                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0332n.06

                                     Case Nos. 19-2140/2160

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                                   FILED
                                                                                Jun 09, 2020
                                                                            DEBORAH S. HUNT, Clerk
CHALLENGE MANUFACTURING                              )
COMPANY, LLC,                                        )
                                                     )        ON PETITION FOR REVIEW
       Petitioner/Cross-Respondent,                  )        AND   CROSS-APPLICATION
                                                     )        FOR ENFORCEMENT OF AN
v.                                                   )        ORDER OF THE NATIONAL
                                                     )        LABOR RELATIONS BOARD
NATIONAL LABOR RELATIONS BOARD,                      )
                                                     )
       Respondent/Cross-Petitioner.                  )                             OPINION
                                                     )


BEFORE:       COLE, Chief Judge; McKEAGUE and KETHLEDGE, Circuit Judges.

       COLE, Chief Judge. Challenge Manufacturing Company, LLC (“Challenge” or “the

Company”) petitions for review of an order of the National Labor Relations Board finding

violations of the National Labor Relations Act (“NLRA” or “Act”). The General Counsel for the

Board cross-applies for enforcement. Because the Board did not contravene any of its rules and

its findings are supported by substantial evidence, we deny the petition for review and grant the

cross-application for enforcement.

                                               I.

       Challenge is a manufacturer and supplier of automobile parts.           It operates eight

manufacturing plants in the United States, including one in Holland, Michigan.          In 2008,

Challenge hired Michael Kiliszewski as a maintenance mechanic at the Holland plant.
Case Nos. 19-2140/2160, Challenge Mfg. Co. v. NLRB


        Historically, employees at Challenge’s manufacturing facilities were not unionized. In

2013 and again in 2015, employees at the Holland plant engaged in union campaigns, but the

campaigns failed after Challenge actively opposed them. Kiliszewski initiated both campaigns

by contacting the United Auto Workers (“UAW” or “Union”). Kiliszewski also played an

especially visible role in the 2015 campaign: he wore UAW paraphernalia at work, talked to

hundreds of employees about the Union, helped schedule union-organizing meetings, and was

one of the first to sign a letter to management expressing a desire to be represented by the UAW.

        In 2016, Challenge decided to take a friendlier stance toward unionization, and on May 1,

2016, it signed a “neutrality agreement” with the UAW. Under the terms of the neutrality

agreement, Challenge agreed to provide the Union with a list of employees at any plant in the

United States upon request, give plant access to Union organizers upon request, and recognize

the Union at any plant where a majority of the employees had signed authorization cards. In

turn, the Union agreed that while a collective bargaining agreement was being ratified at a

previously organized facility, it would not commence campaigns at other Challenge facilities.

Even so, individual employees at all times retained the right to engage in union-organizing

activities.

        In April 2017, while Challenge and the UAW were in the process of ratifying a

bargaining agreement at Challenge’s facility in Pontiac, Michigan, Kiliszewski began another

effort to secure UAW representation at the Holland plant.         Kiliszewski’s efforts included

soliciting signatures on union authorization cards, holding off-site meetings, wearing UAW

paraphernalia at work, and discussing the UAW with other employees.            At some point, a

maintenance supervisor at the Holland plant informed company management—including the

vice-president of human resources, Mike Tomko, and human resources manager Darlene


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Compeau—that Kiliszewski and Carl Leadingham, another supervisor, were involved in union-

organizing activities at the facility. Tomko and Compeau called Leadingham into a meeting on

April 25, asked him to identify other employees who were engaging in union-organizing

activities, and suspended him for five work days. Shortly after being suspended, Leadingham

called Kiliszewski and warned him to “watch his back because supervisors or managers were

watching him and others to see their union activity.” (J.A. 154.)

        About two weeks later, on the evening of May 5, 2017, Kiliszewski arrived at around

10:00 p.m. for his regular work shift, which began at 10:30 p.m. He officially punched in at

10:17 p.m.     According to Challenge’s policy, however, workers are not allowed on the

production floor and are not paid until their shifts have started. Thus, when Norma Sanchez, a

production supervisor on the shift prior to Kiliszewski’s, approached Kiliszewski several times

between 10:00 and 10:30 p.m. and asked him to fix a malfunctioning machine, he communicated

to Sanchez that his shift had not yet started and told her to find a mechanic who was being paid

at the time.

