                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-3515
                                    No. 02-3688
                                    ___________

JCR Hotel, Inc.,                      *
                                      *
      Petitioner/Cross - Respondent,  *
                                      * Petitions To Set Aside or
      v.                              * Enforce an Order of the
                                      * National Labor Relations Board.
National Labor Relations Board,       *
                                      *
      Respondent/Cross - Petitioner.  *
                                 ___________

                              Submitted: April 14, 2003

                                   Filed: September 5, 2003
                                    ___________

Before LOKEN, Chief Judge, HANSEN and BYE, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

       Affirming an administrative law judge, the National Labor Relations Board
ruled that JCR Hotel, Inc. (JCR) violated § 8(a)(1) of the National Labor Relations
Act when it discharged housekeeping inspector Patsy Wilson for encouraging or
organizing an employee walkout. JCR Hotel, Inc., 338 N.L.R.B. 27 (2002). JCR
petitions to set aside the Board’s order, raising issues that turn, in our view, on the
question whether an employer’s erroneous belief that an employee is engaged in
protected concerted activity can be the basis of a § 8(a)(1) violation. Concluding that
the Board’s consistent resolution of this issue is a permissible interpretation of the
statute, we grant the Board’s cross-petition and enforce its order.

                                           I.

       JCR hired Wilson in October 1997 as a catering manager at the Ramada Inn in
Jefferson City, Missouri. Other employees soon complained about Wilson’s abrasive
manner to the hotel’s general manager, Theresa Riley. In response, Riley transferred
Wilson first to the position of night desk manager and then to the position of
housekeeping inspector. After both transfers, co-workers continued to complain
about Wilson’s behavior. Riley and housekeeping supervisor Teresa Atkisson told
Wilson to improve her relationships with other employees.

       On October 26, 1999, JCR told several housekeepers that the free meal
customarily provided would not be available that day. While on break, several
employees, including Wilson, complained to each other about the situation.
Housekeeper James Whittler said that JCR would only pay attention to complaints if
they all walked out or sat down on the job. Wilson commented that a walkout should
occur “on a full house day,” such as when the Elks organization booked the entire inn
for a meeting. Two days later, supervisor Atkisson overheard employees discussing
Wilson’s plan for a walkout. Atkisson met with general manager Riley and told her
“that rumor had it that Patsy was trying to get some of the people to walk out on a full
house day.” After obtaining the approval of JCR’s owners, Riley discharged Wilson
when she came to work on November 2. Riley initially told Wilson she was being
fired because she could not work with people. Pressed by Wilson, Riley added,
“[w]ord is you are planning a walk out with the housekeeping department.”

       The Board’s General Counsel issued a complaint charging that JCR violated
§ 8(a)(1) by discharging Wilson because of her protected concerted activity and by
interrogating her about such activity. During the General Counsel’s case-in-chief,

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Wilson related the reasons Riley gave for the discharge. Wilson further explained
that her comment in the break room about walking out when the hotel was full was
merely a flippant remark, and she never intended to organize a walkout. At the close
of the case-in-chief, the ALJ dismissed the interrogation charge but denied JCR a
directed verdict on the protected concerted activity charge. Atkisson and Riley then
testified during JCR’s case. Atkisson admitted she overheard other employees say
Wilson was organizing a walkout and reported that to Riley. Riley admitted she told
Wilson, “word is you are planning a walk out,” but only after Wilson “pushed [her]
hot button.” Riley insisted that Wilson’s inability to get along with other employees
was the reason for her termination. Other defense witnesses confirmed that Wilson
had been an abrasive or unpopular co-worker.

      The ALJ found that Wilson’s walkout remark to other employees was protected
concerted activity, that Riley believed Wilson engaged in protected concerted activity
in making that remark, that Wilson was discharged at least in part for this protected
concerted activity, and that JCR had failed to prove Wilson would otherwise have
been discharged. The Board agreed and ordered JCR to cease and desist the unlawful
conduct and reinstate Wilson with back pay.

                                         II.

       It is an unfair labor practice for an employer to “interfere with, restrain, or
coerce” employees in the exercise of their right to engage in protected concerted
activities. See 29 U.S.C. §§ 157, 158(a)(1). An employer violates § 8(a)(1) by
discharging a non-union employee for organizing or implementing a collective
walkout to protest working conditions. See NLRB v. Wash. Aluminum Co., 370 U.S.
9, 14-15 (1962). To be considered concerted activity, “It is sufficient that the
employee intends or contemplates, as an end result, group activity which will also
benefit some other employees.” Koch Supplies, Inc. v. NLRB, 646 F.2d 1257, 1259



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(8th Cir. 1981). “[T]alk looking toward group action” is protected; mere griping is
not. Mushroom Transp. Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964).

       A. The Board concluded that JCR violated § 8(a)(1) because Atkisson and
Riley took Wilson’s remark seriously and discharged her, in Riley’s words, for
“planning a walk out with the housekeeping department.” JCR argues that this
interpretation of the statute is unreasonable because it does away with the limitation
that Section 7 only protects concerted employee activity. We disagree.

       Though JCR attacks the Board’s decision as based only on dicta in the one case
cited by the ALJ, Daniel Construction Co., 277 N.L.R.B. 795 (1985), many prior
Board decisions have approved the principle on which the ALJ and the Board relied:

      [A]ctions taken by an employer against an employee based on the
      employer’s belief the employee engaged in or intended to engage in
      protected concerted activity are unlawful even though the employee did
      not in fact engage in or intend to engage in such activity.

