Stephens Media, LLC v. National Labor Relations Board

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 10, 2012 Decided April 20, 2012

No. 11-1054

STEPHENS MEDIA, LLC, DOING BUSINESS AS HAWAII

TRIBUNE-HERALD,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

HAWAII NEWSPAPER GUILD, LOCAL 39117,

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,

INTERVENOR

Consolidated with 11-1088

On Petition for Review and Cross-Application for

Enforcement of an Order of the National Labor Relations

Board

L. Michael Zinser argued the cause for petitioner. With him

on the briefs was Glenn E. Plosa.

Daniel A. Blitz, Attorney, National Labor Relations Board,

argued the cause for respondent. With him on the brief were

John H. Ferguson, Associate General Counsel, Linda Dreeben,

Deputy Associate General Counsel, and Julie B. Broido,

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Supervisory Attorney.

Matthew J. Ginsburg argued the cause for intervenor

Hawaii Newspaper Guild, Local 39117, Communications

Workers of America, AFL-CIO. With him on the brief were

James B. Coppess and Barbara Lynn Camens.

Before: ROGERS and GRIFFITH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Hawaii Newspaper Guild,

Local 39117, Communications Workers of America, AFL-CIO

(“the Union”) filed charges against Stephens Media, LLC, doing

business as the Hawaii Tribune-Herald (“the Company”),

alleging that the Company had committed multiple unfair labor

practices in violation of the National Labor Relations Act (“the

NLRA” or “the Act”). The National Labor Relations Board

(“the NLRB” or “the Board”) found merit to virtually all of the

charges and ordered the Company to undertake certain remedial

actions. See Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at

3–5 (Feb. 14, 2011). The Company seeks review of the Board’s

Decision and Order; the Board seeks enforcement.

We hereby grant the Board’s cross-application for

enforcement. Substantial evidence and controlling precedent

support the Board’s findings, and the Board’s well-reasoned

decision amply explains its judgment. Only two points merit

our amplification.

First, with respect to employee Hunter Bishop, the Board

found that the Company violated section 8(a)(3) and (1) of the

Act, 29 U.S.C. § 158(a)(3), (1) (2006), by suspending and

discharging Bishop for engaging in protected “concerted

activities,” id. § 157. The Company’s objections to that finding

and its two justifications for Bishop’s termination are

3

unavailing. The Company asserts that, after discharging Bishop,

it discovered that he had been deficient in his work productivity.

The Board found, and we agree, that the Company’s claim is

pretextual. The Company also contends that Bishop engaged in

disloyal conduct after he was fired. The Board held, however,

that Bishop’s conduct did not render him “unfit for further

service, or a threat to ‘efficiency in the plant.’” O’Daniel

Oldsmobile, Inc., 179 N.L.R.B. 398, 405 (1969) (citations

omitted). We can find no basis to overturn the Board’s

judgment on this point. Therefore, as the Board held, Bishop is

entitled to reinstatement and backpay. We are jurisdictionally

barred from considering the Company’s arguments that the

NLRB committed either legal error in adopting O’Daniel

Oldsmobile as the governing standard or factual error in

applying that standard. See 29 U.S.C. § 160(e).

Second, with respect to employees Dave Smith, Peter Sur,

Christine Loos, and William Ing, the Board found that the

Company violated section 8(a)(3) and/or (1) of the Act by

interrogating them, suspending Smith and Sur, and discharging

Smith for engaging in protected concerted activity. The

Company says that the cited employees engaged in unprotected

activity when they participated in making a surreptitious audio

recording of a conversation between Smith and a member of

management. Therefore, according to the Company, the actions

taken against the employees did not constitute unfair labor

practices. The Board’s decision rejecting the Company’s claim

rests on three grounds: under established Board precedent, there

is no per se rule that the making of surreptitious recordings is

unprotected activity; the Company had no policy in effect

prohibiting audio recordings; and it is undisputed that the

recording was not unlawful under state or local law. We defer

to the Board’s judgment, because it is based on reasoned

decisionmaking, supported by substantial evidence, and

consistent with controlling precedent.

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I. Background

A. The Facts

The Company publishes a newspaper in Hilo, Hawaii. The

editor of the newspaper is David Bock, and the publisher is Ted

Dixon. The Company’s news staff employees are represented

by the Union. Employees Koryn Nako, Hunter Bishop, and

Dave Smith have served as Union shop stewards.

The circumstances leading to this petition for review and

cross-application for enforcement are largely undisputed. We

focus on the facts that are relevant to the portions of the Board’s

Decision and Order that merit amplification. We first address

the events relevant to the Company’s suspension and discharge

of Bishop. We then turn to the events surrounding Smith’s

making of a secret recording of a conversation with Bock. The

facts that are recited below are drawn directly from the Decision

and Order of the Board, see Hawaii Tribune-Herald, 356

N.L.R.B. No. 63 (Feb. 14, 2011), and from documents in the

record before the court.

1. Bishop’s Suspension and Termination

On October 18, 2005, Union representative Ken Nakakura

asked to meet with Nako. They initially met outside the

Company building, but Nako then brought Nakakura through the

employee entrance into the break room, where they were joined

by Bishop. Bock and the Company’s advertising director, Alice

Sledge, entered the break room shortly thereafter. Upon

identifying Nakakura as a Union representative, Bock asked who

had admitted Nakakura into the building. Nako volunteered that

she had done so. Bock stated that it was a violation of the

Company’s access policy for a Union representative to be in the

building without receiving prior management approval. Bock

then escorted Nakakura out of the building.