        The last of the exchanges between Kiliszewski and Sanchez became particularly heated.

There is conflicting testimony with regard to what exactly happened, but the administrative law

judge (“ALJ”) determined that Sanchez pointed a finger at Kiliszewski and another mechanic

with whom Kiliszewski was conversing, James Eric Mathews, and yelled at them to fix the

malfunctioning machine “right now.” (J.A. 5.) When the two mechanics repeated that they were

not yet on the clock, Sanchez yelled, “You’ll do as I say, when I say.” (Id.) Kiliszewski then

admittedly yelled at Sanchez to “go see your f—king 2nd shift maintenance crew” and to get

either “the hell” or “the f—k” out of his face. (Id.) When Sanchez threatened to go find

Kiliszewski’s supervisor, Kiliszewski encouraged her to do so. According to Sanchez, as she


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was walking away, Kiliszewski said, “F—k you, b—h.” (Id.) Kiliszewski denies making this

last statement. The ALJ declined to credit Sanchez’s allegation, finding that “the record does not

establish that Kiliszewski used the term ‘b—h,’ or, in fact, made any statement to Sanchez as she

was walking away.” (Id.)

       Three hours after the exchange, around 1:00 a.m. on May 6, Sanchez sent an email to

various management personnel at the Holland plant relaying her version of the events.

Kiliszewski’s direct supervisor, Larry Boyer, who was copied on Sanchez’s email, provided

Kiliszewski with a copy of the email and told him to avoid Sanchez.

       On the morning of May 9, after finishing his shift, Kiliszewski was called into a meeting

with Compeau and Jeff Glover, a maintenance manager, to discuss the incident with Sanchez.

Compeau asked Keith O’Brien, vice-president of operations and the highest ranking person at the

Holland facility, to join the meeting after Kiliszewski refused to look at or speak directly to her.

During the meeting, Kiliszewski shared written notes that he had prepared on a copy of

Sanchez’s email and proceeded to respond largely based on those notes.             He admitted to

swearing by referring to the “f—king” second-shift maintenance crew, but denied saying “f—k

you, b—h,” as Sanchez was walking away. Overall, Kiliszewski took the position that, by

issuing “demand[s]” of him and Mathews before their shift had even started, Sanchez was the

“aggressor” and was “out of line.” (J.A. 564–65.) Kiliszewski also expressed the view that

Challenge was targeting him because of his union-organizing activity.

       Following the May 9 meeting, Compeau proceeded to investigate further by interviewing

and gathering statements from other employees who were in the vicinity at the time of the

incident. As the ALJ found, “[t]he results of Compeau’s investigatory interviews are notable for

the extent to which those interviewed indicated that Sanchez was the aggressor in the


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confrontation.” (J.A. 7.) For example, Liliana Guajardo, who was talking with Sanchez right

before Sanchez approached Kiliszewski and Mathews, stated, “I heard Norma [Sanchez] yell at

Mike [Kiliszewski] and Eric [Mathews],” and, “I just feel that Norma was aggressive in the way

she came up to them.” (J.A. 737, 738.) Another employee, Gerald DeCheney, stated that

Sanchez “went off” on Kiliszewski. (J.A. 727.) Mathews, who was with Kiliszewski, recalled

that Sanchez “kept coming at [Kiliszewski]” and was “not letting him walk away.” (J.A. 722.)

None of the employees whom Compeau interviewed heard Kiliszewski say “f—k you, b—h,” to

Sanchez.

       Compeau also received a written account from—but did not personally interview—David

Napier, a welder who corroborated Sanchez’s claim that Kiliszewski said “f—k you, b—h.”

Based on the record and testimony from other witnesses to the incident, however, the ALJ

declined to credit Napier’s account. The ALJ moreover concluded that “Compeau did not have a

reasonable basis for concluding” that Kiliszewski had made the statement to Sanchez, because

“not a single one” of the witnesses whom Compeau interviewed corroborated Sanchez’s

allegation and Sanchez herself, who was walking away, did not actually see who uttered the

statement. (J.A. 8.)

       Challenge’s employee handbook provides that “extremely serious” misconduct, including

“unlawful harassment and discrimination,” “will typically lead to termination of employment.”

