Napleton 1050, Inc. v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 2, 2019 Decided October 6, 2020

No. 19-1025

NAPLETON 1050, INC., D/B/A NAPLETON CADILLAC OF

LIBERTYVILLE,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 19-1064

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Tae Y. Kim argued the cause for petitioner. With him on

the briefs was Daniel F. Lanciloti. James F. Hendricks Jr.

entered an appearance.

Jared D. Cantor, Senior Attorney, National Labor

Relations Board, argued the cause for respondent. With him

on the brief were Peter B. Robb, General Counsel, David

Habenstreit, Acting Deputy Associate General Counsel at the

time the brief was filed, and Julie Brock Broido, Supervisory

Attorney.

2

Before: MILLETT, WILKINS, and RAO, Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

Opinion concurring in part and dissenting in part filed by

Circuit Judge RAO.

MILLETT, Circuit Judge: The service technicians at

Napleton Cadillac of Libertyville mounted a successful union

drive in 2016 and went on strike in August 2017. The National

Labor Relations Board found that Napleton Cadillac’s response

to both of those actions constituted discrimination against the

employees’ rights to collective action under the National Labor

Relations Act (“Act”), 29 U.S.C. §§ 151 et seq.

Napleton Cadillac petitions for review of the Board’s

decision. Its central objection is that, with respect to the

adverse actions taken against two employees, its open intent to

discriminate against employees for exercising their statutory

right to unionize does not matter because Napleton Cadillac

was intentionally punishing the entire workforce (including

those two employees) for the vote to unionize, rather than

retaliating against those employees because of their individual

union activity.

We hold that the Board properly focused its analysis on the

employer’s discriminatory intent to punish its employees as a

group for their known decision to unionize, rather than on the

employer’s knowledge of the targeted employees’ individual

views about the union. Intentional discrimination against the

statutorily protected collective actions of employees remains

discrimination even when it takes the form of scapegoating.

3

I

A

The National Labor Relations Act makes it “the policy of

the United States” to “encourag[e] the practice and procedure

of collective bargaining[,]” and to “protect[] the exercise by

workers of full freedom of association, self-organization, and

designation of representatives of their own choosing, for the

purpose of negotiating the terms and conditions of their

employment or other mutual aid or protection.” 29 U.S.C.

§ 151.

To those ends, Section 7 of the Act protects employees’

rights “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.

Section 8(a) of the Act enforces those rights by prohibiting

employers from engaging in several types of unfair labor

practices. 29 U.S.C. § 158(a). As relevant here,

Section 8(a)(1) makes it an unfair labor practice for an

employer “to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in [Section 7.]” Id.

§ 158(a)(1). And Section 8(a)(3) makes it an unfair labor

practice for an employer “by discrimination in regard to hire or

tenure of employment or any term or condition of employment

to encourage or discourage membership in any labor

organization[.]” Id. § 158(a)(3).

B

Napleton Auto Group owns at least fourteen vehicle

dealerships in Illinois and neighboring states. In June 2016, the

4

company bought Weil Cadillac, a dealership in Libertyville,

Illinois, and rebranded it as Napleton Cadillac of Libertyville.

At the time that Napleton Auto Group acquired Weil

Cadillac, the dealership was not unionized. But six of Napleton

Auto Group’s other dealerships were. The Napleton Auto

Group dealerships that employed those other unionized

employees were all members of the New Car Dealer

Committee (“Dealer Committee”), a management-side

bargaining association comprising more than 100 dealerships

in the Chicago area.

Napleton Cadillac retained most of Weil Cadillac’s

employees, including all twelve car-servicing employees, who

were lube technicians, semi-skilled technicians, apprentices,

and journeyman mechanics.

One of the journeyman mechanics was David Geisler, who

had worked at the dealership for twenty-two years and was “a

GM world-class technician[.]” Napleton 1050, Inc., 367

N.L.R.B. No. 6, slip op. at 2 & n.5 (Sept. 28, 2018).

Another was Bill Russell, who had worked at the

dealership for nearly thirty years but was on medical leave and

receiving workers’ compensation at the time the dealership was

acquired. Every month after the ownership change, Russell

visited the dealership to provide a work status report from his

doctor. He usually provided the reports to a human resources

employee who reported to the office manager, Pam Griffin. On

each visit, Russell also would stop to talk with the service

manager, Walter “Scott” Inman, and discuss when he expected

to be able to return to work. During Russell’s June 2016 visit,

Inman told him, “We’re really busy. We could use you.”

Napleton, 367 N.L.R.B. No. 6, at 8. In July 2016, Inman again

asked Russell when he could return to work.

5

This case arises out of two events at Napleton Cadillac: a

union drive in 2016 and a strike in 2017.

1

In early August 2016, Local Lodge 701, International

Association of Machinists & Aerospace Workers, AFL–CIO

(“Union”) began a unionization drive at Napleton Cadillac.

During the campaign, the employees neither openly supported

nor discussed the Union at work.

Napleton Cadillac’s management opposed unionization.

As the Board’s administrative law judge (“ALJ”) recounted,

Inman and Tony Renello, Napleton Auto Group’s corporate

manager, led “three captive-audience luncheon meetings” to

“discourage employees from voting for the Union[,]” and

Napleton sent employees a “lengthy letter from Inman just

before the election urging [them] to vote no[.]” Napleton, 367

N.L.R.B. No. 6, at 7, 15.

During Russell’s August 2016 visit—the first one after the

unionization drive started—Inman said to him, “I don’t know

why you guys couldn’t have waited to see how things played

out before you bring the union in.” Napleton, 367 N.L.R.B.

No. 6, at 8. Inman and Russell then discussed when Russell

might be able to come back to work. That same month, Russell

attended a union organizing meeting. He later told Inman

about his attendance there.

Inman brought up the Union again when Russell visited in

September, asking, “Why couldn’t you just wait and see how

things played out?” Napleton, 367 N.L.R.B. No. 6, at 8. As

Russell put it, Inman also said “that with the union coming in,

people were going to get written up who were coming in late[;]

if you punched in late, you would be written up[.]” Id.

6

Despite management’s efforts, the Union won the

representation election on October 18, 2016.

When Russell stopped by the dealership shortly after the

election with an update from his doctor, Inman said to him,

“Well, it looks like you guys had your way. You got the vote

in. You got the union in.” Napleton, 367 N.L.R.B. No. 6, at 8.

Russell recalled: “And then [Inman] said to me * * * it was

kind of shitty and sneaky for me to come in there and vote and

not even say hi to him. I said I didn’t want to make a big deal

of it. I was just coming in to vote and leave. Then we discussed

when I’d be coming back.” Id.

Two days later, Napleton Cadillac sent Russell a letter

terminating his employment.

Russell returned the next week with a truck and trailer to

pick up his tools. While at the dealership, he spoke with Inman,

who said “I’m sorry this happened.” Napleton, 367 N.L.R.B.

No. 6, at 9. During their conversation, Bill Oberg, another

mechanic, walked by, and Inman said, “That’s the guy who

started all this.” Id. Russell told Inman that “there were other

people who got the union in here[,]” and that if Napleton

Cadillac was “going after [Oberg], you’re going after the

wrong person.” Id. Inman did not deny that “all this” meant

the union drive. Instead, he asked, “Really?” to which Russell

replied, “yes.” Id.

About that same time, Napleton Cadillac began the process

of laying off David Geisler, the twenty-two-year-veteran

journeyman mechanic. On October 21, 2016—three days after

the Union won the election—Michael Jopes, Napleton Auto

Group’s chief financial officer, called Napleton Cadillac’s

attorney James Hendricks and told him that “they had to lay off

at least one technician” given the dealership’s insufficient

“productivity.” Napleton, 367 N.L.R.B. No. 6, at 10.

7

On October 27, 2016—the same day that Russell was

fired—Hendricks informed the Union that Napleton Cadillac

was “laying off David Geisler, [the] lowest booking tech for

the last 10 weeks.” Napleton, 367 N.L.R.B. No. 6, at 10.

Inman then called Geisler into his office and “told him he was

being ‘laid off for lack of hours.’” Id. Geisler testified that, at

the end of that meeting, Inman said “he asked us not to vote

that way.” Id.

A few months later, Inman contacted Geisler to ask

whether he “would entertain the idea of being rehired because

business had increased.” Napleton, 367 N.L.R.B. No. 6, at 10.

Geisler declined.

Napleton Cadillac provided a competing version of the

events that led to Russell’s termination and Geisler’s layoff.

According to the dealership, Russell was never an employee of

Napleton Cadillac, and Geisler’s layoff was in the works before

the union vote. The ALJ found those claims to be wholly

lacking in credibility and made up. Napleton, 367 N.L.R.B.

No. 6, at 15–18.

More specifically, with respect to Russell, the ALJ found

that Napleton Cadillac’s claim that it had never employed

Russell “simply reek[ed] of fabrication.” Napleton, 367

N.L.R.B. No. 6, at 15. If Napleton Cadillac really had not hired

Russell, the ALJ reasoned, “[s]urely someone [would have]

wondered why he was voting in the representation election, or

why Inman hand-wrote ‘Disabled’ across from his name on the

employee list[.]” Id. at 16.

