                      NOT RECOMMENDED FOR PUBLICATION
                              File Name: 20a0503n.06

                                   Case Nos. 19-2356/2397

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                               FILED
                                                                          Aug 27, 2020
NATIONAL LABOR RELATIONS BOARD,                    )                  DEBORAH S. HUNT, Clerk
                                                   )
       Petitioner/Cross-Respondent,                )
                                                   )     ON      APPLICATION   FOR
v.                                                 )     ENFORCEMENT AND CROSS-
                                                   )     PETITION FOR REVIEW OF AN
ROEMER INDUSTRIES, INC.,                           )     ORDER OF THE NATIONAL
                                                   )     LABOR RELATIONS BOARD
       Respondent/Cross-Petitioner.                )
                                                   )


       BEFORE: GILMAN, BUSH, and READLER, Circuit Judges

       JOHN K. BUSH, Circuit Judge. Roemer Industries, Inc. (“Roemer”) petitions for review

of a decision by the National Labor Relations Board (the “Board”), and the General Counsel for

the Board applies for enforcement of the same. The Board found that Roemer violated § 8(a)(1)

and (3) of the National Labor Relations Act by terminating Bruce Haas for engaging in protected

activity. We hold that substantial evidence supports the Board’s decision, and therefore GRANT

the General Counsel’s application for enforcement and DENY Roemer’s petition for review.

                                              I.

       Roemer manufactures industrial identification nameplates in Masury, Ohio. The company

has approximately twenty production and maintenance employees, all of whom have been
Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied

Industrial and Service Workers International Union (the “Union”) since 1973.

       Bruce Haas began working for Roemer in 1976 and was its most senior employee before

his termination. He held many different roles over the years and was working in fabrication at the

end of his tenure. In the last few years before his discharge, he earned positive performance

evaluations, and he was described as a reliable employee who had his own way of performing his

work but knew what he was supposed to be doing. However, Haas’s performance reviews and

disciplinary records at Roemer were spotty over the years, and he received discipline short of

discharge on multiple occasions throughout his tenure.

       Haas’s conduct at issue here related to the collective-bargaining agreement (“CBA”)

between Roemer and the Union. Their most recent CBA expired on April 22, 2016. Roemer and

the Union began negotiating a successor contract in March 2016, but they failed to reach an

agreement. At the time of the trial in this case, the parties had not reached an agreement on a CBA.

In those negotiations, Roemer was represented by outside counsel, and the Union was represented

by United Steelworkers Business Agent Jose Arroyo and Union Steward Ron Merrick.

       A main point of disagreement in the negotiations was whether the successor contract would

continue to require employees to become Union members (as the Union wanted) or if it would

convert Roemer to an “open shop” in which employees could choose whether or not to be Union

members (as Roemer wanted). Joseph O’Toole, Roemer’s president and owner, indicated that

transitioning to an open shop was essential to his ability to sell the company, but the Union saw an

open-shop provision as non-negotiable.

       In the summer of 2016, while contract negotiations were ongoing, Haas and other

employees demonstrated support for the Union’s position by displaying signs on their cars that




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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


bore the Union’s logo and stated “Fair Contract Now.” Those signs were provided by the Union

and distributed by Merrick in the Roemer parking lot. O’Toole asked Merrick for a “Fair Contract

Now” sign and covered the Union logo with a “Roemer” logo. He then posted the modified sign

on a doorway inside the building.

       In August, Haas had a conversation with Amanda Shinkovich, Roemer’s quality manager,

and asked whether the stalled contract negotiations were causing as much stress in the office as

among bargaining-unit employees in the shop. The next day, O’Toole brought Haas into his office

and asked why he had asked Shinkovich that question. O’Toole instructed Haas to repeat the

question to another manager and Roemer’s bargaining representative. O’Toole then walked Haas

around the office and made him repeat the question to approximately twelve other employees.

       In addition to the “Fair Contract Now” signs provided by Merrick, Haas showed additional

support for the Union’s position, and opposition to the open-shop proposal, by asking his niece to

make bumper stickers bearing the words “Open Shop” enclosed in a prohibition sign. Haas also

distributed these “No Open Shop” bumper stickers to his coworkers in the parking lot as Merrick

had done with the “Fair Contract Now” signs. He did so before work for a few days and then left

a box of the stickers in his unlocked car and told his coworkers to help themselves. Other

employees availed themselves of his offer and displayed the “No Open Shop” stickers.