(J.A. 655, 669.) But for misconduct that includes “refusing to follow clear instructions of a

supervisor” and “[d]irecting abusive or profane language toward a fellow Team Member,

supervisor or manager,” employees are subject to “progressive discipline.” (J.A. 670.) Under

this system of progressive discipline, a “verbal written warning” is the appropriate discipline for

a first offense, with termination usually imposed only after a fourth offense. (Id.) The record


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provides many examples of incidents involving insubordination or use of profane language

where the Company imposed disciplinary measures well short of discharge.

       On May 12, 2017, Challenge immediately terminated Kiliszewski’s employment.

O’Brien, who gave the final approval for the termination, later testified that the decision was

based on Compeau’s recommendation that Kiliszewski be discharged and O’Brien’s view that

Sanchez was believable.

       Kiliszewski filed charges with the Board alleging discriminatory discharge and

interference with his rights to engage in protected union activity. After a two-day hearing, the

ALJ upheld the charges. The ALJ concluded that Leadingham’s warning to Kiliszewski to

“watch his back” was unlawfully threatening and created the impression that Kiliszewski’s

protected union activities were under surveillance. The ALJ also concluded that animus toward

Kiliszewski’s union activities was a motivating factor of his discharge and that Challenge failed

to show that Kiliszewski would have been discharged even absent his union activities. Among

other remedies, the ALJ ordered Challenge to offer Kiliszewski full and immediate reinstatement

and to make him whole for any loss of earnings and benefits.

       The Board largely adopted the ALJ’s findings and conclusions. It modified the remedy

to require Challenge to compensate Kiliszewski for interim expenses regardless of whether such

expenses exceeded interim earnings. Challenge now petitions for review of the Board’s order,

and the General Counsel cross-applies for enforcement.

                                               II.

       Section 7 of the NLRA guarantees the right of employees “to self-organization, to form,

join, or assist labor organizations, to bargain collectively through representatives of their own

choosing, and to engage in other concerted activities for the purpose of collective bargaining or


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Case Nos. 19-2140/2160, Challenge Mfg. Co. v. NLRB


other mutual aid or protection.” 29 U.S.C. § 157. To enforce these rights, section 8(a)(1) of the

Act makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the

exercise of” their section 7 rights.   Id. § 158(a)(1). Additionally, section 8(a)(3) prohibits

“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.” Id. § 158(a)(3).

       Our review of a Board decision applying the provisions of the NLRA “is quite limited.”

Charter Commc’ns, Inc. v. NLRB, 939 F.3d 798, 809 (6th Cir. 2019) (quoting Caterpillar

Logistics, Inc. v. NLRB, 835 F.3d 536, 542 (6th Cir. 2016)).          We defer to the Board’s

interpretation of the NLRA as long as it is “reasonable” and “Congress has not spoken to the

contrary on the same issue.” Id. We review the Board’s factual findings merely for “substantial

evidence,” upholding them as long as “they 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. (quoting Airgas USA, LLC v.

NLRB, 916 F.3d 555, 560 (6th Cir. 2019)); see also 29 U.S.C. § 160(f); Universal Camera Corp.

v. NLRB, 340 U.S. 474, 477, 488 (1951). Finally, “[d]eference to the Board’s factual findings is

particularly appropriate where the record is fraught with conflicting testimony and essential

credibility determinations have been made.” Conley v. NLRB, 520 F.3d 629, 638 (6th Cir. 2008)

(per curiam) (quoting Tony Scott Trucking, Inc. v. NLRB, 821 F.2d 312, 315 (6th Cir. 1987) (per

curiam) (internal quotation marks omitted)).     Accordingly, we do not disturb the Board’s

credibility determinations “unless they have ‘no rational basis.’” Fluor Daniel, Inc. v. NLRB,

332 F.3d 961, 967 (6th Cir. 2003) (quoting NLRB v. Valley Plaza, Inc., 715 F.2d 237, 242 (6th

Cir. 1983) (per curiam)).




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Case Nos. 19-2140/2160, Challenge Mfg. Co. v. NLRB


                                                 A.

