                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 03-2508 & 03-2912
SCA TISSUE NORTH AMERICA LLC,
                                Petitioner-Cross-Respondent,
                               v.


NATIONAL LABOR RELATIONS BOARD,
                                Respondent-Cross-Petitioner.

                        ____________
    Petition for Review and Cross-Application for Enforcement
        of an Order of the National Labor Relations Board.
                         No. 28-CA-17548
                        ____________
    ARGUED JANUARY 20, 2004—DECIDED JUNE 15, 2004
                    ____________



 Before CUDAHY, KANNE, and EVANS, Circuit Judges.
   KANNE, Circuit Judge. SCA Tissue North America LLC
fired union supporter Frederick Sandoval on September 24,
2001. The company claimed the termination stemmed from
Sandoval’s violation of SCA’s “Code of Conduct” policy
when, on two consecutive mornings, he left work three
hours early without management’s permission. The Na-
tional Labor Relations Board (“NLRB” or “Board”) dis-
agreed, finding that SCA acted out of anti-union animus in
2                                    Nos. 03-2508 & 03-2912

violation of §§ 158(a)(1) and (3) of the National Labor
Relations Act, 29 U.S.C. §§ 151 et seq. (“NLRA” or “Act”). It
ordered Sandoval reinstated and made whole for lost
earnings and benefits, required that his employment record
be expunged of any reference to the discharge, and directed
SCA to post a notice to its employees that it will respect
their rights under the Act. SCA petitioned this court for
review of the Board’s order, and the Board cross-petitioned
for enforcement of its decision. Because the Board’s deter-
mination is supported by substantial evidence, we deny
SCA’s petition for review and enforce the Board’s order.


                      I. Background
  SCA manufactures paper products for commercial use.
Sandoval began his employment with SCA in 1995, soon
after it opened its Bellemont, Arizona plant.1 He started as
a machine operator and was eventually moved to a main-
tenance mechanic position in May of 2000, which he held
until his termination in September of 2001. As a main-
tenance mechanic, he repaired machines and performed
preventative maintenance on SCA’s equipment. His per-
sonnel file reflected some performance problems early in his
career with SCA, but the last documented occurrence
happened in January of 1999, over two-and-a-half years
prior to his termination and before he obtained the mainte-
nance mechanic position. None of the prior issues appeared
to have resulted in formal discipline, and Sandoval was
considered a good employee. At all times relevant here,
Dave Stievo, the maintenance manager, was Sandoval’s
immediate supervisor.


1
  Although the unfair labor practice of which Sandoval com-
plained occurred in Arizona, the company’s headquarters are
located in Neenah, Wisconsin. We thus have jurisdiction under 29
U.S.C. § 160(f).
Nos. 03-2508 & 03-2912                                      3

  In September of 2000, the Paper, Allied-Industrial,
Chemical, and Energy Workers International Union
(“PACE” or “union”) initiated an organizing drive at SCA’s
Bellemont location. Sandoval strongly supported unioni-
zation and furthered the effort by passing out fliers and
union authorization cards to fellow workers, attending
organizational meetings, and discussing the merits of un-
ionization with co-workers. Upon receiving notification that
the union had enough support to hold a representation
election, the company launched a vigorous counter cam-
paign in an attempt to defeat PACE. SCA succeeded. The
employees voted against union representation eighty-two to
twenty-two in the election held December 1 and 2, 2000.
  Sandoval was disappointed by the defeat, but understood
that, according to the applicable labor law, another election
could be held after one year. In the interim, he continued to
vocally support unionization and press his fellow employees
not to make the same mistake in the next election.
  SCA operates around the clock, seven days a week.
Maintenance employees, like Sandoval, typically work
twelve-hour shifts, either 6:00 a.m. to 6:00 p.m. (“days”) or
6:00 p.m. to 6:00 a.m. (“nights”). Sandoval worked days. In
the fall of 2001, the company planned to put a member of
the night-shift maintenance crew on a special day-shift
assignment for about six weeks. To cover the twenty shifts
left vacant by the temporary reassignment, Stievo deter-
mined that four day-shift workers, including Sandoval,
would take five night shifts apiece. Although Sandoval was
supposed to work 6:00 p.m. to 6:00 a.m. when he covered
the night shift, he had already registered for a special elec-
trical course promoted by the company. To accommodate his
night class, which ran from approximately 6:00 p.m. to 8:45
p.m., Stievo agreed that Sandoval could work 9:00 p.m. to
9:00 a.m.
  Sandoval began his first night shift (which started the
evening of September 18, 2001 and concluded the morning
4                                       Nos. 03-2508 & 03-2912

