206 F.3d 1183 (D.C. Cir. 2000)
Mohave Electric Cooperative, Inc.,Petitionerv.National Labor Relations Board, Respondent
No. 98-1522
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 1999Decided March 28, 2000

[Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Thomas J. Kennedy argued the cause for petitioner.  With  him on the briefs were Gregg J. Tucek, William P. Allen, and  Neil I. Levy.
Preston L. Pugh, Attorney, National Labor Relations  Board, argued the cause for respondent.  With him on the  brief were Linda Sher, Associate General Counsel, Aileen A.  Armstrong, Deputy Associate General Counsel, and David  Habenstreit, Supervisory Attorney.  John D. Burgoyne, Deputy Associate General Counsel, entered an appearance.
Before:  Ginsburg, Henderson, and Garland, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Mohave Electric Cooperative, Inc. petitions for review of a decision and order of the National  Labor Relations Board (NLRB), which concluded that the  company unlawfully discharged employee RichardMichaels for protected concerted activity in violation of section 8(a)(1)  of the National Labor Relations Act (NLRA), 29 U.S.C.  § 158(a)(1).  The NLRB cross-petitions for enforcement of its  order.  We deny the petition for review and grant the cross-petition for enforcement.


2
* Mohave is an electric utility operating out of Bullhead City,  Arizona.  It has approximately seventy employees, roughly  twenty of whom are represented by the International Brotherhood of Electrical Workers, Local 769, AFL-CIO ("the  Union").  The bargaining unit consists of linemen, mechanics,  warehousemen, and between eight and twelve meter readers. The latter are responsible not only for reading electric meters, but also for meter installation, meter connection and  disconnection, and other related duties.  Gene Quinn supervises Mohave's meter department and reports to Tom Longtin, the operations manager.


3
Consistent with the terms of its collective bargaining agreement (CBA), Mohave uses several subcontractors to supplement its work force.  One subcontractor, Guard Force, has  provided Mohave with additional meter readers since 1993.Guard Force employees wear uniforms like those of Mohave  meter readers, and they work out of the same room on  Mohave's premises.  Although they have their own on-site  supervisor, David Drabek, he reports to Mohave's Gene  Quinn.  See Mojave Elec. Coop., 327 N.L.R.B. No. 7, 1998  WL 777462, at *4 (Oct. 30, 1998);  Tr. at 74.1  Hence, all meter readers--whether employed directly by Mohave or by  a subcontractor--come within the scope of Quinn's supervisory responsibility.


4
Richard Michaels worked as a meter reader for Mohave  from August 1991 until his termination on June 3, 1996.  He  was one of two union stewards at the Mohave facility and  served on a number of the Union's committees.  His work  history was generally uneventful until May 1996.


5
The parties dispute the details of the events that began  that month and that ultimately culminated in Michaels' discharge.  The Administrative Law Judge (ALJ) who heard the  case found that on the morning of May 8, Michaels called  Drabek, the Guard Force supervisor, to complain that a  Guard Force employee had insisted that Michaels trade  meter-reading routes for the day.  Following that conversation, Drabek reported to Mohave that Michaels had been rude  to him.  Michaels denied the allegation, and his supervisor,  Quinn, ended the matter by finding that Michaels "had acted  properly."  Mojave Elec., 1998 WL 777462, at *5.


6
Later that same month, Michaels learned from a friend  that someone wearing a Mohave uniform had been stopped at  a local grocery store for shoplifting.  Pursuant to company  policy, Michaels reported this to Quinn, who in turn advised  Longtin, Mohave's operations manager, and Jay Nady, the  owner of Guard Force.  According to Nady and Longtin, the  story that reached them was that Michaels had reported that  the person wearing the Mohave uniform was a Guard Force  employee, who had been handcuffed and driven away by the  police.  The actual facts were somewhat less dramatic:  there  had been no police arrest;  the store's own security force had  stopped the Guard Force employee, who claimed to have  "forgotten" to pay for an item he took from the store.  Nady  and Longtin concluded that Michaels had exaggerated the  story in order to discredit Guard Force.  At the hearing  before the ALJ, however, Michaels testified that he had  merely reported what he had heard--that someone wearing a  Mohave uniform had been stopped for shoplifting--and nothing more.  Based on the demeanor of the witnesses, the ALJ found Michaels' testimony substantially more credible than  that of Nady and Longtin.  Hetherefore credited Michaels' testimony and concluded that if there had been any exaggeration, it had been by Mohave's supervisors rather than Michaels.