         Challenge appeals only one of the Board’s two main findings in this case. It does not

contest the Board’s finding that, by threatening Kiliszewski with unspecified reprisals for

engaging in protected union activity and creating the impression that such activity was under

surveillance, it violated section 8(a)(1) of the Act. “By failing to appeal this finding, [Challenge]

has admitted its truth.” NLRB v. Galicks, Inc., 671 F.3d 602, 608 (6th Cir. 2012). Therefore, we

grant enforcement of the portions of the Board’s order remedying the uncontested section 8(a)(1)

violation. See id.; see also NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 231–32 (6th Cir.

2000).

                                                 B.

         The dispute in this case centers around whether Challenge violated section 8(a)(3) of the

Act by discharging Kiliszewski. A section 8(a)(3) claim of discriminatory discharge is evaluated

under the burden-shifting framework set forth 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

(1983). Charter Commc’ns, 939 F.3d at 815; see also FiveCAP, Inc. v. NLRB, 294 F.3d 768, 777

(6th Cir. 2002). Under the Wright Line framework, the General Counsel initially must “make a

prima facie showing sufficient to support the inference that protected conduct was a ‘motivating

factor’ in the employer’s decision.” Wright Line, 251 N.L.R.B. at 1089. If the General Counsel

successfully establishes a prima facie case, then the burden shifts to the employer “to

demonstrate that the same action would have taken place even in the absence of the protected

conduct.” Id.




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                                                 1.

       Establishing a prima facie case at the first step of the Wright Line analysis requires the

General Counsel to demonstrate three elements: (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.” Charter Commc’ns, 939 F.3d at 815 (quoting

Airgas, 916 F.3d at 561); accord McKinney v. Ozburn-Hessey Logistics, LLC, 875 F.3d 333, 340

(6th Cir. 2017); FiveCAP, 294 F.3d at 777. The third element, anti-union motive, may be

inferred from purely circumstantial evidence, such as “disparate treatment of certain employees

compared to other employees with similar work records or offenses” and “proximity in time

between the employees’ union activities and their discharge.” W.F. Bolin Co. v. NLRB, 70 F.3d

863, 871 (6th Cir. 1995); accord Airgas, 916 F.3d at 561; FiveCAP, 294 F.3d at 778. Here, the

Board, relying on the findings of the ALJ, concluded that the General Counsel successfully

established the elements of a prima facie case. In particular, the Board determined that an anti-

union motive could be inferred based on the timing of Kiliszewski’s discharge, Challenge’s

section 8(a)(1) violation, and the evidence of disparate treatment.

       Challenge makes several arguments. To start, Challenge argues that the Board held the

General Counsel to the wrong standard because it did not explicitly require the General Counsel

to establish a causal connection between anti-union animus and Kiliszewski’s discharge. The

Board, however, has recently clarified that the Wright Line framework “is inherently a causation

test.” Tschiggfrie Props., Ltd., 368 N.L.R.B. 120, at *10 (2019). Identifying a causal nexus as a

separate element would accordingly be “superfluous.” Id. The Board further clarified 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


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other protected activity.” Id. at *11. “Instead, the evidence must be sufficient to establish that a

causal relationship exists between the employee’s protected activity and the employer’s adverse

action against the employee.” Id. In any event, the ALJ here did examine whether a causal

nexus existed. Specifically, the ALJ found that the timing of Kiliszewski’s discharge and the

evidence of disparate treatment supported “an inference of anti-union animus connected to the

discharge.” (J.A. 12.) Overall, the ALJ concluded that the circumstantial evidence in the record

established Kiliszewski’s involvement as “a leader of unionization efforts at the facility,

[Challenge’s] animosity towards that activity and a connection to the discharge decision.” (Id.)

       Challenge also argues that the Board erred in failing to require the General Counsel to

prove directly that O’Brien, the ultimate decision-maker, acted with anti-union animus. This

argument misses the mark because there is no such rule. Rather, it is well-established that anti-

union motive may be inferred from circumstantial evidence. Charter Commc’ns, 939 F.3d at

815; FiveCAP, 294 F.3d at 778; W.F. Bolin Co., 70 F.3d at 871; see also Overnite Transp. Co.,

335 N.L.R.B. 372, 375 (2001) (“The Board has long recognized that direct evidence of an

unlawful motive, i.e., the proverbial smoking gun, is seldom obtainable. Hence, an unlawful

motive may be inferred from all of the surrounding circumstances.”). The cases to which

Challenge draws our attention do not say otherwise. Rather, those cases are ones in which the

Board, on de novo review, concluded that the circumstantial evidence was not strong enough to

support an inference of an anti-union motive. See Pro-Tec Fire Servs. Ltd., 351 N.L.R.B. 52,

53–54 (2007); Alexian Bros. Med. Ctr., 307 N.L.R.B. 389, 389–90 (1992).

