 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 14, 2012                    Decided July 24, 2012

                        No. 11-1277

  SUTTER EAST BAY HOSPITALS, DOING BUSINESS AS ALTA
           BATES SUMMIT MEDICAL CENTER,
                    PETITIONER

                             v.

           NATIONAL LABOR RELATIONS BOARD,
                     RESPONDENT


                 Consolidated with 11-1318


     On Petition for Review and Cross-Application for
  Enforcement of an Order of the National Labor Relations
                          Board


    Christopher T. Scanlan argued the cause for petitioner.
With him on the briefs were David S. Durham and Gilbert J.
Tsai.

    Milakshmi V. Rajapakse, Attorney, National Labor
Relations Board, argued the cause for respondent. With her on
the brief was John H. Ferguson, Associate General Counsel,
Linda Dreeben, Deputy Associate General Counsel, and Robert
J. Englehart, Supervisory Attorney.
                                2

Michelle M. Devitt, Trial Attorney, entered an appearance.

    Before: SENTELLE, Chief Judge, BROWN and GRIFFITH,
Circuit Judges.

    Opinion for the Court filed by Chief Judge SENTELLE.

      SENTELLE, Chief Judge: Petitioner Sutter East Bay
Hospitals seeks review of a National Labor Relations Board
(“NLRB” or “Board”) order concluding that Sutter East Bay
violated sections 8(a)(1) and 8(a)(3) of the National Labor
Relations Act (“the Act”), 29 U.S.C. § 158(a)(1), (3). See Alta
Bates Summit Med. Ctr. and Nat’l Union of Healthcare
Workers, 357 NLRB No. 31, 2011 WL 3269362 (July 29, 2011)
(“Board Decision”). The Board cross-applies for enforcement
of that order. Sutter East Bay concedes that it engaged in illegal
surveillance of its employees’ union activities, and we grant the
Board’s application for enforcement of that determination. We
also grant the Board’s application for enforcement of the finding
that Sutter East Bay unlawfully changed its solicitation policy to
stifle support for a new labor union. We agree with Sutter East
Bay, however, that the administrative law judge failed to
properly apply the appropriate legal standard in determining that
the employer unlawfully disciplined its employee, Beverly
Griffith. We therefore grant Sutter East Bay’s petition for
review with regard to those disciplinary actions, vacate the
relevant factual findings and conclusions, and remand to the
Board for rehearing.

                        I. Background

       Sutter East Bay operates four hospital facilities in
northern California, including the Summit Hospital campus in
Oakland and the Alta Bates Hospital facility in Berkeley. The
events at issue here relate to a conflict between two unions
                                3

present at Sutter East Bay’s hospitals. Service Employees
International Union (“SEIU”) had originally represented union
workers at the hospitals, but after the national organization
placed the local chapter in trusteeship in January 2009, the
ousted leadership and other employees worked to decertify
SEIU and certify a replacement, the National Union of
Healthcare Workers (“NUHW”). Board Decision at 5 (ALJ
Op.). Beverly Griffith, an environmental-services worker and
displaced SEIU steward, was one of the employees supporting
NUHW. She is the subject of the disciplinary actions found
unlawful by the Board in this case. Many of the facts are
disputed by the parties. Based on the findings of the Board and
the evidence in the record, we set them forth briefly and note
key areas of disagreement. See id. at 4–21 (describing the facts
of the case and conflicting testimony in detail).

               A. The Water-Spilling Incident

        The first incident occurred on February 17, 2009, when
two SEIU representatives, Carlos Hernandez and Erica
McDuffie, visited Alta Bates Hospital. Hernandez testified that
he and McDuffie were followed in the hospital by Griffith and
another employee, who harassed them and called them “scabs.”
Id. at 8. According to Hernandez, Griffith followed the SEIU
representatives to the cafeteria and sat close to where they were
sitting. Eventually, Hernandez testified, Griffith left and
returned with two cups of water. Id. at 8–9. Shortly after,
Hernandez looked up and noticed that Griffith had spilled her
water, which was flowing toward the SEIU employees and their
belongings. Id. McDuffie accused Griffith of spilling the water
intentionally and reported the incident to the security guard
present in the cafeteria; Griffith approached security and told the
guard that the spill was an accident. The security officers wrote
up the conflicting accounts in a report that described the incident
without placing blame. Id. at 9. In her own testimony, Griffith
                                4

contended that she was already sitting in the cafeteria when the
SEIU employees arrived, and that Hernandez and McDuffie sat
near her and tried to convince her to support SEIU. Id. Griffith
did not dispute that she spilled the water, but testified that she
accidentally spilled it as she stood up to leave.

