                             In the

    United States Court of Appeals
                   For the Seventh Circuit
                     ____________________
Nos. 15-1046, 15-1103
BIG RIDGE, INC.,
                                      Petitioner-Cross-Respondent,

                                v.

NATIONAL LABOR RELATIONS BOARD,
                             Respondent-Cross-Petitioner.
                     ____________________

           On Petition for Review and Cross-Application
                    for Enforcement of an Order
              of the National Labor Relations Board.
           Nos. 14-CA-30379, 14-CA-30406, 14-RC-12824
                     ____________________

 ARGUED NOVEMBER 5, 2015 — DECIDED DECEMBER 18, 2015
              ____________________

   Before FLAUM, MANION, and ROVNER, Circuit Judges.
    FLAUM, Circuit Judge. In 2012, the National Labor Rela-
tions Board (“the Board”) found that Big Ridge, Inc. violated
the National Labor Relations Act, 29 U.S.C. § 158 (“the Act”).
Big Ridge threatened employees with mine closure and job
loss based on their support of the union and discharged em-
ployee Wade Waller because of his union support. Big Ridge
petitioned this Court for review, and the appeal turned on
2                                        Nos. 15-1046, 15-1103

the Board’s authority to issue its order. We vacated the
Board’s order, finding that the Board lacked a quorum be-
cause three of the Board’s five members were improperly
appointed under the Recess Appointments Clause of the
Constitution. In 2014, a validly constituted Board considered
the case anew and again found that Big Ridge violated the
Act. Big Ridge filed a petition for review, arguing that the
Board lacked jurisdiction to issue the 2014 order and that
even if the Board did have jurisdiction, the Board erred in
holding that Big Ridge violated the Act by discharging Wal-
ler. The Board filed a cross-application to enforce its order.
We deny Big Ridge’s petition for review and grant the
Board’s cross-application for enforcement of its order.
                         I. Background
    A. The United Mineworkers of America Election
     Big Ridge, Inc. operated the Willow Lake coal mine in
Equality, Illinois. In March 2011, the United Mineworkers of
America (“UMWA”) began organizing at Willow Lake to
represent the production and maintenance employees. Wil-
low Lake had previously been unionized, but the old union
disclaimed interest in the bargaining unit in 2011. UMWA
petitioned the National Labor Relations Board for an elec-
tion, and in response, Big Ridge began an antiunion cam-
paign. Big Ridge supervisors threatened employees with
mine closure and job loss if they chose union representation
and promised benefits if they opposed UMWA. An election
was held on May 19 and 20, 2011, and UMWA was success-
ful.
  Big Ridge objected to the election results, alleging that
UMWA “intimidated, restrained, and/or coerced eligible
Nos. 15-1046, 15-1103                                       3

employees, rendering their free choice impossible.” In sup-
port of these allegations, Big Ridge cited two alleged threats
by Wade Waller, a miner at Willow Lake and an ardent un-
ion supporter, as well as alleged threats by other employees.
   B. Waller’s Behavior
    Waller worked at Willow Lake for more than seven years
prior to his discharge. As a ram car driver, he transported
coal underground in a heavy ram car and dumped the coal
onto a feeder, where a conveyer would lift the coal to the
surface of the mine for processing. Waller openly supported
UMWA, wearing union paraphernalia and singing about his
dislike of “scabs” (a derogatory term for persons who op-
pose unions).
    Ronald Koerner worked as a feeder-watcher. His respon-
sibilities included directing ram car traffic to ensure miner
safety and monitoring the feeder to prevent a coal overload.
Feeder-watchers used helmet lights, radios, and horns to
“flag,” or communicate with, ram car drivers. The feeder-
watcher position was created in compliance with an order
from the Mine Safety and Health Administration after a
miner had been run over and killed by a ram car at Willow
Lake in 2010.
    On May 20, 2011, the second day of the UMWA election,
Waller and Koerner had a disagreement over one of
Koerner’s signals. Waller had parked his ram car at the feed-
er and was dumping coal when Koerner flagged Waller, in-
dicating that he should stop dumping coal onto the feeder.
Waller ignored the signal, saying that “he wouldn’t stop for
nothing.” Koerner allegedly felt threatened by Waller’s be-
havior, fearing that Waller would run him over with the ram
4                                       Nos. 15-1046, 15-1103

