     18-125(L)
     Bozzuto's Inc. v. NLRB




 1                        UNITED STATES COURT OF APPEALS

 2                              FOR THE SECOND CIRCUIT

 3                                            ------

 4                                   August Term, 2018

 5   (Argued: November 29, 2018                                 Decided: June 24, 2019)

 6                            Docket Nos. 18-125(L), 18-331(XAP)

 7   _________________________________________________________

 8   BOZZUTO'S INC.,
 9                                   Petitioner-Cross-Respondent,

10                                   - v. -

11   NATIONAL LABOR RELATIONS BOARD,

12                               Respondent-Cross-Petitioner.
13   _________________________________________________________

14   Before: KEARSE, LIVINGSTON, and CARNEY, Circuit Judges.

15               Cross-petition by respondent National Labor Relations Board for

16   enforcement of an order (A) holding that petitioner employer engaged in unfair labor

17   practices in violation of the National Labor Relations Act (the "Act"), 29 U.S.C.

18   §§ 158(a)(1) and (3), by, inter alia, announcing wage increases in conjunction with
 1   urging employees to decline to join a union, asking one pro-union employee "what's

 2   going on with this union stuff," later suspending and then discharging him for

 3   allegedly low productivity, and discharging another pro-union employee for

 4   insubordination in refusing to attend a meeting; and (B) requiring employer to (1)

 5   cease and desist from such or similar violations, (2) reinstate the insubordinate

 6   employee, (3) compensate and make whole both discharged employees, (4) post the

 7   Board's remedial notice listing the employer actions found to have violated the Act,

 8   and (5) hold a meeting at which that notice is read aloud to its employees by, or in the

 9   presence of, employer's senior vice president. See Bozzuto's, Inc., 365 N.L.R.B. No. 146

10   (2017).

11                Employer petitions for review of the Board's holdings that the above

12   single question constituted impermissible interrogation and that the discharges were

13   motivated by antiunion animus, contending that those findings are not supported by

14   substantial evidence; and it contends that the Board abused its discretion in ordering

15   remedies for the discharged employees and ordering that the remedial notice be read

16   aloud at a meeting of employees.

17                The petition for review is granted to the extent that it challenges (1) the

18   Board's rulings and orders with regard to (a) "interrogation" and (b) the discharge of


                                                2
 1   an employee for insubordination, and (2) the order that the Board's remedial notice

 2   be read aloud at a meeting of employees. In all other respects, the petition for review

 3   is denied. The Board's cross-petition for enforcement is granted in all respects except

 4   those in which the petition for review is granted.

 5                MIGUEL A. ESCALERA, Jr., Hartford, Connecticut (Sheldon D.
 6                    Myers, Kainen, Escalera & McHale, Hartford, Connecticut,
 7                    on the brief), for Petitioner-Cross-Respondent.

 8                DAVID A. SEID, Washington, D.C. (Peter B. Robb,General
 9                    Counsel, John W. Kyle, Deputy General Counsel, Linda
10                    Dreeben, Deputy Associate General Counsel, Julie Brock
11                    Broido, Supervisory Attorney, National Labor Relations
12                    Board, Washington, D.C., on the brief), for Respondent-Cross-
13                    Petitioner.



14   KEARSE, Circuit Judge:

15                Petitioner-cross-respondent Bozzuto's Inc. ("Bozzuto") petitions for

16   review of so much of an order of respondent-cross-petitioner National Labor

17   Relations Board ("NLRB" or "Board"), see Bozzuto's, Inc., 365 N.L.R.B. No. 146 (2017),

18   as (A) found Bozzuto committed unfair labor practices in violation of §§ 8(a)(1) and/or

19   (3) of the National Labor Relations Act (the "Act"), 29 U.S.C. §§ 158(a)(1) and (3), in

20   its treatment of two employees who were union supporters, by asking Todd McCarty

21   "what's going on with this union stuff," later discharging him for allegedly low


                                                3
 1   productivity, and discharging Patrick Greichen for alleged insubordination in

 2   refusing to attend a meeting to which he was summoned by management; and (B)