        Three days after the incident, McDuffie called Bruce
Hatten, Sutter East Bay’s Labor Relations Specialist, to
complain that hospital employees were placing NUHW
literature on SEIU bulletin boards.           Id.    During that
conversation, McDuffie complained that Griffith had been rude
during the visit and had intentionally spilled water on the SEIU
representatives. Hatten then obtained a copy of the security
report and, without interviewing Hernandez, the security officer,
or Griffith, drew up a written reprimand for “misconduct and
inappropriate behavior” and gave it to Griffith. Id. at 10.
According to Griffith’s testimony, she protested that Hatten had
not asked for her side of the story, and Hatten responded that the
behavior “sounds like [Griffith].” Id. Griffith wrote on the
disciplinary form that she was being harassed by Hatten and
SEIU, and that there was no investigation of the incident prior
to the discipline.

            B. The March 20 Cafeteria Incident

        The next incident occurred on March 20, 2009, when
Griffith and other SEIU stewards held an all-day “membership
meeting” in the Summit Hospital cafeteria to build support for
NUHW. The stewards had previously publicized the meeting by
posting and distributing leaflets, and the meeting was designed
so that the stewards would take a vacation day and sit in the
cafeteria to discuss union matters with employees whenever
those employees were on lunch or break. Id. at 11.
                                5

        Having heard in advance about the meeting, Sutter East
Bay sent to NUHW on March 13 a cease-and-desist letter stating
that the hospital is private property and does not allow outside
groups to meet on its premises. Id. In addition, Bruce Hatten
hired Allied Barton Security Services to provide private security
guards, and he instructed those guards to report in suits instead
of uniforms. Hatten gave the guards a camera and instructed
them to watch for activity by the members of the new union and
to report any union solicitation or distribution to Hatten right
away. Id. He specifically identified Griffith as one of the
employees to watch. Id.

         During the March 20 membership meeting, Hatten and
one of the security guards approached the table after Griffith and
another steward, Deborah Kirtman, finished talking to a group
of employees. There was a brief confrontation, wherein Hatten
grabbed a stack of flyers and informed Griffith and Kirtman that
they were not allowed to conduct meetings for outside unions,
to distribute literature, or to solicit funds. Kirtman responded by
stating that the employees remained stewards for SEIU and had
a right to inform their members. Hatten and Parks then left the
cafeteria. Id. at 12. Throughout the day, Sutter East Bay’s hired
security guards sat near the employees and recorded their
activities, though the security guards testified that they did not
observe any union business after the confrontation. Id. at 11–13.

            C. The March 23 Cafeteria Incident

        Employees held another all-day meeting the following
Monday, this time in the cafeteria of Alta Bates Hospital. Id. at
14. Griffith scheduled a vacation day and organized the event.
Griffith and DeAnn Horne, a ward clerk at Alta Bates, arrived
early in the morning, met another clerk, and placed stacks of
flyers and documents on a table in the corner of the dining area.
Across the dining room, Hatten was sitting with another
                                6

employee and two hired security guards, Ronnie Parks and
Mahir Said. Id. Shortly after Griffith and Horne arrived, Hatten
left the cafeteria. Id.

        While Horne left the cafeteria to inform employees that
Griffith was available to talk, Griffith walked over to a table of
dietary workers and spoke with them, standing at first and then
sitting with them. After a few minutes, Griffith returned to her
table and Horne returned as well. Shortly thereafter, Hatten
returned to the cafeteria and approached the employees.
According to the employees, Hatten told them, “I need you to
cease and disperse . . . . I’m giving you a direct order to leave
the premises now.” Id. As to his motivation for expelling the
employees from the cafeteria, Hatten testified that security guard
Parks had called him to report that Griffith had addressed the
dietary employees loudly and had solicited money from them for
union dues. Id. at 15. Parks also included in a report on the
events of March 23 that Griffith had moved to two different
tables talking with employees. Griffith, in her own testimony,
denied talking in a loud voice at any time and claimed she only
moved to the dietitians’ table and back to her own.

        Testimony again differed as to what happened after
Hatten ordered the employees to leave: Griffith stated that she
asked to borrow Horne’s cell phone to arrange a ride home, and,
as Griffith and Horne were gathering their belongings, Hatten
again ordered them to leave and threatened them with
suspension. Id. Griffith testified that Hatten never actually
suspended her. Id. at 14–16. Horne corroborated Griffith’s
testimony, stating that security personnel arrived as the
employees were departing and that Hatten never suspended
Griffith. Security Guard Parks, however, testified that Horne,
upon being ordered to leave, said “I’m outa here” and left, while
Griffith stayed behind and picked up her cell phone to call her
lawyer. Id. at 15. At that point, Parks testified, Hatten stated
                                 7

that Griffith appeared unwilling to comply and that he would
consider her to be disobeying his order if she did not depart
before security arrived. Id. Parks testified that Griffith was still
slowly packing her things when security arrived to escort her
out, and Hatten placed her on suspension at that time. Id.
Hatten, in turn, gave testimony that was similar to Parks’,
although Hatten stated that he suspended Griffith before security
was even called to escort her out, and that Griffith was “defiant”
and refused to comply with his order. Id. at 15–16. Sutter East
Bay also provided testimony from another security guard who
was part of the detail that arrived to escort Griffith out of the
building; she claimed to have witnessed the suspension. Id. at
16.