As for Geisler’s layoff, the ALJ rejected Napleton

Cadillac’s assertion that it had long planned a productivity-

based layoff because of “the complete lack of nonsuspicious

explanation for the timing[,]” especially after Jopes testified to

a “version of events” that was “flatly contradicted by the record

8

evidence and the testimony of Attorney Hendricks.” Napleton,

367 N.L.R.B. No. 6, at 16–17.

2

Just over a month after the unionization election, Napleton

Cadillac and the Union began bargaining for a labor agreement.

By August 2017, the Union concluded that negotiations had

stalled.

Meanwhile, on August 1, 2017, the Union began a strike

against the Dealer Committee’s 129 member dealerships.

While Napleton Cadillac was not part of the Dealer Committee

targeted by the strike, Napleton Auto Group’s six other

unionized dealerships were.

On July 31st, the day before the Dealer Committee strike,

Napleton Cadillac convened a meeting of its employees.

Napleton Auto Group’s corporate manager, Tony Renello, told

the employees that they had an opportunity to take advantage

of the strike. He explained that Napleton Auto Group would

“funnel the work” from its nearby dealerships, the employees

could work as many hours as they wanted, Napleton Cadillac

would “feed [them] steaks,” and they could “make as [much]

money as [they] want[ed].” Napleton, 367 N.L.R.B. No. 6, at

12. Renello testified that the employees’ response—“smiles

and head shakes, yeah, yeah, yeah, yeah”—indicated to him

that they were on board with his plan. Id.

But on the morning of August 1st, Napleton Cadillac’s

employees joined the strike. According to Renello, the

employees’ decision to strike “caught us totally off guard.”

Napleton, 367 N.L.R.B. No. 6, at 12.

That day, Renello and Jopes hand-delivered a letter to the

employees while they were picketing in front of the Napleton

9

Cadillac dealership. The letter was meant “to let [the

employees] know the consequences of [their] strike[,]” one of

which was that Napleton Cadillac would “[m]ake arrangements

to have your tool boxes removed from the shop, as we do not

want to be responsible for your tools when you are not

working.” J.A. 328. The letter concluded: “It is unfortunate

that you have chosen to strike, but that is the choice you have

made.” J.A. 328.

Renello testified that, while he and Jopes were distributing

the letters, he told the striking employees that they had to

remove their toolboxes in two days. Renello also told the

employees that they were welcome to return to work, in which

case Napleton Cadillac would treat them as if the strike had

never happened.

Consistent with industry practice, Napleton Cadillac’s

mechanics owned their own tools and toolboxes and kept them

at the dealership even when they were not working. Just to be

clear: These are not ordinary, hand-carried toolboxes. Rather,

they are “large metal tool cabinets, some up to 15 feet long,

some up to 6–7 feet high, mounted on retractable wheels, [and]

that can weigh thousands of pounds. They are normally moved

with tow trucks or other such loading vehicles.” Napleton, 367

N.L.R.B. No. 6, at 7.

10

One of the employees’ toolboxes looked like this:

J.A. 330.

On the second day of the strike, Renello again told the

striking mechanics that they could “just go back to work,” and

that Napleton Cadillac would “act like this never even

happened[.]” Napleton, 367 N.L.R.B. No. 6, at 13. But if they

continued to strike, “tomorrow we are going to start pushing

[the toolboxes] out.” Id.

At the same time, Renello, Hendricks, and the Union were

in talks about the deadline for removing the toolboxes, given

how difficult it was for employees to arrange tow trucks or

similar equipment to move the massive toolboxes on such short

notice. Hendricks originally gave the employees until

August 4th to move their toolboxes. But on the morning of

August 3rd, Hendricks told the Union that his client was angry

about the August 4th deadline, and that the toolboxes would

have to be removed that day.

11

So it was that, on the third day of the strike, Renello, Jopes,

Inman, and two employees from another Napleton Auto Group

dealership rolled the employees’ toolboxes “outside the fenced

gates of the dealership onto the service access driveway[,]”

where they left the toolboxes and their “expensive” contents

“uncovered and unattended[.]” Napleton, 367 N.L.R.B. No. 6,

at 6, 13. That afternoon, there was a “torrential downpour.” Id.

at 13. In response, Napleton Cadillac pushed the toolboxes

back inside, but not before two employees’ toolboxes were

damaged. The Union and the employees hired a towing service

to pick up the toolboxes the next day.

Napleton Auto Group did not demand that the striking

employees at its other dealerships remove their toolboxes.

Renello said that was because, unlike the voluntary choice to

strike made by Napleton Cadillac employees, “most of” the

“technicians and the other stores wanted to work through the

strike. They just weren’t allowed to.” Napleton, 367 N.L.R.B.

No. 6, at 19.

Jopes offered a different explanation at trial, claiming that

Napleton Cadillac ordered the toolboxes removed because its

“insurance company informed [it] that there would be a lack of

coverage should there be damage” because the employees

“were not working employees at that point.” Napleton, 367

N.L.R.B. No. 6, at 19. The ALJ did not believe Jopes, pointing

out that the insurance policy expressly applied to “loss of or

damage to tools and equipment owned by your employees and

used by them in your business.” Id. When Jopes asserted that

the strikers “were not using the tools in [Napleton Cadillac’s]

business,” the ALJ found that to be as nonsensical as saying

that the tools are not covered when employees go home at night

or take a vacation. Id.

12

C

The Union and Russell timely filed unfair labor practice

charges against Napleton Cadillac. 29 U.S.C. § 160(b). The

Board’s General Counsel consolidated the cases and issued a

complaint.

After a three-day hearing, the ALJ found that Napleton

Cadillac committed several unfair labor practices. He found

that Napleton Cadillac terminated Russell and laid off Geisler

in “retaliation” for its employees’ voting to unionize, which

violated Sections 8(a)(3) and 8(a)(1) of the National Labor

Relations Act. J.A. 75. The ALJ also found four more

violations of Section 8(a)(1): (i) Inman telling Geisler that he

was being laid off because the employees voted to unionize;

(ii) Inman creating the impression in his conversation with

Russell about Oberg that Napleton Cadillac was surveilling its

employees’ union activity; (iii) Napleton Cadillac ordering—

and carrying out—the removal of the toolboxes in retaliation

for the strike; and (iv) Napleton Cadillac implicitly threatening

in the August 1, 2017 letter that employees would lose their

jobs for striking.

Napleton Cadillac and the General Counsel both timely

filed exceptions to the ALJ’s findings. Neither party disputed

that Napleton Cadillac violated Section 8(a)(1) by telling

Geisler that he was being laid off because the employees voted

to unionize.

The Board reversed as to the implied threat of job loss,

concluding that Napleton Cadillac’s August 1, 2017 letter did

not amount to such a threat. The Board affirmed all of the other

violations, and then amended the ALJ’s recommended order by

requiring Napleton Cadillac to reimburse the employees for the

cost of towing their toolboxes and for the rain damage to two

13

of the toolboxes. Finally, the Board rejected Napleton

Cadillac’s evidentiary and procedural challenges.

Napleton Cadillac petitioned for review, and the Board

cross-applied for enforcement.

II

We have jurisdiction to review the Board’s decision under

29 U.S.C. § 160(e) and (f). “[W]e will uphold the Board’s

decision if its ruling is not arbitrary, capricious, or founded on

an erroneous application of the law, and if its factual findings

are supported by substantial evidence.” Advanced Life Sys.

Inc. v. NLRB, 898 F.3d 38, 43 (D.C. Cir. 2018); see also 29

U.S.C. § 160(e) (“The findings of the Board with respect to

questions of fact if supported by substantial evidence on the

record considered as a whole shall be conclusive.”).

“Substantial evidence ‘means such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.’” NLRB v. Ingredion Inc., 930 F.3d 509, 514 (D.C.

Cir. 2019) (quoting Universal Camera Corp. v. NLRB, 340

U.S. 474, 477 (1951)). Our review “is generally deferential in

light of the Board’s claim to expertise in the area of labor

relations.” Constellium Rolled Products Ravenswood, LLC v.

NLRB, 945 F.3d 546, 550 (D.C. Cir. 2019). That said, “[a]n

unexplained divergence from [Board] precedent would * * *

render a Board decision arbitrary and capricious.” Id. (internal

quotation marks omitted).

We review the Board’s procedural rulings for abuse of

discretion. See Salem Hosp. Corp. v. NLRB, 808 F.3d 59, 67

(D.C. Cir. 2015); see also Veritas Health Servs., Inc. v. NLRB,

895 F.3d 69, 87 (D.C. Cir. 2018) (“We review the Board’s

affirmance of an ALJ’s discretionary judgments * * * for abuse

of discretion.”). We reverse only if the petitioner establishes

that “‘prejudice resulted from’ the Board’s [procedural]

14

lapses.” Salem Hosp., 808 F.3d at 67 (quoting Desert Hosp. v.

NLRB, 91 F.3d 187, 190 (D.C. Cir. 1996)).

III

A

The Board’s ruling that Napleton Cadillac violated

Sections 8(a)(3) and 8(a)(1) by terminating Russell and laying

off Geisler to punish its employees for their pro-union vote is

reasoned, consistent with the statutory text and precedent, and

supported by substantial evidence.

1

To establish a violation of Section 8(a)(3), the Board had

to find that Napleton Cadillac “encourage[d] or discourage[d]

membership in” the Union in a particular way: “by

discrimination in regard to hire or tenure of employment or any

term or condition of employment[.]” 29 U.S.C. § 158(a)(3).