car. Koerner reported the incident to Shift Leader Eric Davis,
who reported the incident to Mine Manager Scott Lawrence.
The next day, Lawrence reassigned Koerner to a different
position.
    Waller also had a dispute with employee Issac Craig after
UMWA won the election. Craig posted on Facebook that he
was displeased with the election results. Waller confronted
Craig about the Facebook post and threatened to “beat
[Craig’s] ass.” Mine Manager Lawrence spoke to Craig about
Waller and later spoke with Waller about his behavior. Wal-
ler admitted to threatening Craig but denied threatening to
run anyone over with a ram car. Lawrence told Waller to
leave Craig alone, and he also agreed to let Waller work ad-
ditional shifts.
   Big Ridge has a history of tolerating verbal threats and
physical confrontations. Employees used profanity and vul-
gar language daily, and Big Ridge never prohibited this type
of behavior or discharged employees for such conduct ab-
sent significant physical contact. For example, in 2010, an
employee admitted to threatening to shoot a coworker but
was never disciplined. In 2011, another employee told a
coworker he would “beat [his] guts out.” A Section Foreman
witnessed this incident, but no disciplinary action was taken.
Additionally, even when employees and supervisors en-
gaged in physical confrontations, Big Ridge either did not
discipline them or merely issued three-day suspensions. For
example, in 2011, Big Ridge suspended two employees for
grabbing and shoving coworkers.
Nos. 15-1046, 15-1103                                      5

   C. Waller’s Discharge
    On May 21, 2011 in preparation for filing election objec-
tions challenging UMWA’s victory, Big Ridge began collect-
ing employee and supervisor statements about alleged elec-
tion-related misconduct. During this time period, Senior
Human Resources Manager Robert Gossman also collected
written statements about recent incidents involving Waller.
The statements described Waller’s confrontations with
Koerner and Craig as well as an incident in which Waller al-
legedly went into the bathhouse and yelled, “fuck all you
fucking scabs!” An employee also gave a statement saying
that Waller threatened him two weeks before the election by
saying, “you better vote UMWA or a scab like you won’t
work here,” but the administrative law judge (“ALJ”) found
that Big Ridge failed to establish by a preponderance of the
evidence that this threat occurred.
    Gossman discussed his findings with Thomas Benner,
Vice President of Underground Operations in the Midwest.
Benner authorized Gossman to discharge Waller, instructing
him to first offer Waller an opportunity to deny or explain
the allegations. Prior to meeting with Waller, Gossman
drafted a termination letter. On May 27, one week after the
election, Gossman interviewed Waller. Waller denied threat-
ening Koerner, yelling “fuck all you scabs” in the bathhouse,
and telling an employee “you better vote UMWA or a scab
like you won’t work here anymore.” Gossman then termi-
nated Waller’s employment with Big Ridge. Prior to his dis-
charge, Waller had not been disciplined for any infraction
during his seven years of employment with the company.
6                                       Nos. 15-1046, 15-1103

    D. Procedural Background
    On May 26, 2011 Big Ridge filed objections to the election
results, seeking a rerun election. Shortly thereafter, UMWA
filed unfair labor practice charges against Big Ridge. In re-
sponse, the Board issued a complaint alleging numerous vio-
lations of §§ 8(a)(1) and 8(a)(3) of the Act. The Board consol-
idated the cases and directed a hearing.
    After a hearing, the ALJ issued a decision and recom-
mended order. The ALJ determined that Big Ridge’s election
objections should be overruled and that UMWA should be
certified as Big Ridge employees’ exclusive bargaining repre-
sentative. The judge further found that Big Ridge violated
§ 8(a)(1) by threatening employees with mine closure, job
loss, and other unspecified reprisals because of their union
support and by promising benefits to employees for oppos-
ing UMWA. The judge also found that Big Ridge violated
§§ 8(a)(1) and 8(a)(3) by discharging Waller because of his
union support. The Board agreed and issued an order (“the
2012 Decision and Order”) affirming the ALJ’s decision and
adopting his recommended order.
    Following the 2012 Decision and Order, Big Ridge peti-
tioned for review and the Board cross-applied to this Court
for enforcement of the order. Big Ridge challenged the
Board’s authority to issue the order, arguing that the Board
lacked a quorum because three of the Board’s five members
were improperly appointed under the Recess Appointments
Clause of the Constitution. On June 26, 2014, the Supreme
Court issued its decision in N.L.R.B. v. Noel Canning, which
held that three recess appointments to the Board were inva-
lid under the Recess Appointments Clause. 134 S. Ct. 2550,
2578 (2014). Based on this decision, we issued an order on
Nos. 15-1046, 15-1103                                                  7