 3   orders Bozzuto to reinstate Greichen, to provide Greichen and McCarty with backpay

 4   and compensation for other losses, and to read the Board's remedial notice, detailing

 5   Bozzuto's violations of the Act, aloud at a meeting of its employees. In support of its

 6   petition, Bozzuto contends principally that substantial evidence did not support the

 7   Board's findings that the single question to McCarty was coercive or that either

 8   McCarty or Greichen was terminated because of antiunion animus or protected

 9   activity, and that the Board abused its discretion in ordering Bozzuto to reinstate

10   Greichen with backpay and to read the remedial order aloud to employees.

11                The Board cross-petitions for enforcement of its order which--in addition

12   to the above aspects challenged by Bozzuto-- found that Bozzuto violated the Act by

13   announcing wage increases in conjunction with urging employees to decline to join

14   a union; by maintaining a restrictive speech policy that conditioned continued

15   employment for suspended employees on their written agreement not to discuss with

16   coworkers terms of employment, including discipline; by disciplining Greichen for

17   talking with other Bozzuto employees about conditions of employment; and by

18   suspending McCarty for supposedly low productivity.


                                               4
 1                 For the reasons that follow, we grant Bozzuto's petition for review to the

 2   extent that it challenges (1) the Board's rulings and orders with regard to the

 3   "interrogation" of McCarty and the discharge of Greichen, and (2) the order that the

 4   Board's remedial notice be read aloud at a meeting of employees. In all other

 5   respects, the petition for review is denied. The Board's cross-petition for enforcement

 6   is granted in all respects except those in which the petition for review is granted.




 7                                     I. BACKGROUND




 8                 The observable events leading to these administrative proceedings,

 9   despite some vagueness in the testimony as to their precise timing, are largely

10   undisputed.     Bozzuto operates wholesale warehouses in Connecticut for the

11   distribution of food products, employing approximately 450 production workers in

12   capacities such as loaders, forklift operators, and "selectors." A selector's job includes

13   receiving orders for food products, driving a motorized vehicle to the section in

14   which the ordered products are stored, and loading the products onto portable

15   platforms that are ultimately carried by truck to the customers.




                                                 5
 1                In order to evaluate selectors' productivity, Bozzuto attaches machine-

 2   readable tags to each warehouse product and uses a computerized system to compare

 3   the speed with which selectors complete their tasks against a standard time--which

 4   the parties call the "labor standard." The labor standards were established by Bozzuto

 5   engineers after months of studies, in accordance with accepted engineering methods,

 6   calculating average times needed to complete specific tasks. The resulting standards

 7   are posted publicly on Bozzuto bulletin boards for the employees' information.

 8                A Bozzuto selector whose performance exceeded the labor standard on

 9   a weekly basis became eligible for added incentive pay; a selector whose performance

10   failed, for a given week, to meet at least 95 percent of the labor standard was subject

11   to potential discipline.

12                McCarty and Greichen were employed at a Bozzuto warehouse as

13   selectors. McCarty had frequently earned extra incentive pay for exceeding the labor

14   standards. In August 2013, Bozzuto posted a commendation for his "outstanding job

15   selecting . . . food products" and his "expertise and dedication to always doing the

16   right job!" (Bozzuto's High Achievers, August 23-25, 2013, "Todd McCarty" ("GREAT

17   JOB, TODD!!!!").)




                                               6
 1   A. The events of mid-September through October 1, 2013

 2                In September 2013, McCarty contacted the United Food and Commercial

 3   Workers Union, Local 919 (the "Union"); shortly thereafter, he, Greichen, and two

 4   other Bozzuto employees met with a Union representative. On Monday September

 5   23, McCarty and Greichen began handing out union authorization cards to their

 6   fellow production workers, urging them to sign up.

 7                The effort to unionize Bozzuto employees did not long remain covert.

 8   On September 26, an employee posted a message to Bozzuto's internal electronic

 9   message board stating that union authorization cards were being distributed.

