and, further, that the Board short

changed the company’s rebuttal case. Pointing to our decision

in Sutter East Bay Hospitals v. NLRB, 687 F.3d 424 (D.C. Cir.

2012), Circus argues the Board failed to assess whether the

company reasonably believed Schramm committed

misconduct that the company consistently disciplines with

similar severity. We assume without deciding that the general

counsel satisfied his burden in the first prong and instead focus

on Wright Line’s second prong. We agree with Circus that the

Board misapplied Wright Line by failing to consider the

company’s rebuttal case in line with our decision in Sutter East

Bay.

As we have explained, Wright Line’s second prong

requires the Board to examine first, whether the employer

“reasonably believed” the employee committed the acts

supporting discipline, and second, whether the decision was

consistent with the company’s “policies and practice.” Sutter

East Bay, 687 F.3d at 435. In Wright Line, the Board analyzed

whether the employer had “reason to believe” the terminated

18

employee violated company policy, and also whether the

employee’s asserted misconduct was “commonplace and

generally resulted in no discipline whatsoever.” 251 NLRB at

1091. The Board has repeatedly recognized that reasonable

belief and consistency in enforcement are important aspects of

the analysis. See, e.g., DTR Indus., Inc., 350 NLRB 1132,

1135–36 (2007) (dismissing unfair labor practice charge where

employer reasonably believed employee produced defective

products on purpose); GHR Energy Corp., 294 NLRB 1011,

1014 (1989) (dismissing unfair labor practice charge where

employer reasonably believed employees violated a policy the

company strictly enforced). We have similarly examined these

factors when assessing the Board’s application of Wright Line

on arbitrary and capricious review. See, e.g., Windsor Redding

Care Ctr., LLC v. NLRB, 944 F.3d 294, 300 (D.C. Cir. 2019)

(refusing enforcement where Board ignored “zero-tolerance”

policy for abuse toward elderly patients and disregarded

evidence of strict enforcement in prior cases); Hawaiian

Dredging Constr. Co. v. NLRB, 857 F.3d 877, 885 (D.C. Cir.

2017) (refusing enforcement where Board failed to recognize

employer’s good faith belief that misconduct occurred); Fort

Dearborn Co. v. NLRB, 827 F.3d 1067, 1075 (D.C. Cir. 2016)

(concluding employer acted inconsistently with policy and past

practice when discharging employee).

Contrary to this longstanding precedent, the Board

rejected Circus’s rebuttal case without addressing evidence

relevant to Wright Line’s second prong. First, the Board failed

to assess whether Circus reasonably believed Schramm

committed the misconduct in question. The company decided

to suspend and discharge Schramm based on reports by

medical personnel that Schramm failed to take a required

medical exam. Circus’s subsequent investigation did not reveal

any contrary facts. Rather than assess whether it was

reasonable for Circus to believe Schramm committed the

19

misconduct in question, the Board adopted factual findings

about what happened at the clinic. What actually happened is

immaterial, however, because Circus had no reason to doubt

the reports of medical personnel and was therefore entitled to

rely on them. See Sutter East Bay, 687 F.3d at 436 (“Whether

the ALJ believes the reports are accurate or whether [the

employee] actually engaged in the tirade is largely immaterial

to whether [the employer] reasonably believed she did.”).

Further, the Board devoted significant attention to the finding

that Schramm offered to retake the medical exam at the time of

his suspension and again at the investigatory meeting with

Cordell and human resources. Yet an employee’s offer to

correct misconduct does not disturb Circus’s reasonable belief

that a terminable offense had been committed.

Second, the Board failed to assess whether Circus’s

decision to terminate Schramm was consistent with company

policy and practice. The company’s written policies make

“insubordination” and “refusal to submit to a physical

examination” terminable offenses. Without addressing whether

these rules covered Schramm’s conduct, the ALJ instead

analyzed OSHA regulations and Circus’s testing policy to

conclude Schramm had a right to discuss the content of the

OSHA medical questionnaire with the doctor before submitting

the form. We fail to see the relevance of this observation,

however, given Schramm’s testimony that he sought to obtain

an exemption from wearing a respirator, not an exemption from

the basic medical intake information clinic personnel requested

(and Schramm refused to provide) before allowing him to

speak with the doctor. Circus also presented testimony that no

employee had ever refused to submit to an OSHA medical

exam and identified three prior instances in which the company

terminated employees for refusing to submit to a mandatory

drug test. We need not decide whether this evidence would

suffice to meet Circus’s rebuttal burden under Wright Line’s

20

second prong. It is enough to conclude the Board failed to

engage with this record evidence and thereby acted arbitrarily

and without substantial evidence on the record as a whole. See

id. at 437 (“The ALJ’s conclusions leave that crucial second

step of the Wright Line test unexamined and unanswered.”).