7
On May 21, angry about the alleged exaggeration, Nady  went to Mohave's facility "to confront and straighten out  Michaels."  Id. at *6 (internal quotation omitted).  Unable to  find him, Nady instead located Stuart Douglas, another Mohave meter reader whom Nady had often seen with Michaels. Although the parties dispute the details of the encounter, it  appears that Nady asked Douglas about Michaels' whereabouts and that there was a brief physical confrontation  between them.2


8
The next day, when Michaels returned to work, Douglas  told him that he had been physically and verbally assaulted  by Nady, and that Nady had been "looking for" Michaels  when this occurred.  Michaels promptly told his supervisor  that he felt threatened, and he asked the company for protection.  Quinn told him to "give it a couple of days" and took no  further action, although later Longtin did advise Nady that  Mohave "reserved to itself any issues of supervision or discipline of its employees."  Id. at *7.  Concerned about their  physical safety, Michaels and Douglas met with their coworkers and discussed their options.  They described Nady's  alleged assault on Douglas and stated that they were considering turning to the courts for protection.  Michaels gave  uncontradicted testimony that the other employees agreed  with and supported such action.  See Tr. at 189-90.


9
On May 23, in Bullhead City municipal court, Michaels and  Douglas filed petitions for injunctions against harassment,  citing their need for protection from "verbal and mental  abuse and possibly physical violence" by Nady and Drabek.App. at 139-43.  The petitions requested that Nady and


10
Drabek have no contact with Douglas and Michaels, and that  they be enjoined to stay away from the petitioners' homes  and place of employment.


11
On May 29, Nady received copies of the petitions and  immediately contacted Longtin.  He told Longtin that, if the  injunctions were granted, neither he nor Drabek would be  allowed on Mohave property.  This, he said, would prevent  them from performing their duties as subcontractors.  Thereafter, Longtin decided to terminate Michaels.  According to  Longtin's testimony, he did so because Michaels had filed the  petition, exaggerated the shoplifting incident, spoken rudely  to Drabek in the telephone conversation of May 8, and called  Guard Force employees "scabs."  Mojave Elec., 1998 WL  777462, at *8.  Longtin conceded, however, that when he told  Michaels that he was being terminated, he told him "of no  other reason besides his having filed the petition."  Id.  On  July 22, the municipal court denied both Michaels' and Douglas' petitions.


12
The ALJ concluded that the filing of the petitions was  protected conduct under the NLRA, and rejected Mohave's  contention that the filing was rendered unprotected because it  constituted "disloyalty."  Applying the familiar Wright Line  test,3 the ALJ found that a prima facie violation of section  8(a)(1) had been established because Mohave "admittedly  fired [Michaels], at least in part, because of his having filed  the petition," id. at *11, and because Mohave did not show  that it would have fired Michaels in the absence of that  protected conduct, see id. at *9-11.  The NLRB affirmed.4  Thereafter, Mohave petitionedthis court for review, and the  Board cross-petitioned for enforcement.

II

13
As we have noted many times before, our role in reviewing  an NLRB decision is limited.  See, e.g., Pioneer Hotel, Inc. v.  NLRB, 182 F.3d 939, 942 (D.C. Cir. 1999);  Time Warner  Cable v. NLRB, 160 F.3d 1, 3 (D.C. Cir. 1998).  "We must  uphold the judgment of the Board unless, upon reviewing the  record as a whole, we conclude that the Board's findings are  not supported by substantial evidence, or that the Board  acted arbitrarily or otherwise erred in applying established  law to the facts of the case."  International Union of Elec.,  Elec., Salaried, Mach. & Furniture Workers v. NLRB, 41  F.3d 1532, 1536 (D.C. Cir. 1994) (internal quotations and  citation omitted).  We are also required to give "substantial  deference to the inferences drawn by the NLRB from the  facts."  Time Warner Cable, 160 F.3d at 3.  Moreover, absent  exceptional circumstances, we must accept the agency's determinations regarding the credibility of witnesses.  See Elastic  Shop Nut Div. v. NLRB, 921 F.2d 1275, 1281 (D.C. Cir. 1990)  (stating that "the Court must uphold Board-approved credibility determinations of an ALJ unless they are 'hopelessly  incredible' or 'self-contradictory' ").