When Bock returned, he asked to speak with Nako. As they

5

were preparing to leave the break room, another employee,

Sharon Maeda, asked Bishop if someone should accompany

Nako. Nako signaled her approval by looking to Bishop and

saying “okay.” Hawaii Tribune-Herald, 356 N.L.R.B. No. 63,

at 7. Bishop followed Bock and Nako, prompting Bock to tell

Bishop that the discussion did not involve him. Bishop then

inquired whether the meeting could result in a disciplinary

action – apparently attempting to ascertain whether Nako was

entitled to bring a witness to the meeting under NLRB v. J.

Weingarten, Inc. See 420 U.S. 251 (1975) (holding that an

employer commits an unfair labor practice by compelling an

employee to attend an investigatory meeting that could lead to

discipline without allowing the employee to bring a union

witness). Bock replied that he would be having a discussion

with Nako. Bishop asked one or two more times whether the

meeting could lead to discipline, and Bock stated that the

meeting was none of Bishop’s business. Bishop eventually

withdrew, telling Nako from about twenty feet away that he

would be available, if she needed him.

The testimony before the Administrative Law Judge

(“ALJ”) indicates that, during this confrontation, Bishop spoke

in a “moderately loud,” “elevated,” or “strong projecting” voice.

Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 9. At no point,

however, did Bishop yell, threaten Bock, or use profanity. Id.

at 8–9, 20. Indeed, the ALJ and NLRB expressly discredited

witnesses who testified that Bishop shouted or became

excessively angry. See id. at 9; see also id. at 1 n.2.

Company officials questioned Nako several times about

admitting Nakakura into the building and about Bishop’s

confrontation with Bock. The Company also prepared a

statement documenting Nako’s version of the confrontation

between Bock and Bishop, which she signed on October 19. On

October 26, Nako received a warning for admitting Nakakura

into the building without receiving management’s prior

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approval.

Meanwhile, on October 19, Bock summoned Bishop to

Bock’s office, where Bock suspended Bishop indefinitely,

without pay. Bock explained that Bishop’s conduct in trying to

prevent Bock from meeting with Nako had been unacceptable.

Bock also referenced Bishop’s disciplinary record. Bock sent

Bishop a termination letter several days later, which stated:

“[W]e are discharging you because of your misconduct on

October 18, 2005. You were disrespectful of supervisory

authority, insubordinate and disruptive of my efforts to have a

conversation with one of our employees.” Letter from David

Bock to Hunter Bishop (Oct. 27, 2005), reprinted in II Joint

App. (“J.A.”) 870. After the Company discharged Bishop,

employees wore buttons at work indicating their support for

him. In response, the Company circulated a memo prohibiting

employees from wearing these buttons during work hours. See

Letter from Ted E. Dixon (Nov. 1, 2005), II. J.A. 880.

The Union filed grievances to challenge the disciplinary

actions taken against Bishop and Nako. On several occasions in

October and November 2005, the Union requested information

and documents relevant to these grievances, including Bishop’s

personnel file, witness lists, Nako’s signed statement, and copies

of company policies. The Company failed to give the Union

Bishop’s personnel file until early 2006, and it consistently

refused to provide other requested documents.

In December 2005, Bishop attended a public event at the

Hilo campus of the University of Hawaii. There, he spoke

critically about the Company, claiming that it had failed

adequately to staff the newsroom and that he had considered

starting a rival newspaper.

In February 2006, Bock sent another letter to Bishop.

According to the Board,

[the] letter cited additional reasons for Bishop’s discharge

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including poor productivity and participation in a forum at

the University of Hawaii-Hilo where Bishop allegedly made

disparaging, defamatory, disloyal remarks about the Hawaii

Tribune-Herald. In the letter, Bock claim[ed] he failed to

compile Bishop’s productivity numbers at the time of his

termination on October 27, 2005, and that a later review of

the number of stories Bishop produced shows he failed to

meet productivity standards. According to Bock, Bishop

was producing .81 stories per day and the standard was one

story per day. Bishop had previously been counseled about

his low productivity in May 2002 and September 2003, he

received a warning for low production in October 2003 and

was suspended for low production on May 6, 2004.

Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 10. Bishop

made additional critical statements about the Company on his

blog in April and September of 2007. See id. at 9–10.

2. Smith’s Recording

On March 3, 2006, employee Jason Armstrong asked Smith

to serve as a witness to a meeting during which Armstrong

expected to receive a warning from Bock. See id. at 10. Smith

tried to accompany Armstrong to the meeting, but Bock refused

to allow Smith to attend. Bock also told Smith that they needed

to meet privately later that day.

Smith expected that he too would receive a warning from

Bock and that Bock would not allow him to bring a union

witness to their meeting. Smith believed that, under the

Supreme Court’s Weingarten decision, he was entitled to have

a witness attend the meeting with him. Smith called the Union

administrator, Wayne Cahill, who advised Smith to take notes

during the meeting. After talking with Cahill, however, Smith

discussed the situation with three other bargaining unit

employees: Peter Sur, Christine Loos, and William Ing. They

concluded that, rather than take notes, Smith should

surreptitiously record his conversation with Bock using Sur’s

8

voice recorder. The Company did not have any policy at the

time regarding the making of secret audio recordings, see id. at

15, nor was there any local or state law prohibiting the making

of such recordings, see HAW. REV. STAT. § 803-42(b)(4) (1993

& Supp. 2011). Sur offered to lend his recorder to Smith, and

Loos and Ing also encouraged Smith to record the conversation.