of September 19, 2001) at 9:00 p.m. after attending class.
Around 4:00 a.m., he approached the night supervisor, team
leader Laura Bliss, and told her that he was tired, felt
“unsafe” to work in that condition,2 and asked to go home.
Bliss did not give him permission to leave, instead directing
him to wait in the lunchroom for Stievo to arrive for work.
Sandoval waited, periodically checking for Stievo, but by
6:00 a.m. he had not yet arrived and Bliss had left for the
day. A member of the day-shift maintenance crew, Mike
Moberly, who reported for work at 6:00 a.m., caught sight
of Sandoval. Moberly commented that Sandoval looked tired
and told him to go home, since the floor would be covered
now that the day shift was starting (this is a paraphrase, as
Moberly spoke to Sandoval in far more colorful terms).
Considering he had “coverage” and that Stievo still had not
arrived, Sandoval clocked out and left. As he was driving
out, Stievo drove in. Sandoval waved, and Stievo waved
back. Stievo, who didn’t recall seeing Sandoval leave,
testified that he did not realize Sandoval clocked out early
the morning of September 19, 2001 and did not miss him on
the floor.
  Sandoval reported for his next shift (beginning the even-
ing of September 19 and concluding the morning of Septem-
ber 20) after class at 9:00 p.m. as scheduled. After arriving,
he was approached by fellow maintenance employee Dan
Harbottle. Although Harbottle usually worked 9:00 a.m. to
9:00 p.m., he informed Sandoval that he would come in at
6:00 a.m. if Sandoval wanted to leave early. Sandoval
agreed. He again clocked out at 6:00 a.m. when the day
shift reported and before Stievo arrived. He did not seek
Bliss’s or any other supervisor’s permission to leave. As


2
   The Bellemont plant’s general manager, Mike Graverson, had
informed employees at a safety meeting earlier that month that
if anyone felt unsafe performing a specific duty, they should refuse
to do so and inform a supervisor.
Nos. 03-2508 & 03-2912                                     5

Sandoval was leaving, he spoke with the regularly sched-
uled day-shift worker, Dave Hetzler. Hetzler warned
Sandoval that he could get in trouble for leaving early
without permission, but Sandoval replied that he was too
tired to stay, that he could afford an “occurrence” under the
company’s attendance policy as he had no prior attendance
issues, and that there was plenty of coverage since Hetzler
and Harbottle were both on the floor.
  That morning, September 20, 2001, another maintenance
employee informed Stievo that Sandoval left work early
that day and the day before. Stievo investigated by inter-
viewing Moberly and Hetzler and by checking the time clock
and gate log entries. He did not contact Sandoval. After
confirming that Sandoval did leave early on September 19
and 20 and after discussing the issue with the company’s
on-site human resources generalist, Beth Moser, and with
general manager Graverson, Stievo decided that Sandoval’s
actions constituted a terminable offense under SCA’s “Code
of Conduct” policy, as opposed to an attendance issue. Un-
der the “Code of Conduct” policy, progressive discipline,
although the norm, could be bypassed if an offense was
serious enough. In contrast, offenses falling under SCA’s
separate attendance policy were always subject to progres-
sive discipline.
  Stievo and Moser met with Sandoval on September 24,
2001 after he reported to work on his regular day shift.
Stievo told Sandoval that he was terminating him for job
abandonment because he left work early two days in a row
without permission. Sandoval protested that he did not
abandon his job, that he had coverage both days, and that
he had spoken to Bliss the first day about needing to leave
and why. Since Stievo had not interviewed Bliss, he decided
to reserve judgment on the termination until after he spoke
with her. He sent Sandoval home and told him he would
call him with his decision after he contacted Bliss. Stievo
then reached Bliss at home and asked her if she had given
6                                      Nos. 03-2508 & 03-2912