14
Mohave seeks to overturn the Board's finding that it committed an unfair labor practice on two principal grounds.First, it contends that Michaels' conduct in filing the injunction petition was unprotected because it was "disloyal."  Second, it contends that Michaels' activity was unprotected because it was inconsistent with the collective bargaining  agreement.  In addition, Mohave argues that even if it did  discharge Michaels for protected activity, the remedy should  be limited because the company would have fired him in any  event based on evidence of unrelated misconduct it discovered after his termination.5  We consider each of these arguments below.


15
* Section 7 of the NLRA guarantees employees 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."  29 U.S.C. § 157.  Section 8(a)(1) of the Act implements that guarantee by declaring that "[i]t shall be an unfair  labor practice for an employer ... to interfere with, restrain,  or coerce employees in the exercise of the rights guaranteed  in [section 7]."  Id. S 158(a)(1);  see PHT, Inc. v. NLRB, 920  F.2d 71, 73 (D.C. Cir. 1990).  Thus, an employer violates  section 8(a)(1) if it discharges an employee for engaging in  concerted activity for the purpose of mutual aid or protection.  See, e.g., Prill v. NLRB, 835 F.2d 1481, 1483 (D.C. Cir. 1987).Moreover, the Supreme Court has confirmed that "the 'mutual aid or protection' clause protects employees from retaliation by their employers when they seek to improve working  conditions through resort toadministrative and judicial forums."  Eastex, Inc. v. NLRB, 437 U.S. 556, 565-66 & n.15  (1978) (citing with approval Walls Mfg. Co., 137 N.L.R.B.  1317 (1962), enforced, 321 F.2d 753 (D.C. Cir. 1963), and  Socony Mobil Oil Co., 153 N.L.R.B. 1244 (1965), enforced, 357  F.2d 662 (2d Cir. 1966)).


16
Mohave does not dispute the ALJ's conclusion that the  filing of a judicial petition--supported by fellow employees  and joined by a co-employee--constitutes concerted action  under the NLRA.6  Nor does Mohave dispute that concerted  action to ensure greater workplace safety through petitioning  for injunctive relief may constitute protected conduct.  Instead, it contends that Michaels' conduct was unprotected  here because it was "disloyal," in that if granted, the injunction would have interfered with the business relationship  between Mohave and Guard Force.


17
It is true that an employer may discharge an employee for  disloyalty without committing an unfair labor practice.7  But  the fact that an employee's actions may cause some harm to  the employer does not alone render them disloyal.  See  NLRB v. Knuth Bros., Inc., 537 F.2d 950, 953 (7th Cir. 1976).The activity at issue here involves the filing of a petition for  judicial relief, and, as Mohave itself recites, the "rule [is] that  filing a 'civil action by a group of employees is protected  activity unless done with malice or in bad faith.' "  Mohave  Reply Br. at 5 (quoting Trinity Trucking & Materials Corp.,  221 N.L.R.B. 364, 365 (1975)) (emphasis added).8  Moreover, that the petition "was later dismissed on the pleadings would  not in itself make the activity unprotected or establish bad  faith."  Trinity Trucking & Materials Corp., 221 N.L.R.B. at  365 (citing Walls Mfg. Co., 137 N.L.R.B. at 1317).9