The finding of a violation of Section 8(a)(3) would also

trigger a violation of Section 8(a)(1), which prohibits

employers from “interfer[ing] with, restrain[ing], or coerc[ing]

employees in the exercise of [their Section 7] rights[,]” 29

U.S.C. § 158(a)(1). See Metropolitan Edison Co. v. NLRB, 460

U.S. 693, 698 n.4 (1983); Ozburn–Hessey Logistics, LLC v.

NLRB, 833 F.3d 210, 217–218 (D.C. Cir. 2016); see also

Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 480 n.5

(D.C. Cir. 2020) (“Employer discipline violates Section 8(a)(1)

and (3) when the protected activity at issue is union

participation.”).

Because the central question in the case was Napleton

Cadillac’s motive for firing Russell and laying off Geisler—

whether those decisions were intended to punish or

15

discriminate against union activity—the Board adjudicated the

retaliation claims by applying its well-established Wright Line

burden-shifting framework. See Wright Line, 251 N.L.R.B.

1083 (1980); see also NLRB v. Transportation Mgmt. Corp.,

462 U.S. 393, 400–404 (1983) (upholding the Wright Line

framework), abrogated in other part by Director, Office of

Workers’ Comp. Programs, Dep’t of Labor v. Greenwich

Collieries, 512 U.S. 267 (1994); Novato Healthcare Ctr. v.

NLRB, 916 F.3d 1095, 1100–1101 (D.C. Cir. 2019).

The Board designed the Wright Line test to determine

whether an unlawful motive underlay an adverse action taken

by an employer. See Wright Line, 251 N.L.R.B. at 1083

(describing the decision as “set[ting] forth formally a test of

causation for cases alleging violations of Section 8(a)(3)”); see

also Tasty Baking Co. v. NLRB, 254 F.3d 114, 125 (D.C. Cir.

2001) (Under Sections 8(a)(3) and 8(a)(1), “[t]he central

question is the employer’s motivation for taking the adverse

action, and to make that determination the [Board] employs the

so-called Wright Line test.”).

The Wright Line inquiry requires, first, that the General

Counsel “make a prima facie showing sufficient to support the

inference that protected conduct was a motivating factor in the”

adverse employment action. Novato Healthcare, 916 F.3d at

1100–1101 (formatting modified); accord Wright Line, 251

N.L.R.B. at 1089. If the General Counsel meets that initial

burden, then “the burden of persuasion shifts to the [employer]

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

of the unlawful motive.” Novato Healthcare, 916 F.3d at 1101

(formatting modified).

2

This case turns on the first prong of the Wright Line test—

whether the General Counsel made a prima facie showing that

16

Napleton Cadillac’s overt anti-union animus motivated

Russell’s termination and Geisler’s layoff. The record amply

supports the Board’s conclusion that such a showing was made.

To make out a prima facie case, the Board held that the

General Counsel “need not prove” the employer’s knowledge

of each affected employee’s individual union activity if the

employer “takes adverse action against employees, regardless

of their individual sentiments toward union representation, ‘in

order to punish the employees as a group to discourage union

activity or in retaliation for the protected activity of some.’”

Napleton, 367 N.L.R.B. No. 6, at 14 (quoting Electro-Voice,

Inc., 320 N.L.R.B. 1094, 1095 n.4 (1996)); see id. at 14 n.20

(collecting cases). See also Novato Healthcare, 916 F.3d at

1105; Birch Run Welding & Fabricating, Inc. v. NLRB, 761

F.2d 1175, 1180 (6th Cir. 1985).

That is so, the Board has long held, because “general

retaliation by an employer against the workforce can

discourage the exercise of [S]ection 7 self-organization and

collective bargaining rights just as effectively as adverse action

taken against only known union supporters.” Davis

Supermarkets, Inc. v. NLRB, 2 F.3d 1162, 1169 (D.C. Cir.

1993) (alteration in original) (quoting Birch Run, 761 F.2d at

1180); cf. Thompson v. North American Stainless, LP, 562 U.S.

170, 172–175 (2011) (holding that “third-party reprisals” can

amount in some circumstances to retaliation in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e

et seq.); id. at 178 (“Hurting him was the unlawful act by which

the employer punished her.”).

Here, the Board properly found a prima facie case that

Napleton Cadillac violated the Act by discharging Russell and

laying off Geisler “in retaliation for the unit employees’

decision to unionize.” Napleton, 367 N.L.R.B. No. 6, at 1 n.2,

17

14–16. That decision faithfully followed a long line of Board

and judicial precedent, and fully comports with both the

relevant statutory text and Wright Line itself.

First, courts and the Board have long recognized that

Section 8(a)(3) outlaws punishing the workforce as a whole for

its union activity just as strongly as it outlaws punishing

particular union supporters. The central focus of the Wright

Line analysis is on “the employer’s motivation,” not on the

affected employee’s union sentiments. NLRB v. Frigid

Storage, Inc., 934 F.2d 506, 510 (4th Cir. 1991).

Of course, the employer’s awareness of a targeted

employee’s union activity is the most common way of proving

an employer’s “actual discriminatory intent.” Advanced Life

Sys. Inc. v. NLRB, 898 F.3d 38, 49 (D.C. Cir. 2018). But such

individualized knowledge is not always necessary for a

violation to be found. See Frigid Storage, 934 F.2d at 510. As

long as the employer is taking adverse action against an

employee or employees for the specific purpose of punishing

or discouraging known union activity in the workplace, the

employer “cannot cleanse an impure heart with ignorance of

individual employee sentiments.” Id.

At least as reflected in Board decisional law, the most

common way employers have taken their anti-union animus out

on a workforce rather than a specific union-supporting

employee has been through “extensive” or “mass” layoffs, e.g.,

Davis Supermarkets, 2 F.3d at 1168–1169; Birch Run, 761 F.2d

at 1180, or attempts to cover up targeted retaliation against

union supporters by sweeping in employees whose union views

were unknown, e.g., Novato Healthcare, 916 F.3d at 1105.

But those are not the only ways. Employers have also

vented their discriminatory animus by scapegoating a few

employees to send a message of anti-union hostility and anger

18

over collective action to the larger workforce. For example, in

Frigid Storage, the day after the union petitioned for a

representation election, the company’s manager gathered his

fifteen employees, went on an “anti-union tirade,” and

threatened to fire two employees that day and possibly one

more the coming Monday. 934 F.2d at 507–508, 510. He

followed through by firing two known union supporters the

same day. Then, on Monday, the employer fired a third

employee whose union views were unknown. Id. at 508–510.

The Board found that each of the three firings

independently violated Section 8(a)(3). Frigid Storage, Inc.,

294 N.L.R.B. 660, 661 (1989). When the employer petitioned

for review, the Fourth Circuit rejected its claim that firing the

third employee could not be unlawful discrimination because

the employer did not know whether the third employee was a

union supporter. Frigid Storage, 934 F.2d at 509–510. The

court of appeals held that, “[t]hough employer knowledge” of

an employee’s union views “is obviously relevant, it is not

dispositive, especially in a multiple-employee discharge.” Id.

at 510. What mattered was “that [the] discharge was motivated

by anti-union animus,” as evidenced by the connection

between the firing and the employer’s threat, and by the

“pretextual” excuse for termination that the employer cooked

up. See id.

The Board has likewise held that an employer violated

Section 8(a)(3) by implementing a retaliatory wage freeze that

affected only one employee, even though it did not know

whether that particular employee was a union supporter. See

W.E. Carlson Corp., 346 N.L.R.B. 431, 432–433 (2006). In

the face of a dissent that would have required knowledge of the

affected employee’s union views, id. at 437 (Battista,

Chairman, dissenting in part), the Board unequivocally held

that it was “immaterial that the [employer] lacked knowledge

19

of union activity specifically by” that particular employee

because it was retaliating against “the organizing effort” by

employees generally, id. at 433 (majority opinion) (citing Birch

Run, 761 F.2d at 1180).

Similarly, we said just last year that “the Board has long

held” that “an employer’s discharge of uncommitted, neutral,

or inactive employees” either to cover up for discrimination

against a targeted union-supporting employee “or to

discourage employee support for the union” violates

Section 8(a)(3). Novato Healthcare, 916 F.3d at 1105

(emphasis added) (quoting Dawson Carbide Indus., Inc., 273

N.L.R.B. 382, 389 (1984)); see generally Circus Circus

Casinos, 961 F.3d at 480 (“[T]he line between employer

prerogative and unlawful infringement of employees’ rights is

a question of motive.”).

To that same point, every case on which the Board relied

here focused its analysis on the employer’s unlawful motive,

not on the particular union views of the employees affected by

its actions and not on whether the action targeted many rather

than a few employees. See, e.g., Birch Run Welding &

Fabricating, Inc., 269 N.L.R.B. 756, 764–765 (1984) (holding

that an employer violated Section 8(a)(3) by “engag[ing] in a

general retaliation against its employees because of the union

activities of some of its employees in order to frustrate all union

activities”), enforced, 761 F.2d 1175 (6th Cir. 1985); J.T.

Slocomb Co., 314 N.L.R.B. 231, 241 (1994) (noting that “the

focus of” the discrimination theory approved in Birch Run “is

upon an employer’s motive in discharging its employees rather

than upon the antiunion or prounion status of particular

20

employees”) (internal quotation marks omitted). 1 Napleton

Cadillac’s effort to distinguish these cases as “all requir[ing] a

mass layoff” (Br. 35) mistakes their facts for the Board’s

reasoning.