10   McCarty had initially hoped the unionization effort would escape management's

11   notice for at least the first few weeks; but it did not, and within the first week he chose

12   to be open about his participation. By September's end, the Union had obtained 84

13   signed authorization cards from Bozzuto employees.

14                Bozzuto's management was generally aware in that first week that a

15   union-organizing effort was under way. On Monday September 30, Bozzuto's Vice

16   President of Human Resources Carl Koch posted a message stating that Bozzuto was

17   "aware of the current activity."




                                                 7
 1                On or about October 1, as McCarty exited a restroom near a Bozzuto

 2   work area, he encountered Bozzuto's Senior Vice President Rick Clark, with whom

 3   he had a good relationship. Clark asked, "Hey, Todd, what's going on with this

 4   Union stuff?" McCarty replied, "I'm not going to talk about it with you, Mr. Clark."

 5   (Hearing Transcript ("Tr.") 485.) That was the end of the conversation.

 6                On October 1, Bozzuto issued a written announcement that stated in

 7   pertinent part as follows:

 8                      We have been advised by a number of our associates that
 9                the [Union] is attempting to unionize our associates and asked
10                them to sign a union card. The associates that came to us did so
11                out of concern for themselves and their fellow workers stating
12                that having a union is not in the best interest of Bozzuto[] or the
13                associates.

14                      ....

15                      We want all of our associates to understand that they are
16                not required to sign a union card. It's absolutely ok to say NO.
17                If anyone harasses you about that, tell them to stop and feel free
18                to seek our assistance.

19                      We do not need a union at Bozzuto[]. Unions do not
20                provide jobs, only successful companies can . . . .

21   (Emphasis in original.)      On the same day, Bozzuto posted a memorandum

22   announcing that nearly all production workers would be receiving hourly pay



                                               8
 1   increases ranging from 50 cents to two dollars per hour, retroactive to September 29,

 2   2013.

 3               Also on October 1, 2013, Greichen was summoned to a meeting with

 4   several members of Bozzuto's management team: Senior Vice President Clark,

 5   Human Resources Vice President Koch, Associate Relations and Development

 6   Manager Doug Vaughan, and Head of Security Bill Glass. Bozzuto maintains that the

 7   meeting was called because Clark had been told by other employees that Greichen

 8   was displaying erratic behavior and making various negative comments about

 9   Bozzuto's labor standards being too stringent, complaining that they did not, in

10   Greichen's view, allow enough time for employees to complete their assigned tasks.

11   As reflected in a memorandum prepared by Vaughan from his notes of the meeting,

12   Clark informed Greichen "that several associates" had "commented on how his

13   behavior had been increasingly more erratic and some hourly associates considered

14   his behavior 'scary,'" and that "it was management's job to provide a safe and clean

15   work environment for all associates" and to address "comments . . . made to

16   management that raise a red flag."

17               Greichen was warned against continuing his behavior and told he

18   "needed to stop disrupting the work environment by making negative comments in


                                              9
 1   the aisles, such as[] being forced to work 20 hours per day or comments about

 2   needing three legs to do the work here, in the hallway in front of his peers."




 3   B. The Discharge of Greichen on October 8

 4                On October 8, 2013, Greichen complained first to his supervisors, and

 5   thereafter to Bozzuto's then-Grocery Distribution Manager Jason Winans, that the

 6   labor standard pertaining to his assigned tasks for the day had been unfairly

 7   shortened, making timely completion of his work impossible. Winans's ensuing

 8   memorandum summarizing his conversation with Greichen stated that Winans

 9   "attempt[ed] to calm Mr. Greichen down" by reviewing with him the computer

10   records as to individual assignments; but when Winans "didn't see anything out of

11   the ordinary,"

12                Patrick [Greichen] began telling me how he believes Bozzuto[]
13                cuts the standard time on assignments on days when the volume
14                is high in order to get more cases out of people and to pay them
15                less, in the process making them miserable. Patrick then told me
16                that he tells anybody and everybody he can that he believes we are
17                purposely changing the standards on a daily basis in order to screw the
18                associates. I told Patrick that I didn't believe any of this to be true
19                and that these were very serious accusations he was making.