       There is conflicting testimony about the timing of these events. Haas testified that he

received the stickers from his niece and distributed them to his coworkers sometime in mid-

September 2016. Roemer employee Harold Hrabowy testified that he remembered Haas handing

out the stickers shortly before he was terminated, but Hrabowy could not be more specific than to

recollect that the incident occurred when the weather was still warm enough to ride a motorcycle.




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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


Merrick testified that he remembered Haas’s handing out the stickers a couple months before he

was terminated.

       By virtue of his long tenure at Roemer, Haas had an assigned parking spot near the front

of the lot. That parking spot is visible on security-camera footage that was regularly viewed by

O’Toole and Ann Fraley, Roemer’s Production Supervisor. Fraley and Shinkovich parked in the

same lot, as did O’Toole on occasion.

       On September 14, 2016, Haas was assigned a job of shearing aluminum into smaller strips.

Rather than use a cart to move the sheared strips to the next work station, as dictated by Roemer

policy, Haas hand carried the material in two trips. O’Toole saw Haas carry the first handful and

instructed him to use a cart, but Haas refused, stating instead that there were no carts in the area.

After Haas dropped off the first handful of strips, he returned to the work station and continued

shearing the remainder of the order. Haas hand carried the second load of materials, and O’Toole

again observed the conduct and reprimanded Haas. Fraley overheard the second interaction and

approached Haas to ask why he did not obey O’Toole’s instruction and use a cart. Haas replied

that it would take longer to look for a cart than to just carry the materials. Fraley then pointed to

a cart in the immediate vicinity and brought it to Haas.

       Fraley testified that she approached O’Toole later in the day and said that Haas should be

written up for insubordination.      Under Roemer policy, insubordination is considered an

“intolerable” offense and the employee will be sent home immediately. The offense could warrant

elevation to an immediate three-or five-day suspension. However, Haas was not disciplined that

day. Instead, he received a disciplinary notice two weeks later on September 30th from O’Toole

for a “quality of work” violation, which gave as the reason the failure to use the “Theory of




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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


Constraints methodology.”1 The “Theory of Constraints” is a philosophy promoting efficiency

that O’Toole ascribed to, and he provided management-level employees with a book about this

philosophy when they were promoted to managerial positions.                        There is no evidence that

bargaining-unit employees were provided any specific training on the philosophy.

        The disciplinary notice provided for a five-day suspension pending discharge, and was set

to run from October 10th through October 14th. Roemer’s internal disciplinary policy follows a

sequence, from warnings, to suspension, to discharge. That escalating discipline provides a verbal

warning for the first offense, written warning for the second offense, one-day suspension for the

third offense, three-day suspension for the fourth offense, and a five-day suspension pending

discharge for the fifth offense. A discipline stays in an employee’s file for one year, unless the

employee receives another infraction. Notwithstanding the progressive nature of the disciplinary

system, O’Toole testified that he exercises discretion in implementing this policy, including

skipping disciplinary steps (and imposing punishment at the higher end of the range) and also by

retaining employees who reach the end of the disciplinary progression.

        It is undisputed that at the time of his notice, Haas had accumulated four previous

disciplinary events and the next step was a five-day suspension pending discharge. As indicated,

however, this was not Haas’s first experience with multiple disciplinary events on his record. His

disciplinary records show that he had twice reached the five-day suspension level for

unsatisfactory work quality, receiving a five-day suspension in July 2002. When he was again

suspended for the same violation in June and September 2003, O’Toole allowed Haas to opt for a

decrease in certification (and pay) along with a three-day suspension rather than termination.




1
 The full disciplinary notice stated: “Not using ‘Theory of Constraints’ methodology. Specifically, hand carrying, in
a piecemeal manner, work to a shelf near next work station instead of using an available cart.” Dkt. 7 at 701.


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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


       Haas also received a discipline in 2013 for incorrectly cutting parts, and he filed a grievance

disputing the discipline. Union officers Merrick and Geraldine Dolta attempted to investigate the

grievance, but O’Toole suspended them for their efforts. This led to a separate proceeding in

which the Board found that Roemer had discriminated against Merrick and Dolta for engaging in

protected union activity, and this court enforced the Board’s order. Roemer Indus., Inc. v. NLRB

(Roemer I), 688 F. App’x 340 (6th Cir. 2017). That case had not been resolved at the time of

Haas’s termination.