18
Mohave contends that Michaels' petition was in fact filed  "with malice and in bad faith" because it was intended not to  protect employees but rather to disrupt Mohave's relationship  with Guard Force.  Mohave Br. at 19.  The ALJ, however,  found to the contrary, and we affirm that finding as supported by substantial evidence.  As the ALJ stated, "whether  or not one regards Michaels' fears as totally realistic," it is  not possible to conclude that they were baseless.  Mojave  Elec., 1998 WL 777462, at *11.  Testimony supported the  ALJ's finding that "Nady did behave toward Michaels in an  angry fashion, and did seek to find him for some sort of  confrontation."  Id. at *10;  see Tr. at 80-81;  General Counsel  Ex. 10.  Moreover, the ALJ observed that "Nady's imposing size and evident state of fitness would strike a disturbing  chord in virtually anyman who learned as Michaels did that  Nady had come onto [Mohave's] premises seeking a confrontation with him."  Mojave Elec., 1998 WL 777462, at *10.  And as the ALJ also noted, "Michaels sought assurances for  his safety" from Mohave, and "resorted to the filing of a  petition only after such assurances were not given."  Id.


19
The ALJ's observations are fully supported by Michaels'  testimony, which the ALJ found to be of "superior" credibility--a determination to which we defer.  Michaels testified  without contradiction that he "felt very threatened" when he heard Nady had come looking for him, that he felt "the  physical altercation between [Nady] and Douglas was actually  directed towards [him]," and that he and Douglas filed their  petitions to protect themselves from further harassment.  Tr.  at 184-90.  Mohave officials conceded that Michaels communicated his safety concerns to the company both before and  after the petitions were filed, see id. at 92-93, 337, and that he  asked the company to take "some action to protect" him, id.  at 85--a request Mohave initially put off with the suggestion  to "give it a couple of days," Mojave Elec., 1998 WL 777462,  at *7;  Tr. at 185.  Although Mohave later "advised" Nady to  leave any disciplining of its employees to the company, Michaels was not required to accept that admonition as providing him with sufficient protection.


20
Mohave contends that the filing of the petitions should not  be considered in isolation, and that Michaels' bad faith is  evidenced by the fact that the filing was part of a long-term  campaign to discredit Guard Force and sever its contractual  relationship with Mohave.  Other elements of this asserted  campaign were Michaels' alleged exaggeration of the shoplifting incident, his allegedly rude telephone conversation with  Drabek on May 8, his purported practice of calling Guard  Force employees "scabs," and the fact that after the May 21  incident with Nady, Michaels filed a union grievance seeking  the removal of Guard Force from Mohave's property.  The  ALJ readily disposed of each of these claims, see Mojave  Elec., 1998 WL 777462, at *4 n.6, and we find those dispositions reasonable.  The ALJ determined based on witness  demeanor that it was Mohave's supervisors rather than Michaels who had exaggerated the shoplifting incident.  Supervisor Quinn concluded that Michaels had behaved properly in  the May 8 telephone conversation with Drabek.  The ALJ  credited Michaels' denial that he had ever called Guard Force  employees scabs, finding Longtin's contrary testimony to be  internally "inconsistent[ ]" and a "makeweight."  Id. at *8  n.12.  Finally, the filing of the union grievance in connection  with the same conduct for which Michaels sought a civil  injunction is itself a protected activity.  See, e.g., Illinois Ruan Transp. Corp. v. NLRB, 404 F.2d 274, 284 (8th Cir.  1968);  Walls Mfg. Co., 321 F.2d at 753.


21
We conclude that substantial evidence supports the Board's  finding that Michaels did not file his petition out of bad faith  or malice.  Accordingly, we reject Mohave's contention that  Michaels' conduct was "disloyal" and therefore unworthy of  NLRA protection.

B

22
Mohave also contends that the filing of Michaels' judicial  petition was unprotected because it was "contrary to the  express terms of the collective bargaining agreement between  [Mohave] and Michaels' union."  Mohave Br. at 20.  That  agreement, the company argues, not only "permit[ted] [Mohave] to contract with Guard Force, it specifically prohibited  Michaels from interfering with that and other aspects of  [Mohave's] operations."  Id. at 20-21.  Thus, the company  contends, by seeking an injunction that would have impaired  Guard Force's ability to fulfill its contract with Mohave,  Michaels breached the CBA.