      D. The March 24 Profane Tirade and Griffith’s
                     Termination

        The next day, Griffith arrived in uniform five minutes
before her scheduled 7:00 am shift. Id. at 17. Griffith had
arrived early to hand out flyers regarding the cafeteria
confrontation the previous day. She was in the environmental-
services lounge when a supervisor, Tito Aquino, asked her to
step outside and speak with him. Id. Griffith initially refused
but eventually complied and brought a coworker, Lawana
Williams, with her. After walking Griffith down the hall
roughly fifteen feet, Aquino informed Griffith that she had been
suspended but that he did not know the reason for the
suspension. Id. at 17–18. Griffith demanded written notice of
her suspension and its reasoning; Aquino refused, told her to
leave, and called security to escort her. Id.

        Yet another series of disputed events followed. Sutter
East Bay claims that Griffith returned to the break room and
began a tirade of profanity, including statements such as: “Did
you all hear that? I’m being f***ing suspended. I can’t even
                                8

speak to you in a f***ing public place.” Id. at 18. Sutter East
Bay offered Aquino’s testimony, as well as that of Carla Biddle,
another supervisor who claimed to have witnessed much of the
tirade while standing in the doorway of the break room. Biddle
and Aquino submitted reports of the incident on the day it
occurred. Id. at 19.

        Griffith’s version of events, which was corroborated by
Lawana Williams, differed greatly from that of Biddle and
Aquino. Griffith testified that after being informed of the
suspension she asked Aquino if she could collect her belongings
from the break room, and Aquino consented. Id. at 18. While
doing so, Griffith testified, she told the other employees that she
had been suspended, and in conversation with them said that the
suspension was “bulls***” (or, according to Williams, merely
“bull”). According to Griffith and Williams, there was no tirade
and Griffith left within a few minutes.

        Bruce Hatten interviewed Griffith two days later
concerning the events of March 23–24. Among other things,
Hatten asked if Griffith had gone to the hospital on March 24
with the intention of working and being paid. Griffith
responded affirmatively, stating that she was unaware of her
suspension. Id. at 20. Hatten also asked if she stood up and
spoke to a group in the cafeteria on March 23, and Griffith said
that she could not recall doing so. Id. Finally, Hatten asked if
Griffith had used the word “f***ing” after being informed of her
suspension. Griffith stated that she was not sure but that she
might have done so. Id. On April 7, 2009, Sutter East Bay
discharged Griffith based on her failure to obey Hatten’s orders
on March 23, for attempting to work while suspended, and for
the tirade on March 24. Id. at 21.
                                9

         E. Proceedings Before the ALJ and Board

         The National Union of Healthcare Workers filed unfair
labor practice charges against Sutter East Bay in April 2009,
alleging that Sutter East Bay violated the Act by 1) interfering
with employees’ rights under the Act by enforcing solicitation
and distribution rules in a discriminatory manner and by
retaliating against Griffith for supporting NUHW, 2) showing a
preference for a rival union by threatening and disciplining
Griffith for her support for NUHW, and 3) discriminating
directly against Griffith for her support of NUHW by unjustly
disciplining and suspending her. The Board, through its
Regional Director, investigated the charges and issued a
complaint against Sutter East Bay. The consolidated hearing on
all charges took place before an ALJ from November 30 to
December 3, 2009.

         The ALJ largely agreed with NUHW’s version of events,
finding Hatten and Biddle to be “particularly disingenuous,
deceitful, and not worthy of belief as to any aspect of his or her
testimony.” Id. at 21. The ALJ declared Hatten to be a
“duplicitous witness, one whose primary intent, I believe, was
to buttress [Sutter East Bay’s] defense rather than to testify
truthfully.” Id. at 21–22. The ALJ found Biddle to be
“internally inconsistent regarding seemingly innocuous,
irrelevant points” regarding the March 24 incident. Id. at 22.
Overall, the ALJ rejected much of the testimony of Sutter East
Bay’s witnesses as internally or externally inconsistent. The
ALJ also disregarded as “fabrication[s]” both Biddle’s and
Aquino’s contemporaneous written reports of the March 24
incident. Id. at 30 n.101. The ALJ rejected Aquino’s report
because it was a second draft and Aquino had not produced the
first draft, and he rejected Biddle’s report because it was drafted
at Hatten’s behest and was not identical to her testimony
regarding the incident. Id.
                               10