Their planning was overheard by another employee, Karen

Welsh.

When Smith met with Bock later that day, he concealed the

recorder within his shirt. At the outset of the conversation,

Smith requested that Bock allow a witness to attend the meeting,

but Bock refused. Bock then issued an oral warning to Smith,

citing Smith’s inadequate productivity. When Smith asked for

more details as to how his productivity had been measured,

Bock provided some additional information and then told Smith

to check the numbers himself.

On March 6, Welsh informed Bock that Smith had recorded

the March 3 meeting with a concealed voice recorder. This

disclosure prompted Bock to investigate the matter further. He

first interrogated Sur, who admitted to providing the recorder to

Smith. When asked to explain why Smith had recorded the

conversation, Sur answered that they had believed that Smith,

like Armstrong, would be denied access to a witness during a

meeting that could lead to discipline. And when asked about the

whereabouts of the recorder, Sur said that it was still in Smith’s

possession. Bock suspended Sur indefinitely and without pay.

Bock then met with Smith, who admitted to recording the

March 3 meeting. Bock asked why Smith had made the

recording, and Smith explained that he had wanted to preserve

an accurate record, since he had known that Bock would not

allow a witness to observe the meeting. Bock also asked why

Smith had not obtained permission to record the meeting; Smith

answered that he had not needed permission, since there was no

law or company policy prohibiting the making of secret audio

9

recordings. At the end of the meeting, Bock suspended Smith

indefinitely and without pay. Ing and Loos were also

interrogated regarding the incident but never disciplined.

On March 10, Bock called Sur to ask for permission to

recover the recorder from Smith. Sur agreed, and Bock told Sur

to return to work on March 11. Bock then requested that Smith

turn over the recorder as well as any recording to the Company,

but Smith replied that he had already given the recorder to the

Union. On March 13, employees in the advertising department

wore red armbands to a meeting to show support for Smith.

Later that day, they received a letter from the Company

prohibiting the wearing of such armbands during working hours.

See Letter from Ted E. Dixon (Mar. 13, 2006), II J.A. 881.

On March 15, Dixon sent a letter to every employee and

member of management, announcing an official policy

prohibiting the making of secret audio recordings. See Hawaii

Tribune-Herald, 356 N.L.R.B. No. 63, at 19; see also Letter

from Ted E. Dixon to Peter Sur (Mar. 15, 2006) (“Recording

Policy”), II. J.A. 887. The letter stated in relevant part:

[T]wo employees were suspended without pay involving an

incident in which a conversation with a supervisor was

secretly audio-taped. Thi s is egregious

misconduct. . . . Making secret audio recordings is not

permitted. It is wrong, we have taken action, and we will

do again in the future with respect to any secret

recording/taping in the work place.

Recording Policy, II J.A. 887.

On March 17, Smith received a written directive from Bock

to retrieve the recorder and recording from the Union and turn

them over to the Company. Cahill responded on Smith’s behalf

by notifying Bock that the Union was filing a grievance over

Smith’s suspension. Bock sent Smith another letter on March

22, stating that Smith’s failure to produce the recorder and

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recording was an act of insubordination. Bock met with Smith

and Cahill on March 27 to discuss the recording. Then, in April,

Bock met privately with Smith and presented Smith with a letter

to sign, admitting that making the surreptitious recording had

been serious misconduct and accepting that future recordings

would result in discharge. See Letter from David Bock to Dave

Smith (Apr. 11, 2006), II J.A. 871–74. Smith refused to sign the

letter, and, several weeks later, the Company fired him. See

Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 12.

B. Decision Below

After the Union filed unfair labor practices charges, the

Board’s Regional Director issued a consolidated complaint

against the Company on March 30, 2007. See id. at 6. The

complaint alleged that the Company had committed multiple

violations of sections 8(a)(1), (3), and (5) of the Act, 29 U.S.C.

§ 158(a)(1), (3), (5). As the ALJ summarized:

The consolidated complaint . . . alleges that [the

Company] violated Section 8(a)(1) of the [Act] by

interrogating employees regarding their and other

employees’ union and concerted activities; selectively and

disparately enforcing a security policy by requiring union

representatives to obtain [the Company’s] permission to

enter [its] facility; creating the impression that employees’

union and concerted activities were under surveillance;

prohibiting the wearing of union paraphernalia; and issuing

and maintaining an overly broad rule prohibiting the

making of secret audio recordings.

It is alleged that [the Company] violated Section

8(a)(3) of the Act by disciplining employees Koryn Nako

(Nako) and Peter Sur (Sur) and by terminating employees

Hunter Bishop (Bishop) and Dave Smith (Smith).

Finally, the General Counsel alleges [the Company]

violated Section 8(a)(5) of the Act by failing to provide

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information to the Union.

Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 6 (footnote

omitted).