       Next, Challenge argues that the Board overlooked the neutrality agreement, and

therefore, its finding of an anti-union motive cannot be supported by substantial evidence. But

the Board did consider the neutrality agreement in its analysis of whether the General Counsel


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made a sufficient showing of an anti-union motive. In finding that the General Counsel met his

initial burden, the Board relied partly on the Challenge’s section 8(a)(1) violation.         This

violation, as the ALJ found, followed from management’s “apparent misunderstanding” that the

neutrality agreement “guaranteed it a respite” from the sorts of union-organizing activities that

Kiliszewski was undertaking. (J.A. 12.) Thus, the Board did consider the neutrality agreement,

finding that Challenge’s misunderstanding of the agreement partly supported an inference that

Kiliszewski was discharged in whole or in part because of his union-organizing activities.

       That leaves the last of Challenge’s arguments: substantial evidence does not support the

Board’s finding of an anti-union motive because the evidence on which the Board relied does not

reasonably give rise to an inference of an unlawful motive. The Board relied specifically on

three factors: the timing of Kiliszewski’s discharge, the Company’s section 8(a)(1) violation, and

the disparate treatment that Kiliszewski received compared to other employees who had acted

insubordinately or used profanity. The ALJ’s decision elaborates:

               Kiliszewski had not received prior discipline of any kind during his
               more than 8 years with the Respondent. Then just 2 or 3 weeks
               after the Respondent first received a report that Kiliszewski was
               behind a 2017 organizing effort, the Respondent not only
               disciplined him, but imposed the ultimate discipline of discharge.
               The evidence raises an inference of anti-union animus connected to
               the discharge and easily clears the General Counsel’s third hurdle
               under Wright Line.

(J.A. 12.) These findings are supported by the record, and we cannot say that they forbid an

inference that Kiliszewski was discharged at least in part because of his union-organizing efforts.

Cf. W.F. Bolin Co., 70 F.3d at 871–73 (concluding that even though the record did not show

outright hostility toward unionization on the employer’s part, an inference of an anti-union

motive was permissible based on the circumstantial evidence, including that of timing and

disparate treatment). Because the record here reasonably permits an inference of an anti-union

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motive, substantial evidence supports the Board’s finding that the General Counsel established a

prima facie case.

                                                2.

       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. Wright Line, 251 N.L.R.B. at 1089; see also

Transp. Mgmt., 462 U.S. at 401–02.         Here, Challenge contends that the decision to fire

Kiliszewski was made independent of any anti-union animus.           According to Challenge, it

discharged Kiliszewski because he admittedly refused to follow a supervisor’s orders and used

profanity, and the Company had a good-faith belief that he uttered a gender-based slur. The

Board, however, found that Challenge failed to carry its burden because the Company had no

reasonable basis for concluding that Kiliszewski uttered a gender-based slur, and its choice of

discipline was disproportionately harsh given its policies and prior practices in similar

circumstances.

       Because the Board reached the conclusion that Challenge failed to meet its burden, our

review here “is of a slightly different stripe than on the prima-facie-case prong.” W.F. Bolin Co.,

70 F.3d at 873–74. Rather than asking whether substantial evidence supports the Board’s

finding, we ask whether the finding “is reasonable in view of the evidence as a whole.” Id. at

874. This means that Challenge must do more than “simply show[] that the evidence supports an

alternative story”; it “must show that the Board’s story is unreasonable.”           See Charter

Commc’ns, 939 F.3d at 816 (quoting Galicks, 671 F.3d at 608).