       Haas’s suspension went into effect on October 10th as planned, and he was terminated in

a letter dated October 11th. The letter did not provide a reason for his discharge. The Union

grieved the discharge, which Roemer denied, and Roemer declined to participate in arbitration.

       After Haas was terminated, strained contract negotiations between Roemer and the Union

continued. On January 3, 2017, a management group consisting of O’Toole, Shinkovich, and

Fraley called three bargaining-unit employees into a meeting, and O’Toole informed them that

Roemer’s representative was a “union-busting lawyer.” O’Toole asked for input about how to

expedite negotiations, and one employee suggested that Roemer drop its open-shop proposal.

O’Toole refused, and asked if the employees wanted to continue working at Roemer. Roemer also

failed to provide information to the Union during negotiations upon their request.

       On May 10th, O’Toole unilaterally increased all employees’ pay without giving the Union

the opportunity to bargain. When the Union demanded bargaining, and subsequently filed an

unfair-labor-practice charge based on Roemer’s refusal, O’Toole rescinded the pay increase and

blamed the Union. The pay increase was later reinstated. During a meeting in mid-June 2017,

O’Toole told Merrick that employees are gullible, that nobody trusted or liked Merrick, and that

there would be a closed shop “over [O’Toole’s] dead body.”




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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


         The Board’s General Counsel brought a complaint alleging that Roemer engaged in unfair

labor practices in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as

amended (the “Act”), 29 U.S.C. § 158(a). The case was tried before an administrative law judge

(“ALJ”). The ALJ issued a decision finding that O’Toole and Roemer had violated the Act.

         The Board, in a three-member panel, largely adopted the ALJ’s recommendation and

affirmed the rulings against Roemer. The Board further found that Roemer violated § 8(a)(1), (3),

(4), and (5) of the Act. The Board found that Roemer violated § 8(a)(1) when O’Toole stated he

had hired a union-busting attorney and implicitly threatened employees’ continued employment

and the continuation of a training program. The Board also found that Roemer violated § 8(a)(5)

by failing to provide relevant information requested by the Union and dealing directly with Union

employees, and violated § 8(a)(4), (3), and (1) by unilaterally implementing and rescinding a wage

increase. As relevant here, the Board found that Roemer violated § 8(a)(3) and (1) of the Act by

suspending and terminating Haas. The Board accordingly entered an order requiring Roemer to

remedy its various violations and to reinstate Haas’s employment.

         The parties subsequently settled all alleged violations except those relating to Haas’s

discharge. Roemer now petitions for review of the order that it reinstate Haas’s employment, and

the Board applies for enforcement of the same.

                                                         II.

         “Pursuant to 29 U.S.C. § 160(e), this court reviews the factual determinations made by the

NLRB under the substantial evidence standard.” Airgas USA, LLC v. NLRB, 916 F.3d 555, 560

(6th Cir. 2019) (quoting NLRB v. Local 334, Laborers Int’l Union of N. Am., 481 F.3d 875, 878–

79 (6th Cir. 2007)).2 Accordingly, “we must uphold the NLRB’s factual determinations if they


2
  In relevant part, 29 U.S.C. § 160(e) provides that “[t]he findings of the Board with respect to questions of fact if
supported by substantial evidence on the record considered as a whole shall be conclusive.”


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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


are supported by such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion, even if we may have reached a different conclusion had the matter been before us de

novo.” Id. (cleaned up). But our review is “even more deferential” when credibility is at issue,

and we will overturn such credibility determinations “‘only if they overstep the bounds of reason’

or ‘are inherently unreasonable or self-contradictory.’” Id. (quoting Caterpillar Logistics, Inc. v.

NLRB, 835 F.3d 536, 542 (6th Cir. 2016). Legal conclusions are reviewed de novo. Conley v.

NLRB, 520 F.3d 629, 638 (6th Cir. 2008) (per curiam) (citing 3750 Orange Place Ltd. P’ship v.

NLRB, 333 F.3d 646, 654 (6th Cir. 2003)).

