          United States Court of Appeals
                     For the Eighth Circuit
                 ___________________________

                         No. 18-2256
                 ___________________________

St. Paul Park Refining Co., LLC, doing business as Western Refining

                     lllllllllllllllllllllPetitioner

                                   v.

                  National Labor Relations Board

                    lllllllllllllllllllllRespondent
                 ___________________________

                         No. 18-2520
                 ___________________________

St. Paul Park Refining Co., LLC, doing business as Western Refining

                    lllllllllllllllllllllRespondent

                                   v.

                  National Labor Relations Board

                     lllllllllllllllllllllPetitioner
                            ____________

                  National Labor Relations Board
                          ____________

                    Submitted: March 13, 2019
                       Filed: July 8, 2019
                         ____________
Before SHEPHERD, ARNOLD, and ERICKSON, Circuit Judges.
                          ____________

SHEPHERD, Circuit Judge.

       St. Paul Park Refining Company (SPPRC) petitions for review and the National
Labor Relations Board applies for enforcement of the Board’s order determining
SPPRC unlawfully suspended an employee for engaging in protected concerted
activity in violation of the National Labor Relations Act, 29 U.S.C. § 151 et seq.
Having jurisdiction pursuant to 29 U.S.C. § 160(e) and (f), we deny SPPRC’s petition
and enforce the order.

                                         I.

      SPPRC operates an oil refinery with 450 employees in St. Paul Park,
Minnesota. The refinery maintains constant operations, processing crude oil into
products like gasoline. The International Brotherhood of Teamsters, Local No. 120
(the Union) represents some of the refinery employees, including vacancy relief
operator Richard Topor, who had served as a Union steward for several years.
Topor’s supervisors at the refinery were Gary Regenscheid and Dale Caswell.

      Due to the hazards of refinery work, both SPPRC’s collective-bargaining
agreement and its employee handbook emphasize that employees must notify
supervisors if they believe work conditions are unsafe and assist in remedying the
dangerous conditions. SPPRC employees follow written procedures to perform
various tasks, and any change in a procedure must be documented using a
step-change form. SPPRC also maintains a “safety stop” policy giving all employees
the authority to stop a job due to safety concerns and discuss any appropriate
mitigation measures with supervisors. SPPRC’s employment documents state that


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workers may raise safety concerns without fear of retaliation and specifically mention
new or nonstandard procedures as situations that might warrant a safety stop.

       On November 4, 2016, Caswell assigned Michael Rennert, one of Topor’s
coworkers, the task of restarting a machine known as the Penex. Doing so required
injecting hydrochloric acid from pressurized cylinders into the Penex to clear out
water and rust. Only a few weeks prior, SPPRC implemented a new technique for
injecting the acid that involved heating the cylinders with steam. However, no one
had updated the written procedure to reflect the new method. Never having restarted
the Penex before, Rennert asked Topor about the safety of the procedure. Topor
questioned the safety of the new steam-heating method.

       Rennert and Topor discussed their concerns with Eric Rowe, a unit-process
engineer, and requested a written procedure. Rowe prepared a step-change form for
the new Penex cleaning procedure, which supervisors, including operations
superintendent Briana Jung, signed. The form included an instruction stating that
other hydrochloric acid cylinders should not be in the same area as the one that will
be heated.

       In the afternoon, Regenscheid and Jung reassigned the task to Topor, giving
him the step-change form. Topor noted that, contrary to the form’s instructions, other
cylinders were near the cylinder to be heated. Regenscheid instructed Topor to
mitigate the hazard by placing insulation blankets over the cylinders that were not in
use, but Topor insisted the procedure called for removing the additional cylinders
from the area, fearing Regenscheid’s suggestion was unsafe and risked explosion.
Topor wanted to initiate a safety stop, but Regenscheid again said to use insulation.
In response, Topor repeated his safety stop request, asking that the safety department
review Regenscheid’s suggestion. Topor began filling out a safety-stop form.