Tellingly, Napleton Cadillac has not identified—and we

have not found—a single case to support its view that

discrimination in this form only counts when the employer’s

action hits some numerosity or workplace-wide threshold.

There is no two-free-bites rule under Section 8(a)(3). Nor have

any of the cases that Napleton Cadillac cites (or that we have

found) treated the number of employees affected as dispositive,

or even analyzed it as doctrinally relevant. To the contrary, the

Board’s and courts’ analysis in workplace-wide discrimination

cases focuses time and again on whether the employer acted

with the unlawful intent of discouraging or punishing union

activity. Creatively or erratically packaging that discrimination

gets no free pass.

So too here: The Board found that Napleton Cadillac

discharged Russell and Geisler for the express, announced, and

prohibited purpose of retaliating against and punishing its

employees’ collective vote for the Union. That is what

Section 8(a)(3) and Board and circuit precedent require to

make out a prima facie case under Wright Line. See Frigid

Storage, 934 F.2d at 510; Birch Run, 761 F.2d at 1180 (“The

courts have held that although the General Counsel must

usually show that the employer knew about individual

employees’ union activities before the Board may conclude

that the employer violated Section 8(a)(3), the General Counsel

may also prevail by showing that the employer [acted] * * * in

1

See also Electro-Voice, 320 N.L.R.B. at 1095 n.4; ACTIV

Indus., Inc., 277 N.L.R.B. 356, 356 n.3 (1985) (citing Birch Run, 761

F.2d at 1180); Pyro Mining Co., 230 N.L.R.B. 782, 782 n.2 (1977).

21

retaliation against its employees because of the union activities

of some.”) (emphasis added). In other words, when the intent

is to punish or discourage union activity, it is no defense to a

Section 8(a)(3) violation that “the employer wield[ed] an

undiscerning axe” in choosing the targets to implement its

illegal objective. Frigid Storage, 934 F.2d at 510 (collecting

cases).

Second, the consistency of precedent is explained by the

plain statutory text, which focuses on the employer’s anti-

union motive, not the views of the affected employees. After

all, Section 8(a)(3) does not prohibit an employer from taking

an adverse action against an individual because of that

individual’s protected activity. Instead, the statute hinges the

employer’s liability on its intent to “discourage” employees’

interest in unionization “by discrimination in regard to * * *

any term or condition of employment[.]” 29 U.S.C. § 158(a)(3)

(emphasis added).

Likewise, Section 8(a)(1) focuses not on which employees

(pro- or anti-union) or how many employees are affected by

adverse employer action, but rather on whether the employer’s

conduct “interfere[s] with, restrain[s], or coerce[s] employees

in the exercise of [their Section 7] rights[.]” 29 U.S.C.

§ 158(a)(1) (emphasis added); see also Advanced Life Sys., 898

F.3d at 44 (“A Section 8(a)(1) violation occurs when,

considering all of the surrounding circumstances, the

employer’s conduct reasonably tended to interfere with an

employee’s exercise of her Section 7 collective action rights.”).

Said another way, “motive is the lynchpin” under the

statute. Dissent Op. 10. Firing employees—union supporters

or not—to intentionally send a message to employees that

union activity will have hurtful consequences falls squarely

within the statute’s prohibitions. And Napleton Cadillac, for

22

its part, makes no argument that the statutory text permits such

intentional discriminatory retribution as long as it comes just a

couple of employees at a time. Discrimination is a “toxin[]

[that] can be deadly in small doses.” Buck v. Davis, 137 S. Ct.

759, 777 (2017).

Third, the Board’s focus on an employer’s intent to

discriminate against known union activity hews to Wright Line

itself. The problem the Board set out to solve in Wright Line

was uncertainty surrounding the correct “test of causation for

cases alleging violations of Section 8(a)(3)[.]” 251 N.L.R.B.

at 1083. Having a “formal[]” test was important, the Board

explained, because “[i]n modern day labor relations, an

employer will rarely” admit “that it has disciplined an

employee because it detests unions or will not tolerate

employees engaging in union or other protected activities.” Id.

So the Board needed a way to sort out when an employer acts

for “a legitimate business reason” and when its action is

instead—or additionally—an unlawful “reaction to its

employees’ engaging in union or other protected activities.”

Id. at 1083–1084.

To that end, the Board devised in Wright Line a burden-

shifting framework designed to “determine the relationship, if

any, between employer action and protected employee

conduct.” 251 N.L.R.B. at 1089. Which is precisely how the

Board employed Wright Line here. J.A. 71.

Applying the Wright Line framework, the Board

reasonably concluded that Napleton Cadillac violated

Sections 8(a)(3) and 8(a)(1) by terminating Russell and Geisler

to punish its employees’ decision to vote for union

representation. Substantial evidence supports the Board’s

factual finding that anti-union animus and a desire to strike

back at employees motivated Napleton Cadillac’s actions.

23

Service Manager Scott Inman openly said as much when he

ended the meeting in which he laid off Geisler by stating that

“he asked the employees ‘not to vote that way.’” Napleton,

367 N.L.R.B. No. 6, at 10, 16. And when Russell came to pick

up his belongings, Inman said he was “sorry this happened”—

and then referred to a suspected unionization leader as “the guy

who started all this.” Id. at 9, 15; see also id. at 15 (ALJ

finding, based on the factual context, “that when Inman

attributed the action against Russell to ‘everything that

happened,’ he was referencing the union drive”).

Through Inman’s comments, Napleton Cadillac all but

admitted that it discharged Russell and laid off Geisler as

retribution for the employees’ collective decision to unionize.

And Napleton Cadillac’s later pretextual explanations for its

actions brought the point home. See Fort Dearborn Co. v.

NLRB, 827 F.3d 1067, 1075 (D.C. Cir. 2016) (“A finding of

pretext may support an inference of unlawful motive[.]”);

Napleton, 367 N.L.R.B. No. 6, at 15–16 (finding that Napleton

Cadillac’s assertion that it never hired Russell was “a pretext”

for retaliation, and summarizing evidence debunking Napleton

Cadillac’s “fantastic claim that it did not notice * * * until

immediately after the election” that it had treated Russell as an

employee who was on disability leave); id. at 16–17 (“There is

no documentation—no notes, no email, no message slips, no

report, nothing—that” supports Napleton Cadillac’s claim that

a layoff was in the works before the union election.).

For those reasons, the Board reasonably concluded that

Napleton Cadillac “wield[ed] an undiscerning axe” against

Russell and Geisler to punish its employees’ collective decision

to unionize. Frigid Storage, 934 F.2d at 510.

24

3

The partial dissenting opinion presses two main objections

to the Board’s decision. But those concerns misunderstand the

Board’s precedent and its application to this case.

First, the dissenting opinion objects that the Board has

departed from prior precedent requiring that the employer have

knowledge specifically of the affected employee’s union

activities. Dissent Op. 2–3.

But prior Board decisions and court precedent had already

held that Wright Line does not strictly require that an employer

always have knowledge of an affected employee’s individual

union activities. The holding that Napleton Cadillac violated

Section 8(a)(3) by firing and laying off two employees as a

means of deliberate retribution against the workforce’s

decision to unionize is all of a piece with Board and circuit

court precedent in Frigid Storage and W.E. Carlson Corp., and

the legal rules applied there.

In Frigid Storage, as here, employer knowledge of the

affected employee’s union views or activities “[wa]s not

dispositive” or even required. 934 F.2d at 510. Even though

the ALJ found that “[t]here is no evidence that anyone on

behalf of the Respondent was aware of” union activity by

employee Franklin or “of any antiunion animus pinpointed

against him,” the Board ruled that the employer violated

Section 8(a)(3) by firing Franklin to strike back at its

employees’ organizing efforts. Frigid Storage, Inc., 294

N.L.R.B. at 661, 668.

Likewise, in W.E. Carlson, the Board held that the denial

of a pay increase for employee Lightfoot violated Section

8(a)(3) even though the employer was “unaware of Lightfoot’s

union sympathies.” 346 N.L.R.B. at 433. What mattered was

25

that the employer “was aware * * * that its service technicians

had engaged in union activity,” and “because of its animus

against that activity, decided to freeze wages,” and the “effect

of that retaliation fell on Lightfoot” alone. Id. 2

The dissenting opinion would chalk those two decisions

up to the “essential” fact that other employees whose union

views were known to the employer were also the object of

retaliation. Dissent Op. 10.

But if that factor were so essential, one would expect it to

play some role in those decisions. Yet it was never mentioned

in the Board’s analysis. In Frigid Storage, the court of appeals

explained that “the Board had substantial evidence to support

its finding that Franklin’s discharge violated § 8(a)(3)” based

only on “the bare timing of Franklin’s discharge on the Monday

following [the employer’s] Friday anti-union tirade, at which

[he] had threatened to discharge an employee on Monday.”

934 F.2d at 510. That is so, the Fourth Circuit explained,

because “[t]he issue is the employer’s motivation, and he

cannot cleanse an impure heart with ignorance of individual

employee sentiments.” Id. Nothing in that holding makes the

2

The dissenting opinion’s reliance (at 11) on Gruma

Corporation is misplaced. There, the Board ruled for the employer

because “the record as a whole does not provide a basis for inferring

knowledge” of union activity by the employee. 350 N.L.R.B. 336,

338 (2007). There was no argument in the case or any facts

suggesting that the employee was discharged as retribution for union

activity by the workforce as a whole, so the Board did not address or

decide the question presented in this case.

