                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 16a0407n.06

                                 Case Nos. 15-1433, 15-1611

                        UNITED STATES COURT OF APPEALS
                                                                                    FILED
                                                                               Jul 19, 2016
                             FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


CATERPILLAR LOGISTICS, INC.,                     )
                                                 )
       Petitioner/Cross-Respondent,              )
                                                 )       ON PETITION FOR REVIEW OF A
v.                                               )       DECISION AND ORDER OF THE
                                                 )       NATIONAL LABOR RELATIONS
NATIONAL LABOR RELATIONS BOARD,                  )       BOARD
                                                 )
       Respondent/Cross-Petitioner,              )
                                                 )
and                                              )

INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, UAW,

      Intervening Respondent.
____________________________________


Before: COLE, Chief Judge; MERRITT and GRIFFIN, Circuit Judges.

       MERRITT, Circuit Judge.        In this labor relations case, Caterpillar Logistics, Inc.

(“Caterpillar”) petitions for review of an order of the National Labor Relations Board (“the

Board”) finding that Caterpillar committed unfair labor practices in connection with a

2013 representation election and also unlawfully discharged an employee. The Board cross-

applies for full enforcement of its order. Reviewing the administrative record for substantial
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evidence, we affirm the Board’s order in full. Caterpillar’s petition for review is thus DENIED,

and the Board’s application for enforcement is GRANTED.

                               I. Factual and Procedural History1

       On September 27, 2013, employees at Caterpillar’s Clayton, Ohio facility voted on

whether they would be represented as a union by the United Automobile Workers (“UAW”).

The representation election failed; 188 employees voted for representation, and 229 voted

against. In October 2013, the UAW filed objections to conduct that allegedly violated the

National Labor Relations Act (“the Act”) and impacted the election results. Particularly relevant

here, the UAW objected to two instances of interrogation, the creation of the impression of

improper surveillance, and the improper announcements of an employee bonus and new smoking

shelters shortly before the vote.

       The first alleged instance of interrogation and the alleged instance of the creation of an

impression of surveillance occurred during a workday in late August 2013. The night before, the

UAW held its first organizing meeting, with no supervisors or management personnel in

attendance. The following day at work, Caterpillar supervisor Nick Ewry approached employee

(and meeting attendee) John Sponsler, who was working alone at the time, and asked Sponsler

what he thought about the union. Sponsler explained that he favored unionization but that he

feared retaliation if the union vote failed. Prior to this encounter, he had never revealed his

union support to a manager or supervisor and was “extremely nervous about anyone knowing

about” his involvement.



       1
          Because we hold that the administrative fact-finding was supported by substantial
evidence, see infra Part II, we primarily rely on those facts in this summary. While we document
some major factual disputes here, we ultimately accept the administrative adjudicators’
resolution of those disputes. Id.
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       According to Sponsler, Ewry responded that he did “not think [Sponsler] had anything to

worry about,” that “he did not think there would be any retaliation whatsoever, and that upper

management already knew everyone that . . . [was] involved.” Afterwards, Sponsler spoke to

multiple colleagues about his encounter with Ewry, and told them that he “was afraid that

someone had given the company information and surveilled [the union] meeting, because of

[Ewry’s] comment about upper management knowing everyone . . . involved.”

       The second alleged instance of interrogation occurred around the same time. Following a

mandatory anti-union meeting organized for employees by the management, supervisor Cory

Butcher approached employee Marquis Applin while Applin was working alone and proceeded

to ask Applin what he thought about the meeting and whether he had made a voting decision.

Butcher also said that if the union vote succeeded, he would no longer be able to talk to Applin

“one on one.” During the conversation, Applin was “nervous” and “kind of shocked,” and he

later testified that he tried not to indicate that he was a union supporter for fear of being fired.

Applin would later relay his encounter with Butcher to other Caterpillar employees.