23
Mohave is correct that conduct in breach of a collective  bargaining agreement is one of "the normal categories ofunprotected concerted activities."  NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 (1962).  But its claim that  Michaels breached the agreement at issue here is truly  breathtaking in its scope.  The company does not contend  that the filing of the petition breached the agreement;  rather, Mohave's contention is that the breach would occur if the  petition were granted.  "If granted," the company argues, an  order directing Guard Force's owner and supervisor to stay  away from Michaels' place of business would limit Mohave's  ability "to enjoy the benefits of [its] contractual relationship"  with Guard Force.  Mohave Br. at 16.  In essence, Mohave's  contention is that if an employee asserts a right under state  law to be free of physical harassment, and if a judge determines on the merits that a stay-away order is necessary to  vindicate that right, the employee has violated the collective  bargaining agreement struck between Mohave and the Union.  Mohave is not dissuaded by the implications of this position.At oral argument, its counsel agreed this would mean that if  an employee were sexually harassed by Mohave's president, it  would be a breach of contract for the employee to seek a  judicial restraining order.  The employee's only recourse,  counsel suggested, would be to sue the Union for having  "shackled" the employee with a CBA that barred access to  the courts.


24
It is doubtful that a collective bargaining agreement could  waive an employee's statutory rights10 in the manner claimed  by Mohave.11  But even if this were the kind of right that a  CBA could waive, the Supreme Court has held that such a  waiver must be "clear and unmistakable."  Wright v. Universal Maritime Serv. Corp., 119 S. Ct. 391, 396 (1998) (holding  that general arbitration clause in CBA did not waive employee's right to judicial forum for claim of employment discrimination).  "We will not infer from a general contractual provision," the Court said, "that the parties intended to waive a  statutorily protected right unless the undertaking is explicitly  stated.  More succinctly, the waiver must be clear and unmistakable."  Id. (internal quotations omitted).


25
Nothing in the collective bargaining agreement at issue  here even approaches this "clear and unmistakable" standard  for waiver.  The provision upon which Mohave relies bears  the title "NO STRIKE" and reads as follows:


26
During the terms of this Agreement, under no circum-stances will the Union or the employees engage in, instigate, cause, permit, encourage, or take part in any strike, boycott, work stoppage, slowdown, cessation of work, interruption of work, sympathy strike, unfair labor practice strike, picket, curtailment of work, reduction of production, or interference of any kind with the operations of the Employer.


27
App. at 123 (emphasis added).  As is immediately apparent,  the provision does not mention the exercise of statutory  rights or the filing of lawsuits at all.  Rather, as its title  makes clear, it is principally a no-strike provision, and the  specific prohibitions it sets forth are all against work stoppages of one form or another.  Although Mohave contends that  the phrase we have italicized above, "or interference of any  kind," gives the prohibition a wider scope, the canon of  ejusdem generis ("of the same kind or class") counsels against  our reading that general phrase to include conduct wholly  unlike that specified in theimmediately preceding list of  prohibited acts.  In any event, given the Supreme Court's  admonition that we should not infer waivers of statutory  rights unless they are "clear and unmistakable," we see  nothing in this CBA to justify inferring a waiver of the  proportions claimed by Mohave.12

C

28
Having rejected Mohave's arguments that Michaels' conduct was unprotected, we turn now to its alternative argument:  that evidence acquired after Michaels' termination  should limit his remedy.  The NLRB awarded Michaels full  reinstatement and backpay from the time of his discharge. See Mojave Elec., 1998 WL 777462, at *1.  Mohave disputes that award, contending that one week after it fired Michaels,  it came upon evidence that would have resulted in his termination irrespective of the injunction petitions.  That evidence  was a statement by Guard Force employee Tammy Bauguess  that, on a single occasion nine to ten months before his  discharge, Michaels paid her five dollars to take part of his  meter route.  Mohave's operations manager, Tom Longtin,  "testified unequivocally that he would have discharged Michaels for this action" as soon as he discovered it.  Mohave  Reply Br. at 9.


29
To preclude reinstatement and limit back pay on the basis  of after-acquired evidence, the employer has the burden of  proving that the evidence reveals misconduct for which it  "would have discharged any employee," not simply for which  it could have done so.  Marshall Durbin Poultry Co., 310  N.L.R.B. 68, 70 (1993) (emphasis added), aff'd in relevant  part, 39 F.3d 1312 (5th Cir. 1995);  see also John Cuneo, Inc.,  298 N.L.R.B. 856, 856-57 (1990).13  The NLRB affirmed the  ALJ's determination that Mohave had not met that burden. See Mojave Elec., 1998 WL 777462, at *1.  Because the Board  has "broad discretion" in fashioning remedial orders, ABF  Freight Sys., Inc. v. NLRB, 510 U.S. 317, 325 (1994), we will  uphold its decision as long as there is substantial evidence in  the record to support it.