Finally, we reject the alternative reasoning supplied by the

Board that Circus “should have” been satisfied by Schramm’s

offers to retake the medical exam if his refusal was the

company’s “true concern.” Circus is entitled to a policy of strict

enforcement of its rules related to insubordination and

compliance with testing policies. The Board cannot second

guess an employer’s legitimate and consistently enforced

policies for safety and discipline in the workplace. To do so

exceeds the Board’s expertise and authority under the Act. See

Cellco P’ship v. NLRB, 892 F.3d 1256, 1262 (D.C. Cir. 2018)

(“It is clear that [the employer] has made a legitimate business

judgment—a not unusual one—that an employee lying during

an investigation is a serious threat to management of the

enterprise. The Board has no warrant to challenge that

decision.”). “It is well recognized that an employer is free to

lawfully run its business as it pleases. This means that an

employer may discharge an employee for a good reason, a bad

reason, or no reason, so long as it is not for an unlawful reason.”

Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1105

(D.C. Cir. 2001) (citing Transp. Mgmt., 462 U.S. at 394).

The Board suggests it was not required to analyze the

employer’s rebuttal under Wright Line and Sutter East Bay

because its finding of “pretext” rendered reasonable belief and

consistency in practice irrelevant. We reject this argument as

a fundamental misstatement of Wright Line. Determining an

employer’s explanation to be pretext is a legal conclusion that

follows from the Wright Line analysis, not an upfront finding

that short circuits consideration of the whole record. The Board

21

adopted Wright Line to obviate distinctions between pretext

and dual-motive cases by creating a uniform standard for “all

cases alleging violation[s] of Section 8(a)(3) or violations of

Section 8(a)(1) turning on employer motivation.” 251 NLRB

at 1089 & n.13; see NLRB GC Memorandum 80-58, 1980 WL

19306, at *1 (1980) (“The Wright Line test will be applied to

both pretext and mixed motive cases.”). This framework

governs regardless of whether an employer’s defense is

meritorious or unmeritorious. Before determining the outcome

of a case, the Board must examine whether the employer had

a reasonable belief misconduct occurred and a prior consistent

practice of enforcing rules against such misconduct. See Frank

Black Mech. Servs. Inc., 271 NLRB 1302, 1302 n.2 (1984)

(“Wright Line analysis applies to all 8(a)(3) and (1) discharge

cases regardless of the Board’s ultimate conclusion as to

motive.” (citing Transp. Mgmt., 462 U.S. at 393)). Nor will we

simply accept the Board’s application of Wright Line in this

case as an authoritative interpretation. Courts do not defer to an

agency’s arbitrary and capricious interpretation of its own

standard. See Kisor v. Wilkie, 139 S. Ct. 2400, 2418 (2019);

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126

(2016) (“An arbitrary and capricious regulation of this sort is

itself unlawful and receives no Chevron deference.”).

To defend its reasoning, the Board cites our decision in

Ozburn-Hessey Logistics, LLC v. NLRB, 833 F.3d 210 (D.C.

Cir. 2016), for the proposition that compelling evidence of

pretext precludes the need to consider Circus’s reasonable

belief. But we have never excused the Board from its duty to

consider whether an employer’s reasonable belief justifies

a termination decision. In Ozburn-Hessey, our court considered

whether the Board misapplied Wright Line by accepting pretext

as a substitute for analyzing an employer’s rebuttal case. We

did not endorse this analytical approach, but instead concluded

the Board had “rejected each of the reasons the [c]ompany

22

claimed to have relied on in taking those disciplinary actions”

and, “after considering them in light of the record, concluded

that they were ‘mere pretext[s].’” 833 F.3d at 219. We

explained that previous Board decisions also analyzed facts

under both prongs of Wright Line, despite some dicta that

might suggest an employer’s rebuttal need not be considered

on the whole record. See id. (quoting Rood Trucking Co., 342

NLRB 895, 898 (2004)). The approach in Ozburn-Hessey

reflects our court’s commitment to “uphold a decision of less

than ideal clarity if the agency’s path may reasonably be

discerned.” Bowman Transp., Inc. v. Ark.-Best Freight Sys.,

Inc., 419 U.S. 281, 286 (1974). That path is unavailable to us

here, however, because the Board’s reasoning “entirely fail[ed]

to consider an important aspect of the problem.” Fred Meyer

Stores, 865 F.3d at 638 (quoting State Farm, 463 U.S. at 43).