26

discharge of known union supporters an essential, or even a

relevant, element.

The Board in Frigid Storage, for its part, overturned an

ALJ decision that (like the dissenting opinion here) focused on

the employer’s knowledge of the affected employee’s union

views. See 294 N.L.R.B. at 661 (disagreeing with ALJ’s

finding that Franklin’s discharge did not violate the act); id. at

668 (ALJ dismissing complaint as to Franklin because there

was “no evidence that anyone on behalf of the [employer] was

aware” of Franklin’s union activity). The Board ruled that

Franklin’s termination by itself violated Section 8(a)(3)

because “[t]he evidence clearly shows” that his firing was

“precipitated by the Respondent’s awareness of union activity,

its contempt for unions, and a determination to retaliate against

employees for mounting an organizational campaign.” Id. at

661. The separate termination of union supporters days earlier

is not mentioned anywhere in that list of factors.

The Board’s decision in W.E. Carlson was similarly

devoid of any tie between the adverse employment action and

known union supporters. In response to a dissent that (again,

like the dissenting opinion here) would have required employer

knowledge of Lightfoot’s union views for liability to attach, the

Board said that knowledge of Lightfoot’s union activity was

“immaterial.” 346 N.L.R.B. at 433. All that mattered to the

Board was that the employer “knew that its service technicians

were seeking to organize,” and it was “because of its animus

against that activity” that it “decided to freeze wages pending

the union election, resulting in the denial of Lightfoot’s wage

increase.” Id. Contrary to the dissenting opinion’s view (at

10), the Board’s analysis had nothing to do with other

employees whose union views were known, and whether they

might or might not eventually have fallen victim to that

temporary wage freeze. The Board did not even discuss that

27

prospect. Presumably because the established timeframe for

the wage freeze affected only Lightfoot and no one else. W.E.

Carlson, 346 N.L.R.B. at 432 (“Lightfoot was the only

employee whose anniversary date fell during the period

between the filing of the representation petition and the holding

of the election.”). 3

In short, the Board’s holding here was on all fours with

Board and circuit precedent. The Board relied on compelling

record evidence to show what its decisions have always

required: evidence that the adverse action at issue was

substantially motivated by the employer’s intent to punish and

discourage known union activity. Wright Line, 251 N.L.R.B.

at 1089 (“[W]e shall require that the General Counsel make a

prima facie showing sufficient to support the inference that

protected conduct was a ‘motivating factor’ in the employer’s

decision.”) (emphasis added).

Second, the dissenting opinion reasons that the Board here

abandoned the Wright Line requirement of employer

knowledge of union activity, and now “requires showing only

animus by the employer[.]” Dissent Op. 6.

3

The dissenting opinion’s effort to shoehorn that precedent into

the cover-up exception is simply wishful thinking. Compare Dissent

Op. at 10 n.4, with W.E. Carlson, 346 N.L.R.B. at 433 (holding that

the General Counsel showed “a compelling case that animus against

its employees’ union activities was a motivating factor in the denial

of Lightfoot’s wage increase”), and Frigid Storage, 294 N.L.R.B. at

661 (holding that each individual discharge was “precipitated by the

Respondent’s awareness of union activity, its contempt for unions,

and a determination to retaliate against employees for mounting an

organizational campaign”). Scapegoating is its own exception to the

general reliance on an employer’s knowledge of the targeted

employee’s union activities to establish motive.

28

Not so. The Board has always required evidence both that

the employer knew of its employees’ union activity, and that

its adverse action at issue was substantially motivated by its

intent to punish and discourage that activity. W.E. Carlson,

346 N.L.R.B. at 433 (“The Respondent contends it was

unaware of Lightfoot’s union sympathies when it decided

against giving Lightfoot a wage increase in his January 31

paycheck. The Respondent was aware, however, that its

service technicians had engaged in union activity.”); Frigid

Storage, 294 N.L.R.B. at 661 (“All three discharges were

precipitated by the Respondent’s awareness of union

activity[.]”).

So too here. The Board expressly found that Napleton

Cadillac knew of its employees’ union activity—including

their decision to unionize—and that management’s anger over

that activity was precisely what motivated the discharge and

layoff. Napleton, 367 N.L.R.B. No. 6 at 1 n.2 (affirming ALJ’s

finding of a violation of Section 8(a)(3) “because of their and

their coworkers’ union activity”); id. (Russell’s discharge was

in “retaliation for the employees’ selection of union

representation.”); id. (Napleton Cadillac “specifically linked

Geisler’s layoff to the union vote.”). Napleton Cadillac, for its

part, has never denied that it had full knowledge of protected

union activity and, in particular, the employees’ decision to

unionize at the time of the discharge and layoff. So the Board

found what the dissenting opinion describes as the required

elements of a Section 8(a)(3) violation: “‘discrimination’ on

the part of an employer and a motive of encouraging or

discouraging union membership.” Dissent Op. 13 (quoting 29

U.S.C. § 158(a)(3)).

In other words, the Board nowhere adopted the

knowledge-less general retaliation standard that the dissenting

opinion fears. And the dissenting opinion’s agreement with the

29

application of Wright Line to the mass-layoff and cover-up

scenarios, see Dissent Op. 3–4, 7, shows that knowledge of the

targeted employee’s individual views is not necessary to

establish a violation of Section 8(a)(3). While the dissenting

opinion would forgo the requirement of individualized

knowledge only when the employer’s discriminatory actions

against known union members also happen to “sweep[] in

neutral employees,” no case has ever adopted that limitation.

And the independent imposition of employer liability for the

retaliatory actions aimed at Franklin and Lightfoot in Frigid

Storage and W.E. Carlson, respectively, establishes that

intentional scapegoating itself violates Section 8(a)(3).

Compare Frigid Storage, 294 N.L.R.B. at 661, with id. at 668

(Board reverses ALJ decision that discharge of Franklin did not

violate Section 8(a)(3) because the ALJ improperly relied on

the employer’s absence of knowledge about Franklin’s

individual union activities); compare W.E. Carlson, 346

N.L.R.B. at 433 (rejecting dissenting Member’s view that

knowledge of individual employee’s union views was

necessary under Wright Line), with id. at 437 (Battista,

Chairman, dissenting in part) (stating that dismissal of the

complaint was appropriate because General Counsel did not

prove “that the Respondent knew of Lightfoot’s union activity

at the time it decided not to grant him an annual wage

increase”).

The dissenting opinion worries that, by prohibiting

employers from deliberately making an individual employee

the fall guy for the workforce’s union activity, knowledge of

union activities or anti-union animus alone will trigger liability

for adverse employment actions. See Dissent Op. 9–12. But

that concern forgets that, under Wright Line, the Board always

bears the burden “to ‘make a prima facie showing sufficient to

support the inference that protected conduct was a “motivating

factor” in the employer’s decision to take adverse action.’”

30

Chevron Mining, Inc. v NLRB, 684 F.3d 1318, 1327 (D.C. Cir.

2012) (quoting Wright Line, 251 N.L.R.B. at 1089).

So the “ultimate inquiry is whether there is a ‘link, or

nexus, between the employees’ protected activity and the

adverse employment action.’” Chevron Mining, 684 F.3d at

1328 (quoting Tracker Marine, LLC, 337 N.L.R.B. 644, 646

(2002)). A showing of general animus (let alone mere

knowledge) unconnected to the challenged employment action

will not suffice. See id.; see also Amber Foods, Inc., 338

N.L.R.B. 712, 714 (2002) (finding that, in the absence of any

nexus between the employer’s general knowledge of union

activity and the affected employee’s discharge, no Section

8(a)(3) violation was shown).

In other words, correlation is not enough. The prima facie

case must demonstrate a nexus between the employer’s anti-

union sentiments and the precise adverse action taken. Such

evidence of deliberate scapegoating is usually hard to come by.

Most employers will not announce or otherwise evidence their

intent to sacrifice an employee or two on the altar of their

hostility to collective action. But as in Chevron Mining, 684

F.3d at 1328, in this case that link was easily established by the

employer’s virtual admissions that the discharge and layoff

were taken in response to the employees’ decision to unionize,

Napleton, 367 N.L.R.B. No. 6, at 9–10, 15–16.

In other words, the only question here is whether evidence

of deliberate scapegoating can support a prima facie case of a

Section 8(a)(3) violation. The employer will still avoid liability

if the General Counsel cannot establish a nexus between the

employer’s union hostility and the challenged action, or if the

employer demonstrates that its employment action rested on a

legitimate ground. Wright Line, 251 N.L.R.B. at 1087. But

when (to borrow from the dissenting opinion), “[i]mproper

31

motivation * * * [is] combined with an act intentionally taken

against known protected activity,” “discrimination” under

Section 8(a)(3) exists, Dissent Op. 14. That is this case.

The Board’s application of its “labor law expertise,”

Dissent Op. 7, in this way fully comports with Wright Line and

the plain statutory text it implements. To conclude otherwise,

as the dissenting opinion proposes, would mean that the law

allows an employer to fire a randomly chosen worker for the

express and announced purpose of punishing its employees for

unionizing—to “teach them a lesson.” Yet that form of direct

retribution and punishment of employees is the very type of

“discrimination” against and “discourage[ment]” of

“membership in any labor organization” that Section 8(a)(3)

proscribes. In the context of Section 8(a)(3)’s broadly worded

prohibition on discrimination, “such retaliation is intentional

discrimination[.]” Jackson v. Birmingham Board of Educ., 544

U.S. 167, 173–179 (2005) (interpreting similarly broad ban on

discrimination in Title IX of the Civil Rights Act, 20 U.S.C.