        Based on his findings, the ALJ concluded that several of
Sutter East Bay’s actions violated the Act. First, Sutter East Bay
conducted unlawful surveillance of union activities taking place
on hospital property. Second, Sutter East Bay unlawfully
changed its solicitation policies to prevent employees from
engaging in activities supporting NUHW. Third, Sutter East
Bay unlawfully disciplined union-supporter Beverly Griffith for
the water-spilling incident. Fourth, Sutter East Bay unlawfully
evicted Griffith from the Alta Bates Hospital cafeteria,
threatened to suspend her, and ultimately suspended her on
March 23 because of her union-supporting activities. Fifth,
Sutter East Bay unlawfully discharged Griffith in April 2009,
again because of her support for NUHW. Id. at 30. The Board
affirmed the ALJ’s conclusions and reasoning with only minor
modifications. See id. at 1–4 (Board Op.). The Board also
rejected a motion by Sutter East Bay to reopen the record and
allow Erica McDuffie to testify. Id. at 2.

        Sutter East Bay petitions this court for review, arguing
that the ALJ’s conclusion that Sutter East Bay unlawfully
changed its solicitation policy to hamper NUHW was not
supported by substantial evidence and that the ALJ failed to
correctly apply the appropriate test for determining whether the
disciplinary actions against Griffith were lawful. Sutter East
Bay does not, however, challenge the conclusion that it engaged
in unlawful surveillance of union activities, see Pet’r’s Br. at
2–3 n.2, and we therefore grant the Board’s application for
enforcement as to that issue. We discuss the remaining issues
below.

            II. Changes to the Solicitation Policy

       We first examine the Board’s conclusion that Sutter East
Bay violated Sections 8(a)(1) and 8(a)(3) of the Act by
discriminatorily enforcing its solicitation and distribution rules
                               11

on March 20 and 23, 2009. The ALJ determined that prior to the
events of March 2009, “employees had utilized the cafeterias for
solicitations, including collecting union dues, and for
distributing union-related literature without restriction.” Board
Decision at 27 (ALJ Op.). With regard to NUHW, however, the
ALJ concluded that Sutter East Bay “redefined its
solicitation/distribution rules” when it told Griffith and her
fellow employees that they could not conduct a meeting for an
“outside union,” distribute literature, or solicit funds. Id. The
ALJ noted that the cafeterias at Sutter East Bay’s hospitals are
not patient-care areas, which may by law be more stringently
controlled by management. See, e.g., St. Johns Hosp. & Sch. of
Nursing, 222 N.L.R.B. 1150, 1150–51 (1976) (holding that a
hospital may lawfully ban solicitations in patient-care areas).
Finally, the ALJ specifically noted that Sutter East Bay placed
no limitations on SEIU agents meeting with employees in the
cafeterias and even allowed non-union, employee-to-employee
solicitations, demonstrating the discriminatory nature of Sutter
East Bay’s rules. Board Decision at 6, 27 (ALJ Op.). The
Board adopted the ALJ’s findings and analysis. Id. at 1 (Board
Op.).

                               A.

        Sutter East Bay contends that it did not allow other
unions to conduct meetings while preventing NUHW from
doing the same, and that the ALJ’s conclusion is not supported
by substantial evidence. First, Sutter East Bay argues that the
ALJ ignored evidence that it acted to prevent meetings in the
past, pointing to evidence in the record that Sutter East Bay sent
warnings to SEIU in 2004 concerning non-employee meetings
on its premises. Second, Sutter East Bay contends that
discriminatory intent is absent if the employer was unaware of
the other meetings, and there was no evidence that Sutter East
Bay was aware that SEIU or any other union conducted
                                12

meetings in its cafeteria. See St. Luke’s Mem. Hosp., Inc., 342
N.L.R.B. 1040, 1042 (2004) (finding an isolated instance of
solicitation for personal business to be insufficient to
demonstrate discriminatory enforcement because the employer
was unaware of it); Seton Co., 332 N.L.R.B. 979, 980 (2000)
(declining to rely on incidents of solicitation and distribution not
known to employer). Third, Sutter East Bay argues that to the
extent that SEIU or any other union bargained for access to
Medical Center property, it does not follow that NUHW would
have the same access. Cf. Seaboard Terminal & Refrigeration
Co., 114 N.L.R.B. 754, 755 (1955). Finally, Sutter East Bay
argues more broadly that no person or group may use an
employer’s property in a manner inconsistent with its intended
purpose, see S. Md. Hosp. Ctr., 293 N.L.R.B. 1209, 1216
(1989), and employees may not, as Griffith did, “commandeer”
the dining area as a meeting space. Sutter East Bay contends
that it was within its rights to adopt policies that protect patient
care and foster a respectful workplace environment.