As we held in Sutter East Bay, the Board must analyze an

employer’s reasonable belief that an employee engaged in

misconduct and consider whether the disciplinary decision is

consistent with the employer’s policy and practice. Without

this analysis we cannot ensure the Board correctly applied

established law to the facts of the case, treated like cases alike,

and, consistent with the Act, preserved both employee rights

and employer prerogatives. Here, the Board misapplied Wright

Line by failing to consider the employer’s rebuttal case. This

error is fatal to the Board’s Section 8(a)(1) termination finding,

and we therefore vacate that part of the Board’s order. On

remand the Board may reconsider whether the record supports

an unlawful termination finding under the correct standard. See

Hawaiian Dredging, 857 F.3d at 885 (refusing enforcement for

failure to consider appropriate evidence under Wright Line’s

second prong); Sutter East Bay, 687 F.3d at 436 (same).

23

C.

Finally, we turn to the Board’s finding that Circus violated

Section 8(a)(1) by unlawfully threatening Schramm. Employer

statements “interfere with, restrain, or coerce” employees in

violation of Section 8(a)(1) when they “reasonably tend[] to

interfere” with the exercise of protected rights. Adv. Life Sys.,

Inc. v. NLRB, 898 F.3d 38, 44 (D.C. Cir. 2018). Proof of

employer intent or coercive effect on employees is not required

to establish a violation. See Avecor, Inc. v. NLRB, 931 F.2d

924, 931–32 (D.C. Cir. 1991); Am. Freightways Co., 124

NLRB 146, 147 (1959). As with the other two unfair labor

practice findings in this case, Circus contests the Board’s

factfinding and legal conclusion. Assuming without deciding

that Cordell’s statement could constitute an actionable threat if

made as alleged, we focus on Circus’s challenge to the Board’s

underlying factual finding that Cordell told Schramm “you

know what, maybe we just won’t need you anymore” during

a weekly safety meeting. Although the Board enjoys wide

deference with respect to factfinding, such deference is not

unlimited. We conclude this unlawful threat finding presents

the rare case in which an ALJ’s witness credibility

determinations must be set aside.

Whether Circus committed the relevant conduct is

a question of fact reviewed for “substantial evidence on the

record considered as a whole.” 29 U.S.C. § 160(e)–(f); see

David Saxe Prods., LLC v. NLRB, 888 F.3d 1305, 1311 (D.C.

Cir. 2018). Evidence is substantial when “a reasonable mind

might accept [it] as adequate to support a conclusion.”

Universal Camera, 340 U.S. at 477 (quoting Consol. Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938)). An ALJ’s credibility

findings contribute to substantial evidence unless “hopelessly

incredible, self-contradictory, or patently insupportable.”

PruittHealth-Virginia Park, LLC v. NLRB, 888 F.3d 1285,

24

1294 (D.C. Cir. 2018) (citation and internal quotation marks

omitted).

Although our standard sets a high bar, ALJ witness

credibility determinations are not immune from judicial

scrutiny and must be reasonable and reasonably explained. See

Stanford Hosp. & Clinics v. NLRB, 325 F.3d 334, 337 (D.C.

Cir. 2003) (“Decisions regarding witness credibility and

demeanor are entitled to great deference, as long as relevant

factors are considered and the resolutions are explained.”

(citation and internal quotation marks omitted)). Our review is

not a rubber stamp, and case law reflects at least three grounds

that may render an ALJ’s credibility decisions unreasonable.

This court will not condone arbitrary resolutions that reflect

a “lack of evenhandedness.” Sutter East Bay, 687 F.3d at 437.