       The first alleged instance of an improper announcement of an employee benefit came at

an employee meeting on September 18, when Caterpillar General Manager Brian Purcell and

Safety Manager Kevin Rivera announced to plant employees a one-time $400 safety bonus,

which was ultimately paid out in December 2013. Many employees claim they were first

notified of the impending bonus at that meeting.         Caterpillar argues that it explained to

employees in both March and July 2013 that the award was forthcoming upon a successful

submission for the company’s “Chairman’s Safety Award.”

       The second alleged instance of an improper announcement of an employee benefit came

at the same September 18 meeting, when Caterpillar announced to employees for the first time


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that it would be constructing covered smoking shelters in the outdoor break areas used by

employees that smoked. Since at least 2011, employees had consistently complained about the

designated smoking areas in use at the time, which were uncovered and difficult to reach in bad

weather. The smoking shelters were ultimately constructed in March 2014.

       The representation election was held on September 27, and a majority of employees

voted against unionization. In October, the UAW filed its objections to the election, alleging

interrogation, the impression of surveillance, and the improper announcement of benefits.

       On November 14, while the UAW’s objections were pending, Caterpillar held an

employee meeting to announce the construction of a guard shack. At the meeting, employee

Michael Craft asked what the shack was for. General Manager Purcell responded that the shack

was “for guards,” eliciting laughter from the other employees present. Purcell’s dismissive

response upset Craft, who relayed the incident to two coworkers the next day at work.

According to supervisor Jason Brown, who overheard the remarks, Craft told them:

              You guys (union supporters) just gained another supporter, I’m
              sick of the way they treat us in here, He (Brian Purcell) thinks he
              can treat us like he treated the thugs he managed in Denver, I’m
              not putting up with it anymore, I’m sick of it, that motherfucker is
              going down now, the gloves are fucking off now . . . .

Brown asked Craft why he was upset. According to Brown,

              [Craft] stated that he felt embarrassed and made out to look foolish
              [by Purcell]. [Craft] continued to say that he was for the union
              now due to the way Brian Purcell is treating the associates like
              they were thugs. . . . Mike said that he never meant he wanted to
              do physical harm to Brian Purcell he just meant that he wanted
              Brian to be held accountable for his actions towards Mike Craft.

Brown reported the incident to Assistant Value Stream Manager John Gruet, who then reported it

to Purcell and Human Resources Manager Jason Murphy. Gruet also told them: “I don’t believe

Mike is a violent person but he is upset. I don’t believe Mike intended physical harm . . . .”

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Nonetheless, Murphy decided to suspend Craft, and Purcell later reported the incident to police

and terminated Craft’s employment. Craft filed an objection with the Board, arguing that he had

been terminated in violation of the Act. His complaint was consolidated with the UAW’s

pending election objections.

       On August 4, 2014, an Administrative Law Judge (“the Judge”) issued a decision finding

that Ewry and Butcher had violated the Act by interrogating employees about union sympathies

“during the critical period between the filing of the representation petition and the election,” and

that Purcell had violated the Act by announcing the safety bonus and smoking shelters during the

critical period. The Judge also found that Michael Craft was discharged in violation of the Act

because his outburst had amounted to protected activity and was not sufficient to forfeit the Act’s

protection. The Judge ordered Caterpillar to: reinstate Craft with back pay; cease and desist from

unfair labor practices; and post and distribute a notice advising employees of their rights,

acknowledging its violations, and listing the remedial measures it was taking. The Judge also

ordered that the election results be set aside and a new election held.

       On appeal, the Board affirmed the order of the Judge, except to the extent that it also

found that Ewry violated the Act by creating the impression of surveillance and modified the

ordered remedies to reflect the finding of surveillance.

       Caterpillar now petitions for review of the Board’s decision and order, arguing that the

Board’s order should not be enforced because Caterpillar did not violate the Act through

interrogation, the creation of the impression of surveillance, the improper announcement of

benefits, or the dismissal of Craft.2 The Board cross-applies for full enforcement of its order.