Sandoval permission to leave, which she denied. She did
confirm, though, that Sandoval approached her about being
tired and needing to go home. According to Stievo, he now
believed Sandoval lied about receiving permission from
Bliss.3 Stievo felt the termination for job abandonment was
warranted, and he telephoned Sandoval with the news.
  Sandoval later arranged to return to the plant to re-
trieve his personal effects. As he was walking through the
plant, escorted by Stievo, he removed his jacket to reveal
his T-shirt, which was bright red with the words “Work
Union” printed on the back in five-inch white letters. Stievo
demanded that Sandoval put his jacket back on, which
Sandoval ignored. After Sandoval reached his toolbox to
collect his property, Stievo made a comment about
Sandoval’s “attitude.”
  On October 30, 2001, PACE filed an unfair labor practice
charge against SCA as a result of Sandoval’s termination.
Based on the charge, the Board issued a complaint against
SCA on December 26, 2001. The case was heard by an
administrative law judge (“ALJ”), who found against the
company on August 22, 2002. SCA filed exceptions to the
ALJ’s decision, and the Board affirmed the ALJ’s determi-
nations (with minor changes, which will be discussed as
necessary below) and adopted his recommended order on
April 30, 2003. This appeal followed.



3
  Moser and Stievo both testified that Sandoval specifically stated
in the termination meeting that he had received “permission” from
Bliss to leave. Sandoval denied ever making such a statement and
testified that he told them only that he talked to Bliss about
needing to leave because he was tired and felt unsafe. The
administrative law judge hearing the matter credited Sandoval’s
testimony over the company’s. The Board did not disturb this
credibility finding and neither will we.
Nos. 03-2508 & 03-2912                                      7

                       II. Analysis
   Our review of an NLRB decision is circumscribed: we
apply the substantial evidence test to the Board’s factual
findings and review its legal conclusions for a reasonable
basis in law. Sears, Roebuck & Co. v. NLRB, 349 F.3d 493,
502 (7th Cir. 2003). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support the conclusion of the Board.” Huck Store Fixture Co.
v. NLRB, 327 F.3d 528, 533 (7th Cir. 2003). “At this stage,
we must not ‘dabble in fact-finding and may not dispute
reasonable determinations simply because we would have
come to a different conclusion if we reviewed the case de
novo.’ ” Id. (quoting Livingston Pipe v. NLRB, 987 F.2d 422,
426 (7th Cir. 1993)); see also Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951) (noting that a reviewing
court may not “displace the Board’s choice between two
fairly conflicting views, even though the court would jus-
tifiably have made a different choice had the matter been
before it de novo”). We owe particular deference to the
Board’s credibility determinations, which we will disturb
only in “extraordinary circumstances.” Sears, Roebuck &
Co., 349 F.3d at 503. Where the Board adopts the ALJ’s
findings of fact and conclusions of law, it is the ALJ’s de-
terminations that we review. See id. at 508.
  The NLRA guarantees employees’ rights to form, join or
assist labor organizations and to engage in activities for the
purpose of collective bargaining. See 29 U.S.C. § 157; Huck
Store Fixture Co., 327 F.3d at 533. Here, the Board found
SCA violated § 158(a)(1), which makes it unlawful for
employers to “interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in [§ 157].” It also
determined SCA violated § 158(a)(3), which prohibits
employers from taking adverse actions against employees
to discourage them from engaging in union activities, Huck
Store Fixture Co., 327 F.3d at 533.
8                                       Nos. 03-2508 & 03-2912

  If SCA fired Sandoval because of his union activities, it
triggers liability under both §§ 158(a)(1) and (3). Sears,
Roebuck & Co., 349 F.3d at 503 (citing Jet Star, Inc. v.
NLRB, 209 F.3d 671, 675 (7th Cir. 2000)). To establish a
prima facie case of discrimination, the General Counsel,
responsible for prosecuting complaints before the Board,
bears the burden of showing: “(1) that the employee en-
gaged in a protected activity; (2) the decisionmaker knew it;
and (3) the employer acted because of anti-union animus.”
Id. If the General Counsel succeeds, the company must
either rebut that evidence or mount an affirmative defense
that the company would have taken the same action despite
the employee’s protected activities, as outlined in the
seminal case Wright Line, a Division of Wright Line, Inc.,
251 NLRB 1083 (1980), approved by NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
Sears, Roebuck & Co., 349 F.3d at 504.