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       Telling Topor to fill the form out later, Regenscheid and Jung met with him at
the Penex, where Topor again repeated his safety concerns. Topor explained that if
the restart process had changed to allow insulation blankets, the step-change form
needed to be updated accordingly. He added that he felt he was being pressured to
perform the task despite his safety concerns. Topor and Regenscheid began speaking
in loud voices. Eventually, Regenscheid and Jung sent Topor home. As Topor was
leaving, Regenscheid asked him to return the step-change form, but Topor did not
hear him and did not comply. Eventually, Regenscheid gave Topor a ride to a
different building to change out of his work clothes and leave; they did not speak.

       SPPRC’s human resource employees told Jung and Regenscheid to document
the events of the day for an investigation. Regenscheid wrote that Topor had refused
to do assigned work and behaved insubordinately. Jung wrote that Topor had refused
to discuss mitigation, which she also viewed as insubordination. She named several
witnesses to the encounter, including Rennert. Three days later, Jung modified her
statement, adding that Topor was loud and had pointed his finger at Regenscheid.
During its investigation, SPPRC interviewed only some of the witnesses Jung had
named, relying almost entirely on supervisors’ accounts while declining to interview
fellow unit employees like Rennert. During his interview, Topor denied raising his
voice or pointing his finger at Regenscheid.

        Eventually, SPPRC issued Topor a 10-day unpaid suspension and a final
written warning, citing inappropriate behavior and insubordination. A few months
later, he was denied his quarterly bonus.

      Topor initiated two unfair labor practice cases before the Board against
SPPRC, both alleging SPPRC had retaliated against him by disciplining him and
denying his bonus to discourage his union activities. The Board’s Office of the
General Counsel pursued his claims, bringing a consolidated complaint before an
administrative law judge. After a hearing, the ALJ held in Topor’s favor. In doing

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so, he relied heavily on witness credibility, explaining that he found Topor’s
consistent and confident testimony believable but noticed that Regenscheid’s
testimony was hesitant and inconsistent with Jung’s account and that Regenscheid
could not recall everything that occurred. Based on a conversation in which
Regenscheid told Rennert to expect reprisal from SPPRC due to ongoing union
negotiations, the ALJ ordered SPPRC to cease threatening employees for their union
activity. As to the incident with Topor, it ordered SPPRC to restore any loss of
earnings or benefits and remove any evidence of his discipline from his file. The
Board adopted the ALJ’s decision in full. It denied a motion from SPPRC to reopen
the record to admit an arbitration award, finding SPPRC had not demonstrated that
the evidence was newly discovered or previously unavailable as required by the
Board’s rules and regulations. SPPRC appeals.

                                          II.

       We “afford[] great deference to the Board’s affirmation of the ALJ’s findings,”
enforcing “the Board’s order if the Board has correctly applied the law and its factual
findings are supported by substantial evidence on the record as a whole, even if we
might have reached a different decision had the matter been before us de novo.”
Town & Country Elec., Inc. v. NLRB, 106 F.3d 816, 819 (8th Cir. 1997).
“Substantial evidence is such evidence that a reasonable mind would find adequate
to support the Board’s conclusion.” NLRB v. Rockline Indus., Inc., 412 F.3d 962,
966 (8th Cir. 2005). Though “an ALJ’s credibility determinations are considered
with the rest of the NLRB’s factual findings under the general substantial evidence
test,” Town & Country, 106 F.3d at 819, we reverse credibility findings “only in
extraordinary circumstances.” Chemvet Labs., Inc. v. NLRB, 497 F.2d 445, 449 (8th
Cir. 1974). The Board’s reasonable construction of the scope of protected concerted
activity under the NLRA “is entitled to considerable deference.” NLRB v. City
Disposal Sys., Inc., 465 U.S. 822, 829 (1984).