        The Board responds that Sutter East Bay has no written
policy prohibiting meetings in its cafeterias, and employees have
held such meetings in the cafeterias for years. Indeed, the Board
argues, Sutter East Bay’s policies explicitly allow employee-to-
employee solicitation and distribution in the cafeterias, so long
as all employees involved are not on duty. In addition, at least
one outside group, the California Nurses Association, meets
there as well. Sutter East Bay cites to two isolated instances
where it has prohibited non-employee SEIU representatives
from holding meetings in the cafeteria, but, the Board argues,
Sutter East Bay cannot show any time in past years when it
prohibited any of the openly advertised employee meetings
regularly held in the cafeterias. Under Board precedent, a
hospital cannot prohibit employees from engaging in union
solicitation and distribution in its cafeterias without showing
that such activities would disrupt patient care. See St. John’s
                               13

Hosp., 222 N.L.R.B. at 1150–51; Beth Israel Hosp. v. NLRB,
437 U.S. 483, 495, 502 (1978). Here, the Board argues, Sutter
East Bay made no attempt to show that solicitation in the
cafeterias—which are used almost entirely by
employees—would hinder patient care. Instead, as the ALJ
found, Sutter East Bay changed its solicitation and distribution
policy to hinder employees’ support for NUHW. Sutter East
Bay claims that it was concerned about disruptive meetings and
table-hopping, but it could have proscribed that behavior
directly instead of targeting solicitation and distribution
generally.

                               B.

        We deny Sutter East Bay’s petition on this issue and
grant the Board’s cross-application for enforcement. Sutter East
Bay makes essentially two arguments: First, it was unaware of
past employee meetings and solicitations, and it attempted to
stop events it was aware of in the past. Second, as the owner of
the property and operator of the business, Sutter East Bay must
be allowed to control what goes on in its facilities. The former
argument is contradicted by the record and, in any event, is not
essential to the Board’s conclusion. The latter argument is a
complaint against well-established case law preventing hospitals
from banning solicitation in employee-focused cafeterias.

         The Board properly found a violation of the Act without
regard to whether Sutter East Bay knew of past group meetings
in the cafeteria. As always, restrictions on employee solicitation
during nonworking time in nonworking areas are presumptively
invalid absent a showing of special circumstances. Beth Israel
Hosp., 437 U.S. at 492–93. In particular, while hospitals have
the leeway to enact more stringent prohibitions in patient-care
areas, that leeway requires that the “balance should be struck
against the prohibition in areas other than immediate patient care
                                14

areas such as lounges and cafeterias.” Id. at 495, 506–07. In
NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979), for
example, the Supreme Court held that the hospital properly
justified its ban on solicitation in the corridors and sitting rooms
on patient floors as necessary to prevent disruption of patient
care, but also concluded that the hospital had not justified such
a ban in the cafeteria because the facts showed that patients
rarely visited the cafeteria. Id. at 786–87.

         Here, the cafeteria was shown to be used almost
exclusively by employees. Sutter East Bay did not even attempt
to demonstrate any kind of special circumstances that would
justify a ban on union solicitation there. Sutter East Bay argues
that it was only trying to prevent a takeover of its cafeterias, but
Bruce Hatten’s admission that he ordered employees not to
solicit or distribute goes further than just preventing disruption.
Sutter East Bay complains in its brief that casinos and
department stores have more power to prohibit employee
solicitation in their cafeterias, but the Supreme Court already
addressed and rejected such an argument in Beth Israel Hospital,
citing the balance discussed above and the customer-facing
function of cafeterias in other businesses. 437 U.S. at 505–07.

        The Board’s conclusion that Sutter East Bay changed its
solicitation rules to squelch union activity in March 2009 is
supported by substantial evidence. Hatten’s instructions to the
security guards display animus toward the “outside union,” but
more to the point is the fact that SEIU employees had been
meeting in the cafeteria regularly. Hatten, in fact, admitted that
he was “sure that SEIU stewards came into the cafeteria prior to
the trusteeship, handed out flyers, and did other things to
encourage support for SEIU.” Board Decision at 6 n.8 (ALJ
Op.). But when employees attempted to do the same for
NUHW, Hatten took aggressive action to prevent it. That makes
this case different than, for example, St. Luke’s Memorial
                                15

Hospital, Inc., where the Board refused to hold against the
employer its lack of knowledge about an isolated incident of
solicitation that had occurred contrary to its established policy.
See 342 N.L.R.B. at 1042. As Hatten admitted, he knew of the
SEIU solicitation and distribution, and Sutter East Bay had a
policy generally allowing solicitation and distribution in its
cafeterias, so long as employees were not on the clock.

        Sutter East Bay claims that changing the solicitation
policy was necessary to prevent disruptive meetings, but the
record supports the ALJ’s conclusion that such a concern only
arose when the employees began meeting about the new union.
Given Sutter East Bay’s lack of any written policy prohibiting
meetings in the cafeteria, its practice of allowing such
employee-to-employee solicitation by SEIU stewards and others
in the past, and its sudden about face in light of the effort to
certify NUHW, the Board had substantial evidence on the record
that Sutter East Bay unlawfully redefined its solicitation policy.
We defer to that determination and grant the Board’s cross-
application for enforcement.