§ 1681 et seq.).

B

Napleton Cadillac argues that the Board’s separate finding

that it retaliated against striking employees by removing their

toolboxes from the work area “makes no logical or rational

sense” because Napleton Auto Group allowed striking

employees at its other dealerships to keep their toolboxes at

work during the strike. Napleton’s Br. 42.

Napleton Cadillac’s argument actually proves the Board’s

point. The key decisionmaker at Napleton Auto Group,

Corporate Manager Tony Renello, explained that the company

treated the striking employees at Napleton Cadillac adversely

precisely because “[m]ost of our—the other technicians and the

32

other stores wanted to work through the strike. They just

weren’t allowed to.” Napleton, 367 N.L.R.B. No. 6, at 19.

That testimony is a straightforward “admission that it was

the Napleton [Cadillac] technicians’ choice to exercise their

right to strike—a choice freely made and thus, in Napleton

[Cadillac]’s view, deserving of punishment—that prompted the

demand to remove the toolboxes[.]” Napleton, 367 N.L.R.B.

No. 6, at 19 (emphasis added). The fact that Napleton Cadillac

leveled its punitive response only against those employees who

voluntarily and willingly chose to exercise their statutory right

to strike proves its retaliatory, discriminatory motive.

C

Napleton Cadillac next challenges the Board’s finding that

it unlawfully created an impression of surveillance of union

activities when Inman told Russell that he thought a certain

employee had started the union drive. On this front, Napleton

Cadillac’s only argument to this court is that, because Russell

was no longer an employee at the time of the conversation,

Inman’s statement could not have “coerce[d] or restrain[ed]

Russell from engaging in protected union activity.” Napleton’s

Br. 32. Because Napleton Cadillac did not present that

argument to the Board, we lack jurisdiction to consider it.

Absent extraordinary circumstances (which Napleton

Cadillac does not argue exist here), our jurisdiction is confined

to objections that parties have first presented to the Board. 29

U.S.C. § 160(e); First Student, Inc. v. NLRB, 935 F.3d 604, 614

(D.C. Cir. 2019). “[T]he critical question is whether the Board

received adequate notice of the basis for the objection.”

Pennsylvania State Corr. Officers Ass’n v. NLRB, 894 F.3d

370, 376 (D.C. Cir. 2018) (quoting Camelot Terrace, Inc. v.

NLRB, 824 F.3d 1085, 1090 (D.C. Cir. 2016)). As to the

33

surveillance finding, Napleton Cadillac did not preserve its

argument.

In the list of exceptions that Napleton Cadillac filed with

the Board, it identified its general disagreement with the

impression-of-surveillance finding. But it never argued that

Russell’s employment status precluded the finding of an unfair

labor practice. Napleton Cadillac’s vague and very general

exception was not enough to put the Board on notice of every

possible argument it might later choose to advance.

That is not to say that each “ground for [an] exception”

must “be stated explicitly in the written exceptions filed with

the Board[.]” Camelot Terrace, 824 F.3d at 1090 (internal

quotation marks omitted). Instead, the problem here is that

Napleton Cadillac did not even cross the minimum threshold

of ensuring that “the ground for the exception [would] be

evident by the context in which the exception is raised.” Id.

(formatting modified).

Case in point is Napleton Cadillac’s brief in support of its

exceptions. See Pennsylvania State Corr. Officers, 894 F.3d at

376. That brief put the Board on notice of just one objection to

the impression-of-surveillance finding: that Inman’s statement

was too ambiguous to create an improper impression of

surveillance. See Respondent’s Brief in Support of Exceptions

to the Decision and Recommended Order of the Administrative

Law Judge at 13, Napleton, 367 N.L.R.B. No. 6 (Nos. 13-CA-

187272 et al.). Napleton Cadillac does not pursue that

argument here. See Oral Arg. Tr. 11:13–12:2 (conceding that

the argument “is not in” its brief to this court). And the

argument it does pursue—that Inman’s statement could not

have violated the Act because Russell had already been fired—

is nowhere to be found in its arguments to the Board, as

34

Napleton Cadillac conceded at oral argument, see Oral Arg.

Tr. 12:2–23.

IV

Finally, Napleton Cadillac asks this court to overturn the

Board’s affirmance of three of the ALJ’s procedural rulings.

First, Napleton Cadillac objects to the ALJ’s application of the

witness sequestration rule to exclude one of its attorneys, James

Hendricks, from the hearing because Napleton Cadillac

planned to call him as a witness.

Second, Napleton Cadillac takes exception to the ALJ’s

order to return witnesses’ affidavits after its cross-examination

concluded, rather than at the conclusion of the hearing.

Third, Napleton Cadillac complains that the ALJ declined

to sanction a witness for failing to comply with its subpoena

directing the witness to bring his toolbox to the hearing.

We need not address the merits of those challenges

because, even assuming they were valid, Napleton Cadillac

cannot prevail unless it can also “show that ‘prejudice resulted

from’ the Board’s [procedural] lapses.” Salem Hosp., 808 F.3d

at 67 (quoting Desert Hosp., 91 F.3d at 190). “Whether an

error is prejudicial depends on a number of factors, including

the closeness of the case, the centrality of the issue in question,

and the effectiveness of any steps taken to mitigate the effects

of the error.” 800 River Rd. Operating Co. v. NLRB, 846 F.3d

378, 386 (D.C. Cir. 2017) (internal quotation marks omitted).

Napleton Cadillac has not come close to making the

required showing of prejudice for any of its objections. With

respect to witness sequestration, Napleton Cadillac’s briefs do

not say what more it could have done in its defense had

Hendricks been at counsel table or how his absence otherwise

35

impaired its ability to present its case. Napleton Cadillac’s

attempt to argue prejudice for the first time at oral argument

was too little, too late. See Save Jobs USA v. Department of

Homeland Sec., 942 F.3d 504, 511 (D.C. Cir. 2019)

(“Generally, arguments raised for the first time at oral

argument are forfeited.”) (internal quotation marks omitted).

In any event, Napleton Cadillac acknowledged that Hendricks

was not planning to serve as lead counsel at the hearing. And

although Napleton Cadillac suggested that it was at some type

of disadvantage because it had only one attorney present, it

failed to offer anything concrete or to explain what Hendricks

would have done that could not have been handled by counsel

at the hearing or any other attorney who was not designated to

testify as a witness in the case.

Nor does Napleton Cadillac explain how its cross-

examination or presentation of its case was impaired by having

to return witnesses’ affidavits after they left the stand.

Finally, Napleton Cadillac does not say what it would have

gained from having a witness haul his more than a thousand-

pound toolbox to the eighth-floor hearing room in the federal

courthouse. In fact, at oral argument, Napleton Cadillac

(wisely) conceded that there was “no way [the witness] could

have brought the toolbox” into the hearing room. Oral Arg.

Tr. 8:19–20. Notably, the ALJ repeatedly offered Napleton

Cadillac the opportunity to inspect the toolbox in a more

appropriate location. But it ignored those offers. For present

purposes: No harm, no foul.

Having entirely failed to demonstrate prejudice, Napleton

Cadillac’s procedural objections all fail.

36

V

For all of those reasons, we dismiss Napleton Cadillac’s

petition for review as to the impression-of-surveillance finding,

deny the petition in all other respects, and grant the Board’s

cross-application for enforcement.

So ordered.

RAO, Circuit Judge, concurring in part and dissenting in

part: Napleton Cadillac discharged mechanics William Russell

and David Geisler shortly after a majority of their fellow

employees voted to unionize. The National Labor Relations

Board found that the discharges constituted unlawful

discrimination. While I join the majority in enforcing the

finding nts.

Employer knowledge , or a

proxy for employer knowledge, is an essential element of a

discrimination charge under the National Labor Relations Act

Because the General Counsel did not attempt to

demonstrate that Napleton had knowledge of whether Russell

or Geisler participated in union activity, and none of the

established exceptions to the employer knowledge element

applies here, the finding of discrimination departs

from its announced standards. The Board neither acknowledges

nor explains this departure, which requires vacating its

decision.

discrimination only by glossing over longstanding standards

s

action. Because this approach runs afoul of our precedents and

fundamental principles of administrative law, I respectfully

dissent from Part II

I.

The NLRA bars employers from terminating employees

. Fort Dearborn Co. v. NLRB, 827

F.3d 1067, 1072 (D.C. Cir. 2016) (citing NLRB v. Transp.

Mgmt. Corp., 462 U.S. 393, 394 (1983)). Section 8(a)(3)

prohibits certain unfair labor practices, including

discrimination

encourag[ing] or discourag[ing] membership in any labor

organization. 29 U.S.C. § 158(a)(3). Such adverse actions also

with, restrain, or coerce employees in the exercise of

2

the NLRA in violation of section

8(a)(1). Id. § 158(a)(1). The Board analyzes adverse

employment actions under the burden shifting framework set

out in Wright Line, 251 NLRB 1083 (1980), which first

requires that the General Counsel establish a prima

facie case of discrimination, and then allows the employer to

rebut this evidence by showing that it would have taken the

same action regardless s protected union

activity, id. at 1089.