                                         -5-
       “While normally an employer is free to discharge an at will employee for any
or no reason, the National Labor Relations Act, 29 U.S.C. § 151 et seq., provides
protections to workers who seek to form a union or otherwise engage in concerted
labor activities.” NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 780 (8th Cir.
2013) (citing 29 U.S.C. § 158(a)). Protected concerted activity “need not take place
in a union setting[;]” rather, “[i]t is sufficient that the employee intends or
contemplates, as an end result, group activity which will also benefit some other
employees.” Koch Supplies, Inc. v. NLRB, 646 F.2d 1257, 1259 (8th Cir. 1981) (per
curiam). “[W]hen an employer articulates a facially legitimate reason” for
terminating or disciplining an employee “but that motive is disputed,” we analyze
“whether the employee’s termination [or discipline] was motivated by the protected
activity” using the burden-shifting analysis articulated in Wright Line, 251 N.L.R.B.
1083 (Aug. 27, 1980), enforced 662 F.2d 899 (1st Cir. 1981). RELCO, 734 F.3d at
780. Under Wright Line, the general counsel must “establish that the employee’s
protected activity was a motivating factor in his or her eventual” discipline by
demonstrating: “(1) the employee was engaged in protected activity; (2) the employer
knew of the employee’s protected activity; and (3) the employer acted as it did on the
basis of anti-union animus.” Id. (alterations and citation omitted). Then the burden
shifts to the employer to prove “it would have taken the same action absent the
protected activity.” Id. at 780.

       First, Topor must have been engaged in protected concerted activity. Action
done individually may be concerted “if it represents either a continuation of earlier
concerted activities or a logical outgrowth of concerted activities.” Id. at 785
(internal quotation marks omitted). Furthermore, the NLRA protects the rights of
employees to engage in work stoppages “over what the employees believe to be
unsafe or unhealthy working conditions.” NLRB v. Tamara Foods, Inc., 692 F.2d
1171, 1176 (8th Cir. 1982). The ALJ credited Topor’s statement that, following
morning conversations with Rennert where they both expressed concerns about the
safety of the restart procedure, Topor repeatedly called for a safety stop. The Board

                                         -6-
held that Topor’s continued refusal to work in the afternoon was a “logical
outgrowth” of his morning discussions with Rennert about the same assignment and
safety concerns and therefore was protected concerted activity. See RELCO, 734
F.3d at 785; see also NLRB v. Thor Power Tool Co., 351 F.2d 584, 586 (7th Cir.
1965) (noting employee behavior cannot be considered in a vacuum without
consideration of what led up to it). Especially given the “considerable deference” we
give to the Board to determine the scope of protected activity, City Disposal Sys., 465
U.S. at 829, we agree that Topor’s afternoon behavior was a “logical outgrowth” of
his conversation with Rennert and find substantial evidence in the record that Topor
was engaged in protected activity.

       Because SPPRC concedes that it knew of Topor’s conduct, the general counsel
next needed to show that anti-union animus motivated SPPRC’s action. This required
demonstrating that Topor’s insistence on a safety stop was a “motivating factor” in
SPPRC’s decision to discipline him. See Concepts & Designs, Inc. v. NLRB, 101
F.3d 1243, 1244 (8th Cir. 1996). “Motivation is a question of fact that may be
inferred from both direct and circumstantial evidence.” Id. “Circumstantial evidence
which supports a determination of animus and unlawful motivation includes
‘suspicious timing, false reasons given in defense, failure [to] adequately . . .
investigate alleged misconduct, departures from past practice, tolerance of behavior
for which the employee was allegedly fired, and disparate treatment of the discharged
employees.’” RELCO, 734 F.3d at 787 (quoting Medic One, Inc., 331 N.L.R.B. 464,
475 (June 26, 2000)).

       There were multiple indications of discriminatory motive here. SPPRC
abruptly indicated its hostility to Topor’s behavior by sending him home after his
repeated refusal to work. Crediting the ALJ’s finding that Topor did not engage in
insubordinate behavior, SPPRC’s use of that reasoning was pretextual. This
conclusion is supported by SPPRC’s internal investigation, which relied almost
entirely on supervisors’ accounts of the interaction. Furthermore, SPPRC’s asserted

                                         -7-
reasons for disciplining Topor did not remain consistent. At times, the reason for
Topor’s discipline was described as his refusal to work, then his refusal to discuss
mitigation, and finally his belligerent behavior. As to the alleged belligerent
behavior, Jung did not include the fingerpointing allegation in her original account
of the incident. See Rockline, 412 F.3d at 968 (“an employer changing the
justifications for its disciplinary actions” is an indication of a discriminatory motive).
Together, these facts provide substantial evidence that SPPRC had a discriminatory
motive.