30
There is such substantial evidence here.  The ALJ concluded that "even if [he] had found the events to have occurred as  testified to by Bauguess,"14 he could not credit Longtin's testimony that this kind of misconduct would alone have  resulted in Michaels' discharge.  Mojave Elec., 1998 WL  777462, at *14.  The "claimed seriousness" of the single  alleged five-dollar bribe, the ALJ said, was substantially  undercut by "Longtin's benign attitude" toward Bauguess,  who purportedly had taken the bribe.  Id. at *15.  As Longtin admitted, he had "made no request or demand that  [Bauguess] be disciplined by Guard Force."  Id.;  see Tr. at  385 (testimony of Longtin) (agreeing that it was "against the  rules for [Bauguess] to accept the money," but conceding that  he had not recommended that she be disciplined).  "Thefact that Longtin has taken absolutely no action against" her, the  ALJ concluded, spoke "volumes" as to whether the five dollar  bribe was an offense for which Michaels really would have  been fired, Mojave Elec., 1998 WL 777462, at *15, and  "belied" Longtin's testimony that it was, id. at *12.


31
The inference drawn by the ALJ is a reasonable one.  See  John Cuneo, Inc., 298 N.L.R.B. at 861 n.10 (noting that  treatment of similarly situated employees carries great  weight in evaluating whether employer would have terminated employee for act of misconduct);  Axelson, Inc., 285  N.L.R.B. 862, 866 (1987) (holding that, to terminate backpay  on basis of after-acquired evidence, employer must demonstrate that discovered misconduct "is not conduct of a sort  that it has tolerated in the past").15  Against it Mohave offers  nothing more than Longtin's testimony, which the ALJ was  entitled to reject as self-serving.  See Import Body Shop,  Inc., 262 N.L.R.B. 1188, 1188 (1982) (viewing "with skepticism" rationale for discharge based on post-discharge evidence, since employer "already had manifested its intention to  discharge [employee] for unlawful reasons").  Indeed, Mohave does not even attempt to explain why Bauguess escaped  discipline for engaging in the same transaction for which the  company claims it would have fired Michaels.  Accordingly,


32
we have no warrant for rejecting the Board's conclusion that  Michaels should be awarded full reinstatement and backpay.

III

33
For the foregoing reasons, Mohave's petition for review is  denied, and the Board's cross-petition for enforcement is  granted.


34
So ordered.



Notes:


1
 Although the Board employs the spelling "Mojave," we use the  spelling employed by the petitioner in this court.


2
 Douglas claimed "that he'd been physically and verbally assaulted by Nady, with Nady grabbing him by the shirt and shaking  him."  Mojave Elec., 1998 WL 777462, at *6.  Nady claimed "that  any contact was merely incidental to being bumped as both were  leaving the meter reading room."  Id.


3
 See Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d  899 (1st Cir. 1981);  see also NLRB v. Transportation Management  Corp., 462 U.S. 393, 399-401 (1983) (approving Wright Line test).


4
 The ALJ also concluded that Michaels had been discharged  because of anti-union animus in violation of NLRA S 8(a)(3), 29  U.S.C. S 158(a)(3).  In light of its conclusion that Michaels was  unlawfully discharged in violation of section 8(a)(1) for filing the  civil injunction petition, the Board found "no need to rely on the  judge's conclusion that the discharge also violated Section 8(a)(3)."
Mojave Elec., 1998 WL 777462, at *1.  Accordingly, that issue is not  before us.