July 2, 2014 granting the petition for review, vacating the
Board’s order, and denying the cross-application of the
Board for enforcement of its order. We later denied the
Board’s motion to remand.
    In October 2014, the Board considered the case anew
with a validly constituted Board. Two months later, the
Board issued another decision and order (“the 2014 Decision
and Order”), which incorporated by reference the 2012 Deci-
sion and Order. The Board first found that it could consider
the case anew after this Court denied enforcement because
“[t]he clear import of the court’s denial of enforcement,
along with the Supreme Court’s Noel Canning decision, is
that no validly constituted Board has ruled on [the merits of
the case].” The Board then considered the case de novo and
adopted the ALJ’s recommended order, finding that Big
Ridge violated §§ 8(a)(1) and 8(a)(3). The 2014 Decision and
Order requires Big Ridge to cease and desist from unfair la-
bor practices, to make Waller whole for any lost earnings or
other benefits, and to compensate Waller for any excess fed-
eral and state income taxes he may owe as a result of receiv-
ing a lump sum back pay award.1
   Big Ridge filed a petition for review, arguing that the
Board lacked jurisdiction to issue the 2014 Decision and Or-
der and that even if the Board did have jurisdiction, the
Board erred in holding that Big Ridge violated § 8(a)(3) of



    1 The order contains additional requirements, such as requiring Big
Ridge to offer Waller full reinstatement of his former job, but those re-
quirements are no longer relevant because the Willow Lake coal mine
has since closed.
8                                           Nos. 15-1046, 15-1103

the Act by discharging Waller. The Board filed a cross-
application to enforce its order.
                           II. Discussion
    A. Jurisdiction
    We review de novo the Board’s interpretation of this
Court’s July 2 order vacating the Board’s order for lack of a
quorum. See Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550
U.S. 618, 642 n.11 (2007) (“Agencies have no special claim to
deference in their interpretation of our decisions.”), supersed-
ed by statute on other grounds, Lilly Ledbetter Fair Pay Act of
2009, U.S. Pub. L. No. 111-2, 123 Stat. 5 (2009). After the Su-
preme Court’s decision in Noel Canning, we vacated the
Board’s order and denied the cross-petition of the Board for
enforcement because of the absence of a lawfully appointed
quorum. We denied the Board’s motion to remand because,
at that time, there was no properly constituted Board to
which we could remand the proceedings. We expected the
Board to consider the case anew once it regained a quorum,
just as the Eighth Circuit did in an analogous case. See
N.L.R.B. v. Whitesell Corp., 638 F.3d 883, 889 (8th Cir. 2011)
(noting that the court “expected that the Board would visit
the merits of this case again”). Thus, we hold that the Board
had jurisdiction to consider the case anew with a properly
constituted Board.
    This decision is in conformity with the decisions of our
sister circuits that have considered this issue. In Whitesell, the
Eighth Circuit held that its prior decision denying both the
Board’s application for enforcement and motion to remand
did “not preclude the Board, now properly constituted, from
considering this matter anew and issuing its first valid deci-
Nos. 15-1046, 15-1103                                        9