       Thus, the burden shifted to SPPRC to prove that it would have taken the same
action absent the protected activity. To do so, SPPRC must have demonstrated a
reasonable belief that Topor committed misconduct and that it acted on that belief in
disciplining him. See Midnight Rose Hotel & Casino, Inc., 343 N.L.R.B. 1003, 1005
(Dec. 16, 2004). “[I]t is not enough that an employer put forth a nondiscriminatory
justification for discipline. It must be the justification.” Rockline, 412 F.3d at 970.
The ALJ did not credit SPPRC’s allegation that Topor misbehaved and therefore did
not credit its defense that it acted based on that belief. Considering SPPRC’s
evolving stories and inadequate investigation, this case does not involve
“extraordinary circumstances” justifying the reversal of the ALJ’s credibility findings.
Chemvet Labs., 497 F.2d at 449. Therefore, we agree that there was substantial
evidence that SPPRC committed a labor violation.

                                           III.

      SPPRC also alleges the ALJ and Board erred by denying its two motions to
reopen the record. We review such claims for abuse of discretion. NLRB v. Miller
Waste Mills, 315 F.3d 951, 955 (8th Cir. 2003).

       First, SPPRC argues the Board should have reopened the record after final
briefing on its exceptions to the ALJ decision and admitted evidence of an arbitration

                                           -8-
award from a parallel proceeding that denied Topor’s grievance but was issued after
the Board’s hearing closed. Under 29 C.F.R. § 102.48(c)(1), the Board may reopen
the record in “extraordinary circumstances.” The evidence must be newly discovered,
only available since the close of the hearing, or believed by the Board to have been
taken at the hearing, and if credited, the evidence must require a different result. 29
C.F.R. § 102.48(c)(1). The Board requires all such evidence to be in existence at the
time of the hearing, even if it is only available later, because “any other approach
would . . . encourag[e] employers to delay compliance in the hope that new and
favorable circumstances develop.” NLRB v. Cutter Dodge, Inc., 825 F.2d 1375, 1381
(9th Cir. 1987) (citing NLRB v. L.B. Foster Co., 418 F.2d 1, 4-5 (9th Cir. 1969)); see
also Sec. Walls, Inc. & Int’l Union, Sec. Police & Fire Professionals of Am., 365
NLRB No. 99 (June 15, 2017) (“evidence of events that occurred after” the incident
at issue is neither “newly discovered” nor “previously unavailable”). Because the
arbitration award was not issued until after the hearing, the Board did not abuse its
discretion in declining to reopen the record to admit the evidence.

       Second, SPPRC alleges the ALJ and Board erred by denying its motion to
reopen the record to admit correspondence from the Minnesota OSHA. When a party
files exceptions to an ALJ finding, it must do more than merely specify the issue it
contests to avoid waiving its argument; each exception must identify the portion of
the opinion at issue, provide relevant citations to the record, and “concisely state the
grounds for the exception.” 29 C.F.R. § 102.46. Here, SPPRC filed only “bare
exceptions to the judge’s dismissal of its motion to reopen the record[.]” St. Paul
Park Ref. Co., 366 N.L.R.B. No. 83 (May 8, 2018). Thus, the Board could not
address the issues, and we do not have jurisdiction over the claims on appeal. See 29
U.S.C. § 160(e) (noting we cannot consider an “objection that has not been urged
before the Board”).

       Finally, the Board asks that we grant summary enforcement as to its finding
that SPPRC unlawfully threatened employees with retaliation for their union activity.

                                          -9-
Because SPPRC made the same “bare exception” to this finding as it did to the denial
of its motion to reopen the record, we similarly lack jurisdiction to hear its arguments.
See 29 U.S.C. § 160(e).

      Therefore, we deny SPPRC’s petition and enforce the Board’s order.
                     ______________________________




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