Stern Produce Company, Inc. v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2023 Decided March 26, 2024

No. 23-1100

STERN PRODUCE COMPANY, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 23-1122

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board

Patrick R. Scully argued the cause for petitioner. With him

on the briefs were John Alan Doran and John T. Melcon.

Eric Weitz, Attorney, National Labor Relations Board,

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

Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick, Deputy

Associate General Counsel, David Habenstreit, Assistant

General Counsel, and Kira Dellinger Vol, Supervisory Attorney.

2

Before: HENDERSON and KATSAS, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

RANDOLPH.

RANDOLPH, Senior Circuit Judge: Precedents of the

National Labor Relations Board hold that an unfair labor

practice occurs if the employer creates the impression that it is

monitoring an employee or employees in their pro-union

activity. Board precedent also holds that an employer who

disciplines an employee because of the employer’s “anti-union

animus” commits an unfair labor practice. The Board in this

case, after examining two brief workplace incidents, found the

employer guilty of two unfair labor practices, one of each type.

We must decide whether the evidence supports the Board’s

judgment.

What follows discloses, among other things, that the

Board’s majority and its General Counsel, at least at the time of

these proceedings, should have brushed up on the ancient and

wise legal doctrine de minimis non curat lex—that is, the law

does not concern itself with trifles. Or should not.

I.

Stern Produce Co., an Arizona-based company, operates a

wholesale produce distribution center in Phoenix. Since at least

2015, United Food and Commercial Workers, Local 99, has

been trying to unionize Stern Produce’s warehouse employees

and truck drivers. In 2015 and 2016, this union filed unfair

labor practice charges against Stern Produce, alleging that the

company interfered with a scheduled representation election.

See Stern Produce Co. (“Stern Produce I”), 368 N.L.R.B. No.

31, 2019 WL 3530188, at *1–2 (July 31, 2019). After the

3

Board’s Regional Director filed a complaint based on the

charges, an Administrative Law Judge held an eight-day trial

featuring, as relevant here, testimony from truck drivers Uvaldo

Ponce and Jose Ruiz. Id. at *13.

The Board in 2019 found that Stern Produce committed

several violations of the National Labor Relations Act in

connection with the representation election. Id. at *2. The

Board ordered the company to cease and desist from its unlawful

practices.1 Id. at *7–9.

In 2020, the union again lodged charges against the

company. Stern Produce had laid off all its hourly workers at

the start of the COVID-19 pandemic and then brought back

some drivers when business resumed. The union claimed that

Stern Produce had selectively failed to recall pro-union

employees and had done so in order to dilute union support in its

workforce. The Board’s General Counsel filed a complaint

reflecting the union’s claims.

Before the matter went to a hearing, the union and the

company agreed in May 2021 to settle the dispute. See Stern

Produce Co. (“Stern Produce II”), No. 28-CA-258619, 2021

WL 2347342 (N.L.R.B. June 7, 2021), enforced, No. 21-71140

(9th Cir. June 25, 2021). The company promised to recall (with

backpay) the employees it had been accused of unlawfully

failing to recall, including Ponce and Ruiz. In the next month

the Board approved the settlement, and Stern Produce reinstated

the employees. The Board’s order approving the settlement,

which the Ninth Circuit enforced, did not state that Stern

Produce had engaged in any unlawful conduct.

1

It is undisputed that Stern Produce fully complied with its

remedial obligations. No representation election, however, has yet

taken place.

4

In the case now before us, one of the charges against Stern

Produce involves a text message a supervisor sent to delivery

truck driver Jose Ruiz. The other charge relates to a written

warning a supervisor issued to another driver, Uvaldo Ponce.

The evidence with respect to each charge was as follows.

While driving a truck for the company in July 2021, Ruiz

parked to take a lunch break and covered the truck’s inward-

facing camera. Ruiz’s truck, like virtually all Stern Produce

trucks, was equipped with a system transmitting real-time data

to the company about the vehicle’s location and operation. The

truck was also fitted with one camera with a street view and

another with a view of the driver and the truck’s cab.

At some point later, Ruiz’s supervisor, transportation

manager Nick Barr, sent Ruiz a text message: “Got the uniform

guy for sizing bud, and you cant cover the camera it’s against

company rules.” When Ruiz saw the message several hours

later he replied: “OK Bud muy [sic] lunchtime.” The evidence

showed that manager Barr did not know that Ruiz was on a

lunch break. There was no set time for drivers to stop for lunch.

Ruiz testified that after this solitary incident, manager Barr

“never once touched the subject ever again.”