     III. Disciplinary Actions Against Beverly Griffith

        We next consider the Board’s determination that Sutter
East Bay unlawfully discriminated against Beverly Griffith by
disciplining her for the water-spilling incident, evicting her from
the cafeteria on March 20 and 23, threatening to suspend her and
suspending her on March 23, and terminating her after the
March 24 confrontation.         The Board adopted the ALJ’s
reasoning and conclusion that Sutter East Bay had unlawfully
disciplined Griffith due to her support for the new union. Board
Decision at 1 (Board Op.).

        The ALJ purported to apply the test from Wright Line,
Inc., 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir.
                               16

1981), which is followed when an employee is disciplined for a
reason purportedly unrelated to any protected activity, such as
a discharge for theft or poor performance. Under Wright Line,
the Board’s General Counsel must first show that the adverse
employment action was motivated by the employee’s
participation in protected activities. If the General Counsel
makes such a showing, the burden shifts to the employer to
show that it would have taken the same action even without the
unlawful motive. See, e.g., Jackson Hosp. Corp. v. NLRB, 647
F.3d 1137, 1141 (D.C. Cir. 2011); Shamrock Foods Co. v.
NLRB, 346 F.3d 1130, 1135 (D.C. Cir. 2003).

        The ALJ rejected the General Counsel’s suggestion that
the test from NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23
(1964), would be appropriate as an alternative to Wright Line.
Burnup & Sims analysis is employed when disciplinary action
was taken based on conduct that occurred in the course of a
protected activity. Id. at 23. Here, the ALJ specifically declined
to apply Burnup & Sims to the water-spilling incident because
spilling water is not a protected activity, Board Decision at 23
n.93 (ALJ Op.), and made no further findings or application of
Burnup & Sims to any other issues. Two members of the Board,
however, briefly noted that they would have upheld the ALJ’s
conclusion under Burnup & Sims as well as Wright Line. Id. at
2 (Board Op.).

                               A.

        Sutter East Bay argues that the ALJ improperly applied
the Wright Line test by failing to examine or even mention
whether Bruce Hatten had a reasonable belief that Griffith had
engaged in the misconduct. An employer who holds a good-
faith belief that an employee engaged in the misconduct in
question has met its burden under Wright Line. See DTR Indus.,
Inc., 350 N.L.R.B. 1132, 1137 (2007). This is true even if the
                                17

employer is ultimately mistaken about whether the employee
engaged in the misconduct. The good-faith belief demonstrates
that the employer would have acted the same even absent the
unlawful motive. See id.

        Here, Sutter East Bay argues, the ALJ improperly
focused on what actually happened rather than what Hatten
reasonably believed. In doing so, the ALJ placed too high a
burden on Sutter East Bay, requiring the hospital to show, for
example, that Griffith spilled the water intentionally. Instead,
Board and circuit precedents reject the notion that Hatten was
obligated to investigate the water incident in any particular way,
Sutter East Bay argues, and based on the report from McDuffie,
the security report, and Griffith’s past behavior, Hatten
reasonably believed Griffith intentionally spilled the water.
Likewise, Hatten had a reasonable belief, based on the
information given to him by the security guards, that Griffith
disrupted the cafeteria on March 23. Yet, Sutter East Bay
argues, the ALJ did not even mention or evaluate Hatten’s
reasonable belief regarding the cafeteria disruption or Hatten’s
judgment that Griffith was being insubordinate in failing to
vacate the cafeteria when ordered to do so. So too with the
profane tirade on March 24: Hatten based his decision on reports
from two supervisors that Griffith engaged in the profane tirade,
and on Griffith’s own admission that she might have used the
profane language. With each of these incidents, Sutter East Bay
contends, Hatten had reason to believe that Griffith engaged in
the misconduct, and with each incident the ALJ failed to address
that crucial point.

        The Board provides only a brief response to Sutter East
Bay’s Wright Line argument. The Board asserts that a
reasonable belief is not sufficient for an employer to meet its
Wright Line burden, arguing that the employer must show not
only that it had a reasonable belief but also that it acted based on
                               18

that belief instead of the improper motivation. See Midnight
Rose Hotel & Casino, Inc., 343 N.L.R.B. 1003, 1005 (2004).
The Board contends that Sutter East Bay’s failure to engage in
even a cursory investigation of the water-spilling incident
defeats any claim that Sutter East Bay actually believed the
misconduct occurred or that it acted on that belief. With regard
to the March 23 incident, the Board essentially argues that Sutter
East Bay could not demonstrate a reasonable belief that Griffith
engaged in the tablehopping, and indeed it did not happen.
Hatten claims to have relied on Parks’ report of the
tablehopping, but, the Board contends, Parks testified only that
he told Hatten that Griffith moved to one other table and then
back to her own. See Board Decision at 15 (ALJ Op.). So too
with regard to whether Griffith defied Hatten’s orders on March
23. The Board argues that Griffith was not in fact defiant, and
therefore Hatten would have no reasonable belief that she
refused to follow his order to leave.