       2
         Among its positions, Caterpillar argues that we should review and overturn the Board’s
order setting aside the representation election and ordering a new one. It is a well-settled rule,
however, that such an order is not “final” and thus is not subject to our appellate review. U.S.
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                                         II. Discussion

       “Our review of the Board’s decision is quite limited.” Torbitt & Castleman, Inc. v.

NLRB, 123 F.3d 899, 905 (6th Cir. 1997). We defer to the Board’s factual determinations if they

are supported by substantial evidence on the record as a whole. 29 U.S.C. §§ 160(e), (f);

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488 (1951). “Substantial evidence means

such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Dupont Dow Elastomers, L.L.C. v. NLRB, 296 F.3d 495, 500 (6th Cir. 2002) (citation and

internal quotation marks omitted). Our review of fact-finding is even more deferential for

credibility determinations: “We will overturn those determinations only if they overstep the

bounds of reason,” Kusan Mfg. Co. v. NLRB, 749 F.2d 362, 366 (6th Cir. 1984) (citation and

internal quotation marks omitted), or “unless they are inherently unreasonable or self-

contradictory,” Tel Data Corp. v. NLRB, 90 F.3d 1195, 1199 (6th Cir. 1996) (citation and

internal quotation marks omitted). The Board’s application of law to the facts is also reviwed for

substantial evidence, NLRB v. Mead Corp., 73 F.3d 74, 78 (6th Cir. 1996), and its “[c]onclusions

of law are subject to a de novo review, although [we] will uphold the Board’s reasonable

interpretation of the [National Labor Relations Act] where Congress has not spoken to the

contrary on the same issue.” Dupont Dow Elastomers, 296 F.3d at 500 (citation omitted).




Elec. Motors v. NLRB, 722 F.2d 315, 320 (6th Cir. 1983) (per curiam) (citing Am. Fed’n of
Labor v. NLRB, 308 U.S. 401 (1940); NLRB v. Int’l Bhd. of Elec. Workers, 308 U.S. 413 (1940))
(additional citations omitted). Moreover, Caterpillar conceded the mootness of this claim in a
letter to our Court announcing that the second election had been conducted and a majority of
employees again voted against representation. See Bingham v. Nat’l Credit Union Admin. Bd.,
927 F.2d 282, 285 (6th Cir. 1991) (affirming dismissal of claims that petitioners’ concede were
moot).

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                                     A. Unfair Labor Practices

       The National Labor Relations Act guarantees to employees “the right 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 other mutual aid or protection.” 29 U.S.C. § 157. “It shall be an

unfair labor practice for an employer . . . to interfere with, restrain, or coerce employees in the

exercise of [these] rights . . . .” Id. §§ 158(a), (a)(1). An unfair labor practice “occurs when

substantial evidence demonstrates that the employer’s [actions], considered from the employees’

point of view, had a reasonable tendency to coerce.”         Dayton Newspapers, Inc. v. NLRB,

402 F.3d 651, 659 (6th Cir. 2005) (citation omitted). A finding of “actual coercion” is not

required. Id. (citation omitted). “In making [an unfair labor practices] determination, the Board

considers the total context in which the challenged conduct occurs and is justified in viewing the

issue from the standpoint of its impact upon the employees.” NLRB v. Okun Bros. Shoe Store,

825 F.2d 102, 105 (6th Cir. 1987).

                                          1. Interrogation

       Coercive interrogation of employees about union activities constitutes an unfair labor

practice in violation of 29 U.S.C. § 158(a)(1). NLRB v. E.I. DuPont De Nemours, 750 F.2d 524,

527 (6th Cir. 1984) (citations omitted). “[T]he basic test for evaluating the legality of an

interrogation is ‘whether under all of the circumstances the interrogation reasonably tends to

restrain, coerce, or interfere with rights guaranteed by the Act.’” Dayton Typographic Serv., Inc.

v. NLRB, 778 F.2d 1188, 1194 (6th Cir. 1985) (quoting Rossmore House, 269 N.L.R.B. 1176,

1177 (1984)). “When assessing the coercive tendency of an interrogation, the [Board] looks at,




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among other things, the background, the nature of the information sought, the questioner’s

identity, and the place and method of interrogation.” Id. (citation omitted).