sion.” 638 F.3d at 889. We are also guided by the analysis of
Huntington Ingalls Inc. v. N.L.R.B., in which the Fourth Cir-
cuit held that the Board properly considered a case anew af-
ter the court had denied enforcement of the earlier Board or-
der based on Noel Canning and had not explicitly remanded
the proceedings back to the Board. —F. App’x—, No. 14-
2051, 2015 WL 7423185, at *1, *3 (4th Cir. Nov. 23, 2015) (per
curiam). The Fourth Circuit noted that “[a] decision finding
the lack of a proper quorum clearly contemplates further
Board action, and, thus, the Board here did not err when it
revisited [the] challenges to the union elections.” Id. at *3.
    Big Ridge argues that under § 10(e) of the Act, the Board
lacked jurisdiction to enter the 2014 Decision and Order be-
cause when a Board order is challenged in a federal appel-
late court, the Board loses jurisdiction over the proceeding.
Under § 10(e), the Board has “power to petition any court of
appeals … for the enforcement of [its orders] … .” § 10(e), 29
U.S.C. § 160(e). This section requires that after filing such a
petition, the Board “shall file in the court the record in the
proceedings … .” Id. Once the record is filed, “the jurisdic-
tion of the court shall be exclusive and its judgment and de-
cree shall be final … .” Id. In other words, Big Ridge con-
tends that our order was a final one that deprived the Board
of jurisdiction over future proceedings.
    We disagree. Our July 2 order was final only with respect
to the matter we actually decided: that the Board lacked a
“lawfully appointed quorum” when it issued the 2012 Deci-
sion and Order. See Whitesell, 638 F.3d at 889; Exxon Chem.
Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475, 1478 (Fed. Cir.
1998) (noting the general rule that “an appellate mandate
governs only that which was actually decided”). Since we
10                                       Nos. 15-1046, 15-1103

based our July 2 order denying enforcement only on the Su-
preme Court’s Noel Canning decision, we did not reach the
merits of the unfair labor practices issue. Thus, the Board
was not precluded from conducting further proceedings and
having a properly constituted Board decide the case on the
merits. Additionally, we note that construing our July 2 or-
der as precluding further Board proceedings would result in
injustice because the parties would never receive a decision
by a properly constituted Board. See Bailey v. Henslee, 309
F.2d 840, 844 (8th Cir. 1962) (noting that a “mandate is to be
interpreted reasonably and not in a manner to do injustice”
(internal citation and quotation marks omitted)).
    Big Ridge relies on several cases to support its argument
that the Board lacked jurisdiction to consider the case anew.
However, all of these cases can be distinguished because
they deal with appellate court rulings on the merits, whereas
Whitesell, Huntington Ingalls, and the case at hand involve
denials of enforcement due to lack of a quorum. For exam-
ple, in Int’l Union of Mine, Mill & Smelter Workers, Locals No.
15 v. Eagle-Picher Mining & Smelting Co., nearly two years af-
ter the Eighth Circuit granted enforcement of the Board’s or-
der, the Board petitioned the court to vacate the portion of its
decree that dealt with the award of back pay and to remand
so the Board could use a different method of calculating
back pay. 325 U.S. 335, 337 (1945). The Supreme Court held
that the Board could not recall the proceeding from the court
and “start afresh as if the enforcement decree had never been
entered.” Id. at 340. The scenario before us now is very dif-
ferent from that of Eagle-Picher. We did not decree enforce-
ment of the Board’s order, but rather vacated the order be-
cause of the absence of a lawfully appointed quorum. Unlike
in Eagle-Picher, the Board here did not try to alter an en-
Nos. 15-1046, 15-1103                                        11

forcement decree that was already final. Instead, it properly
ruled on the merits of the case for the first time. Cf. N.L.R.B.
v. Lundy Packing Co., 81 F.3d 25, 26 (4th Cir. 1996) (holding
that after the court denied the Board’s petition for enforce-
ment on the merits, the Board could not reopen the case ab-
sent a remand); W.L. Miller Co. v. N.L.R.B., 988 F.2d 834, 837
(8th Cir. 1993) (holding that the Board did not have jurisdic-
tion to impose a remedy which went beyond that in its orig-
inal order after the Eighth Circuit had already enforced the
Board’s order).
    We now address the merits of the Board’s decision for the
first time.
   B. Merits
    Big Ridge does not challenge the § 8(a)(1) violations
found by the Board, including threats of mine closure and
job loss for supporting the union. Thus, the Board is entitled
to summary affirmance and enforcement of these uncontest-
ed parts of its order. See § 10(e) (“No objection that has not
been urged before the Board … shall be considered by the
court, unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances.”);
N.L.R.B. v. Somerville Constr. Co., 206 F.3d 752, 756 (7th Cir.
2000) (summarily enforcing the Board’s order since the com-
pany “never filed any exceptions with the [Board] concern-
ing the ALJ’s finding”). These uncontested violations also
“color our analysis of [Waller]’s discharge.” Uniroyal Tech.
Corp. v. N.L.R.B., 151 F.3d 666, 667–68 (7th Cir. 1998) (“[A]
company that does not dispute its responsibility for multiple
prohibited practices is more likely to have engaged in an ad-
ditional one than a company which has not been found to
have engaged in any other prohibited practice.”).
12                                        Nos. 15-1046, 15-1103