A. Prima Facie Case
  The company concedes the first two elements of the prima
facie case—that Sandoval engaged in protected activity and
Stievo knew it.4 Instead, it asserts that the Board wrongly
determined that SCA acted because of anti-union animus.
We note that discerning an employer’s motivation is a
question of fact, and, as with other factual findings made by
the Board, its determination is conclusive if supported by
substantial evidence, either direct or circumstantial. See


4
  Despite the company’s clear concession of the first two prima
facie elements in its opening brief, it goes on to argue in its reply
that the decisionmaker, Stievo, was unaware of Sandoval’s union
activities. It was wholly improper for SCA to do so, and we con-
sider that argument waived. See Marie O. v. Edgar, 131 F.3d 610,
614 n.7 (7th Cir. 1997) (“We do not consider arguments raised for
the first time in the reply brief.”).
Nos. 03-2508 & 03-2912                                      9

NLRB v. So-White Freight Lines, Inc., 969 F.2d 401, 408
(7th Cir. 1992).
  The Board pointed specifically to four incidents that
revealed SCA’s intent to terminate Sandoval because of his
protected activity: (1) plant manager Graverson’s warning
to all employees during the 2000 campaign that they could
not talk about the union on the shop floor; (2) Stievo’s order
to Sandoval, again during the 2000 campaign, to remove his
union button because it ostensibly violated SCA’s “no
jewelry” policy; (3) Stievo’s order to Sandoval after his
termination to cover up his union T-shirt as they walked
through the shop; and (4) Stievo’s parting comment about
Sandoval’s “attitude.” The Board did not rely, as did the
ALJ, on the fact that the company hired a consultant to
help it with its counter campaign, that Graverson broke
down in tears during a meeting with employees during
the campaign, or that Sandoval’s termination took place
shortly before another union election could be held.
  As to the Board’s first two points, Graverson and Stievo
both admitted that they probably took the actions attrib-
uted to them during the campaign. SCA argues, though,
that instructing employees not to discuss the union while on
the floor and refusing to allow union buttons were simply
applications of uniformly enforced policies prohibiting non-
work-related conversations and jewelry. We agree that
uniform application of neutral work rules generally would
not enlighten the Board as to a company’s motivation for
terminating an employee. Yet, SCA failed to convince the
Board that it uniformly applied the rules; rather, the Board
adopted the ALJ’s determinations that the ban on non-
work-related conversations did not actually exist and that
the no-jewelry policy had never been enforced, at least with
respect to wedding rings, watches, and SCA pins.
  Our review of the record convinces us that the Board
based these determinations on substantial evidence. Nei-
10                                  Nos. 03-2508 & 03-2912