Nor will we uphold credibility decisions resting “explicitly on

a mistaken notion.” Sasol N. Am. Inc. v. NLRB, 275 F.3d 1106,

1112 (D.C. Cir. 2002). When drawing inferences for and

against witness testimony, an ALJ “is not free to prescribe what

inferences from the evidence it will accept and reject, but must

draw all those inferences that the evidence fairly demands.”

King Elec., Inc. v. NLRB, 440 F.3d 471, 475 (D.C. Cir. 2006)

(quoting Allentown Mack, 522 U.S. at 378) (alterations

omitted).

We hold that the ALJ witness credibility determinations

supporting the conclusion that Cordell threatened Schramm are

patently insupportable. See PruittHealth, 888 F.3d at 1294.

Circus presented six witnesses who regularly attended the

weekly safety meeting to rebut testimony from Schramm and

Tenney alleging the threat occurred. The ALJ purported to

evaluate each witness using criteria drawn from the record and

common sense, reasoning that the ability to remember certain

details made testimony more reliable overall. But the ALJ

applied these criteria unevenly, drew unsupported inferences,

25

and failed to draw inferences warranted by the record that

tended to favor the company’s account.

First, the ALJ credited witness testimony with a “lack of

evenhandedness.” Sutter East Bay, 687 F.3d at 437. For

instance, the ALJ reasonably inferred that the ability to

remember the meeting’s date made a witness more credible.

Schramm testified the threat occurred during a meeting

“getting near” Thanksgiving, either November 21 or November

27, while his corroborating witness, Tenney, testified the

meeting occurred “before Thanksgiving,” and “possibly the

21st.” As to testimony favoring Circus, Cordell remembers

a conversation with Schramm and Tenney that occurred on

December 6, while other witnesses recalled a conversation

between these parties at a safety meeting but did not specify

a date. Based on this testimony, the ALJ concluded that

Schramm, Tenney, Cordell, and a fourth witness were

discussing the same meeting, even though they disagreed as to

the date and the contents of the meeting. By contrast, she

discredited four other witnesses who supported Circus’s

account because their testimony did not include a meeting

date.6 The ALJ also emphasized a witness’s ability to recall

6

Our dissenting colleague argues that because Schramm and Tenney

raised their marijuana smoke concern at multiple meetings, the ALJ

reasonably concluded four of Circus’s witnesses described

a different meeting from the one in question. See Dissenting Op. 4.

Yet the ALJ found that Schramm and Tenney raised the marijuana

smoke concern at two meetings: one in early November, and another

in late November or early December. No one testified Cordell

attended the first of the two meetings, and Schramm and Tenney

testified to a single relevant conversation with Cordell at the second.

See Circus Circus, 366 NLRB No. 110, at *4. At least three of the

four Circus witnesses disregarded by the ALJ specifically recalled

a conversation between Schramm, Tenney, and Cordell about

marijuana smoke at a safety meeting, and the record includes

26

specific comments Schramm reported making during the

meeting, including noting that Cordell was not a medical

professional and describing prior experience with marijuana

smoke exposure while employed at another hotel. Yet the ALJ

credited Schramm and Tenney for recalling these details but

discredited three company witnesses who remembered the

same details but also testified Cordell never made a threat.

Legitimate adjudication requires evenhanded assessment of

testimony offered on behalf of the employer and the employee.

Second, the ALJ found Schramm’s version of events

“more inherently probable” because “[f]or the witnesses called

by [Circus], this was just another weekly safety meeting. For

Teeney [sic] and Schramm, it was a memorable occasion.”

Circus Circus, 366 NLRB No. 110, at *4. This inference by the

ALJ rests “explicitly on a mistaken notion” that none of the

other employees in the safety meeting would remember their

manager turning red and threatening to terminate an employee

for voicing a workplace complaint. Sasol N. Am., 275 F.3d at

1112 (overturning inference from written notes that failed to

stand for the proposition for which the Board cited them); see

also United States ex rel. Exarchou v. Murff, 265 F.2d 504, 507

(2d Cir. 1959) (“We do not think this finding of impossibility

accords with the facts of human life.”); NLRB v. Universal

Camera Corp., 190 F.2d 429, 430 (2d Cir. 1951) (“[A]s to

matters of common knowledge we are to use a somewhat stiffer

standard.”). Glaringly absent from this analysis are contrary

inferences of equal or greater probative value that “the

evidence fairly demands,” including the possibility that six

evidence of only one meeting at which all three had such

a discussion. See id. Thus, the ALJ lacked a basis in the record to

conclude Circus’s witnesses described a phantom third meeting at

which Schramm, Tenney, and Cordell discussed marijuana smoke

without resorting to threats.