   Big Ridge argues that the Board erred in holding that the
company violated § 8(a)(3) of the Act by discharging Waller
because of his union support. According to Big Ridge, the
company discharged Waller because his threatening conduct
presented serious safety concerns.
    Sections 8(a)(1) and 8(a)(3) protect the rights in § 7 of the
Act. Section 7 guarantees employees the right to “form, join,
or assist labor organizations … for the purpose of collective
bargaining … .” § 7, 29 U.S.C. § 157. Section 8(a)(1) makes it
an unfair labor practice for an employer to “interfere with,
restrain, or coerce employees in the exercise” of the rights
guaranteed under § 7 of the Act. Section 8(a)(3) further safe-
guards these rights by making it an unfair labor practice for
an employer to use employment discrimination “to encour-
age or discourage membership in any labor organization
… .” Thus, an employer violates §§ 8(a)(1) and 8(a)(3) by dis-
charging an employee because of his union activity. See Fed-
Ex Freight East, Inc. v. N.L.R.B., 431 F.3d 1019, 1025 (7th Cir.
2005).
    We will enforce the Board’s order finding that Big Ridge
violated § 8(a)(3) by discharging Waller if the Board’s “factu-
al findings are supported by substantial evidence and its
conclusions have a reasonable basis in the law.” Id. (citation
omitted); see also § 10(e). Where the Board adopts the ALJ’s
findings of facts and conclusions of law, we review the ALJ’s
determinations. FedEx Freight East, 431 F.3d at 1026. “Dis-
cerning an employer’s motivation is a question of fact,” so
we apply the substantial evidence test. Rochelle Waste Dispos-
al, LLC v. N.L.R.B., 673 F.3d 587, 597 (7th Cir. 2012). “The sub-
stantial evidence test requires not the degree of evidence
which satisfies the court that the requisite fact exists, but
Nos. 15-1046, 15-1103                                           13

merely the degree that could satisfy the reasonable fact find-
er.” Id. at 592 (citation and internal quotation marks omit-
ted).
    To evaluate an employer’s motivation in unlawful dis-
crimination cases, this Court has adopted the two-step ana-
lytical framework set forth in N.L.R.B. v. Wright Line v. Lam-
oureux, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st
Cir. 1981). See, e.g., FedEx Freight East, 431 F.3d at 1025 (ap-
plying the Wright Line test); Int’l Union of Operating Engineers,
Local 150 v. N.L.R.B., 325 F.3d 818, 831–32 (7th Cir. 2003)
(same). Under Wright Line, the first step is to consider
whether the Board has shown that antiunion animus was a
substantial or motivating factor in the discharge. Int’l Union
of Operating Engineers, 325 F.3d at 826 n.11. To make such a
showing, the Board must prove, by a preponderance of the
evidence, that “(1) the employee engaged in a protected ac-
tivity; (2) the decisonmaker knew it; and (3) the employer
acted because of antiunion animus.” FedEx Freight East, 431
F.3d at 1025 (quoting Ryder Truck Rental v. N.L.R.B, 401 F.3d
815, 825 (7th Cir. 2005) (internal quotation marks omitted)).
    Once the Board makes the requisite showing for step one
of the Wright Line analysis, we turn to step two: The burden
shifts to the company to “either rebut that evidence or
mount an affirmative defense that the company would have
taken the same action despite the employee’s protected activ-
ities.” Id. at 1025 (citation and internal quotation marks omit-
ted). “[A]n employer’s explanation need not be accepted if
there is a reasonable basis for believing it furnished the ex-
cuse rather than the reason for [the] retaliatory action.”
Justak Bros. & Co., Inc. v. N.L.R.B., 664 F.2d 1074, 1077 (7th Cir.
1981) (citation and internal quotation marks omitted).
14                                      Nos. 15-1046, 15-1103