In August 2021, Ponce was at the Stern Produce facility

when he heard two fellow drivers, Joe Metzgar and Mohamed

Chayko, jokingly call each other “baby.” Ponce told Chayko,

“you know they kill people like that in your country.” When

Chayko asked Ponce to clarify, Ponce replied, “gays.” Chayko

then asked Ponce where he thought Chayko was from. Ponce

guessed Afghanistan and then Iraq; Chayko told Ponce he was

wrong and left the room.

The next day a supervisor who had been in the room during

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the conversation recounted the incident to manager Barr, who in

turn informed Stern Produce owner Bill Stern. Stern and Barr

decided to investigate further, so Barr collected statements from

the supervisor, from Ponce, from Chayko, and from Metzgar,

who all told the same story.

After concluding their investigation, owner Stern and

manager Barr consulted with human resources and concluded

that because Ponce had insulted Chayko based on his perceived

race, ethnicity, and sexual orientation, Ponce’s conduct

warranted a written warning. (A written warning constituted the

second tier on the company’s disciplinary scale—more serious

than verbal counseling, but less serious than a final written

warning or termination.)

The written warning stated that Ponce’s comments violated

“company policy around the use of disparaging or abusive

words, phrases, slurs, and negative stereotyping.” The warning

also informed Ponce that further misconduct could result in

more serious punishment, “up to and including” suspension or

termination.

The union filed unfair-labor-practice charges based on these

two incidents. The Board’s General Counsel issued a complaint,

alleging that Stern Produce had created an impression of

surveillance of organizing activities by making Ruiz aware that

he was being watched, and that Ponce’s union support motivated

Stern Produce’s decision to give him a written warning for a

first-time offense.

In its defense, Stern Produce claimed that it had treated

Ruiz and Ponce consistently with its policies. Manager Barr’s

message to Ruiz, the company asserted, merely reminded Ruiz

of longstanding company policy. In its employee handbook,

Stern Produce reserved the right to “monitor, intercept, and/or

6

review” any data in its systems and to inspect company property

at any time without notice. The handbook further instructed

drivers that they “should have no expectation of privacy” in any

information stored or recorded on company systems, including

“[c]losed-circuit television” systems, or in any company

property, including vehicles. And directly on point, the driver

manual instructed drivers that “[a]ll vehicle safety systems,

telematics, and dash-cams must remain on at all times unless

specifically authorized to turn them off or disconnect.” Making

sure that the cameras remained operational was important given

their functions, which included preventing unsafe driving and

protecting drivers from liability for accidents for which they are

not at fault.

Stern Produce also relied on company policies to explain

the warning it had issued to Ponce. It cited its equal

employment opportunity policy prohibiting workplace

harassment “based upon” race, color, national origin, ancestry,

sex, or sexual orientation. Company policy also banned conduct

that “insults or shows hostility or aversion” toward an individual

based on a protected status, including the use of “disparaging or

abusive” language and “negative stereotyping.”

The Administrative Law Judge sided with Stern Produce.

The ALJ found that the message to Ruiz did not create an

impression of surveillance, since manager Barr had engaged in

“mere observation” in line with “longstanding company

policies” about truck cameras. As for the warning to Ponce, the

ALJ determined that it had not been motivated by Ponce’s pro-

union activities. The ALJ found that Stern Produce had issued

the warning without knowing if Ponce was still involved with

the union, and that the company had acted based on Ponce’s

offensive and discriminatory comments, rather than any anti-

union animus.

7

The Board reversed on both issues. Stern Produce Co., 372

N.L.R.B. No. 74, 2023 WL 2913118 (Apr. 11, 2023). It held

that Barr’s surveillance of Ruiz was “out of the ordinary” in

light of Ruiz’s history of union-related conflicts with the

company and Barr’s lack of justification for needing to view

Ruiz’s camera. Id. at *3–4. Barr did not usually look at a

camera’s video feed unless there was a driver or vehicle safety

concern, and he had never previously texted drivers about their

cameras. Id. at *4. His “sudden and unusual interest” in

viewing Ruiz’s camera, the Board found, created an impression

of surveillance. Id.

As for Ponce, the Board determined that Stern Produce was

motivated by anti-union animus in issuing him a written warning

rather than verbal counseling. Id. at *5–8. The Board found

that Stern Produce knew of Ponce’s involvement in the

organizing drive. Id. at *6. It also found that the company had

a discriminatory motivation for disciplining Ponce, based on its

history of labor-law violations (some of which had impacted

Ponce directly), the short period of time between Ponce’s

reinstatement and the warning, and the disparity in treatment

between Ponce and other employees who had engaged in

supposedly similar misconduct. Id. at *7. The disparate

treatment finding also led the Board to reject Stern Produce’s

defense that Ponce would have faced discipline even if he had

not engaged in pro-union efforts. Id. at *8.