5
 In the Statement of Facts section of its brief, Mohave suggests  that Michaels was not fired solely for the filing of the petition, but  rather due to a continuing "pattern" of disloyal actions including,  inter alia, exaggerating the shoplifting incident, speaking rudely to  Drabek, and calling Guard Force employees names.  See Mohave  Br. at 5-6;  see also id. at 14.  Even if this were true, there is  substantial evidence to support the ALJ's conclusion that Mohave  failed to overcome its Wright Line burden of showing it would have  fired Michaels absent the filing of the petition.  See Transportation  Management Corp., 462 U.S. at 401-03 (holding that where protected activity is at least a "motivating factor," employer must show it  would have taken same action in its absence).  Moreover, as discussed below, there is substantial evidence to support the ALJ's  finding that Michaels did not engage in the purported pattern of  disloyal activity.


6
 See, e.g., Prill, 835 F.2d at 1483 (noting that complaint of  single employee is deemed concerted action when taken "with the  actual participation or on the authority of his co-workers");  International Ladies' Garment Workers' Union v. NLRB, 299 F.2d 114,  115-16 (D.C. Cir. 1962) (finding concerted action where complaint  letter written by single employee was "approved in advance by  several other employees").


7
 See, e.g., NLRB v. Local Union No. 1229 (Jefferson Standard  Broad. Co.), 346 U.S. 464, 471 (1953) (upholding discharge where  employees publicly disparaged quality of employer's product, with  no discernible relationship to pending labor dispute);  George A.  Hormel & Co. v. NLRB, 962 F.2d 1061, 1064 (D.C. Cir. 1992)  (stating that employee violates duty of loyalty by supporting boycott  of employer's product, unless boycott is non-disparaging and related  to ongoing labor dispute).


8
 Accord Leviton Mfg. Co. v. NLRB, 486 F.2d 686, 689 (1st Cir.  1973);  Socony Mobil Oil Co., 357 F.2d at 663-64;  cf. Walls Mfg.  Co., 321 F.2d at 754 (holding that complaint to state health department was protected conduct given lack of evidence that "the allegations were made with intent to falsify or maliciously injure the  [employer]").


9
 See Walls Mfg. Co., 321 F.2d at 754 (upholding finding of lack  of malice "notwithstanding the inaccuracy" of the complaint);  see  also Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1351 n.12 (3d  Cir. 1969) ("We are not concerned in this case with the merit or lack  of merit of [the employee's] grievance....  [I]t is clear that Sec. 7  protects his right to utter it as a matter of concerted activity with  other employees for mutual aid.").


10
 Michaels' petition was based on Ariz. Rev. Stat. § 12-1809,  which authorizes courts to grant injunctions against harassment.


11
 See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S.  728, 745 (1981) (holding that employees' rights under Fair Labor  Standards Act are not waivable through collective bargaining);Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974) (holding  that CBA cannot prospectively waive employees' statutory rights  under Title VII);  cf. Hawaiian Airlines, Inc. v. Norris, 512 U.S.  246, 260 (1994) (holding that Railway Labor Act does not preempt  state-law causes of action that are independent of CBA).


12
 This case is therefore completely different from Emporium  Capwell Co. v. Western Addition Community Org., 420 U.S. 50  (1975), urged upon us by petitioner.  There, the Court held that  conduct was unprotected by the NLRA where a group of employees  attempted "to bypass the grievance procedure" set forth in their  CBA, "in favor of attempting to bargain with their employer"  separately and without their union.  Id. at 67.  Michaels endeavored neither to bypass the CBA's grievance procedure, nor to  bargain separately with Mohave.


13
 Cf. McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352,  362-63 (1995) (holding in age discrimination suit that "[w]here an  employer seeks to rely upon after-acquired evidence of wrongdoing,  it must first establish that the wrongdoing was of such severity that  the employee in fact would have been terminated on those grounds  alone if the employer had known of it at the time of the discharge").


14
 The ALJ also concluded that the alleged payment to Bauguess had not been made, stating that Michaels denied he had ever  paid anyone to take his meter route.  See Mojave Elec., 1998 WL  777462, at *14.  We have been unable to find that denial in the  record before us.


15
 Although Bauguess was technically an employee of Guard  Force rather than Mohave, Mohave exercised ultimate supervision  over all meter readers.  See Tr. at 269-70.  Longtin specifically  testified that he could demand the discharge of a Guard Force  employee for misconduct.  See id. at 365-66.