      1. Wright Line Step 1: Antiunion Animus Was A Moti-
         vating Factor in the Discharge
   Three factors support the Board and ALJ’s finding that
antiunion animus motivated Waller’s discharge. First, it is
undisputed that Waller engaged in protected activity by
openly and actively supporting UMWA. He frequently wore
a UMWA shirt to and from work, put UMWA stickers on his
hardhat, distributed UMWA stickers to other employees, and
wrote and sang a derogatory song about those who opposed
the union. Thus, substantial evidence supports the Board
and ALJ’s determination that Waller was an outspoken union
supporter.
    Second, there is substantial evidence supporting the
Board and ALJ’s conclusion that Gossman and Benner, the
decisonmakers for Waller’s discharge, were aware of Waller’s
union support prior to terminating him. Big Ridge’s preelec-
tion polls, which Gossman kept in his desk, identified Waller
as prounion, and Gossman collected several statements re-
garding Waller’s union conduct and reviewed them with
Benner. Benner also admitted that he was aware of Waller’s
union support.
    Third, Big Ridge’s antiunion animus is well established
by the record. Big Ridge does not challenge the Board and
ALJ’s determination that the company violated § 8(a)(1) by
threatening employees with mine closure and job loss if they
chose union representation and promising benefits if they
opposed UMWA. Big Ridge argues that the Board and ALJ
did not make any finding that Gossman and Benner specifi-
cally harbored antiunion animus. However, even without
this specific finding, there is substantial circumstantial evi-
dence that Big Ridge’s antiunion animus motivated the deci-
Nos. 15-1046, 15-1103                                         15

sion to discharge Waller. See Van Vlerah Mech., Inc. v. N.L.R.B.,
130 F.3d 1258, 1264 (7th Cir. 1997) (noting that the Board is
entitled to rely on inferences drawn from circumstantial evi-
dence).
    The timing of Waller’s discharge and his past perfor-
mance at the mine support a finding of antiunion motiva-
tion. Big Ridge terminated Waller the day after it filed its ob-
jections to the election and several days after Gossman col-
lected statements describing Waller’s alleged confrontations
with other employees about supporting the union. During
his seven years of employment at the company, Waller had
never been called into the office or disciplined. See Uniroyal
Tech. Corp., 151 F.3d at 668 (noting that union activist’s
“glowing performance reviews” and willingness to fill in on
overtime shifts factored into the analysis of whether union
activity was a motivating factor in discharge). The ALJ found
that Waller was “by all accounts … a good employee” and
that he was “hard-working, experienced, dependable, well-
liked, and willing to fill in on his days off.”
       2. Wright Line Step 2: Affirmative Defense
    Turning to the second step of the Wright Line analysis, the
burden shifts to Big Ridge to show that it would have dis-
charged Waller despite his union activity. Big Ridge argues
that after conducting an investigation, it determined that
Waller “1) had refused to stop his ram car when Koerner
signaled him to do so; 2) endangered Koerner with a ram
car; 3) threatened that ‘[Koerner] could flag him as much as
[he] wants, [he’s] not going to stop’ and that ‘he wouldn’t
stop for nothing;’ 4) failed to follow [Big Ridge and the Mine
Safety and Health Administration]-mandated safety proce-
dures; and 5) engaged in a pattern of escalating threatening
16                                      Nos. 15-1046, 15-1103

behavior.” Thus, Big Ridge claims that it had “no choice but
to terminate Waller’s employment.” Though Big Ridge at-
tempts to provide five distinct reasons for discharging Wal-
ler, they all relate to one incident: Waller’s dispute with
Koerner. The Board and ALJ properly found that this was a
pretextual justification for the termination.
    The Board and ALJ concluded that Big Ridge never really
believed that the incident with Koerner was anything more
than a routine workplace disagreement and that the incident
“had nothing to do with threatening to run over or ‘kill’ an-
yone, because the car was already stopped … .” We owe par-
ticular deference to the Board’s credibility determinations
and will only disturb them in “extraordinary circumstanc-
es.” SCA Tissue N. Am. LLC v. N.L.R.B., 371 F.3d 983, 988 (7th
Cir. 2004). Since Waller ignored a signal to stop dumping
coal—not a signal to stop driving the ram car—he did not
place Koerner in danger of being run over. Additionally,
when Koerner was trained as a feeder-watcher, he was
warned that some drivers would continue to dump coal even
when a feeder-watcher signaled them to stop.
    Big Ridge attempts to frame Waller’s discharge as part of
its great concern for safety after a miner was struck and
killed by a ram car in 2010. However, there is substantial ev-
idence that heated arguments in which employees threat-
ened to physically injure each other were common and tol-
erated at the mine. In 2010, an employee admitted to threat-
ening to shoot another employee yet was never disciplined.
In 2011, an employee threatened another employee with
physical violence in front of a Section Foreman but was not
disciplined. Even when two employees engaged in physical
confrontations with other employees in 2011, they were
Nos. 15-1046, 15-1103                                         17