II.

Stern Produce’s petition for judicial review presents the

question whether the Board’s conclusions are “supported by

substantial evidence on the record as a whole. Put differently,

we must decide whether on this record it would have been

possible for a reasonable jury to reach the Board’s conclusion.”

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

8

366–67 (1998) (internal citations and footnote omitted).

We consider first the Board’s finding that manager Barr’s

text message to Ruiz—“you cant cover the camera it’s against

company rules”—gave Ruiz the impression that the company

was conducting surveillance of him in his pro-union activities.

The Board decided that Stern Produce thereby violated Section

8(a)(1) of the National Labor Relations Act, 29 U.S.C.

§ 158(a)(1). This section prohibits employers from

“interfer[ing] with, restrain[ing], or coerc[ing] employees in the

exercise of the[ir] rights” guaranteed under the Act. Id.; see also

id. § 157. Under Board precedent, a practice is unlawful if it has

a “reasonable tendency” to coerce employees in the exercise of

their rights. Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C.

Cir. 2001).

The Board has held that an employer tends to coerce

employees if it creates an “impression” that it is conducting

surveillance of employees “concerning the exercise of rights

guaranteed by the Act.” CBS Recs. Div., 223 N.L.R.B. 709, 709

(1976). An unlawful impression of surveillance arises if an

employer’s conduct would lead a reasonable employee to

believe that his “union or other protected activities had been

placed under surveillance.” Frontier Tel. of Rochester, Inc., 344

N.L.R.B. 1270, 1276 (2005), enforced, 181 F. App’x 85 (2d Cir.

2006).

The Board found such an impression of surveillance here

based on Barr’s “interaction” with Ruiz—that is, a single phrase

in one text message on a subject the manager never mentioned

again. Considering the record “as a whole,” 29 U.S.C. § 160(e),

we cannot sustain that finding.

The undisputed facts—including the testimony of Ruiz—

establish that Stern Produce drivers are aware that supervisors

9

may (or may not) be monitoring their conduct through the

cameras in their trucks at any time. In fact, the company puts

drivers on notice that cameras “must remain on at all times” and

informs them that they have no expectation of privacy in their

trucks, which can be inspected without notice. Yet the Board

determined that there was no evidence that Ruiz violated this

instruction when he prevented the camera from functioning

during his lunch break. To quote from the Supreme Court’s

leading substantial evidence case, the Board’s explanation is

“nonsense.” Allentown Mack, 522 U.S. at 376. There is nothing

ambiguous about “at all times.”

Under typical circumstances, a reasonable driver would

have no basis to think that he was being watched through his

truck camera for the purpose of determining if he was engaging

in any “union or other protected activities.” Frontier Tel., 344

N.L.R.B. at 1276. After all, a driver who knows he can be

monitored (1) at any time, (2) without warning, and (3) for any

reason, has every reason to expect to be watched while on the

job—and, without more, no reason to assume that any particular

instance of monitoring reflects an attempt by the company to

weed out or suppress union activities. That logic rings

especially true because there is no evidence that union activity

had ever “take[n] place in the small cab of a produce delivery

truck,” as Stern Produce puts it, while a driver was out on the

road alone.

Any assumption a driver in Ruiz’s circumstances could

have made about being monitored for union-related reasons

would have been based not on reasonable inferences, but on

“speculation.” Cannon Indus., 291 N.L.R.B. 632, 638 (1988).

That cannot sustain the Board’s finding. See Beverly Cal. Corp.

v. NLRB, 227 F.3d 817, 835 (7th Cir. 2000). The Board’s

guesswork is particularly unsound because it undermines the

leeway that Section 8(a)(1) affords employers to monitor

10

employee conduct—including union activity—on company

premises. See Bellagio, LLC v. NLRB, 854 F.3d 703, 711 (D.C.

Cir. 2017).

The Board also asserted that Barr’s decision to text Ruiz

about the camera infraction—which had the effect of alerting

Ruiz to the surveillance—gave cause for suspicion because it

was inconsistent with Barr’s prior behavior. The Board’s

precedents, however, required it to focus squarely on what an

“employee would reasonably assume” under the circumstances.

Fred’k Wallace & Son, Inc., 331 N.L.R.B. 914, 914 (2000)

(quoting Flexsteel Indus., 311 N.L.R.B. 257, 257 (1993)). Ruiz

admitted that he had no insight into Barr’s surveillance habits.