       Challenge argues that the Board’s analysis is fundamentally flawed because it focuses on

whether Kiliszewski actually uttered a gender-based slur to Sanchez rather than on whether the


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Company had a good-faith belief that he did. In other words, according to Challenge, the Board

inappropriately required the Company to show that it was wholly motivated by the fact (rather

than simply a good-faith belief) that Kiliszewski uttered a gender-based slur. But the Board did

not hold Challenge to such a standard. Instead of simply determining that Kiliszewski never

uttered the alleged gender-based slur, the Board determined that “Compeau did not have a

reasonable basis for concluding Kiliszewski had done so.”         (J.A. 8.)   The ALJ’s decision

explains:

               Sanchez made this claim, but even in her account she did not see
               who had made the alleged statement. On the other hand, Compeau
               interviewed five witnesses to the incident . . . and not a single one
               of them corroborated Sanchez’ claim that Kiliszewski had said
               “f—k you b—h” to her.

(Id.) The record substantiates the ALJ’s explanation.

       Meanwhile, O’Brien interviewed no witnesses. He relied on Compeau’s investigation

and recommendation in giving his final approval for Kiliszewski’s discharge, and he was not

even in the room when Compeau informed Kiliszewski of his discharge. Thus, Challenge’s

argument that the Board could only consider O’Brien’s belief specifically is unconvincing. We

conclude that the Board did not contravene any rules in its consideration of the second step of the

Wright Line test.

       The cases that Challenge points out do not compel a different conclusion. In Sutter East

Bay Hospitals v. NLRB, 687 F.3d 424, 435–37 (D.C. Cir. 2012), the D.C. Circuit held that the

Board did not properly apply the second step of the Wright Line analysis because the Board

entirely failed to examine the employer’s beliefs and whether they were reasonable. Such is not

the case here. Challenge also points to the Board’s decision in DTR Industries, Inc., 350

N.L.R.B. 1132 (2007), enforced, 297 F. App’x 487 (6th Cir. 2008). In that case, the Board


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reversed the ALJ’s decision and dismissed a discriminatory-discharge claim upon de novo

review. Id. The Board found that the employer had met its burden of showing that it held, and

acted wholly upon, a reasonable belief that the employee had committed the alleged misconduct.

Id. at 1135–36. Here, in contrast, the Board agreed with the ALJ that Challenge’s belief was not

reasonable and that Kiliszewski’s discharge, given the circumstances and Challenge’s policies,

was “highly suspicious.” (J.A. 13.)

       The Board’s findings have reasonable support in the record.           The incident that the

Company used to justify Kiliszewski’s discharge occurred at a time when he was not being paid

and not even supposed to be on the production floor. None of the witnesses whom Compeau

personally interviewed heard Kiliszewski utter “f—k you, b—h.” Many of those same witnesses

indicated that Sanchez, not Kiliszewski, was the “aggressor.” Finally, Challenge meted out

discipline far less serious than discharge in other instances of insubordination and disrespectful

language. For example, in March 2017, one employee merely received a written warning for

both “undermining supervisory authority” and “abusive language towards fellow team

members.” (J.A. 603.) Another employee continued to be employed by the Company despite at

least ten separate instances of misconduct—including swearing and yelling at team members,

disrespecting supervisors, and refusing to follow instructions. All in all, it was reasonable for the

Board to have found that Challenge did not carry its burden of rebutting an inference of anti-

union motive. See Charter Commc’ns, 939 F.3d at 816; W.F. Bolin Co., 70 F.3d at 874.

       Accordingly, substantial evidence supports the Board’s finding of a section 8(a)(3)

violation.




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                                               C.

       Last, we turn to the Board’s ordered remedy. In accordance with its decision in King

Soopers, Inc., 364 N.L.R.B. 93, at *11 (2016), enforced in relevant part, 859 F.3d 23, 39 (D.C.

Cir. 2017), the Board ordered Challenge to compensate Kiliszewski for any search-for-work and

interim expenses, without any offset against his interim earnings. Challenge contends that the

Board exceeded its authority in ordering such a remedy. But we have already held that this is a

permissible remedy. Lou’s Transp., Inc. v. NLRB, 945 F.3d 1012, 1024–25 (6th Cir. 2019);

Erickson Trucking Serv., Inc. v. NLRB, 929 F.3d 393, 398 (6th Cir. 2019). The Board did not

exceed its authority here.

                                              III.

       We deny Challenge’s petition for review and grant the General Counsel’s cross-

application for enforcement of the Board’s order.




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