         Section 8 (a)(1) of the Act makes it an unfair labor practice for an employer to “interfere

with employees exercising the right guaranteed them by § 7 of the Act to act in concert for mutual

aid and protection.”3 W.F. Bolin Co. v. NLRB, 70 F.3d 863, 870 (6th Cir. 1995) (citing 29 U.S.C.

§ 158(a)(1)). Section 8(a)(3) in turn “makes it an unfair labor practice for an employer to

discriminate against employees with regard to terms or tenure of employment for the purpose of

discouraging membership in a labor organization.”4 Id. “An employer who terminates an

employee in response to the employee’s union activities or membership violates both Section

8(a)(3) and (1).” Norton Healthcare, Inc. v. NLRB, 156 F. App’x 745, 751 (6th Cir. 2005) (citing

NLRB v. Oberle-Jordre Co., 777 F.2d 1119, 1120–21 (6th Cir. 1985)).

         We consider this claim under the standard established in Wright Line, 251 N.L.R.B. 1083

(1980), and approved by the Supreme Court in NLRB v. Transportation Management Corp., 462

U.S. 393, 401 (1983). See Charter Commc’ns, Inc. v. NLRB, 939 F.3d 798, 815 (6th Cir. 2019);



3
 Section 8(a)(1) provides that it “shall be an unfair labor practice for an employer to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in section 157 of this title.” 29 U.S.C. § 158(a)(1).
4
  Section 8(a)(3) provides in relevant part that it “shall be an unfair labor practice for an employer by discrimination
in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage
membership in any labor organization.” 29 U.S.C. § 158(a)(3).


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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


FiveCAP, Inc. v. NLRB, 294 F.3d 768, 777 (6th Cir. 2002). Under the Wright Line framework,

“the General Counsel has the initial burden of persuading the Board that anti-union sentiment was

a motivating factor in the discharge.” Norton Healthcare, Inc., 156 F. App’x at 752 (citing NLRB

v. Taylor Mach. Prods., Inc., 136 F.3d 507, 514–15 (6th Cir. 1998)). To do so, “the General

Counsel must demonstrate . . . (1) [that] the employee was engaged in protected activity; (2) that

the employer knew of the employee’s protected activity; and (3) that the employer acted as it did

on the basis of anti-union animus.” Airgas USA, LLC, 916 F.3d at 561 (quoting FiveCAP, 294

F.3d at 777).

       If the General Counsel establishes a prima facie case, “the burden shifts to the employer to

prove by a preponderance of the evidence that the employee would have been fired for permissible

reasons even if he had not been involved in activity protected by [the Act].” NLRB v. Overseas

Motor, Inc., 721 F.2d 570, 571 (6th Cir. 1983); see FiveCAP, Inc., 294 F.3d at 777–78. However,

“[i]f the employer’s proffered justification for the decision is determined to be pretextual, the

Board is not obligated to consider whether the employer would have taken the same decision

regardless of the employee’s union activity.” Airgas USA, LLC, 916 F.3d at 561 (quoting Ctr.

Const. Co., Inc. v. NLRB, 482 F.3d 425, 435–36 (6th Cir. 2007)).

       A.       Prima Facie Case

                1.    Protected Activity

       The parties do not dispute that Haas engaged in protected activity when he produced and

distributed the “No Open Shop” bumper stickers to other Roemer employees in the midst of a

significant dispute over the inclusion of an open-shop provision in the anticipated collective

bargaining agreement. See Mt. Clemens Gen. Hosp. v. NLRB, 328 F.3d 837, 844 (6th Cir. 2003)

(explaining that “wear[ing] pins or stickers ‘in an effort to encourage [an employee’s] coworkers




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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


to support the Union’s’ position on a matter . . . ‘constitute[s] protected, concerted activity’”

(quoting St. Luke’s Hosp., 314 N.L.R.B. 434, 435 (1994) (second and third alterations in original)).

       Moreover, the Board found that Haas also engaged in other protected activities, such as

displaying the “Fair Contract Now” sign distributed by the Union, filing the grievance that led to

Roemer I, and complaining about working conditions and O’Toole’s management. Roemer does

not dispute that this additional conduct is “protected activity.” Instead, Roemer contends that the

charges were brought only on the basis of the “No Open Shop” stickers, and that the ALJ violated

Roemer’s due-process rights by expanding the scope of the complaint to include these additional

NLRA-protected activities. Roemer also contends that some of these activities, such as filing

grievances, are outside the applicable statute of limitations.