So it is of no moment that Barr did not typically access truck

cameras in circumstances like these—and that he had not

previously texted employees about having their cameras hidden.

What Ruiz did know (or reasonably should have known,

based on clear and emphatic language in company manuals) was

that he could be monitored at any time. He also knew that,

because he could take a break whenever he chose, Barr was

unaware that Ruiz received the text message when he was

stopped for lunch. (In fact, Ruiz responded to Barr’s text hours

later with “muy [sic] lunchtime.”) And the only other driver

who had been caught with a covered camera had received a

verbal reprimand from Barr. Viewing the evidence from a

reasonable employee’s perspective—as the Board’s precedents

require—there is scarcely anything in the record to support the

Board’s finding that Barr’s text message would have come

across as out of the ordinary, coercive, or intimidating.2 See

2

Stern Produce defends the surveillance as “necessary to the

furtherance of [a] legitimate business interest.” Parsippany Hotel

Mgmt. Co. v. NLRB, 99 F.3d 413, 420 (D.C. Cir. 1996) (quoting The

Broadway, 267 N.L.R.B. 385, 401 (1983)). The company claims a

strong interest in using the cameras to ensure employee and vehicle

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Bellagio, 854 F.3d at 711–12; Intertape Polymer Corp. v. NLRB,

801 F.3d 224, 235–36 (4th Cir. 2015).

We recognize that Ruiz was a known supporter of the union

organizing drive and that he had previously been subjected to

unfair labor practices. But those facts cannot automatically

render suspect any interaction between him and management in

perpetuity. An employer does not wade “into territory violative

of the Act” because of a “single remark made to an employee

who was known to the management as a union supporter” that

does not refer—directly or indirectly—“to the employee’s union

activity.” NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 113–14

(1st Cir. 1978); see also Beverly Cal. Corp., 227 F.3d at 835.

Of the precedents the Board cited in its decision, each one

found unlawful surveillance based on much more intensive or

prolonged observation of union employees. See Stoughton

Trailers, Inc., 234 N.L.R.B. 1203, 1205–07 (1978); K-Mart

Corp., 255 N.L.R.B. 922, 924 (1981), enforced, 676 F.2d 710

(9th Cir. 1982); Fieldcrest Cannon, Inc., 318 N.L.R.B. 470,

500–03 (1995), enforced in relevant part, 97 F.3d 65 (4th Cir.

1996) (en banc). Our own decisions have similarly upheld

findings of impressions of surveillance that were premised on

elevated or abnormal scrutiny of pro-union employees. See,

safety. But Barr never testified why he needed to look at Ruiz’s

camera on the day he sent the text message. Stern Produce belatedly

asserts in its reply brief that Barr pulled up Ruiz’s route before texting

him to confirm that he was not driving, and the system automatically

displayed the camera feed alongside Ruiz’s location.

That explanation, while consistent with the record, is not “self-

evident” enough to plug the evidentiary gap on its own. United Food

& Com. Workers Union Loc. 204 v. NLRB, 506 F.3d 1078, 1086–87

(D.C. Cir. 2007). Even if we disregard Stern Produce’s claim, what

matters is that the information available to Ruiz gave him no good

reason to suspect that the monitoring was abnormal.

12

e.g., Bellagio, 854 F.3d at 712 (citing Parsippany Hotel Mgmt.,

99 F.3d at 419–20, and Sands Hotel & Casino, 306 N.L.R.B.

172, 189 (1992), enforced sub nom. S.J.P.R., Inc. v. NLRB, 993

F.2d 913 (D.C. Cir. 1993)).

The “very brief,” and not “out of the ordinary,” observation

of Ruiz was “qualitatively different.” Bellagio, 854 F.3d at 712.

As far as Ruiz could tell, Barr had watched him in line with

company protocol. The one-off warning not to cover his camera

did not refer to union activity. Nor did it suggest in any way

that Ruiz had been singled out because of his support for the

union.

At bottom, the Board’s errors reveal just how far it strayed

from its statutory mandate. Its finding of a Section 8(a)(1)

violation cannot be squared with any reasonable understanding

of that provision’s prohibition on practices that “coerce

employees in the exercise of the rights guaranteed” by the Act.