ther policy was uniformly enforced, if enforced at all, prior
to or after the campaign. The Board was entitled to rely on
these instances of selective policy application as evidence of
anti-union animus. Assuming that the union knew about
management’s unrefuted actions during the campaign, it
could have brought unfair labor practice charges for
Graverson’s prohibition on union-related conversations and
Stievo’s insistence that Sandoval remove his union button.
Both likely violated the NLRA and thus demonstrated
animus. See, e.g., Atlas Metal Parts Co., Inc. v. NLRB, 660
F.2d 304, 311 (7th Cir. 1981) (prohibition on talking about
union on shop floor violated § 158(a)(1) of the Act); NLRB
v. Shelby Mem’l Hosp. Ass’n, 1 F.3d 550, 564-65 (7th Cir.
1993) (ordering employees to remove union patches based
on uniform policy not previously enforced violated
§ 158(a)(1)). Although the time frame for bringing unfair
labor practice charges for events occurring during the 2000
campaign actions has long since passed, the Board could
consider the incidents in its attempt to unearth the true
motivation behind Sandoval’s termination. See Local Lodge
No. 1424, Int’l Assoc. of Machinists v. NLRB, 362 U.S. 411,
416 (1960) (noting that events outside the six-month statute
of limitations for bringing unfair labor practice charges may
be used to “shed light on the true character” of occurrences
within the statute of limitations).
   As to the last two instances credited by the Board, SCA
again does not attempt to deny that Stievo did and said the
things attributed to him the day Sandoval came to retrieve
his personal effects. Rather, the company argues that it has
a right to control disruptive outbursts on the production
floor, regardless of their nature, and Stievo’s request that
Sandoval cover his union T-shirt was just that. It also
contends that Stievo’s follow-up comment was innocu-
ous—Stievo, during testimony, described it as an unpro-
voked attempt to give Sandoval some fatherly advice about
life skills in general, which included maintaining a positive
Nos. 03-2508 & 03-2912                                         11

attitude. The Board rejected the company’s position and
adopted the ALJ’s conclusions that Stievo’s demand that
Sandoval cover his shirt demonstrated anti-union animus
and that Stievo’s “attitude” comment was not innocuous,
but directly reflected on his opinion of Sandoval’s pro-union
stance.
   Again, both conclusions are supported by substantial
evidence. Even if we credited Stievo’s account of Sandoval’s
walk through the plant (the ALJ found Stievo generally
incredible), he only describes employees “acknowledging”
Sandoval and Sandoval acknowledging them in return.5
Sandoval testified that only one employee, upon seeing his
shirt, made a comment, which was, “That’s right, Fred.
If we were Union, they couldn’t do that to you.” The scene
described by Stievo and Sandoval does not leave the im-
pression that Sandoval’s behavior created a disturbance
warranting Stievo’s command to cover the shirt—no one
stopped worked, left their machines, began chanting, ap-
plauded, or otherwise threatened chaos. Based on the rec-
ord evidence, the Board could reasonably conclude that
Stievo’s reaction to Sandoval’s shirt revealed Stievo’s intent
to crush union ideation, not to maintain order on the
production floor. The Board could also reasonably conclude
that Stievo’s “attitude” comment, coming as it did on the
heels of Sandoval’s public pro-union display, reflected his
negative opinion of Sandoval’s pro-union stance and was not
an attempt to provide benign fatherly advice.
  SCA argues that events occurring after termination are
insignificant to determining a company’s motivation at the
time of the discharge, and thus the Board should have ig-
nored Stievo’s post-termination behavior. We disagree. See,


5
  Contrary to the representation in its opening brief, there is no
mention in the record that Sandoval pumped his arms in the air
after removing his jacket.
12                                   Nos. 03-2508 & 03-2912

e.g., NLRB v. Rich’s Precision Foundry, Inc., 667 F.2d 613,
619-20, 626 (7th Cir. 1981) (finding employer’s stated rea-
son for employee’s discharge pretextual based in part on
post-termination statement offering employee his former job
back if he would abandon the union). The Board’s con-
sideration of Stievo’s post-termination behavior, and the
inference of anti-union animus drawn therefrom, was
proper.
  To summarize, each instance relied upon by the Board
as evidence of SCA’s anti-union animus finds substantial
support in the record. Taken together, we find that they are
adequate to support the Board’s conclusion that SCA ter-
minated Sandoval because of his protected activities.


B. Affirmative Defense
  The Board adopted in full the ALJ’s determination that
SCA failed to rebut the General Counsel’s prima facie case
or to establish the Wright Line affirmative defense. SCA
argues in response that its stated reason for terminating
Sandoval was not pretextual and that even if Stievo har-
bored anti-union animus, Sandoval would have been ter-
minated anyway under SCA’s policies because he left work
early two days in a row without permission.
  Unfortunately for SCA, the record is replete with exam-
ples of other employees with terrible employment histories
who also committed “Code of Conduct” violations and re-
ceived written warnings or suspensions, as opposed to the
ultimate sanction, termination.6 This led the ALJ, and now