20   (Memorandum of Jason Winans dated October 9, 2013, as to October 8, 2013



                                                 10
 1   accusations by Patrick Greichen ("Winans Memorandum of Greichen's October 8

 2   statements") at 1 (emphases added)). As indicated in that memorandum, Winans

 3   viewed the situation as problematic, and he promptly reported Greichen's accusations

 4   to Clark and Vaughan.

 5               Clark and Winans arranged for a 4:00 meeting on October 8 at which

 6   Bozzuto industrial engineers James Wright and David Heatley could explain to

 7   Greichen how the standard times for various tasks were determined and functioned

 8   so that Greichen could see that the targets were not subject to manipulation. Bozzuto

 9   maintains that it hoped both to educate and reassure Greichen and to prevent him

10   from spreading misinformation to other employees.

11               Winans then, as instructed by Clark, told Greichen of the scheduling of

12   the meeting and its purpose, and said Greichen's presence was required. Despite

13   Winans's repeated urging, Greichen refused to attend. He said he felt he was being

14   harassed. Vaughan then joined Winans in attempting to persuade Greichen to attend

15   the meeting. Vaughan said Greichen would not face discrimination or harassment

16   or "anything negative" if he attended the meeting; Winans emphasized that the

17   meeting was mandatory and that if Greichen did not attend, he would be suspended

18   pending termination for insubordination. Greichen confirmed that he understood.


                                              11
 1   There is no dispute that he was also informed the meeting would be attended by

 2   industrial engineers.

 3                Greichen nonetheless refused to attend.       Bozzuto discharged him,

 4   effective that day, citing his insubordination.




 5   C. The 2014 Suspension and Termination of McCarty

 6                Following the October 8, 2013 discharge of Greichen, McCarty remained

 7   involved in supporting the union-organizing effort and was one of the few remaining

 8   active union supporters. His involvement with the Union had been well known to

 9   Bozzuto's management since the first week of the campaign.

10                In early January 2014, McCarty became aware that his reported

11   productivity numbers for the week ending January 4 appeared to be unduly low, and

12   he deduced that Bozzuto's computerized reporting system, in tracking his efficiency

13   as compared to the labor standard, had failed to take account of his "down time," i.e.,

14   time when he properly was not on-the-clock. Down time, such as a supervisor-

15   approved break or time needed for equipment repairs, does not count toward the

16   total time the employee has taken to complete a task. Thus, failure to account for an




                                               12
 1   employee's down time would make his performance appear to be less productive

 2   than it actually was.

 3                 To verify his suspicion that the reporting system was not taking proper

 4   account of his down time, McCarty began to take screen shots each week of the raw

 5   data shown for him in the computer, in order to prove inaccuracies in the final

 6   productivity reports. He complained to Winans about the discrepancies he observed

 7   due to his missing down time.            According to McCarty, Winans essentially

 8   disregarded his complaint, saying "If you wanted down time put in, you should have

 9   made sure it was put in. . . . It is what it is." (Tr. 515.)

10                 In mid-January, McCarty spoke with his supervisor William Englehart

11   to pursue his complaint about improper treatment of his down time. According to

12   McCarty, Englehart told him not to worry about it (see id. at 516); but Bozzuto

13   proceeded to suspend McCarty for five days on account of his supposedly low

14   productivity numbers. McCarty refused to sign the Bozzuto write-up documenting

15   this five-day suspension, arguing that the productivity numbers shown were

16   inaccurate.

17                 McCarty then was away for a few weeks, in part on vacation, and he had

18   coworkers take screen shots of his data for the week ending January 18. Their


                                                  13
 1   photographs showed that McCarty's originally recorded down time was thereafter

 2   deleted, thereby lowering McCarty's productivity score.

 3               On February 18, the day that McCarty returned, he was summoned to

 4   a meeting with members of Bozzuto's management.              He was told that his

 5   performance for the week of January 11 was at 94 percent of the labor standard, and

 6   that, as a result, he was being discharged. McCarty objected on the ground that the

 7   productivity numbers were skewed, and he refused to sign the write-up documenting

 8   his termination.