29 U.S.C. § 158(a)(1); see, e.g., Webster’s New International

Dictionary 519 (2d ed. 1934) (“coerce” is “[t]o constrain or

restrain by force, esp. by law or authority; to repress; curb”;

“[t]o compel to any action”; or “[t]o compel or enforce”); 2 The

Oxford English Dictionary 587 (1933) (similar). Indeed, the

Board altogether “ignore[d] [the] critical coercion element”

inherent in Section 8(a)(1)’s plain text. NCRNC, LLC v. NLRB,

--- F.4th ----, 2024 WL 876347, at *4 (D.C. Cir. Mar. 1, 2024)

(second alteration in original) (quoting Greater Omaha Packing

Co. v. NLRB, 790 F.3d 816, 823 (8th Cir. 2015)); accord

Belcher Towing Co. v. NLRB, 726 F.2d 705, 708 (11th Cir.

1984).

The Board’s misguided attempt to find a labor-law violation

in one text message is “the product of a familiar phenomenon”:

years ago the Board took an expansive view of the scope of the

Act and then, over time, it “presse[d] the rationale of that

13

expansion to the limits of its logic.” NLRB v. Int’l Bhd. of Elec.

Workers, Loc. 340, 481 U.S. 573, 597 (1987) (Scalia, J.,

concurring in judgment). The Board then focused its analysis

here not on the statutory text—the “authoritative source of the

law”—but on its own constructions of (its own constructions of)

the Act. Id. at 597–98. The Board extended the Act’s

prohibition on “coerc[ing]” employees to first reach acts that

“reasonably tend[]” to coerce, e.g., Blue Flash Express, Inc., 109

N.L.R.B. 591, 593 (1954); then acts that create an impression of

surveillance, e.g., Harrington & Richardson, Inc., 136 N.L.R.B.

1095, 1098 (1962); and then “out of the ordinary” actual or

perceived surveillance of pro-union activity, e.g., Metal Indus.,

Inc., 251 N.L.R.B. 1523, 1523 (1980).

Relying on that logical progression, the Board here went

one step further, asserting that a single communication to a pro-

union employee referencing a generally applicable policy of

employee monitoring fell within Section 8(a)(1)’s ambit as “out

of the ordinary” surveillance. That argument, as explained,

stretches Board precedent so far that not even “fidelity to [the]

logic” of those prior decisions can sustain the Board’s finding.

Int’l Bhd. of Elec. Workers, 481 U.S. at 598 (Scalia, J.,

concurring in judgment). More importantly, nor can “obedience

to [the] text” of the Act. Id.

Faced with a Board decision that made similar errors,

Justice Scalia borrowed some wisdom from another Supreme

Court decision that rings equally true here:

The seductive plausibility of single steps in a

chain of evolutionary development of a legal rule

is often not perceived until a third, fourth, or

fifth ‘logical’ extension occurs. Each step, when

taken, appeared a reasonable step in relation to

that which preceded it, although the aggregate or

14

end result is one that would never have been

seriously considered in the first instance. This

kind of gestative propensity calls for the ‘line

drawing’ familiar in the judicial, as in the

legislative process: ‘thus far but not beyond.’

Id. (quoting United States v. 12 200-ft. Reels of Film, 413 U.S.

123, 127 (1973)). Rather than drifting “further and further from

the meaning of the [Act],” id., we conclude that the Board

lacked substantial evidence to find that the text message to Ruiz

violated Section 8(a)(1).

III.

Stern Produce also argues against the Board’s finding that

the written warning to Ponce amounted to discrimination against

protected activity in violation of Sections 8(a)(1), (3), and (4) of

the Act, 29 U.S.C. § 158(a)(1), (3), and (4). Those provisions

prohibit employers from punishing employees in retaliation for

participating in Board proceedings or unionization efforts.3 See

Parsippany Hotel Mgmt., 99 F.3d at 422.

In particular, the Board has held that an employer may not

discipline an employee because of “anti-union animus.” NLRB

v. Transp. Mgmt. Corp., 462 U.S. 393, 401 (1983) (discussing

Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899

(1st Cir. 1981)). In other words, an employer violates the Act if

3

Section 8(a)(3) bars employers from discriminating against

employees to discourage them from union membership. 29 U.S.C.

§ 158(a)(3). Section 8(a)(4) prohibits discrimination against an

employee “because he has filed charges [with the Board] or given

testimony” in a Board proceeding. Id. § 158(a)(4). Violating either

of those provisions automatically results in a derivative violation of

Section 8(a)(1). See Ozburn-Hessey Logistics, LLC v. NLRB, 833 F.3d

210, 217–18 (D.C. Cir. 2016).

15

the employee’s protected conduct is a “substantial or motivating

factor in the adverse action.” Id.

To determine an employer’s motivation for taking adverse

action against an employee, the Board applies its Wright Line

framework. See Bally’s Park Place v. NLRB, 646 F.3d 929, 935

(D.C. Cir. 2011). Under Wright Line, the General Counsel must

first establish that (1) the employee engaged in protected

activity, (2) the employer knew about it, and (3) the employer

had “animus” against the activity. Constellium Rolled Prods.