       We are without jurisdiction to consider Roemer’s argument. “No objection that has not

been urged before the Board, its member, or agency shall be considered by the court, unless the

failure or neglect to urge such objection shall be excused because of extraordinary circumstances.”

29 U.S.C. § 160(e); Woelke & Romero Framing, Inc. v. NLRB, 456 US 654, 665 (1982) (explaining

that “the Court of Appeals was without jurisdiction to consider” an issue not raised before the

Board).   “Any exception to a ruling, finding, conclusion or recommendation which is not

specifically urged will be deemed to have been waived,” 29 C.F.R. § 102.46(a)(1)(ii), and the

exception must “[c]oncisely state the grounds for the exception,” id. § 102.46(a)(1)(i)(D).

       Roemer argues that it properly preserved its procedural-due-process and statute-of-

limitations arguments by filing general exceptions to the ALJ’s decision. For example, Roemer

points to its exceptions to the ALJ’s findings of fact and conclusions of law “at p. 21, lines 36-41,”

and “at p. 22, lines 22-26.” Dkt. 7 at 1092 ¶¶ 12–13. But these general exceptions are insufficient

because they “fail to allege with any degree of particularity the error [Roemer] contends the [ALJ]




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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


committed, or on what grounds it believes the [ALJ’s] decision as to this violation should be

overturned.” Conley, 520 F.3d at 638 (internal quotation marks omitted). Section 10(e) was

enacted to “provide the Board the opportunity to consider, on the merits, the questions to be urged

in a review of its order by an appellate court.” NLRB v. Triec, Inc., 946 F.2d 895 (6th Cir. 1991)

(per curiam) (table). Roemer never provided the Board the “opportunity to consider” its argument

that the ALJ had impermissibly broadened the scope of the protected conduct at issue.5

        Roemer nevertheless argues that we should consider its procedural-due-process argument

seemingly because of the nature of the alleged error. Roemer relies on NLRB v. Blake Construction

Co., 663 F.2d 272, 283 (D.C. Cir. 1981). There, the employer’s procedural-due-process rights

were violated when the Board granted relief not only in favor of union members (as sought in the

complaint and litigated at trial), but also in favor of other employees who were not union members.

See id. at 282–83. The court held that the employer had not waived this argument because it had

argued before the Board that the ALJ’s findings in favor of the non-union members “were not

supported by the evidence and that no notice was given in the complaint as to such violations.” Id.

at 284. The court explained that this objection was sufficiently particular to preserve the argument,

finding it “considerably more focused and quite different from the general pro forma objections

found to be impermissibly vague.” Id. Roemer does not claim that it argued before the Board that

the ALJ’s findings went beyond the scope of the complaint or relied on conduct outside the statute

of limitations. Roemer also does not claim that any “exceptional circumstances” would warrant

review, and we find none.




5
 Indeed, as the General Counsel points out, the broad language of the Complaint extends well beyond the “No Open
Shop” stickers, stating that Roemer terminated Haas “because [Haas] assisted the Union and engaged in concerted
activities, and to discourage employees from engaging in these activities.” Dkt. 7 at 629.


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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


                2.       Knowledge

        The Board also found that Roemer had knowledge of Haas’s protected activity. Roemer

does not dispute that it had knowledge of the grievances Haas filed, the “Fair Contract Now” sign

posted on Haas’s car, or Haas’s complaints about the conditions of his employment. Roemer’s

only argument as to these activities—which we have already rejected—is that the ALJ improperly

expanded the scope of the complaint by considering these additional protected activities.

        Even if we were to consider only the creation and distribution of the “No Open Shop”

bumper stickers, however, we would still hold that the Board’s conclusion is supported by

substantial evidence.6 Haas openly distributed the bumper stickers in the parking lot near the front

of the building before work for several consecutive days. He also left a box of the bumper stickers

in his car with an open invitation for other employees to “help themselves” to the stickers. The

parking lot was the subject of a surveillance camera that O’Toole regularly viewed in the morning.