, however,

are the well-established elements of the General C

prima facie burden. Antiunion discrimination on the part of an

employer is unlawful under sections 8(a)(3) and (1) only when

supported by Adv.

Life Sys. Inc. v. NLRB, 898 F.3d 38, 49 (D.C. Cir. 2018).

Because an employer must have knowledge

union activity to discriminate intentionally on that basis, [a]

discharge cannot stem from an improper motivation where the

Avecor,

Inc. v. NLRB, 931 F.2d 924, 931 (D.C. Cir. 1991). To establish

a prima facie case of unlawful discrimination,

Counsel for the Board must demonstrate that (i) the employee

was engaged in an activity protected by 29 U.S.C. § 157, (ii)

the employer was aware of that protected activity, and (iii) the

protected activity wa

Inova Health Sys. v. NLRB,

795 F.3d 68, 80 (D.C. Cir. 2015) (cleaned up).

provide

circumstantial evidence that the employer had individualized

knowledge of an , Montgomery

Ward & Co., 316 NLRB 1248, 1253 (1995), but standing alone

it does not satisfy the individual knowledge requirement.

3

therefore remains necessary to conclude that protected activity

was a motivating factor in the discharge. 1

T in this case is arbitrary and

capricious for a simple reason: the Board excused the

requirement that the General Counsel prove either that

Napleton discharged employees Russell and Geisler with

or that

discriminatory intent could be imputed to Napleton through the

longstanding mass-layoff or cover-up exceptions to the actual

knowledge requirement. Napleton 1050, Inc., 367 NLRB No.

6, at *1 n.2, *8 (Sept. 28, 2018). Indeed, as the ALJ recognized,

the General Counsel oes not include

an argument that Geisler and Russell were discharged in

Id.

Neither the Board nor the majority suggests that Napleton

had any knowledge of specific union activity;

instead, they

Wright Line knowledge requirement. In the

decision below, the ALJ asserted that the General Counsel

any protected activity

by any discharged employees if the terminations were meant

1

The Board has consistently treated employer knowledge as a

fundamental prerequisite in establishing discriminatory motive.

, 288 NLRB 1082, 1101 (1988) (quoting

Bayliner Marine Corp., 215 NLRB 12, 12 (1974)); Electrolux Home

Prods., Inc., 368 NLRB No. 34, at *3 (Aug. 2, 2019). For example,

in Jo-Del, Inc., management knew of general union activity among

employees, but the Board did not find that sufficient to establish a

discrimination charge. 324 NLRB 1239, 1241, 1243 (1997)

absence of evidence establishing knowledge by Respondent of any

union activity or affiliation by [the employee] precludes the finding

of a violation of [s] .

4

Id.

(cleaned up). The ALJ found that the terminations violated

sections 8(a)(3) and (1) because Napleton knew of and

drive and took adverse action against Russell and Geisler to

punish the entire shop. Id. The Board provides no additional

analysis on this score, and the majority begins not with the

basic test for discrimination claims, but with various statements

about general retaliation and punishment. See, e.g., Maj. Op.

outlaws punishing the workforce as a

whole for its union activity just as strongly as it outlaws

punishing .

there is no

exception to the employer knowledge requirement of an unfair

labor practice under sections 8(a)(3) and (1). And we cannot

enforce decisions of the Board that ignore elements of an unfair

labor practice charge. See Adv. Life Sys., 898 F.3d at 49;

Avecor, Inc., 931 F.2d at 931. As the Board conceded at oral

argument, no prior decision of the Board found discrimination

on similar facts. See Oral Arg. Tr. 21:18 , Your Honor.

I was not able to uncover a situation exactly like the one at

bar id. at

None of the cases cited by the Board has excused the

employer knowledge element when not a single adversely

treated worker was known to have engaged in protected

activity. Cf. Napleton, 367 NLRB No. 6, at *8 & n.20; NLRB

Br. 21 22. contain only two

ways around the employer knowledge requirement as to

specific individuals. Neither fits the circumstances of this case.

First, - exception excuses the requirement

of proving the employer knew about each

protected activity when the discharge was (1) part of a

and (2)

5

Davis Supermarkets, Inc. v. NLRB, 2 F.3d

1162, 1168 (D.C. Cir. 1993) (quoting Birch Run Welding &

Fabricating, Inc. v. NLRB, 761 F.2d 1175, 1180 (6th Cir.

1985)). As we explained in Davis Supermarkets, a

occurs when an employer dismisses a class of

employees that includes both known union sympathizers and

others of unknown sympathies. Id. at 1168 69. The mass-

layoff exception allows imputing employer knowledge of

union activity by one member of the class to others subject to

the same adverse action. So long as the employer knew that

some class members engaged in protected activity and the

employer acted to discourage further union activity, a mass

termination can erode statutory rights just as

effectively

Id. at 1169 (quoting Birch Run, 761 F.2d at 1180).

Courts have accordingly upheld a prima facie case of

discrimination when the adversely treated class includes at

least some known union supporters and the adverse treatment

was unlawfully motivated. See id. at 1168 69 (employer

the people with

attit

union activity); Birch Run, 761 F.2d at 1179 81 (at least two

and up to six of thirteen terminated employees were known

union advocates); NLRB v. Frigid Storage, Inc., 934 F.2d 506,

510 (4th Cir. 1991) (two of three terminated employees were

known union advocates, but all three were subject to the

). The Board has always

required proof that the employer knew of protected activity by

at least some members of the adversely treated class, even

when the employer lacked knowledge as to each individual

member.2 Thus, the mass-layoff exception recognizes that the

2

See, e.g., Electro-Voice, Inc., 320 NLRB 1094, 1095 n.4, 1110

(1996) (

6

Board need not demonstrate knowledge as to each impacted

employee; however, this does not create a genera

standard that requires showing only animus by the employer,

rather than knowledge of protected activity. The majority errs

general

motivation to harm unions rather than specific motivation to

punish an individual s union activity sufficient to make out a

discrimination claim. See Maj. Op. 17 21. And in any event, it

is far-fetched that laying off only two employees could

constitute a mass layoff.

The second exception excuses proof of knowledge as to

each wronged employee when an employer adversely treats

neutral employees along with known union supporters in order

to cover up evidence of discriminatory motive. Novato

Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1105 (D.C. Cir.

2019); see also Bay Corrugated Container, 310 NLRB 450,

the discharge of a

neutral employee in order to facilitate or cover up

discriminatory conduct against a known union supporter is

violative of [s]ection[s] 8(a)(3) and (1 . The Board

need not prove the knowledge of union activity by

the neutral employees because they were treated adversely as

union supporters. As with mass-layoff cases, the cover-up

exception allows the Board to sanction intentional

activity and conducted a

J.T. Slocomb Co., 314 NLRB 231, 241 43

(1994) (direct and circumstantial evidence employer knew members

of terminated class supported the union); ACTIV Indus., Inc., 277

NLRB 356, 356 n.3, 373 74 (1985) (circumstantial evidence

revealed employer targeted some employees because of their

[t

7

discrimination in the form of actions and policies that sweep in

neutral employees. . Pool, Inc. v. NLRB,

323 F.3d 1051, 1057 (D.C. Cir. 2003) (R

very purpose of excluding applicants who had recently been

operation of the rule excluded nonunion applicants as well.

In this situation, the Board retains the burden of proving the

employer knowledge of union support by employees targeted

by the discriminatory scheme.3

Both the mass-layoff and cover-up exceptions reflect

evidentiary inferences grounded in labor law

expertise. When an antiunion employer adversely treats a

known union supporter through an action that impacts multiple

employees, the Board infers that the other employees are also

victims of discrimination. In other words, one tainted apple

spoils the barrel. Yet the Board must still prove employer

knowledge as to at least one adversely treated employee

prima facie case. Although the Board is permitted to make

and intentions,

the inferential chain must begin with an actual evidentiary

activities. See Avecor, 931 F.2d at 931 (noting that inferences

necessary to impute knowledge but do[] not wholly

3

See, e.g., Metro-West Ambulance Serv., Inc., 360 NLRB 1029,

1055 56 (2014) (employer was aware of protected activity by

employee fired at the same time as neutral employee); Bay

Corrugated Container, 310 NLRB at 451 (same); Dawson Carbide

Indus., 273 NLRB 382, 389 (1984) (same).

8

While the mass-layoff and cover-up exceptions obviate the

burden of demonstrating knowledge as to

all impacted employees, they do not create the general

implicitly adopted by the Board (and

justified by the majority). Rather, these narrow exceptions

allow the Board to establish that a particular employee of

a cover

up or mass layoff intended to target those with known union

sympathies. These two exceptions are consistent with the

General Counsel satisfy the three elements of

the traditional prima facie case.

Here, the General Counsel never argued that Napleton

knew of protected activity by Russell or Geisler, and no known

union supporter was subject to the same adverse employment

action. See Napleton, 367 NLRB No. 6, at *8. With no showing

of individualized knowledge, t

discrimination allows the exceptions to swallow the rule. This

is not a straightforward application of the law; it is a sea

change. Agencies may announce new policies within the scope

of their statutory authority while deciding individual cases, but

they must do so explicitly and explain why the policy is

reasonable and consistent with the Act. See FCC v. Fox

Television Stations, Inc., 556 U.S. 502, 515 (2009). In a case

like this, where the Board neither acknowledged nor justified

its novel retaliation exception, we must vacate the

discrimination finding and remand for additional reasoning.