On March 6, 2008, the ALJ issued a decision finding merit

to virtually all of the allegations against the Company – save the

charge alleging that the Company had created an impression of

surveillance. See id. at 1, 13–27. The Company filed

exceptions, and the General Counsel filed limited exceptions.

See id. at 1. The NLRB “affirm[ed] the judge’s rulings,

findings, and conclusions,” with certain minor modifications.

Id. (footnote omitted). We discuss the specifics of the Board’s

Decision and Order, as necessary, at greater length below. The

Company filed a petition for review with this Court; the Board

filed a cross-application for enforcement.

II. Analysis

A. Finality

There is no jurisdictional impediment to this court’s review

of the Board’s Order and Decision. There is, however, a

question whether the Board’s action is “final.” To be final and,

hence, reviewable, an agency action “must mark the

consummation of the agency’s decisionmaking process – it must

not be of a merely tentative or interlocutory nature.” Nat’l Ass’n

of Home Builders v. Norton, 415 F.3d 8, 13 (D.C. Cir. 2005)

(quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997))

(internal quotation marks omitted). The action also “must be

one by which rights or obligations have been determined, or

from which legal consequences will flow.” Id. (quoting Bennett,

520 U.S. at 178) (internal quotation marks omitted). As we

explain below, the challenged Decision and Order satisfies both

conditions.

We address the matter of finality, because, in rendering its

Decision and Order in this case, the Board reserved judgment on

one issue. Having found that the Company had violated section

12

8(a)(5) and (1) “by failing and refusing to furnish, and delaying

in furnishing, the Union relevant and necessary information that

it ha[d] requested,” the Board ordered the Company “to furnish

the Union with the requested information, excluding Koryn

Nako’s October 19, 2005 witness statement and any other

witness statements that the [Company] obtained in the course of

its investigation of Bishop’s alleged misconduct.” Hawaii

Tribune-Herald, 356 N.L.R.B. No. 63, at 4. The Board noted

that “precedent establishes that the duty to furnish information

‘does not encompass the duty to furnish witness statements

themselves.’” Id. at 3 (citations omitted). But the Board also

found that “precedent does not clearly define the scope of the

category of ‘witness statements.’” Id. The Board therefore

decided to “sever this allegation from the case and to solicit

briefs on the issues it raises.” Id. It appears that the severed

issue remains pending before the Board. After the petition for

review and cross-application for enforcement were filed with

this court, we directed the parties to address whether this matter

is properly before the court, “in light of the severed matter.”

We conclude that the matter before the court is final and fit

for review. The Decision and Order establishes the rights and

obligations of the Company and its employees with respect to

recently established policies, the suspension and discharge of

Bishop and Smith, the disciplinary actions taken against Nako

and Sur, the interrogation of those and other employees, and the

Company’s obligations to provide other materials to the Union.

The severed issue was removed by the Board from the realm of

this case. Neither party suggests that the case sans the severed

issue is unripe for review. And the severed issue is not

intertwined with the findings that we review here, so our review

will not “disrupt the orderly process of adjudication” over the

Union’s request for Nako’s witness statement. E.g., Exportal

Ltda. v. United States, 902 F.2d 45, 48 (D.C. Cir. 1990)

(citations omitted) (internal quotation marks omitted). We

therefore proceed to consider the merits of the parties’ positions.

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B. Standard of Review

“As we have noted many times before, our role in reviewing

an NLRB decision is limited. ‘We must uphold the judgment of

the Board unless, upon reviewing the record as a whole, we

conclude that the Board’s findings are not supported by

substantial evidence, or that the Board acted arbitrarily or

otherwise erred in applying established law to the facts of the

case.’” Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C.

Cir. 2011) (citation omitted). We give “substantial deference”

to inferences the Board draws from the facts. Halle Enters., Inc.

v. NLRB, 247 F.3d 268, 271 (D.C. Cir. 2001) (citation omitted)

(internal quotation marks omitted). An ALJ’s determinations

regarding the credibility of witnesses will not be reversed

“unless those determinations are hopelessly incredible,

self-contradictory, or patently unsupportable.” Federated

Logistics & Operations v. NLRB, 400 F.3d 920, 924 (D.C. Cir.

2005) (citation omitted) (internal quotation marks omitted).

Finally, we also must accord considerable deference to the

NLRB’s policy judgments and other determinations that are

based on its expertise. See, e.g., NLRB v. Curtin Matheson

Scientific, Inc., 494 U.S. 775, 786–87 (1990). “Determining

whether activity is concerted and protected within the meaning

of [the NLRA] is a task that ‘implicates [the Board’s] expertise

in labor relations.’ The Board’s determination that an employee

has engaged in protected concerted activity is entitled to

considerable deference if it is reasonable.” Citizens Inv. Servs.

Corp. v. NLRB, 430 F.3d 1195, 1198 (D.C. Cir. 2005) (second

alteration in original) (citation omitted).

C. Insubstantial Challenges Raised by the Company

The Company has contested all of the Board’s findings;

consequently, none may be summarily affirmed. See, e.g.,

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

2006) (explaining that charges may be summarily enforced

when a party “does not contest them” (citation omitted)). But

14

we need address only two aspects of the Board’s Decision and

Order, “because the company’s other challenges are met by

sufficient evidence in the record to support the Board’s

findings.” W.C. McQuaide, Inc. v. NLRB, 133 F.3d 47, 49 (D.C.