6
  The ALJ noted that no truly analogous situation existed—one
where an employee left without permission two days in a row.
However, he found SCA’s treatment of four other employees, not
known to be union supporters and occurring within the relevant
                                                 (continued...)
Nos. 03-2508 & 03-2912                                          13

leads us, to ponder why SCA repeatedly salvaged employ-
ees’ careers after numerous policy violations but refused to
do so for Sandoval, a good employee with a clean record and
long tenure with the company.
  The ALJ concluded that examples of past leniency, cou-
pled with testimony from management that the company
tried to be flexible and consider mitigating circumstances
when meting out punishment, were simply inconsistent
with SCA’s insistence that Sandoval’s actions warranted
termination. Sandoval, the ALJ noted, was a senior em-
ployee with a spotless attendance record, unlike many of
the non-union supporters who committed comparative of-
fenses but kept their jobs. Looking at the infraction itself,
the ALJ noted that on the two days he left work early,
Sandoval clocked out only after he had coverage, so pro-



6
  (...continued)
time frame, particularly instructive. In one instance, the employee
had repeated attendance problems, bouts of sleeping on the job,
and a positive drug test. He was given at least one “final warning”
before he was ultimately terminated for napping at work. In
another circumstance, an employee with past attendance prob-
lems and safety violations received a one-week suspension for
fraudulently listing his girlfriend and her daughter as dependents
for insurance purposes even though he was still married to
another woman. The company planned to fire him, but backed
down after he explained that he mistakenly believed he had a
right to list his girlfriend as his wife. In still another case, an
employee with far less seniority than Sandoval was cited for
poorly maintained equipment, attitude problems, and a “no call no
show.” Despite this deeply flawed employment record, including
his failure to show up at work at all on one occasion, he received
no greater discipline than a written warning. Finally, the ALJ
noted a fourth employee who sexually harassed female employees,
called a shift leader a foul name in front of other employees, and
made a racist remark, but ultimately received only a written
reprimand.
14                                  Nos. 03-2508 & 03-2912

duction was not jeopardized by his absence. The company
refused to consider Sandoval’s mitigating circumstances: he
tried to get permission on the first occasion but left after
waiting two hours for Stievo to arrive; he believed that
leaving early was an attendance violation subject to
progressive discipline; he thought his behavior was excused
in any event because he had coverage before he left; and he
was exhausted, and thus felt unsafe to work, because he
was attending a company-promoted night class, working
night shifts at the company’s request to cover for a reas-
signed employee, and working his regular day shift. The
ALJ concluded that the only explanation for the company’s
overly harsh treatment of Sandoval was his pro-union
stance and that the “Code of Conduct” citation was just a
pretext for discrimination. Thus, SCA failed to prove that it
would have terminated Sandoval absent his protected
activities.
  In light of the record as a whole, we find that the ALJ’s
determination that SCA failed to rebut the General
Counsel’s prima facie case or prove its Wright Line affirma-
tive defense is supported by substantial evidence. SCA’s
past willingness to give second and third chances to poor
employees with a myriad of performance problems, but
not to Sandoval, smacks of disparate treatment. See Great
Lakes Warehouse Corp. v. NLRB, 239 F.3d 886, 891 (7th
Cir. 2001) (finding that disparate disciplinary treatment
of a union supporter can support a determination that a
company violated § 158(a)(3) and defeat a company’s Wright
Line affirmative defense). Indeed, this is a case where
SCA’s asserted justification for its termination deci-
sion—the alleged “Code of Conduct” violation—appears to
have “furnished the excuse rather than the reason” for the
discharge. NLRB v. Thor Power Tool Co., 351 F.2d 584, 587
(7th Cir. 1965), quoted in Justak Bros. & Co. v. NLRB, 664
F.2d 1074, 1077 (7th Cir. 1981). This might well have
been a different case, or no case at all, had SCA chosen not
Nos. 03-2508 & 03-2912                                 15

to levy the ultimate punishment against Sandoval. But it
did, and the Board’s order must be enforced.


                   III. Conclusion
  For the foregoing reasons, we DENY SCA’s petition for
review and ENFORCE the Board’s Order.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—6-15-04