II.

With no further explanation from the Board, the majority

exception is consistent with judicial precedent, the text of

sections 8(a)(3) and (1), and the Wright Line standard. See Maj.

Op. 14 23. rectify

9

exception. See SEC v. Chenery Corp., 318 U.S. 80, 88 89

(1943); Baltimore Gas & Elec. Co. v. FERC, 954 F.3d 279,

283, 286 87 (D.C. Cir. 2020). The Board, and not this court, is

tasked with developing and applying expert judgment to

implement the Act. statutory

interpretation when

we

are left without a reasoned explanation. Allentown Mack Sales

& Serv., Inc. v. NLRB, 522 U.S. 359, 364 (1998) (cleaned up).

Nor is this a situation wher

because its Circus Circus

Casinos, Inc. v. NLRB, 961 F.3d 469, 483 (D.C. Cir. 2020)

(quoting Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc.,

419 U.S. 281, 286 (1974)). Rather, here the Board has

fail[ed]

excusing an essential element of an unfair labor practice charge

without acknowledgement or justification. Id. at 483 (quoting

Fred Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir.

2017)).

Even if courts had the authority to administer the NLRA

justification for a

scapegoating would fail on its own terms. Maj. Op.

27 n.3. Relevant precedents and the text of sections 8(a)(3) and

(1) cannot support such a sweeping limitation on the employer

knowledge requirement. The majority relies on generalized

employer intent or animus, but bad acts of the employers are

not sufficient to make out a case for discrimination under the

Act, which requires intentional adverse action against an

employee because of The

broad retaliation standard amounts to a rule that, so

long as some employees are engaged in protected activity with

adverse action taken against any employee. But this court and

10

the Board have always required that the employer have

knowledge that at least one adversely treated employee

engaged in protected activity before holding the employer

liable for discrimination against an employee not engaged in

protected activity. See, e.g., Davis Supermarkets, 2 F.3d at

1168.

In filling in for the Boar , the majority

misconstrues precedents applying the mass-layoff and cover-

up exceptions described above. I agree that motive is the

lynchpin in discrimination cases, not the number of

employees affected by actions. Maj. Op. 20.

But this does not excuse the General Counsel from proving that

some member of the terminated class was known by the

employer to be a union supporter and then subjected to

intentional discrimination. The court in Frigid Storage, for

example, found the termination of two known union supporters

alongside a third neutral employee to permit

inference of knowledge as to all three employees. 934 F.2d at

508

striking the neutral employee, but it was nevertheless essential

that the axe was directed in part at known union supporters.4 Id.

4

Frigid Storage is misplaced, Maj. Op.

24 26, because Frigid Storage is a garden variety cover-up case.

After establishing that the discharge of a known union supporter was

unlawful, the Board then considered the discharge of the neutral

employee. Econ. Foods, 294 NLRB 660, 661 62 (1989),

nom. Frigid Storage, 934 F.2d 506 (4th Cir. 1991). In other words,

the Board followed the typical process in cover-up cases, using the

discharge of pro-union employees to support an evidentiary

inference that the neutral employee was also discharged illegally.

This is reinforced by the fact that the cases cited by the court in

Frigid Storage involved an employer who knew of the pro-union

sympathies of at least one of the adversely treated employees. See

Birch Run Welding & Fabricating, 761 F.2d at

11

at 510; accord Novato Healthcare, 916 F.3d at 1105; Birch

Run, 761 F.2d at 1179 81.

The majority likewise expands

W.E. Carlson Corp., 346 NLRB 431 (2006), reading it to

abrogate the employer knowledge requirement. Maj. Op. 18

19, 24 26. Yet the Board did no such thing. Rather, in that case,

the employer froze wage increases to discourage further

organizing efforts by several known union supporters. The

impact of the freeze first fell exclusively on an employee of

the known union supporters and would have soon impacted

them as well. 346 NLRB at 432 34, 442. The Board simply

recognized that a facially neutral policy can be unlawfully

discriminatory where the facts demonstrate that the employer

had knowledge that its actions would impact union supporters.

See, e.g., . Pool, 323 F.3d at 1057. The Board

could rationally have determined that these facts fell within the

typical cover-up exception, in which the employer intends to

hurt neutral employees along with known union supporters. It

makes no difference that a neutral employee was hurt first, for

as the majority and I agree, the focus

is on the s knowledge and motive.5

-union sentiments before the lay- Merchants

Truck Line, Inc. v. NLRB

25, Patterson discharged the five junior emp

Majestic Molded

Products, Inc. v. NLRB

display in the form of a mass lay-

§ 8(a)(3) to the letter even if some white sheep suffer along with the

5

Contrary to the majority, interpret

W.E. Carlson as eliminating the employer knowledge requirement.

12

Because some cases have murky reasoning, the majority

infers that we may do away with the individual knowledge

requirement in discrimination claims. Maj. Op. 17 21, 27 29.

Yet the majority can cite no case for this proposition, which is

directly at odds with the basic framework of discrimination

claims. Employer knowledge union activity is

, and the

failure to reiterate this in every case does not eviscerate the

individual knowledge requirement. After all, why have mass-

layoff or cover-up exceptions if general knowledge of union

activity suffices?

Prior to this case, the Board consistently required

employer knowledge and rejected reliance on employer animus

drawn from circumstantial evidence. Indeed, the majority

today propounds a rule that the Board has numerous times

declined to create or enforce. For instance, in In re Amber

Foods, Inc.

Respondent believed or, at the very least, even suspected that

[the discharged employee] was engaged in union activity at the

time she was warned and discharged, although the Respondent

knew generally, by March 31, that its employees had contacted

the Union. 338 NLRB 712, 714 (2002); see also Gruma Corp.,

For example, in Gruma Corporation, decided the year after Carlson,

the Board dismissed allegations of a section 8(a)(3) violation

because the employer had no knowledge of the discharged

union activities in general. 350 NLRB 336, 338 (2007). The majority

tries to distinguish Gruma because it did not involve an argument

that the employee was discharged as retribution for union activity by

the workforce as a whole. Maj. Op. 25 n.2. But that is precisely the

point. All the facts were in place for such a retaliation argument, and

for a holding of discrimination based on it, but the Board did not even

explore the argument presumably because it is not the law.

13

350 NLRB 336 (2007) (finding no § 8(a)(3) violation because

the employer had no

protected activity, despite knowing of union activity

generally).

Furthermore, the general animus test runs

against the statutory text. On its face, section 8(a)(3) requires

employer and a motive of encouraging or discouraging union

membership. 29 U.S.C. § 158(a)(3).

Discrimination

International Dictionary (2d ed. 1954); see also

Discrimination

ment; esp., a failure to treat all persons

equally when no reasonable distinction can be found between

violate section 8(a)(3) unless it targets employees for an

impermissible reason: that they have participated in union-

related activities. This obviously requires the employer to

know that the employee participated in such activities, as the

case law amply demonstrates. See, e.g., Goldtex, Inc. v. NLRB,

ase, the Board has

failed to demonstrate the most basic element of an unlawful

discharge namely, that the employer was even aware of the

Moreover, reading of section

8(a)(3) eliminates longstanding differences between

intentional discrimination charges under sections 8(a)(3) and

(1) and other unfair labor practices under section 8(a)(1).

Unlawful threats, for example, can be found based on any

employer conduct that [s] with, restrain[s], or

coerce[s] , even if unintentional. 29 U.S.C.

§ 158(a)(1); Adv. Life Sys., 898 F.3d at 44 45. By contrast, the

14

Board has always required employer intent to make out a

charge of discrimination.

Finally, the majority reads

Wright Line that is absent from the

standard. See Maj. Op. 16 17. The Board in Wright Line

determine the relationship, if any,

251 NLRB at 1089. In doing so, however, the Board explicitly

understood that the potentially unlawful actions were those

taken against the employee engaged in protected activity and

not against other employees. See id. at 1083

cases involving alleged violations of [s]ection 8(a)(3) and, in

certain instances, [s]ection 8(a)(1), it must be determined, inter

alia, whether an employee s employment conditions were

adversely affected by his or her engaging in union or other

protected activities. ; id. at

Improper motivation does not

become discrimination until combined with an act intentionally

taken against known protected activity.

As explained in Part I, t

rather than frankly acknowledges a change in the legal

standard. The majority tries to connect the dots, but in doing so

this anomalous decision ing both consistent

application of the law by [ALJs] and effective review of the

Allentown Mack, 522 U.S. at 375. The

majority also undercuts a foundational principle of

administrative law, which requires a reasoned explanation from

the agency for a change in legal standards.

to

punish ision to vote for union

15

those

union activity knowledge

of it. The General Counsel did not even argue that Napleton had

Napleton 1050, Inc.,

367 NLRB No. 6, at *8 (Sept. 28, 2018). Under the precedents

of the Board, and of this court until today, that lapse constitutes

a per se failure to make out a retaliatory discharge claim. The

ma e of these

precedents and creates new legal standards absent any reasoned

decisionmaking from the Board.

* * *

The Board failed to hold the General Counsel to the prima

facie burden of proving discriminatory animus was a

Geisler. Further, the Board departed from precedent by

excusing this failure under a novel legal theory for which it

offered no justification. Because our court cannot fill in the

blanks left by the agency, I would vacate the discrimination

finding and remand to the Board for further consideration.