Cir. 1998). Accordingly, we grant without amplification the

Board’s cross-application for enforcement as to the following

findings:

[T]he [Company] violated Section 8(a)(1) of the Act by:

interrogating employees; disparately and discriminatorily

enforcing its security access policy against the Union; [and]

discriminatorily prohibiting employees from wearing

buttons and armbands in support of discharged or

suspended employees; and promulgating and maintaining

a rule prohibiting employees from making secret audio

recordings of conversations in response to protected

activity . . . . [T]he [Company] violated Section 8(a)(3) and

(1) by: issuing a written warning to employee Koryn Nako

. . . . [T]he [Company] violated Section 8(a)(5) and (1) by

refusing to provide or delaying the provision of relevant

information requested by the Union.

Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 1, 3.

D. Bishop’s Confrontation with Bock Was Protected and

the Company’s Post-discharge Justifications for His

Termination Are Unavailing

The Board found that the Company violated section 8(a)(3)

and (1) of the Act by “suspending . . . Hunter Bishop” and later

“discharging” him. Id. at 1. The Board therefore ordered the

Company to offer to reinstate Bishop, to compensate him for

lost earnings, and to remove any references to the suspension or

termination from his file. See id. at 3–4.

“It is well settled that an employer violates the NLRA by

taking an adverse employment action in order to discourage

union activity.” Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d

15

99, 104 (D.C. Cir. 2003) (citations omitted). Section 8(a)(3)

makes it an unfair labor practice for an employer, “by

discrimination in regard to . . . tenure of employment

. . . to . . . discourage membership in any labor organization.”

29 U.S.C. § 158(a)(3). Section 7 guarantees employees the right

to engage in “concerted activities for the purpose of . . . mutual

aid or protection.” Id. § 157. That right, in turn, is “protected

by Section 8(a)(1) of the Act, which makes it an unfair labor

practice for an employer ‘to interfere with, restrain, or coerce

employees in the exercise of the rights guaranteed in [S]ection

7.” Citizens Inv. Servs. Corp., 430 F.3d at 1197 (alteration in

original) (citation omitted). Courts are to construe section 7

broadly when considering whether activities qualify as

protected. See Eastex, Inc. v. NLRB, 437 U.S. 556, 563–70

(1978).

The Board found that the Company illegally suspended and

discharged Bishop for engaging in protected concerted activities.

The Company initially based its suspension and discharge of

Bishop on his confrontation with Bock on October 18, 2005.

See Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 9. Bishop

initiated that confrontation, because he reasonably believed that

Bock was about to conduct an investigatory, disciplinary

interview with Nako, without allowing her to bring a witness,

see id. at 20–21, in violation of her rights under the NLRA, see

Weingarten, 420 U.S. at 260–64. Furthermore, Nako had

signaled to Bishop that she wanted him present during that

meeting. See Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at

20. The Board thus concluded that Bishop was acting in his

capacity as shop steward when he attempted to intervene on

Nako’s behalf and that, consequently, his conduct was protected.

That determination is eminently reasonable and, therefore, it is

entitled to our deference.

The Company avers that Bishop was not engaged in

protected activity when he confronted Bock. The Company

argues that Nako may have assented to Bishop’s presence, but

16

she did not request it. See id. at 7, 8, 20. The Company points

to Board decisions holding that, to be entitled to a union witness

in a meeting, an employee must “initiate the request for

representation.” See Appalachian Power Co., 253 N.L.R.B.

931, 933–34 (1980), enforced 660 F.2d 488 (4th Cir. 1981)

(unpublished). The Company additionally argues that Bishop

confronted Bock based on his subjective belief that Nako was

about to be disciplined. Under Weingarten, an employee is

entitled to a witness only if she or he reasonably believes that

the investigation will result in discipline. See Weingarten, 420

U.S. at 257 & n.5. The Company thus contends that Bishop’s

subjective views could not have satisfied Weingarten’s objective

test.

The entire premise of the Company’s argument is flawed.

The argument rests on the unstated and erroneous assumption

that the question of whether Bishop was engaged in protected

activity is coterminous with the question of whether Nako

actually had the right to bring a witness to her meeting with

Bock. These two questions are analytically distinct. See Briar

Crest Nursing Home, 333 N.L.R.B. 935, 947–48 (2001) (finding

that an employee engaged in protected concerted activity by

accompanying a colleague to a post-strike disciplinary meeting,

without expressly finding that the colleague was entitled to have

a witness at that meeting). Bishop was engaged in protected

activity when he confronted Bock, because he was acting on his

reasonable belief that the Company was about to impermissibly

discipline a bargaining unit employee. Cf. Hi-Tech Cable Corp.,

309 N.L.R.B. 3, 12 (1992) (finding that an employee was

engaged in protected activity “when he . . . honestly and

reasonably protested that [a] work assignment contravened an

agreement reached in the preliminary stages of grievance

resolution” (emphasis added)), enforced 25 F.3d 1044 (5th Cir.

1994) (unpublished). It does not matter whether Bishop was

correct in what he reasonably assumed. See Crown Zellerbach

Corp., 284 N.L.R.B. 111, 112 (1987) (finding that an employee

17

was engaged in “protected concerted activity when he filed [a]

grievance . . . even though as a temporary employee he probably

was ineligible to file a grievance”). The point here is that when

Bishop made repeated demands to represent Nako, he was

merely acting as a “union steward” and a “forceful advocate for

Nako.” Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 9.