27

witnesses failed to remember the threat because none occurred.

King Elec., 440 F.3d at 475 (quoting Allentown Mack, 522 U.S.

at 378) (alterations omitted). The ALJ’s reasoning again

demonstrated “a lack of evenhandedness”: she determined that

the inherent memorability of a threat favored Tenney’s

testimony even though he was not threatened, and favored one

of the company’s witnesses to the extent he remembered

a heated exchange, but not to the extent that he also testified

the exchange ended without a threat by Cordell. Sutter East

Bay, 687 F.3d at 437.

Third, of particular concern is the ALJ’s failure to draw an

adverse inference against Tenney, Schramm’s only

corroborating witness, based on a fair consideration of record

evidence that materially impeached part of his testimony. At

the hearing, Tenney testified that he created

a contemporaneous record of Cordell’s threat on his mobile

device by entering the note “[Cordell] threatened carpenter”

into the company’s electronic work order system known as

“HotSOS.” Schramm testified that Tenney told him the exact

log number of the HotSOS entry created after the threat. Circus

immediately produced complete HotSOS records for the date

on which Tenney said the meeting occurred. The records

showed Tenney made several entries on that day but none that

referenced Cordell’s conduct toward Schramm or any other

threatening conduct. Nevertheless, the ALJ concluded Tenney

merely misremembered the date or the substance of the entry

and, in any event, that “his testimony was inherently credible

and entitled to greater weight than that of witnesses presented

by [Circus].” Circus Circus, 366 NLRB No. 110, at *4. In

reaching this conclusion, the ALJ failed to consider evidence

that was certainly a “relevant factor[]” bearing on the

credibility determinations at issue. Stanford Hosp., 325 F.3d at

337.

28

Although the ALJ did not purport to rely on the HotSOS

record to credit Tenney, the inconsistency in his testimony

“fairly demand[ed]” an adverse inference against the remainder

of his account. King Elec., 440 F.3d at 475 (quoting Allentown

Mack, 522 U.S. at 378). The ALJ’s explanations for not

discounting the remainder of Tenney’s testimony are

inadequate. To conjecture that Tenney misremembered a date

smacks of the “speculation without a jot of evidentiary support

in the record” we have criticized in the past. Jackson Hosp.

Corp. v. NLRB, 647 F.3d 1137, 1142 (D.C. Cir. 2011). An

ALJ’s introduction of new reasons to credit testimony is

particularly troubling where, as here, agency procedures tightly

limited Circus’s ability to respond by reopening the record. See

29 C.F.R. § 102.48(c)(1) (limiting reopening of the record to

“newly discovered evidence” that “would require a different

result”).7 Further, describing testimony favoring one party as

“inherently credible” notwithstanding a material gap in the

witness’s account fails to provide a rationale on which to

sustain the ALJ’s reasoning.

The Board argues that even if the ALJ’s analysis is flawed,

we should still uphold the Board’s finding based on the ALJ’s

favorable assessment of Schramm’s testimonial demeanor

7

As counsel noted at oral argument, the NLRB’s limited discovery

procedures meant Circus learned of Tenney’s alleged HotSOS entry

for the first time during the hearing before the ALJ. See Oral Arg. at

3:42–4:20. In response, Circus produced Tenney’s HotSOS entries

for November 21, the date on which he repeatedly claimed to have

recorded Cordell’s threat against Schramm. See id. at 4:41–5:15. It

was only after the ALJ issued a recommended decision crediting

Tenney that thousands of other November HotSOS entries became

relevant as a potential means of rebutting the ALJ’s rationale. See id.

at 5:24–6:00. Circus could not have foreseen this development, and

the Board’s refusal to reopen the record left the ALJ’s error

unremarked and unremedied.

29

during the hearing. Witness demeanor can be valid evidence

favoring a given outcome. Here, however, testimonial

demeanor is too thin a reed to sustain the ALJ’s conclusion.