 9               Shortly after his suspension, McCarty had contacted the NLRB Regional

10   Office and had begun submitting his photographic evidence of the alterations relating

11   to his productivity. On April 9, 2014, that Office sent Bozzuto a letter stating that

12   McCarty's productivity data had been altered, and attached, inter alia, photographs

13   for each of the weeks ending January 11 and 18, 2014, showing the records for

14   McCarty before and after the alterations took place.

15               McCarty had not submitted his photographic evidence to Bozzuto. After

16   receiving the April 9 communication from the NLRB, Bozzuto initiated an internal

17   investigation, led by industrial engineer Wright. As a result of this investigation,

18   Bozzuto concluded on April 14, 2014, that McCarty's data had in fact been changed--


                                              14
 1   adversely to McCarty--with respect to the weeks ending January 11 and January 18.

 2   On May 14, 2014, it unconditionally offered McCarty reinstatement, plus

 3   compensation for losses in earnings and benefits. McCarty declined reinstatement.




 4   D. The Administrative Proceedings

 5                In October 2014, the NLRB's General Counsel, through its Regional

 6   Director (collectively the "General Counsel"), issued a complaint alleging that Bozzuto

 7   had violated §§ 8(a)(1) and/or (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3), by--to the

 8   extent pertinent to the present petitions--(1) interrogating McCarty on or about

 9   September 27, 2013; (2) implementing a work rule that prohibited disciplined

10   employees from discussing the terms of their employment, including disciplinary

11   measures, with other employees; (3) raising wages on October 1 in an attempt to

12   discourage employees from joining the Union; (4) warning Greichen on October 1

13   against engaging in activity protected by the Act; (5) discharging Greichen on October

14   8 in retaliation for his previous conduct that was protected by the Act; and (6)

15   suspending and discharging McCarty because of the company's antiunion animus.

16                The matter was tried before administrative law judge ("ALJ") Raymond

17   P. Green, who found against Bozzuto on each of the above charges and principally


                                                15
 1   recommended the issuance of cease-and-desist orders and affirmative relief for

 2   Greichen and McCarty.




 3         1. The Rulings and Recommendations of the ALJ

 4                First, the ALJ considered Bozzuto's October 1, 2013 announcement of

 5   retroactive pay raises for most of its production workers. There was clear evidence

 6   that management had become aware of the union-organizing activity several days

 7   earlier. The ALJ also noted an absence of evidence that such increases were given on

 8   a regular basis or that the decision to implement these increases had been made

 9   before Bozzuto became aware of the union- organizing activity. On the same day that

10   Bozzuto announced the pay raises, it announced that it "was aware that the Union

11   had obtained a list of the warehouse employees," and it "encouraged employees to

12   refrain from signing union authorization cards and stated that 'we do not need a

13   union at Bozzuto[] . . . .'" 365 N.L.R.B. No. 146, slip op. at 15. The ALJ found that

14   "[t]he notices posted simultaneously on October 1, 2013, leave no doubt that the pay

15   increases were motivated by the fact that the Company became aware that the Union

16   was engaged in organizing activity," and that the announcement of the raises violated

17   § 8(a)(1) of the Act. Id. at 16 (emphasis added).


                                               16
 1                As to Bozzuto's treatment of Greichen on October 1, the ALJ found that

 2   summoning him to a meeting and criticizing him because of employee reports that

 3   he was complaining to other workers about how the production standards were

 4   resulting in long hours and affecting, inter alia, their rights to receive premium pay,

 5   interfered with Greichen's protected right to engage in concerted activity within the

 6   meaning of § 7 of the Act. See id. at 16-17; see also id. at 17 (finding that the warning

 7   of Greichen "at virtually the same time that the Company notified employees that

 8   they should avoid union activity" suggests that "management more than likely

 9   believed that he was among the employees who most likely would support a union").

10   The ALJ also found that Bozzuto's general policy of conditioning continued

11   employment for suspended employees on their agreement not to discuss terms of

12   employment, including discipline, with their coworkers (Bozzuto's "restrictive speech

13   policy") violated § 8(a)(1) of the Act.