This was protected activity.

The Company next argues that even if Bishop was involved

in protected activity when he intervened on Nako’s behalf, he

forfeited the Act’s protections by confronting Bock in an

opprobrious manner. See, e.g., NLRB v. City Disposal Sys., Inc.,

465 U.S. 822, 837 (1984) (“An employee may engage in

concerted activity in such an abusive manner that he loses the

protection of § 7.” (citations omitted)); Kiewit Power

Constructors Co. v. NLRB, 652 F.3d 22, 26–29 (D.C. Cir. 2011)

(discussing when conduct that is otherwise protected falls

outside of the Act’s protections, because it is “opprobrious”).

We disagree. Whether an employee has “crossed that line

depends on several factors: (1) the place of the discussion; (2)

the subject matter of the discussion; (3) the nature of the

employee’s outburst; and (4) whether the outburst was, in any

way, provoked by an employer’s unfair labor practice.” Atl.

Steel Co., 245 N.L.R.B. 814, 816 (1979). The Board followed

this framework and found that Bishop’s conduct “was [not] so

egregious as to be considered indefensible.” Hawaii Tribune-

Herald, 356 N.L.R.B. No. 63, at 21. This finding is supported

by substantial evidence, and the Company’s claims to the

contrary, see Pet’r’s Br. at 34–37, are largely based on

statements by discredited witnesses, see Hawaii Tribune-Herald,

356 N.L.R.B. No. 63, at 9; see also id. at 1 n.2.

The Company also argues that, in finding Bishop’s

dismissal to be an unfair labor practice, the Board ignored the

fact that Bishop was a “recidivist” offender with a long

disciplinary history. This is a specious argument. As the

Company knew, Bishop was engaged in union activity on

18

October 18 when he attempted to assist Nako, by asking Bock

if he intended to discipline her during a meeting. Substantial

evidence in the record confirms that Nako had indicated that she

wanted Bishop to accompany her to the meeting. “As a union

steward, Bishop was fulfilling his union duties toward Nako in

seeking to be present during what turned out to be a Weingarten

investigative meeting.” Id. at 20. The Board found that

Bishop’s conduct was protected and not opprobrious. The

Company disciplined Bishop precisely because he was engaged

in protected activity, not because of his alleged past bad

behavior. We find no error in the Board’s reasoning.

The Company next offers two arguments to challenge the

Board’s decision ordering reinstatement and backpay for

Bishop. First, the Company seeks to avoid these remedies by

pointing to its postdischarge discovery of predischarge

misconduct that it claims would have justified Bishop’s

termination. Under Board precedent, “if an employer

establishes that an employee engaged in misconduct for which

the employer would have discharged any employee,

reinstatement is not ordered and backpay is terminated on the

date that the employer first acquired knowledge of the

misconduct.” Berkshire Farm Ctr., 333 N.L.R.B. 367, 367

(2001) (citations omitted). Here, the Company claims that

several months after Bishop was fired, Bock discovered that

Bishop had failed to satisfy the Company’s productivity

standard for reporters. See Hawaii Tribune-Herald, 356

N.L.R.B. No. 63, at 10.

The NLRB found that the Company’s “‘discovery’ of

Bishop’s low productivity after his termination is a belatedly

discovered pretext for Bishop’s discharge.” Id. at 21. This

conclusion is supported by substantial evidence. The Company

“closely monitored Bishop’s story count from May 2002 to May

2004, resulting in warnings and a suspension.” Id. Based on

Bishop’s disciplinary history, the NLRB reasonably rejected as

implausible the Company’s assertions that it was not monitoring

19

Bishop from “May 6, 2004, to October 27, 2005” and that it had

“no idea of Bishop’s productivity” during that window. Id. We

owe substantial deference to the NLRB’s factual inference that,

given the circumstances, the Company must have been aware of

Bishop’s productivity throughout 2004 and 2005. Yet, the

Company did not act to discipline Bishop for this alleged low

productivity until many months after he had been fired. The

Board reasonably concluded that the Company’s productivity

justification for firing Bishop was pretextual and unavailing.

See Citizens Inv. Servs. Corp., 430 F.3d at 1202 (rejecting an

employer’s proffered “affirmative defenses” for a disciplinary

decision, in part, because “there was substantial evidence” that

they were “pretextual”).

Second, the Company claims that Bishop engaged in

postdischarge disloyal conduct that precludes reinstatement and

limits his right to backpay. The Company relies heavily on the

Supreme Court’s decision in NLRB v. Local Union No. 1229,

IBEW (“Jefferson Standard”), 346 U.S. 464 (1953), in which the

Court enforced an NLRB decision denying reinstatement to

several discharged technicians, see id. at 465. As the Court

explained, the technicians in question

were discharged solely because, at a critical time in the

initiation of the company’s television service, they

sponsored or distributed 5,000 handbills making a sharp,

public, disparaging attack upon the quality of the

company’s product and its business policies, in a manner

reasonably calculated to harm the company’s reputation and

reduce its income.

Id. at 471. The Court went on to hold that “[t]here is no more

elemental cause for discharge of an employee than disloyalty to

his employer.” Id. at 472.