Monarch Water Sys., Inc. 271 N.L.R.B. 558, 558 n.3 (1984), quoted in United States
Serv. Indus., Inc., 314 N.L.R.B. 30, 31 (1994); accord Henning & Cheadle, Inc., 212
N.L.R.B. 776, 778 (1974), enforcement denied on other grounds, 522 F.2d 1050 (7th
Cir. 1975); San Juan Lumber Co., 144 N.L.R.B. 108, 108 n.1 (1963). Thus, the Board
in this case followed its consistent, long-standing interpretation of § 8(a)(1).
Moreover, a number of reviewing courts have approved, in various contexts, the
principle that an employer commits an unfair labor practice when it acts on a
mistaken belief that an employee has engaged in protected concerted activity. See
NLRB v. Link-Belt Co., 311 U.S. 584, 589-90, 598 (1941); Holyoke Visiting Nurses
Ass’n v. NLRB, 11 F.3d 302, 307 (1st Cir. 1993); NLRB v. Clinton Packing Co., 468
F.2d 953, 954-55 (8th Cir. 1972).



                                         -4-
       In construing the National Labor Relations Act, we defer to the Board’s
conclusions of law if they are based upon a reasonably defensible construction of the
Act. See NLRB v. Cornerstone Builders, Inc., 963 F.2d 1075, 1077 (8th Cir. 1992).
Here, the Board reasonably construed § 8(a)(1) as prohibiting an employer from
discharging an employee for conduct the employer believes to be protected concerted
activity. The broad purpose of the statute is to protect “the right of employees to
organize for mutual aid without employer interference.” Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 798 (1945). When an employer fires an employee for engaging
in protected concerted activity, other employees are discouraged from engaging in
such activity in the future, even if the employer misjudged what the fired employee
had done. Viewed in this light, the Board reasonably concluded that JCR violated
§ 8(a)(1) if it fired Wilson because, from JCR’s perspective, she had attempted to
organize a walkout. See Kenrich Petrochems., Inc. v. NLRB, 907 F.2d 400, 407 (3d
Cir.), cert. denied, 498 U.S. 981 (1990).

       B. JCR also argues that the ALJ erred in denying its motion for directed
verdict because the General Counsel failed to call Atkisson and Riley during his case-
in-chief and therefore failed to prove that Wilson was discharged for engaging in
protected concerted activity. However, Wilson testified during the General Counsel’s
case-in-chief that Riley noted Wilson was “planning a walkout” when pressed to
explain why she was being terminated. If this testimony was found credible and went
unrebutted by JCR, it would support a finding that Wilson was terminated, at least in
part, for this reason. As that would establish a violation of § 8(a)(1), the ALJ did not
err in denying JCR’s motion for a directed verdict on this charge.

       C. Alternatively, JCR challenges the Board’s ultimate finding that Wilson was
discharged for engaging in protected concerted activity. To establish this type of
violation, the General Counsel has the burden to prove that the fired employee’s
protected concerted activity was a motivating factor in the decision to discharge. If
the General Counsel meets that burden, the burden shifts to the employer to prove it

                                          -5-
would have taken the same action absent the employee’s protected activity. See St.
Luke’s Episcopal-Presbyterian Hosps., Inc. v. NLRB, 268 F.3d 575, 581 (8th Cir.
2001); Holo-Krome Co. v. NLRB, 954 F.2d 108, 111-14 (2d Cir. 1992). Because
these are fact-intensive issues, we must enforce the Board’s order if it is supported
by substantial evidence on the record as a whole. See 29 U.S.C. § 160(e); NLRB v.
MDI Commercial Servs., 175 F.3d 621, 625 (8th Cir. 1999).

      JCR first argues that the General Counsel failed to carry his burden of proving
protected concerted activity. However, the premise for this contention is flawed. As
we have explained, the critical issue is whether JCR fired Wilson because it believed
she had engaged in protected concerted activity. Thus, it is irrelevant whether the
evidence established that her conduct was not in fact concerted activity because
Wilson admitted her walkout remark was flippant and she never intended to instigate
concerted employee action.

       JCR next argues that, if the General Counsel proved an unlawful motive, JCR
then met its burden of proving that the discharge was for cause -- Wilson’s inability
to get along with her co-workers. Again, JCR misstates the legal issue. In a mixed
motive situation, the issue is not whether the employer had good cause to fire. The
issue is whether the employer would have made the same decision absent the
employee’s protected activity. Here, there was ample evidence Wilson was an
abrasive co-worker. But JCR tolerated that deficiency for a long time, twice
transferring Wilson to a new position in an attempt to improve her performance.
Then, when Wilson engaged in conduct JCR perceived as “planning a walk out,” she
was fired in a matter of days, and Riley referred to that conduct in explaining the
termination to Wilson. JCR argues it should not be punished for giving Wilson many
chances to improve. But the question remains, would Wilson have been terminated
had she not been perceived as stimulating or organizing protected concerted activity?
That is an issue of fact, and on this record, substantial evidence supports the ALJ’s
finding “that in light of the statements made by Riley to Wilson as to the reason

                                         -6-
Wilson was being fired, [JCR] has failed to establish that she would have been
discharged regardless of her protected concerted activity.” Where, as here, the
evidence supports two reasonable inferences, “we may not preempt the Board’s
choice between two fairly conflicting views of that evidence.” MDI Commercial
Servs., 175 F.3d at 626 (internal quotation omitted).

       We grant the Board’s cross-application to enforce its order and deny JCR’s
petition for review.

      A true copy.

            Attest:

               CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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