                               B.

                                1.

        The ALJ misapplied the Wright Line test. Unlike the
ALJ’s analysis, the Wright Line test does not concern itself with
whether the employee actually engaged in the misconduct.
Instead, proper application of Wright Line requires that the judge
determine 1) whether the General Counsel has shown an
improper motivation for the disciplinary action, and, if so, 2)
whether the employer can demonstrate that it would have taken
the same action even without the improper motivation. See, e.g.,
Shamrock Foods Co., 346 F.3d at 1135–36. In any case in
which the evidence is disputed concerning the disciplined
employee’s underlying misconduct, it would seem essential that
the trier of fact must determine whether the employer had a
good faith belief in order to even begin an analysis of whether
                               19

the employer would have imposed the same consequence in the
absence of the anti-union animus. Certainly that is true here.
For all we can tell from the record and the ALJ’s analysis, Sutter
East Bay with no animus at all would have disciplined Griffith
in precisely the same fashion if it believed she committed the
misconduct. If Hatten reasonably believed that Griffith had
spilled the water intentionally, for example, he presumably had
the right to discipline her. So too if he reasonably believed that
she refused to leave the premises on March 23 or that she
engaged in the verbal tirade on March 24. If Sutter East Bay’s
management reasonably believed those actions occurred, and the
disciplinary actions taken were consistent with the company’s
policies and practice, then Sutter East Bay could meet its burden
under Wright Line regardless of what actually happened.
Unfortunately, Sutter East Bay never had the chance to meet its
Wright Line burden here because the ALJ declined to even
examine what Hatten believed, whether his beliefs were
reasonable, and whether his actions based on those beliefs were
consistent with Sutter East Bay’s policies and past practice.

        On the water-spilling incident, the ALJ expressly
invoked Wright Line as the proper standard and rejected Burnup
& Sims. Board Decision at 23 & n.93 (ALJ Op.). The ALJ
seemingly applied the first step of Wright Line, finding that
Bruce Hatten had become aware of Griffith’s activities in
support of NUHW prior to the water-spilling incident and
finding that Hatten favored SEIU and sought to quell support for
NUHW. Id. at 23. But the ALJ’s analysis of the second step of
the Wright Line analysis is absent: the ALJ stated that he “[did]
not believe Hatten ever conducted an investigation of the
incident” and instead relied solely on the security report of the
incident and McDuffie’s statement to him on the phone. Id. at
24. For that reason, and seemingly based on the ALJ’s general
discrediting of Hatten’s testimony, the ALJ concluded that
Hatten issued the warning to Griffith in violation of the Act.
                               20


        Nowhere in that analysis is there an examination of
whether Hatten had a reasonable belief that Griffith intentionally
spilled the water. Hatten’s failure to investigate the matter in a
specific way seems to be the foundation for the ALJ’s
conclusion, but an employer is not required to investigate in any
particular manner, Detroit Newspaper Agency v. NLRB, 435
F.3d 302, 310 (D.C. Cir. 2006), especially when the Board can
point to no evidence that would have been uncovered after a
deeper investigation. Of course, none of this is to say whether
Hatten reasonably believed that Griffith spilled the water—such
a determination is to be made by the finder of fact, not by us.
But the finder of fact must actually undertake to make that
finding before pronouncing judgment under Wright Line.

        The ALJ’s analyses of the March 23 and 24 incidents are
similarly deficient. Rather than applying the Wright Line test by
examining Hatten’s reasonable beliefs and how those beliefs
might have informed his disciplinary decisions, the ALJ simply
reached factual conclusions as to what actually happened. He
found, for example, that Griffith did not use the word “f***” in
the break room after being informed of her suspension on March
24. Board Decision at 30 (ALJ Op.). But Hatten, who was not
present during the tirade, relied on reports from managers stating
that Griffith did engage in the tirade, and on Griffith’s own
admission that she “might have” used that language. Whether
the ALJ believes the reports are accurate or whether Griffith
actually engaged in the tirade is largely immaterial to whether
Hatten reasonably believed she did. The ALJ relied on his
conclusion that the contemporaneous written reports were self-
serving fabrications. See Board Decision at 30 n.101 (ALJ Op.).
Of course, if Hatten were properly found to be part of such a
fabrication or to have knowledge of it, that would relate directly
to his reasonable belief. But the ALJ made no analysis or
finding that Hatten had any reason to doubt the veracity of the
                               21

reports. Therefore, the proper question was whether Hatten,
relying on those reports and Griffith’s own admission,
reasonably believed the tirade occurred.