Ravenswood, LLC v. NLRB, 45 F.4th 234, 239–40 (D.C. Cir.

2022) (citation omitted); see Wright Line, 251 N.L.R.B. at 1089.

The General Counsel’s prima facie case must suffice to allow

the Board to infer that the employer acted with an improper

motive. Ozburn-Hessey, 833 F.3d at 218. The employer then

can rebut that inference by showing that it would have punished

the employee even if he had not engaged in protected activity.

Constellium, 45 F.4th at 240.

The Board found that the General Counsel made out the

first two elements of the prima facie case. It is undisputed that

Ponce played an active role in the organizing efforts among the

drivers at Stern Produce. The General Counsel also produced

adequate proof that Stern Produce knew of Ponce’s protected

activities. Ponce had been an open union activist and a member

of the union drive leadership committee since at least 2015. He

testified in the first Board proceeding and was named in the

union’s charges—a fact that Stern Produce leadership broadcast

to employees in meetings intended to discourage union support.

Stern Produce I, 2019 WL 3530188, at *13. He was one of the

union supporters that the company agreed to reinstate as part of

the settlement in Stern Produce II. 2021 WL 2347342, at *2.

And in their testimony in this proceeding, Stern Produce leaders

admitted that they knew of his involvement in the union drive.

Those facts are enough to sustain the finding that Stern Produce

16

knew Ponce had been engaged in protected conduct.

Stern Produce claims that none of the General Counsel’s

evidence demonstrates that the company knew when it

disciplined Ponce that he was “contemporaneous[ly]” involved

with organizing efforts. That may be so, but the record shows

that Ponce’s union activism was both longstanding and ongoing.

It was reasonable to infer, as the Board did, that Ponce

continued to support unionization in the first few months

following his reinstatement.

As to the third element of the prima facie case, however, the

Board fell short in finding that the General Counsel sufficiently

established Stern Produce’s anti-union animus. An employer’s

“[s]imple animus” and “general hostility” toward the union are

insufficient on their own. Nichols Aluminum, LLC v. NLRB, 797

F.3d 548, 554–55 (8th Cir. 2015) (citation omitted); accord

Intertape Polymer Corp., 372 N.L.R.B. No. 133, 2023 WL

9291828, at *10–11 (Aug. 25, 2023). Rather, there must be

something more to connect the employer’s animus to the

adverse action. See Tschiggfrie Props., Ltd. v. NLRB, 896 F.3d

880, 886 (8th Cir. 2018); AutoNation, Inc. v. NLRB, 801 F.3d

767, 774 (7th Cir. 2015).

Wright Line, after all, sets forth a “causation test” that is

designed to determine whether an employee’s protected conduct

was a “motivating factor” in the employer’s action. 251

N.L.R.B. at 1089; Transp. Mgmt. Corp., 462 U.S. at 401. The

causation requirement gives effect to the Act’s language, which

prohibits an employer’s adverse action only if it was connected

to union activities—specifically, if the employer discriminated

“to encourage or discourage [union] membership,” 29 U.S.C.

§ 158(a)(3), or “because [the employee] ha[d] filed charges or

given testimony” before the Board, id. § 158(a)(4).

17

This means that the General Counsel must present evidence

of animus that, when coupled with the employer’s knowledge of

the employee’s protected conduct, suffices to support a

“reasonable inference” that a “causal relationship”—or, put

otherwise, a “link,” or a “nexus”—existed between the

employee’s union activity and the employer’s adverse action.

Tschiggfrie Props., Ltd., 368 N.L.R.B. No. 120, 2019 WL

6320585, at *8, *11 (Nov. 22, 2019); Chevron Mining, Inc. v.

NLRB, 684 F.3d 1318, 1328 (D.C. Cir. 2012) (quoting Tracker

Marine, LLC, 337 N.L.R.B. 644, 646 (2002)).

The General Counsel failed to clear that bar here. The

evidence was not sufficient to sustain a reasonable inference that

Ponce’s protected conduct caused Stern Produce to issue the

written warning to him.

Most obviously, there is nothing to the General Counsel’s

citation of the text message to Ruiz as a labor violation tending

to show that Stern Produce had anti-union animus. See Austal

USA, LLC, 356 N.L.R.B. 363, 364 (2010). We have concluded

that the incident with Ruiz did not violate the Act, so it carries

no such weight.