                              a. The Interrogation of John Sponsler

       The Judge concluded that Ewry’s questioning of Sponsler was an attempt to assess

Sponsler’s position on unionization in order to report it to Caterpillar corporate labor relations

official Ron Hassinger, and that such questioning was coercive because it closely followed a

management-organized anti-union meeting for employees.             The Board agreed with this

conclusion.

       Substantial evidence supports the Board’s conclusion that Sponsler’s questioning of Ewry

amounted to coercive interrogation in violation of the Act. This conclusion is supported by: the

background of the exchange, in that an anti-union meeting had been held the day before and

Sponsler’s union support was private; the nature of the information sought, in that Ewry clearly

sought Sponsler’s position on the union; the questioner’s identity, in that Ewry was Sponsler’s

supervisor; and the place and method of interrogation, in that Ewry approached Sponsler on the

work floor while Sponsler was alone, a situation in which he might have felt more vulnerable

than if he had been surrounded by his peers. The Board reasonably concluded that this encounter

had a reasonable tendency to coerce. See Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354,

1359 (D.C. Cir. 1997) (quoting Struksnes Constr. Co., 165 N.L.R.B. 1062, 1062 (1967)) (“[A]ny

attempt by an employer to ascertain employee views and sympathies regarding unionism

generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of

unionism and, therefore, tends to impinge on his [National Labor Relations Act] rights.”)

(internal quotation marks omitted).




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                             b. The Interrogation of Marquis Applin

       The Judge also concluded that Butcher’s questioning of Applin was an attempt to assess

Applin’s position on unionization in order to report it to Hassinger, and that such questioning

was coercive because it closely followed the mandatory anti-union meeting for employees. The

Board agreed with this conclusion.

       Substantial evidence supports the Board’s conclusion that Butcher’s questioning of

Applin amounted to coercive interrogation in violation of the Act. This conclusion is supported

by evidence similar to the evidence supporting the conclusion that Sponsler was coercively

interrogated:   an anti-union meeting had been held the day before; Butcher clearly sought

Applin’s position on the union; Butcher was Applin’s supervisor; and Butcher approached

Applin on the work floor while Applin was alone, a potentially vulnerable setting. See Allegheny

Ludlum Corp., 104 F.3d at 1359; supra Part II.A.1.a.

                                          2. Surveillance

       Creating the impression that employees’ union activities are under surveillance

constitutes an unfair labor practice in violation of 29 U.S.C. § 158(a)(1), see NLRB v.

Homemaker Shops, Inc., 724 F.2d 535, 538, 550 (6th Cir. 1984), because “employees should be

free to participate in union organizing campaigns without the fear that members of management

are peering over their shoulders, taking note of who is involved in union activities, and in what

particular ways.”    Flexsteel Indus., 311 N.L.R.B. 257, 257 (1993).       A finding of actual

surveillance is not required; “the test for determining whether an employer has created an

impression of surveillance is whether the employee would reasonably assume from the statement

that their union activities had been placed under surveillance.” Id.




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       The Board found that Erwy created the impression of surveillance when, during his

discussion of union activities with Sponsler, he said “that upper management already knew

everyone that . . . [was] involved.” This finding is supported by substantial evidence. Sponsler

testified that he had attended an off-site union meeting the day before, that he had not publicly

indicated support for the union, and that Ewry did not disclose his source of information. The

Judge credited Sponsler’s testimony, and Caterpillar makes no argument that that credibility

determination overstepped the bounds of reasons or was inherently unreasonable or self-

contradictory.