Moreover, some members of management, and sometimes O’Toole himself, parked in the lot and

would have walked past Haas’s car with the sticker displayed. This supports a finding of

knowledge. See Holsum De P.R., Inc. v. NLRB, 456 F.3d 265, 270 (1st Cir. 2006) (finding

substantial evidence of knowledge of union activities conducted in plain view in an open parking

lot where the activities “could very well have been observed by any number of supervisors and

managers”).

         O’Toole’s close monitoring of union activities further supports the Board’s finding. Soon

after Merrick began distributing the “Fair Contract Now” signs, O’Toole asked for one and

modified it by covering the Union logo with a Roemer logo. Further, the day after Haas

commented to Shinkovich that the stalled negotiations around the collective bargaining agreement


6
  Contrary to Roemer’s contention that the ALJ “implicitly rejected” this theory of knowledge, the ALJ stated
“[Roemer] knew of Haas’ union activities, including distributing the ‘no open shop’ stickers.” Dkt. 7 at 1168.


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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


were causing stress among workers in the shop, O’Toole knew about the comment and reacted by

forcing Haas to go repeat his comment to a dozen or more employees. We have previously found

an inference of knowledge proper in the context of a “small company, with a ‘hands-on’ president.”

NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 226 (6th Cir. 2000).

          The Board also properly found that the small-plant doctrine bolstered the inference of

knowledge. “The essence of the small plant doctrine ‘rests on the view that an employer at a small

facility is likely to notice union activities at the plant because of the closer working environment

between management and labor.’” NLRB v. Health Care Logistics, Inc., 784 F.2d 232, 236 (6th

Cir. 1986) (quoting Alumbaugh Coal Corp. v. NLRB, 635 F.2d 1380, 1384 (6th Cir. 1980)). The

inference was proper here in light of the other circumstantial evidence, as discussed above, that

Roemer had “reason to notice the union activities.” See id. (inferring knowledge based on evidence

of open discussions about a union and timing of the discharge).

                 3.      Anti-Union Animus

          “The remaining element, anti-union animus, may be ‘inferred from purely circumstantial

as well as direct evidence.’” Airgas USA, LLC, 916 F.3d at 561 (quoting W.F. Bolin Co., 70 F.3d

at 871). Such circumstantial evidence evincing anti-union animus includes

          the company’s expressed hostility towards unionization combined with knowledge
          of the employees’ union activities; inconsistencies between the proffered reason for
          [discipline] and other actions of the employer; disparate treatment of certain
          employees compared to other employees with similar work records or offenses; a
          company’s deviation from past practices in implementing the [discipline]; and
          proximity in time between the employees’ union activities and their [discipline].

Id. (alterations in original) (quoting W.F. Bolin Co., 70 F.3d at 871); see also FiveCAP, 294 F.3d

at 778.

          We find that substantial evidence supports the Board’s conclusion that anti-union animus

motivated Haas’s discharge. First, the Board relied on Roemer’s general anti-union animus, as



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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


demonstrated by the discrimination against Merrick that led to the earlier litigation in Roemer I

(which was still unresolved at the time of Haas’s termination), and Roemer’s other unfair labor

practices at issue in the underlying complaint such as Roemer’s unilateral increase and rescission

of a pay raise, direct dealing with employees, and coercive statements to employees.            An

employer’s conduct both before and after the termination can be properly considered in

determining the “true motivation” for the discharge. See SCA Tissue N. Am. LLC v. NLRB, 371

F.3d 983, 989 (7th Cir. 2004) (citing Local Lodge No. 1424, Int’l Assoc. of Machinists v. NLRB,

362 U.S. 411, 416 (1960)) (considering conduct before the discharge and outside the statute of

limitations in assessing anti-union animus); id. at 990 (citing NLRB v. Rich’s Precision Foundry,

Inc., 667 F.2d 613, 619–20, 626 (7th Cir. 1981)) (finding Board’s consideration of post-

termination conduct proper).

       Second, the Board relied on the timing of Haas’s termination. Haas, Merrick, and Hrabowy

all testified that Haas distributed the “No Open Shop” stickers shortly before his termination. Haas

testified that he distributed the stickers approximately two weeks before his termination, which is

certainly close enough temporally to support an inference of animus. See Airgas USA, LLC, 916

F.3d at 563–64 (finding period of “just under a month” between protected activity and discipline

supported finding of animus); NLRB v. E.I. DuPont De Nemours, 750 F.2d 524, 529 (6th Cir.