merely suspended. Given the context of the workplace cul-
ture, substantial evidence supports the Board and ALJ’s deci-
sion to reject as pretextual Big Ridge’s claim that it would
have discharged Waller regardless of his union activity.
    Two additional facts support the rejection of Big Ridge’s
affirmative defense. First, after the incident between Waller
and Koerner on May 20, Waller continued working in the
mines and was permitted to pick up additional shifts prior to
his termination on May 27. If Waller was truly seen as a
threat to the miners’ safety, it would have been reasonable to
stop Waller from returning to the workplace immediately
after the incident. Additionally, Gossman wrote Waller’s
termination letter before interviewing Waller about his al-
leged behavior, which is further evidence that Big Ridge did
not thoroughly investigate the incident with Koerner before
deciding to terminate Waller. See Jet Star, Inc. v. N.L.R.B., 209
F.3d 671, 676–77 (7th Cir. 2000) (finding stated reason for
employee’s discharge—abuse of equipment—pretextual, and
finding discharge motivated by antiunion animus where su-
pervisors allowed employee to continue working after ob-
serving employee abusing company truck, other employees
who damaged company trucks were not fired, and employee
was never formally reprimanded for abusing the trucks and
was discharged without an investigation into the reported
misconduct).
   Thus, under the Wright Line analysis, the Board has
shown by a preponderance of the evidence that antiunion
animus was a motivating factor in Waller’s discharge, and
Big Ridge has not met its burden to show that it would have
discharged Waller despite his union activities.
18                                    Nos. 15-1046, 15-1103

                       III. Conclusion
    For the foregoing reasons, we DENY Big Ridge’s petition
for review and GRANT the Board’s cross-application for en-
forcement.
Nos. 15-1046, 15-1103                                        19

    MANION, Circuit Judge, concurring in part and dissenting
in part.
    I agree that the Big Ridge litigation was properly before
the Board a second time, but for different reasons than the
court articulates. When this case was previously before us,
we issued a final judgment on July 2, 2014, vacating the
Board’s orders. Big Ridge, Inc. et al. v. N.L.R.B., No. 12-3120,
Doc. 72. Our mandate followed on August 25. Doc. 76. The
mandate, which is by its nature an order directing the Board
to act on the final judgment, implicitly remanded the case.
    On the merits, I dissent. The Board cherry-picked the ev-
idence supporting its theory of anti-union animus. It ignored
the recent death of the miner who was crushed by a ram car,
the Mine Safety and Health Administration (MSHA) di-
rective to install feeder watchers, and the need for ram driv-
ers like Wade Waller to follow feeder watchers’ directions.
The Board failed to recognize the fact that Big Ridge was try-
ing to comply with MSHA’s orders, which were designed to
prevent yet another miner from being crushed by the ram
cars. Instead, the Board recharacterized feeder watcher
Ronald Koerner’s serious concerns about Waller’s statements
and actions as a simple disagreement over whether the feed-
er would gob up. Under this reading, it was a disagreement
that did not “have anything to do with ‘safety.’” Big Ridge,
Inc. et al., 358 N.L.R.B. No. 114 (Aug. 31, 2012). To get this
reading, the Board also had to ignore evidence that Waller
chose to disobey all of Koerner’s signals that night.
   Further, the Board failed to connect its generalized find-
ings that Big Ridge had anti-union animus with any specific
finding that officials involved in disciplining and terminat-
ing Waller had animus. The Board’s decision was concerned
20                                        Nos. 15-1046, 15-1103

with officials who were never involved in terminating Wal-
ler. It never indicated that the officials involved in terminat-
ing Waller were influenced at all by anti-union animus. It is
not our place to create that connection and find that animus.
     In short, the Board’s decision lacks substantial evidence.