       Thus, Ewry indicated to Sponsler that management was aware of protected labor

activities without revealing his source, thereby creating an impression that protected activity had

been improperly surveilled. See Sam’s Club, 342 N.L.R.B. 620, 620-21 (2004) (“[Manager]

Roberts’ telling [employee] Peto that he ‘heard Peto was circulating a petition about wages’

leads reasonably to the conclusion that the [employer] had been monitoring Peto’s activities.

Peto did not circulate the petition openly, and Roberts never revealed how he came by the

information.”).

                              3. Impressible Promising of Benefits

       The promise or conferral of a benefit to employees in the run-up to a union election will

typically amount to coercion, and thereby an unfair labor practice in violation of the Act. See

NLRB v. Bailey Co., 180 F.2d 278, 279 (6th Cir. 1950) (“[T]hrough the promises of . . .

economic benefits . . . , the respondent was demonstrating to its employees that resort to self-

organization was plainly unnecessary. This constituted interference with the exercise by the

employees of their right of self-organization and collective bargaining through representatives of

their own choosing.”). “[T]he critical inquiry is whether the benefits were granted for the


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purpose of influencing the employees’ vote in the election and were of a type reasonably

calculated to have that effect.” United Airlines Servs. Corp., 290 N.L.R.B. 954, 954 (1988)

(citing NLRB v. Exchange Parts Co., 375 U.S. 405 (1964)). “[U]nless the company can present a

legitimate business reason for the timing of its guarantee,” such “a promise [of benefits] will be

presumed impermissibly influential.” DynCorp, Inc. v. NLRB, 233 F. App’x 419, 430 (6th Cir.

2007) (citing Bailey Co., 180 F.2d at 279).

                                      a. The $400 Safety Bonus

       The Judge found that there “was no reason for Brian Purcell to announce [in September]

the fact that employees would be receiving the bonus in December other than to influence them

in voting in the representation election” and that “the announcement was motivated by

[Caterpillar’s] desire to discourage unit employees from voting for union representation,”

because there was “no credible evidence that a firm decision had been made to pay employees

the $400 bonus prior to the filing of the representation petition on August 16.” Thus, the Judge

found that the announcement of the safety bonus was an impermissible benefit amounting to an

unfair labor practice in violation of 29 U.S.C. § 158(a)(1).      The Board agreed with these

findings.

       Caterpillar continues to argue that the bonus was first announced in March or July of

2013, when it would not have influenced an impending representation election. But the Judge

credited the testimony of twelve employees who recalled no such announcements, and found that

even if Caterpillar’s witnesses were credited, their testimony would indicate at most that

Caterpillar announced in March or July that it might apply for the bonus, without conclusively

indicated if or when an application would be made. The Board agreed with these findings.




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       The Board’s findings are supported by substantial evidence. We agree that “a reasonable

mind might accept as adequate [the evidence] support[ing]” the Board’s conclusion that even if

Caterpillar’s witnesses are credited regarding the purported March and July announcements,

these announcements indicated at most that Caterpillar might apply for the safety bonus. Dupont

Dow Elastomers, 296 F.3d at 500 (citation and internal quotation marks omitted). For instance,

Value Stream Manager Sara Pahlas testified that then-General Manager Jeff Slocum presented to

employees at the March meeting the proposal for the safety bonus, reading from a PowerPoint

presentation. The PowerPoint presentation that was purportedly displayed to employees at the

meeting says conditionally that a bonus will be paid out to employees “IF AND ONLY IF we are

positioned to submit a viable safety program for consideration in the annual ‘Chairman’s Safety

Award’ Process.”       Likewise, Safety Manager Rivera testified that, at the July meeting, he

“covered the two projects that [he] thought we would be submitting, or we thought we would be

submitting for that award.” Assuming these announcements were in fact made — which the

testimony of the twelve employees draws into doubt — adequate evidence suggests they were

conditional at best.