Schramm’s testimony is materially contradicted by six

witnesses, union members and non-members alike, who

remember only an ordinary discussion that concluded without

any threats. Schramm’s testimonial demeanor alone cannot

overcome this strong record evidence. Contrary to the Board’s

assertions, deference to agency factfinding does not stretch so

far. Cf. Shamrock Foods Co. v. NLRB, 346 F.3d 1130, 1135

(D.C. Cir. 2003) (finding substantial evidence where the ALJ

disbelieved company witnesses and testimony of aggrieved

employee was corroborated by a coworker); Parsippany Hotel

Mgmt. Co. v. NLRB, 99 F.3d 413, 425–26 (D.C. Cir. 1996)

(finding substantial evidence where documentary evidence

corroborated employee’s testimony and employer witness

discredited herself through contradictory statements).

While we do not lightly overrule factual determinations,

under these circumstances we conclude there was insubstantial

evidence to support the finding that Cordell threatened

Schramm at a workplace safety meeting. Accepting the ALJ’s

determinations here would be inconsistent with the role set out

for us by Congress and the Court. See Universal Camera, 340

U.S. at 490; Jones & Laughlin, 301 U.S. at 47. Accordingly,

we vacate this unfair labor practice and need not reach the

Board’s refusal to reopen the record for additional evidence

tending to impeach Tenney’s corroborating account.

* * *

As with other agencies, the Board must apply existing

regulatory standards unless and until it provides a reasoned

explanation for a new standard. Here, the Board engaged in

unreasoned decisionmaking by finding unfair labor practices

30

without substantial evidence on the record as a whole and by

departing from announced standards in an arbitrary and

capricious manner. For the foregoing reasons, we grant the

petition for review in full and vacate the Board’s order. With

respect only to the unlawful termination finding, we remand for

further proceedings consistent with this opinion.

So ordered.

SRINIVASAN, Chief Judge, concurring in part and

dissenting in part: I join my colleagues’ decision in Part II.B

of the court’s opinion to remand for the Board to reassess

whether Circus terminated Schramm because of his protected

activity or instead for valid reasons. I respectfully disagree,

though, with my colleagues’ decision to set aside the Board’s

distinct determinations that: (1) Circus violated Schramm’s

right to union representation during the investigatory meeting

with him; and (2) Schramm’s supervisor unlawfully threatened

him in response to his exercise of statutory rights. Because I

would sustain the Board’s decision in those respects, I do not

join Parts II.A and II.C of the court’s opinion.

1. Under the Board’s Weingarten rule, an employee is

entitled “to refuse to submit without union representation to an

interview which he reasonably fears may result in his

discipline.” NLRB v. J. Weingarten, Inc., 420 U.S. 251, 256

(1975). That right “arises only in situations where the

employee requests representation.” Id. at 257. Under the

Board’s precedents, an employee will be treated as having

requested union representation so as to invoke Weingarten “if

the language used by the employee is reasonably calculated to

apprise the Employer that the employee is seeking such

assistance.” Houston Coca Cola Bottling Co., 265 NLRB

1488, 1497 (1982). “No magic or special words are required

to satisfy this element of the Weingarten rationale.” Id.

My colleagues agree with that understanding of the

triggering condition for the Weingarten rule. See Maj. Op. 11.

The sole issue here is whether Schramm’s statements at the

outset of his investigatory meeting satisfied that condition—

i.e., whether his statements qualify as reasonably calculated to

apprise Circus that he desired union assistance in the meeting.

According to my colleagues, the Board arbitrarily departed

from its precedents in concluding that Schramm’s statements

met that standard. In my view, however, the Board permissibly

2

determined, consistent with its precedents, that Schramm

adequately conveyed his desire for union representation.

Before the meeting, Schramm had been advised by Airth

Colin, a human resources representative for Circus, to bring a

union steward if he desired representation in the meeting.

Circus Circus Casinos Inc., 366 NLRB No. 110, at *1 (June

15, 2018). When Schramm arrived at the meeting, he

explained to those present: “I called the union three times [and]

nobody showed up, I’m here without representation.” Id. at *4.

Schramm thereby conveyed to Circus’s representatives at the

meeting (including Colin) that he had attempted to do precisely

what he had been advised to do if he desired union

representation. In that context, the Board reasonably held

Schramm’s statements adequate to apprise Circus of his

interest in representation. Id. at *1.