The Company argues that it had cause to fire Bishop,

because his postdischarge conduct was blatantly disloyal to the

Company. In support of this claim, the Company points out that

20

Bishop stated at a public event that the Company suffered from

organizational and management problems, see Hawaii Tribune-

Herald, 356 N.L.R.B. No. 63, at 9, and that he made other

disparaging statements about the Company on his blog, see id.

at 9–10.

The ALJ found that, even under Jefferson Standard, an

employee is entitled to reinstatement and backpay if his or her

statements are not “maliciously false, i.e., statements made with

knowledge of their falsity or with reckless disregard for their

truth or falsity.” Id. at 22 (citing TNT Logistics N. Am., Inc., 347

N.L.R.B. 568, 569 (2006)). According to the judge, Bishop’s

statements were not maliciously false. See id. The Board

offered a different rationale to support the judgment that Bishop

had not forfeited his reinstatement and backpay.

The NLRB held that Jefferson Standard is inapposite. See

id. at 2–3. The Board noted that the technicians in Jefferson

Standard verbally attacked the television company while they

were current employees of that company. See 346 U.S. at

466–68. Bishop, in contrast, verbally attacked the Company

after he was unlawfully discharged. See Hawaii Tribune-

Herald, 356 N.L.R.B. No. 63, at 9–10. The Board held that in

the latter set of circumstances – i.e., where an employer seeks to

avoid its obligations based on an employee’s postdischarge

misconduct – the employer “has the burden of proving

misconduct so flagrant as to render the employee unfit for

further service, or a threat to efficiency in the plant.” Id. at 2

(quoting O’Daniel Oldsmobile, Inc., 179 N.L.R.B. at 405). The

Board also overruled the “limited number of prior cases” in

which it had “applied principles drawn from Jefferson Standard

in evaluating whether postdischarge conduct disqualified

unlawfully discharged employees from reinstatement and cut off

their right to backpay.” Id. (citations omitted).

Before this court, the Company objects to the Board’s

analysis on two levels. First, the Company argues that the

21

Board committed a legal error by adopting O’Daniel Oldsmobile

as the governing standard when an employer challenges its

remedial obligations based on an employee’s postdischarge

misconduct. See Pet’r’s Br. at 65–69. In effect, the Company

argues that the Board impermissibly moved the goalpost by

jettisoning Jefferson Standard and resuscitating O’Daniel

Oldsmobile. Second, the Company argues that, as a factual

matter, the Board misapplied O’Daniel Oldsmobile. See Pet’r’s

Reply Br. at 19–20. The Company claims that even under

O’Daniel Oldsmobile, Bishop is not entitled to reinstatement or

backpay.

We lack jurisdiction to consider both arguments, however,

because the Company never raised them before the Board.

Section 10(e) of the NLRA states that “[n]o objection that has

not been urged before the Board . . . shall be considered by” an

appellate court absent “extraordinary circumstances.” 29 U.S.C.

§ 160(e). And pursuant to section 10(e), a party’s failure to

present a question to the Board – including by failing to file a

motion for reconsideration under the Board’s regulations, see 29

C.F.R. § 102.48(d)(1) (2011) – “prevents consideration of the

question by the courts.” Woelke & Romero Framing, Inc. v.

NLRB, 456 U.S. 645, 666 (1982) (citation omitted); see also

Spectrum Health—Kent Cmty. Campus v. NLRB, 647 F.3d 341,

348 (D.C. Cir. 2011). The only argument that the Company

advanced before the NLRB regarding Bishop’s disloyalty is that

Bishop does not qualify for reinstatement or full backpay under

Jefferson Standard. That is the only argument that the Company

preserved for appeal, and it does not encompass the Company’s

present objections to the Board’s adoption or application of

O’Daniel Oldsmobile.

The Company points to no extraordinary circumstances

justifying its failure to raise and preserve the O’Daniel

Oldsmobile arguments. To the contrary, the Company’s

arguments before this court – that the NLRB committed a legal

error in changing the governing standard and committed a

22

factual error in applying that new standard – are precisely the

types of claims that the Company was obligated to bring to the

Board’s attention by filing a motion for reconsideration. “Such

a motion would have given the Board notice of [the Company’s]

objection[s] and an opportunity to fix its supposed mistake[s].”

W & M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341, 1345

(D.C. Cir. 2008) (citations omitted). In the absence of such

motion, we are constrained to find that the Company waived

these arguments.

E. Smith’s Making of a Secret Recording Was Protected

The Board found that the Company violated section 8(a)(3)

and (1) by interrogating employees Sur, Smith, Loos, and Ing;

suspending Sur and Smith; and discharging Smith. See Hawaii

Tribune-Herald, 356 N.L.R.B. No. 63, at 1. It therefore ordered

the Company to offer to reinstate Smith, to compensate Smith

and Sur for their lost earnings, and to remove any references to

the challenged disciplinary actions in their respective files. See

id. at 4.

According to the Board, these employees were engaged in

protected concerted activity when they planned for Smith to

record his meeting with Bock – and when Smith made the actual

recording. The Board’s finding is supported by substantial

evidence, and it is consistent with controlling precedent. These

employees reasonably believed that the Company was going to

violate Smith’s rights by refusing to allow him to bring a

witness to an interview that would result in disciplinary action.