       Thus, the Board and the Judge reasonably determined that employees were told for the

first time, nine days before the election, that they would be receiving a bonus of $400. The

Board and the Judge could have reasonably concluded that the bonus was “granted for the

purpose of influencing the employees’ vote in the election and [was] reasonably calculated to

have that effect.” United Airlines Servs. Corp., 290 N.L.R.B. at 954. And even if the bonus was

warranted for business reasons (like safety), Caterpillar cannot provide a “legitimate business

reason for the timing of its guarantee” in order to rebut the presumption that the announcement of

the bonus was impermissibly coervice.       DynCorp, 233 F. App’x at 430 (emphasis added).


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Indeed, the timing of the announcement reinforces the presumption that it was intended to

coerce. Although the bonus was to be awarded on the basis of warehouse safety through the end

of September 2013, the application was prepared in August, submitted on September 13, and

announced of September 18 — just nine days before the election. Thus, substantial evidence

supports the conclusion that the bonus was impermissibly secured “right before an election and

sprung on the employees in a manner calculated to influence the employees’ choice.” NLRB v.

Arrow Elastic Corp., 573 F.2d 702, 706 (1st Cir. 1978); see also St. Francis Fed’n of Nurses &

Health Profs. v. NLRB, 729 F.2d 844, 850 (D.C. Cir. 1984) (“Thus the timing of the

announcement of a [benefit] may violate section [158(a)(1)], even though the employer’s initial

decision to [provide the benefit] was perfectly legitimate.”)

                                      b. The Smoking Shelters

       The Judge found that the promised smoking shelters amounted to a benefit, and that the

timing of their announcement was “designed to convince the employees that their demands

would be met through direct dealing with [Caterpillar] and that union representation could in no

way be advantageous to them.” The Judge thus found that the announcement of smoking

shelters amounted to an unfair labor practice in violation of the Act. The Board agreed with the

Judge’s conclusions.

       Substantial evidence supports the Board’s conclusion that the announcement of smoking

shelters amounted to an unfair labor practice in violation of 29 U.S.C. § 158(a)(1). The shelters

were a solution to a problem that Caterpillar employees had complained of for a long time, and

the shelters were announced for the first time shortly before the election. That the shelters were

purportedly a response to safety concerns about uncovered smoking areas does not necessarily

mean that there was a “legitimate business reason for the timing” of their announcement.


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DynCorp., 233 F. App’x at 430; see St. Francis Fed’n of Nurses & Health Profs., 729 F.2d at

850.

       The timing here indicates that neither safety nor any other legitimate purpose was the

primary reason for the announcement that shelters would be constructed, and that in fact the

announcement was “for the purpose of influencing the employees’ vote in the election and [was]

of a type reasonably calculated to have that effect.” United Airlines Servs. Corp., 290 N.L.R.B.

at 954. Specifically, employees had complained for years about the exposed outdoor smoking

areas, but no action was taken to address the issue until the shelters were announced nine days

before the election. Further undercutting the purported safety rationale is the fact that the

shelters were not in fact constructed until March of 2014, forcing employees to endure another

winter in the exposed smoking areas. The Board’s conclusion that the announcement of the

shelters amounted to an unfair labor practice is therefore supported by substantial evidence.

                              B. The Discharge of Michael Craft

       The Act 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 . .

. .” 29 U.S.C. §§ 158(a), (a)(3). But an employee who engages in “opprobrious conduct” can

forfeit these protections.   Atlantic Steel Co., 245 N.L.R.B. 814, 816 (1979).         “It is well

established that ‘although employees are permitted some leeway for impulsive behavior when

engaged in concerted [organizing] activity, this leeway is balanced against an employer’s right to

maintain order and respect.’” DaimlerChrysler Corp., 344 N.L.R.B. 1324, 1329 (2005) (quoting

Piper Realty, 313 N.L.R.B. 1289, 1290 (1994)). “Where an employee engages in indefensible or

abusive misconduct during otherwise protected activity, the employee forfeits the Act’s

protection. Whether the Act’s protection is lost depends on a balancing of four factors: (1) the


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place of the discussion between the employee and the employer; (2) the subject matter of the

discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any

way, provoked by an employer’s unfair labor practice.”              Id. (citing Atlantic Steel Co.,