It is true, as my colleagues observe, that the statements at

issue here related facts about past efforts to enlist union

assistance. Maj. Op. 11–12. But an employee’s statements can

both describe recent efforts to secure union representation and

simultaneously convey a continuing interest in that

representation. The Board reasonably held that to be the case

here. After all, why would Schramm relate to Circus’s

representatives at the outset of the meeting that he had

unsuccessfully tried to secure union representation if not

because he still desired that assistance, especially given that

Circus had advised Schramm to make those very efforts if he

desired representation? The Board’s precedents hold that an

employee’s questions such as “Do I need to get somebody in

here?” and “Do I need a witness?” qualify as statements

reasonably calculated to apprise an employer of a desire for

union representation, even absent any reference to a union as

such. See General Die Casters, Inc., 358 NLRB 742, 742

(2012); Bodolay Packaging Mach., Inc., 263 NLRB 320, 325

3

(1982). Schramm’s statements here, which specifically

referenced union representation, evince a desire for such

representation no less clearly. At the least, the Board did not

arbitrarily depart from its decisions in so concluding.

My colleagues express a concern that, if Schramm’s

statements are treated as sufficient to invoke Weingarten, he

would effectively be denied the choice to proceed without

union representation. Maj. Op. 13. I do not understand why

that would be the case. When an employee’s statements trigger

Weingarten, the employer can: (i) grant union representation;

(ii) deny representation and discontinue the interview; or (iii)

deny representation and give the employee the option to

continue unrepresented or forgo the interview. Weingarten,

420 U.S. at 258–59. The last option specifically recognizes and

preserves an employee’s ability to choose to go forward

without union assistance.

For these reasons, I would sustain the Board’s

determination that Schramm’s statements at the outset of the

meeting reasonably apprised Circus of his interest in union

assistance so as to trigger the Weingarten rule.

2. The Board separately held that Schramm’s supervisor,

Rafe Cordell, unlawfully threatened Schramm for exercising

his statutory rights when Cordell said to Schramm, “maybe we

just won’t need you anymore,” after Schramm raised certain

concerns about workplace conditions. Circus Circus, 366

NLRB No. 110, at *4. My colleagues overturn the Board’s

factual finding (specifically, the Board’s adoption of the ALJ’s

finding) that Cordell made that statement. Maj. Op. 23. While

my colleagues acknowledge that we review the Board’s factual

findings under a highly deferential standard, they conclude that

this is the rare case in which a finding should be set aside.

Respectfully, I disagree.

4

Schramm testified that Cordell made the contested

statement following a discussion about secondhand marijuana

smoke during a safety meeting sometime in late November.

Those safety meetings were held every Thursday at four

different times. Cordell, meanwhile, testified that the relevant

discussion occurred at a shift change meeting in early

December. Circus produced six witnesses who testified about

a meeting touching on the issue of secondhand marijuana

smoke. But that was a recurring topic of discussion among

employees. Schramm and another Circus employee, Tenney,

had raised it during at least two meetings. Consequently, the

ALJ first had to determine which Circus witnesses were talking

about the relevant meeting before assessing whether Cordell in

fact threatened Schramm during it.

In making that determination, the ALJ focused on one

detail about which Schramm, Tenney, Cordell, and one other

Circus witness all testified: that when Cordell dismissed

Schramm’s concern about potentially failing a drug test due to

secondhand exposure to marijuana smoke, Schramm

responded that Cordell was not a medical professional qualified

to make that judgment. Because none of the other four

witnesses recalled that detail, the ALJ could not definitively

conclude that they were discussing the pertinent meeting. In

addition, none of Circus’s witnesses, aside from Cordell, had

been asked about Cordell’s statement that Circus may no

longer need Schramm’s services.

The upshot is that the ALJ faced four Circus witnesses

whom she could not definitively conclude were discussing the

relevant meeting, and in any event, none of those witnesses had

specifically testified about whether Cordell threatened

Schramm. The ALJ then concluded that Schramm’s and

Tenney’s testimony about Cordell’s threat outweighed the only

5

directly contradictory testimony: that of Cordell himself. In

my view, the ALJ’s credibility determinations in that regard,

adopted by the Board, were not “hopelessly incredible, self-

contradictory, or patently insupportable.” PruittHealth-

Virginia Park, LLC v. NLRB, 888 F.3d 1285, 1294 (D.C. Cir.

2018) (internal quotation marks omitted).