1983) (three weeks). Even Merrick’s longer estimate of two months falls within the time frame

that this court has acknowledged supports a finding of animus. See Charter Commc’ns, Inc., 939

F.3d at 815 (holding that even a time period of three months can “raise concerns” about animus).

The termination also came shortly after the incident in August in which O’Toole required Haas to

go repeat his question about increased union tensions to at least a dozen other employees.




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Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


         This timing is particularly notable against a backdrop of Roemer’s tolerance for similar

job-related conduct from Haas over the years. See Conley, 520 F.3d at 643–44 (finding anti-union

animus when employer terminated an employee for previously tolerated conduct). As both parties

emphasize, Haas has been disciplined for similar conduct regularly throughout his forty-year

tenure at Roemer. Yet Roemer always offered Haas some form of leniency or relief until his

display of union support at what likely seemed, at the time, to be the zenith of conflict between

Roemer and the Union in the deadlocked contract negotiation. The ALJ and the Board were not

persuaded that Roemer was “ultimately exhausted” with this conduct precisely when union

tensions were flaring. See Dkt. 7 at 1170 (citing Garvey Marine, Inc. v. NLRB, 245 F.3d 819, 825

(D.C. Cir. 2001)).7

         Finally, the Board noted that Roemer’s justifications for Haas’s termination have not been

consistent. O’Toole wrote that Haas was disciplined for failing to adhere to the “Theory of

Constraints methodology,” even though the Board found that non-managerial employees receive

no training in the Theory of Constraints. Fraley testified that she recommended that Haas be

disciplined for insubordination, but his discipline did not follow the ordinary protocol for

insubordination in which the insubordinate employee would be sent home immediately. Fraley

also testified that she had recommended terminating Haas, even though she had previously stated

that she did not play any role in his termination.




7
  Roemer argues that Conley is inapposite because it did not involve a progressive disciplinary policy. But the point
is that Roemer had previously applied its own disciplinary policy with some degree of leniency toward Haas, offering
him a “last chance agreement” or allowing him to opt for punishment short of discharge. Roemer’s reliance on NLRB
v. Cook Family Foods, Ltd. is unconvincing because that case involved employees who performed poorly during a
training program and were terminated when they were unable to perform their duties after the training period had
ended. See 47 F.3d 809, 817 (6th Cir. 1995). In contrast, Haas was a forty-year employee with a consistent track
record of similar conduct. And in none of Roemer’s cases did the employer require the discriminatee to walk around
the office repeating a statement about union-related stress as an act of self-flagellation shortly before termination.


                                                         15
Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


       Relying on Electrolux Home Products, 368 N.L.R.B. No. 34, 2019 WL 3562131 (Aug. 2,

2019), Roemer argues that the Board improperly based its decision on temporally distant events

and gave insufficient weight to “comparator” evidence of other employees who displayed “Fair

Contract Now” signs but were not terminated. We disagree. As an initial matter, Roemer’s

argument about comparator evidence is unpersuasive because it relies exclusively on evidence

about other employees who displayed “Fair Contract Now” signs; it presents no evidence of any

other employee who engaged in the same conduct as Haas, including but not limited to producing

and distributing the “No Open Shop” bumper stickers. As to the temporal relationship, the Board

in Electrolux found that a single display of anti-union animus seven months before the discharge

was insufficient to find that the discharge was motivated by animus. See id. at *4–5. The Board

emphasized that the record contained countervailing evidence against the finding that the employer

harbored anti-union animus because the employer had “quickly reached an interim agreement”

with the union on certain issues and had “begun meeting and bargaining in good faith.” Id. at *5.

In contrast, the activity at issue here happened either two weeks or two months before the

discharge, and the record demonstrates a litany of contemporaneous unfair labor practices that

Roemer does not now contest.

       Roemer also contends that the Board erred by relying exclusively on general union animus

and failed to find the requisite causal link between animus and the adverse employment action.

Roemer relies on Tschiggfrie Properties, Ltd., 368 N.L.R.B. No. 120, 2019 WL 6320585 (Nov.