245 N.L.R.B. at 814) (additional citation omitted). Although the Board’s findings of fact and

application of law to fact are otherwise reviewed for substantial evidence, see Universal Camera,

340 U.S. at 477, 488; Mead Corp., 73 F.3d at 78, the Board’s determination of whether an

employee has forfeited the protections of the Act is conclusive “unless it is illogical, arbitrary, or

unreasonable,” NLRB v. Honda of Am. Mfg., Inc., 73 F. App’x 810, 813 (6th Cir. 2003) (citing

NLRB v. Hartmann Luggage Co., 453 F.2d 178, 183-84 (6th Cir. 1971)) (additional citations

omitted).

       Here, the Judge determined that Craft was involved in protected activity during his

outburst by telling his coworkers that he was a union supporter because of what he interpreted as

his employer’s disrespectful treatment of employees. The Board agreed with this conclusion.

The Judge also assessed the outburst according to the Atlantic Steel factors, and determined that

Craft had not forfeited the Act’s protections. Specifically, he concluded that:

               [T]he place of the discussion, on the warehouse floor cuts both
               ways. Craft disrupted work for a very brief period of time. On the
               other hand, the seriousness of his misconduct is somewhat lessened
               by the fact that Brian Purcell was not present when he made his
               remarks. . . . Moreover, Craft’s statement was not accompanied by
               any threatening physical gestures . . . which also weighs in favor of
               a finding that he did not lose the Act’s protection. [T]he subject of
               the discussion: Craft’s newly discovered support for the Union
               cuts in favor of a finding that he did not lose the protection of the
               Act. [The nature of the outburst] is the most important. Without
               the first sentence, Craft’s statements are certainly a threat which
               would lose him the protection of the Act. However, the M-fer
               going down, the gloves are off has to be placed in context. The
               statement makes no sense if one interprets it as I am going to kill
               or assault Brian Purcell and then support the Union . . . .
               [Provocation:] Purcell certainly did not provoke Craft by

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                committing any unfair labor practice. . . . However, I conclude that
                this is an insufficient reason to deny Craft the protection of the Act
                in view of the other factors.

Thus, the Judge found that Craft had been “discriminatorily discharged” for engaging in behavior

protected by the Act, and ordered his reinstatement. The Board also agreed with the conclusion

that Craft had not forfeited the Act’s protections and was entitled to reinstatement.

        Because Craft’s outburst to his colleagues was an expression of union support and a

complaint about perceived working conditions, the Board’s determination that it amounted to

protected activity under the Act is supported by substantial evidence. See 29 U.S.C. § 157

(“Employees shall have the right to self-organization, to form, join, or assist labor organizations,

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

mutual aid or protection . . . .”).

        Moreover, we find nothing “illogical, arbitrary, or unreasonable” about the Board’s

application of the Atlantic Steel factors and determination that Craft did not forfeit the Act’s

protections. Craft’s outburst was plainly an expression of union support and a complaint about

perceived working conditions, and while it may well have been crudely stated, it can reasonably

be viewed in context as metaphorical speech rather than threatening speech. See Kiewit Power

Constructors Co. v. NLRB, 652 F.3d 22, 28 (D.C. Cir. 2011) (“Once we acknowledge that the

employees were speaking in metaphor, the [Board’s] interpretation is not unreasonable. It is not

at all uncommon to speak of verbal sparring, knock-down arguments, shots below the belt,

taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs. What

these words stand for, of course, is a matter of context.”).

        As such, we uphold the Board’s determination that Craft was improperly dismissed for

engaging in expression protected by the Act, and that Caterpillar must reinstate him.


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Case Nos. 15-1433, 15-1611
Caterpillar Logistics, Inc. v. NLRB

                                      III. Conclusion

       For the foregoing reasons, Caterpillar’s petition for review is DENIED, and the Board’s

cross-application for full enforcement of its order is GRANTED.




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