Also inadequate is Stern Produce’s alleged anti-union

conduct in 2020.4 The Board inferred animus from (1) the

union’s claim that the company refused to recall drivers who

supported the organizing drive, including Ponce, and (2) the

short period between Stern Produce’s reinstatement of Ponce

pursuant to the settlement agreement and the issuance of the

4

The Board claims we lack jurisdiction to consider this issue

because Stern Produce did not raise it before the Board. See 29 U.S.C.

§ 160(e). In its brief defending the ALJ’s decision, Stern Produce

argued that the General Counsel was wrong to rely on unsupported

“allegations concerning Stern’s ‘recidivism.’” That adequately

preserved the issue.

18

written warning.

But the allegations of anti-union hostility were just that:

allegations. Stern Produce insists that it made a “business

decision” to settle the charges rather than fight them before the

Board (especially since the company was experiencing a labor

shortage), and the Board does not question that explanation.

Although the Board’s order approving the settlement ordered

Stern Produce to “[c]ease and desist from” selectively recalling,

firing, or refusing to reinstate certain employees, the Board

never found that the company had done any of those things.

Stern Produce II, 2021 WL 2347342, at *1. Nor did the Ninth

Circuit, in enforcing the order, address the substance of the

General Counsel’s complaint. See Order, NLRB v. Stern

Produce Co., No. 21-71140 (9th Cir. June 25, 2021).

All the Board had to go on in that proceeding were the

union’s allegations (as endorsed by the General Counsel), which

were never tested in an adversarial process and which did not

result in factfinding by a neutral decisionmaker. The Board,

however, treated the charges as if they were evidence

establishing Stern Produce’s “prior treatment” of Ponce.

That approach is—to repeat once more the Supreme Court’s

statement in Allentown Mack—“nonsense.” The sole decision

the Board cited to justify its approach merely holds that

“evidence from [a] settled case” is relevant and admissible for

the purpose of determining an employer’s motive. St. Mary’s

Nursing Home, 342 N.L.R.B. 979, 980 (2004), enforced, 240 F.

App’x 8 (6th Cir. 2007). It does not support the proposition that

mere allegations, unsupported by record evidence, can be used

against the employer as proof in future matters before the Board.

The General Counsel did not attempt to substantiate the

allegations from Stern Produce II in this proceeding; those

claims remain unproven and untested.

19

It follows that the Board also erred in giving weight to the

short amount of time between Ponce’s reinstatement and the

warning. As a general principle, the timing of an employer’s

adverse action can shed light on its causes. Tasty Baking, 254

F.3d at 126. Specifically, the Board has inferred improper

motive when an employer disciplined an employee who had

recently returned to the workplace after an unlawful discharge

or failure to recall. See FiveCAP, Inc. v. NLRB, 294 F.3d 768,

785–88 (6th Cir. 2002); Mesnikoff [Mid-State Broad. Co.], 248

N.L.R.B. 1206, 1206–07 (1980), enforced, 636 F.2d 1209 (3d

Cir. 1980).

Here, though, neither the Board nor any court has found that

Stern Produce acted unlawfully in failing to recall Ponce. All

the record tells us is that the company agreed to bring him back

as part of the settlement. That distinguishes this case from one

in which a company punishes an employee in violation of the

Act and is forced to remedy the situation but then takes further

adverse action against the employee. In such a case, the short

timeframe between the return to work and the new adverse

action may suggest that the employer—still motivated by the ill

intent that inspired the original punishment—“seize[d] upon”

the first available “opportunity” (as the Board puts it) to retaliate

against the worker for being pro-union.

When the initial adverse action was not unlawful, it

provides no insight into the employer’s attitude toward the union

or the causes of the employer’s discipline of a pro-union

employee. As a result, the discharge or the failure to recall does

not cast a pall over any later adverse actions taken against the

employee. To nonetheless draw a negative inference against

Stern Produce in those circumstances, as the Board did here, is

irrational and unsupported by precedent.

The Board stood on slightly better footing in relying on

20

Stern Produce’s 2015 and 2016 misconduct. Those actions were

at least proven by the General Counsel and found by the Board

to have violated multiple provisions of the Act.

Yet that evidence, too, provides little if any insight into

Stern Produce’s motivations in 2021. The Board in Stern

Produce I reasoned that the remedies it ordered would “dissipate

the effects” of the company’s unlawful acts, emphasizing that

“over 3-1/2 years ha[d] elapsed” since those violations. Stern

Produce I, 2019 WL 3530188, at *1, *5–6. Stern Produce

implemented the remedies as ordered.