And, as the Board found, it was reasonable for the employees to

assume that Bock would not allow a witness to attend the

meeting, because Bock had refused to allow Smith to serve as a

witness during a similar meeting earlier that day. Under these

circumstances, the employees’ decision “to document what they

perceived to be a potential violation of employee rights under

NLRB v. J. Weingarten” qualified as protected activity. Id. at 1.

The Company offers three arguments to the contrary. First,

23

the Company claims that the employees were not engaged in

protected activity, because Smith was not entitled to bring a

witness to his meeting with Bock. According to the Company,

Smith’s mere belief that he was entitled to the presence of a

witness was insufficient to trigger his rights under Weingarten,

see 420 U.S. at 257 & n.5, and there has been no finding that

Smith’s belief was objectively reasonable. In fact, it appears

that Smith may have been incorrect in assuming he was entitled

to a witness, insofar as Bock had already determined the form of

discipline to impose in that meeting. See Jackson Hosp. Corp.

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

“[l]ong ago” the NLRB “clarified” that an employee has no right

to bring a witness to a meeting, the “sole purpose” of which is

to deliver a predetermined warning). The Company also points

out that the Union filed, but ultimately withdrew, charges

alleging that the Company had committed Weingarten violations

by denying Smith access to a witness during this meeting. See

Third Amended Answer 2 nn. 1, 4, Oct. 15, 2007 (documenting

withdrawal of charges), II J.A. 846. The Company thus

contends that the Board erred in finding that Smith, Sur, Loos,

and Ing were engaged in protected activity.

The Company’s argument, again (as with its argument

regarding Bishop), rests on an erroneous premise. These

employees – like Bishop – were proactively responding to what

they reasonably and honestly believed to be an imminent unfair

labor practice. They were therefore engaged in protected

activity. The Board correctly reached this finding without

holding that the Company had committed Weingarten violations.

Second, the Company claims that Smith and his colleagues

forfeited the Act’s protections by engaging in unprotected

activity. The NLRA “does not protect all concerted activities.”

NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 (1962).

Employees cannot claim the Act’s protections when they engage

in activities that are “unlawful, violent[,] . . . in breach of

contract,” id. (citations omitted), or otherwise “‘indefensible,’”

24

id. (citation omitted). The Company urged the NLRB – and now

urges this court – to conclude that the making of a secret audio

recording is unprotected under this line of authority.

The Company concedes, as it must, that there was no then-

existing company policy prohibiting Smith, Sur, Loos, and Ing

from planning to make, or prohibiting Smith from making, a

secret audio recording. See Hawaii Tribune-Herald, 356

N.L.R.B. No. 63, at 15. The Company also concedes, as it must,

that there was no state or local law prohibiting their conduct.

See HAW. REV. STAT. § 803-42(b)(4). The Company thus

cannot and does not claim that making the recording was

unlawful, violent, or in breach of contract. Instead, the

Company argues that the making of a secret audio recording is

so fundamentally dishonest and deceitful that it should be

deemed categorically unprotected. The Company’s position is

a bit perplexing in light of Company counsel’s concession

during oral argument that Smith would have committed no

wrong had he memorized his conversation with Bock and then

written it down verbatim after their meeting. In any event, the

Company’s argument fails, because it is foreclosed by

established Board precedent.

In Opryland Hotel, 323 N.L.R.B. 723, 723 n.3 (1997), the

Board expressly refused to adopt a per se rule against the

making of secret audio recordings. Like the Company here, the

respondent company in Opryland Hotel had “no rule,

prohibition, or practice against employees using or possessing

tape recorders at work.” Id. (citations omitted). “And, in the

absence of such rule, practice, or prohibition,” the Board refused

to hold that “such possession or use constitutes . . . malum in

se.” Id. The Board considered the circumstances of the case

and ruled that the employee who had made the recordings was

entitled to reinstatement “notwithstanding his secret tape

recording of conversations at work.” Id. In light of this directly

controlling decision from the NLRB, it should be self-evident

why we find unpersuasive the Company’s nonbinding cases

25

holding that the making of secret audio recordings is not

protected in other employment contexts. See Pet’r’s Br. at

81–83.

The Board followed the appropriate, case-by-case approach

adopted in Opryland Hotel. It found that, given the

circumstances of this case, Sur, Smith, Loos, and Ing were

engaged in protected concerted activity. That determination is

reasonable, and, therefore, we must defer to it. An employer

may, in different circumstances, have defensible reasons for

barring secret recordings. We have no occasion to consider that

question in this case. The policy here is invalid because the

Company has conceded that it was promulgated solely in

response to the employees’ protected activity.

Third, the Company suggests that Smith and his colleagues

should have pursued a different approach to protecting their

asserted rights. The Company points out that even the Union

administrator, Cahill, did not recommend that Smith record the

meeting; he recommended that Smith take notes. See Hawaii

Tribune-Herald, 356 N.L.R.B. No. 63, at 10. This argument is

entirely unpersuasive. The fact that the employees failed to

pursue other options certainly does not make their otherwise

protected activity unprotected. As the Board found, the secret

audio recording was neither prohibited by company policy,

proscribed by state or local law, nor barred under the Board

precedent.

III. Conclusion

For the reasons given in the foregoing opinion, we deny the

Company’s petition for review and grant the Board’s cross-

application for enforcement.