22, 2019) for support. However, as we have recently explained, that case holds only that “‘the

General Counsel does not invariably sustain his burden’ at the first step of the Wright Line analysis

‘by producing . . . any evidence of the employer’s animus or hostility toward union or other

protected activity.” Challenge Mfg. Co., LLC v. NLRB, --- F. App’x ---, 2020 WL 3060747, at *4




                                                 16
Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


(June 9, 2020) (quoting Tschiggfrie Props., Ltd., 368 N.L.R.B. No. 120, 2019 WL 6320585, at

*10). Here, the Board did not rely solely on general union animus, but instead made specific

factual findings connecting Haas’s protected activity to the termination. See id. (holding that

Board’s nexus finding was sufficient when the ALJ “found that the timing of [the employee’s]

discharge and the evidence of disparate treatment supported an inference of anti-union animus

connected to the discharge” (internal quotation marks omitted)).

                                         *      *      *

       In sum, the Board’s finding that the General Counsel satisfied its prima facie burden is

supported by substantial evidence.

       B.      Proffered Justification

       “Under the Wright Line framework, once the General Counsel establishes a prima facie

case, the employer may mount an affirmative defense by showing that it would have taken the

same action even without any anti-union animus.” Challenge Mfg. Co., LLC, --- F. App’x at ---,

2020 WL 3060747, at *5. “If the employer’s proffered justification is determined to be pretextual,

the Board need not consider it.” Airgas USA, LLC, 916 F.3d at 565 (quoting Ctr. Const. Co., 482

F.3d at 435–39).

       Roemer contends that the Board erred because, under Roemer’s progressive-discipline

policy, it had authority to terminate Haas for a quality-of-work violation. As Roemer points out,

Haas had a long history of documented violations, and there is no dispute that the next step along

his discipline path was a five-day suspension pending discharge.

       However, the question is not whether Roemer could have terminated Haas for the proffered

reasons; it is “whether [the reasons] were honestly invoked and were, in fact, the cause of the

[discharge].” See Norton Healthcare, Inc., 156 F. App’x at 754 (quoting Ryder Distrib. Res., Inc.,




                                               17
Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


311 N.L.R.B. 814, 816, 1993 WL 196063 (1993). Here, the Board found that the “true motivation

behind the termination,” see id., was Roemer’s animus toward Haas’s union activities. The Board

accordingly found that Roemer’s proffered justification—that termination was compelled by the

company’s progressive-discipline policy—was pretextual. The Board relied on Roemer’s shifting

explanation for Haas’s termination, its inconsistent application of the progressive policy, and its

tolerance of Haas’s similar job-related conduct in the past. Moreover, the Board found that

terminating Haas for failing to adhere to the “Theory of Constraints” methodology was not credible

because Haas received no training on this philosophy and because O’Toole was perfectly willing

to interrupt everyone’s work time to force Haas to walk around the office and repeat for other

employees that he had expressed his view that union negotiations were leading to increased stress.

See id. at 566 (explaining that the “‘fail[ure] to provide a clear, consistent and credible explanation’

for discipline supports a finding of pretext” (quoting NLRB v. Inter-Disciplinary Advantage, Inc.,

312 F. App’x 737, 751 (6th Cir. 2008))).

        Roemer contends that its earlier willingness to retain Haas even though he had previously

received five-day suspensions on two occasions is not evidence of pretext because the earlier

suspensions are distinguishable. Roemer points out that the suspension in 2002 was the result of

a single employment violation, not a culmination of the progressive-discipline policy. Roemer

also contends that Haas was not terminated following the 2003 suspension because O’Toole

offered a “last chance agreement” that included certain employee concessions (less pay and a job-

classification reduction).

        But the Board did not find these justifications persuasive, and we grant deference to the

Board’s findings so long as they are supported by “relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Airgas USA, LLC, 916 F.3d at 560 (quoting Local




                                                  18
Case Nos. 19-2356/2397, National Labor Relations Board v. Roemer Industries, Inc.


334, Laborers Int’l of N. Am., 481 F.3d at 878–79. As discussed, reasonable minds could find that

Roemer’s previous tolerance of Haas’s conduct, and its previous willingness to offer alternative

forms of discipline short of discharge, suggest that the proffered justification for his termination

was pretextual. Accordingly, the Board’s finding of pretext is supported by substantial evidence.

                                                III.

       For all these reasons, we GRANT the General Counsel’s application for enforcement and

DENY Roemer’s petition for review.




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