The Board’s 2019 findings thus undercut its current attempt

to characterize the company’s infractions as “recent history”

reflecting an unbroken anti-union campaign. If anything, the

two additional years between Stern Produce I and the events in

this case put the company’s prior misconduct even beyond the

rearview mirror. The Board cited no precedent supporting its

decision to reach back half a decade to find evidence of animus.

Its decisions approve only reliance on “contemporaneous” unfair

labor practices. Intertape Polymer Corp., 2023 WL 9291828, at

*7, *14; see also Parsippany Hotel Mgmt., 99 F.3d at 424. That

does not give the General Counsel the green light to cite every

labor-law violation a company has ever committed as evidence

of its anti-union animus.

Only one piece of evidence remains: what the Board

characterized as Stern Produce’s “disparate treatment” of Ponce.

The Board believes that an employer’s harsher treatment of an

employee engaged in protected activity, as compared to its

handling of others who committed similar misconduct, can be

“strong evidence” of wrongful animus. Constellium, 45 F.4th at

242 (citing Tschiggfrie Props., 2019 WL 6320585, at *11).

Here the Board found a “departure” from past practice in

21

the fact that Ponce’s was the only written warning issued “for a

first infraction involving offensive language.” But the General

Counsel offered only two examples to establish past practice:

one incident when an employee made multiple sexist remarks to

a coworker that resulted in verbal counseling, and another when

an employee’s racist language garnered him a written warning

stating that it was “the 2d time this issue had been addressed.”5

Even if Ponce’s misconduct sufficiently resembled that of

the other disciplined employees, the General Counsel did not

present enough evidence to permit a reasonable inference that

Ponce was “singled out” for especially harsh punishment.

Constellium, 45 F.4th at 242–43. An “isolated and marginal

deviation” from an employer’s policy “fails to show that the

policy was not applied in a neutral manner.” Kelly Constr. of

Ind., Inc., 333 N.L.R.B. 1272, 1272 (2001); see also St. George

Warehouse, Inc., 349 N.L.R.B. 870, 879 (2007). A grand total

of two instances does not a pattern make. It is a leap to say that

failing to adjudicate Ponce’s case perfectly in line with those

two incidents reflected a deviation from an otherwise

consistently observed norm.

That is particularly true at Stern Produce, where the

disciplinary policy itself leaves room for flexible, case-by-case

resolution. The company “encourages” a progressive discipline

system, in which each subsequent infraction results in escalating

consequences. In the same breath, though, the policy stresses

that the company “is not required to engage in progressive

discipline”; “is not obligated to follow any disciplinary or

grievance procedure”; and “may discipline or terminate

employees” at any time “without any prior warning,” depending

5

One other example, involving a driver who received a verbal

warning for calling a coworker “stupid,” did not involve offensive

language of the sort at issue in the other incidents and so proved a

poor comparator. The Board did not rely on this incident.

22

on the circumstances of the misconduct. Company leadership

testified that they handled disciplinary decisions in accord with

those caveats.

Again, the Board’s failure to grapple with the company’s

formal rules and standard practices undermines its findings. The

Board asserted that Ponce’s written warning was the only

example of deviation from the progressive discipline

system—but the General Counsel only mustered two examples

when the company did follow the system. If Stern Produce held

itself out as not bound to adhere unfailingly to a progressive

approach, the mere fact of different outcomes in different cases

does not, without more, support a reasonable inference that

something nefarious was afoot.6

So, where does all of this lead? Stern Produce issued Ponce

a written warning that was facially consistent with the

company’s equal employment opportunity policy. The General

Counsel put forward no evidence bearing on Stern Produce’s

motivations in the leadup to the warning that would suggest that

Ponce was punished for improper reasons, other than an

insufficiently proven claim that Ponce’s discipline was

unusually severe. As for the separate incidents of alleged or

adjudicated violations of the Act, those did not constitute

convincing evidence that Stern Produce disciplined Ponce out of

anti-union animus.

The Board lacked substantial record evidence to find that

the General Counsel satisfied Wright Line’s prima facie

“causation test.” Wright Line, 251 N.L.R.B. at 1089. The

charges premised on the written warning to Ponce therefore

6

Even the supposed disparity in punishments fades under closer

scrutiny: counseling, the lowest tier of discipline, results in a written

corrective action form that documents the misconduct—just like

written warnings.

23

fail.7

* * *

The Board lacked substantial evidence to find that Stern

Produce violated the National Labor Relations Act. Stern

Produce’s petition for judicial review is therefore granted, and

the Board’s decision and order are vacated. The Board’s cross-

application for enforcement is therefore denied.

So ordered.

7

We need not consider whether Stern Produce met its burden at

the second “step” of Wright Line to show that it would have

disciplined Ponce even if he had not supported the union.