        Reviewing the ALJ’s analysis, it is difficult to even
surmise what legal standard he applied with regard to the March
23 and 24 events, given the total absence of any mooring to the
Wright Line test or any other test. The ALJ’s findings amount
to this: the ALJ did not believe that Griffith engaged in the
misconduct, and therefore he concluded that Sutter East Bay
violated the Act by disciplining Griffith for it. The ALJ’s
conclusions leave that crucial second step of the Wright Line test
unexamined and unanswered, and therefore we must vacate the
factual record regarding the disciplinary measures in order to
allow for the evidence to be reheard and subjected to the proper
standard.

        Perhaps out of concern that the ALJ’s Wright Line
analysis was defective, the Board made a terse statement that
Burnup & Sims analysis would also support the ALJ’s
conclusion. Board Decision at 2 (Board Op.). Such a bare
statement simply cannot survive judicial scrutiny. To receive
our deference, an agency’s decision must be supported by
substantial evidence on the record and the agency must not act
arbitrarily in applying established law to the factual evidence.
See, e.g., W & M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341,
1346 (D.C. Cir. 2008). Here, the Board did not explain its
reasoning when it noted—almost in passing—that Burnup &
Sims analysis would sustain the ALJ’s conclusions. The ALJ
explicitly refused to apply Burnup & Sims to the water incident
and did not mention it with regard to the other incidents. Board
Decision at 23 n.93 (ALJ Op.). The Board does not meet its
analytical burden by simply stating that application of Burnup
& Sims would reach the same conclusion without providing any
analysis or explanation. In so holding, we do not decide which
                               22

test, Wright Line or Burnup & Sims, is the correct test for
analyzing each of these events. Griffith may or may not have
been engaging in protected activities during the different
incidents. Regardless, the Board did not properly apply any test
at all.

                               2.

        We cannot conclude without discussing another
troubling aspect of this case. As the Supreme Court has
explained, the Board “is not free to prescribe what inferences
from the evidence it will accept and reject, but must draw all
those inferences that the evidence fairly demands.” Allentown
Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 378 (1998).
Yet the ALJ treated conflicting evidence here with an almost
breathtaking lack of evenhandedness. The employer’s witnesses
saw their testimony completely disregarded for the slightest of
immaterial inconsistencies, while the union’s witnesses survived
even material contradictions.

         One illustrative example is the ALJ’s weighing of the
testimony regarding the profane tirade on March 24. During
Aquino’s testimony about the tirade, Aquino originally quoted
Griffith and included the profanity she purportedly used; later in
his testimony, while discussing matters related to the sequence
of events and not the language, he quoted Griffith in almost the
same terms, but without the profanity. Upon inquiry from the
ALJ, Aquino made clear that Griffith did, in fact, use the
profane words. See Board Decision at 18–19 n.76 (ALJ Op.).
Despite crediting Aquino as appearing to testify honestly, the
ALJ rejected Aquino’s account of the incident largely based on
this inconsistency. Id. at 21. As should be obvious, however, a
witness might feel reluctant to use obscene language
unnecessarily on the witness stand. Dismissing as contradictory
such clearly consistent testimony tries both our deference and
                               23

our patience, especially given the ALJ’s willingness to
countenance Griffith’s significant reversal as to whether she
used the word “f***” during the tirade. Griffith admitted to
Hatten on March 26 that she might have used the word “f***.”
Id. at 20. She fully denied during the hearing that she used that
word at all. Id. at 18. The treatment of Aquino’s testimony
compared to Griffith’s is but one example of the problem that
troubles us.

        Although an ALJ’s credibility determinations are entitled
to significant deference, e.g., Capital Cleaning Contractors, Inc.
v. NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998), they are not
immune to judicial scrutiny. Because we are already vacating
the factual record due to the misapplication of Wright Line test,
we lack the occasion here to resolve whether the ALJ achieved
the rare result of exceeding our deference. We note with great
concern, however, the apparent application of different
standards to union and company witnesses. We hope that
concern will be alleviated on remand.

                        IV. Conclusion

         We grant the Board’s cross-application for enforcement
of its order only to the extent that it concludes that Sutter East
Bay violated the Act with its unlawful surveillance of union
activities and redefinition of its solicitation and distribution
policies. We cannot do so, however, regarding the disciplinary
actions taken against employee Beverly Griffith. The Board
adopted the ALJ’s fatally deficient application of the Wright
Line standard, and we therefore grant Sutter East Bay’s petition
for review and vacate the Board’s factual record and conclusions
as to that issue. On remand, the Board must rehear the evidence
and correctly apply the appropriate legal standards. In doing so,
the Board and the ALJ must take care to “draw all those
inferences that the evidence fairly demands”—no more and no
                              24

less. Allentown Mack Sales & Serv., Inc., 522 U.S. at 378. That
requirement is the “foundation of all honest and legitimate
adjudication.” Id. at 379.

                                                   So ordered.