14                As to Clark's asking McCarty "what's going on with this union stuff," the

15   ALJ found as follows:

16                      While this single act of interrogation might be viewed as an
17                offhand and somewhat innocuous comment, the fact is that this
18                event occurred at or near the same time of the unlawfully motivated
19                pay increase and the unlawful discrimination against Greichen. I


                                                17
 1                therefore shall conclude that this interrogation, in the
 2                circumstances, violated Section 8(a)(1) of the Act.

 3   365 N.L.R.B. No. 146, slip op. at 18 (emphases added).

 4                The ALJ also found that the discharge of Greichen on October 8 violated

 5   the Act, rejecting Bozzuto's contention that he had been discharged solely for

 6   insubordination:

 7                Even taking [Bozzuto's] premise that Greichen's refusal to attend
 8                a meeting constituted insubordination, . . . . Greichen was told to
 9                go to a meeting to discuss his complaints about productivity
10                standards because [Bozzuto] was concerned that he was talking
11                about them and misinforming his fellow employees. Thus, the
12                demand that he attend this meeting was inexplicably [sic] bound up to
13                the Company's earlier unlawful warning on October 1, which was issued
14                because of Greichen's protected concerted activity. One follows from
15                the other and the October 8 meeting would not have taken place but for
16                the earlier interference with Greichen's right to talk to his coworkers
17                about their collective terms and conditions of employment.

18   Id. at 17 (emphases added).

19                Finally, the ALJ found that Bozzuto's suspension and discharge of

20   McCarty in 2014 were motivated by antiunion animus, noting "that McCarty was the

21   leading union activist among the employees after October 8," that Bozzuto "was fully

22   aware of his union activity," and that "the ostensible reason for his suspension and

23   discharge was manifestly false." Id. at 18; see also id. (noting that Bozzuto "ha[d] failed



                                                 18
 1   to show that it would have taken these actions apart from McCarty's union activity").

 2   The ALJ concluded that the General Counsel had established by a preponderance of

 3   the evidence that Bozzuto's suspension and discharge of McCarty violated §§ 8(a)(1)

 4   and (3) of the Act.

 5                In light of his findings as to these violations, the ALJ recommended that

 6   Bozzuto be ordered to cease and desist from such conduct, that it offer reinstatement

 7   to Greichen and take affirmative steps to make Greichen and McCarty whole for any

 8   losses resulting from Bozzuto's violations of their rights, and that it post notice of the

 9   Board's findings and remedial order.

10                However, the ALJ rejected the General Counsel's request for a

11   recommendation that Bozzuto be ordered to read such an order aloud to its

12   assembled employees.       The ALJ recognized that such a public reading is an

13   "'extraordinary remed[y],'" 365 N.L.R.B. No. 146, slip op. at 19 (quoting Federated

14   Logistics & Operations, 340 N.L.R.B. 255, 256-57 (2003)). And while noting that

15   Bozzuto's violations were not trivial, the ALJ concluded that they were "not . . .

16   numerous, pervasive or outrageous," and there had been no showing that Bozzuto

17   had violated the Act in the past or that it was likely to do so again in the future. 365

18   N.L.R.B. No. 146, slip op. at 19.


                                                19
 1         2. The Decision of the Board

 2                A three-member panel of the Board unanimously adopted the ALJ's

 3   findings that Bozzuto engaged in unfair labor practices on October 1, 2013, in its

 4   announcement of wage increases and its restrictive speech policy--findings to which

 5   Bozzuto had not objected--and in 2014 by suspending and discharging McCarty. As

 6   discussed below, the ALJ's other findings were adopted by a 2-1 vote of the Board,

 7   with the Chairman dissenting principally from the findings that Bozzuto violated the

 8   Act in questioning McCarty (see Part II.B.1. below) and in discharging Greichen (see

 9   Part II.C. below). The Board also, by a 2-1 vote with the Chairman dissenting,

10   modified the ALJ's recommended remedy by requiring that the Board's remedial

11   notice be read aloud at a meeting of employees by Clark or by a Board member in

12   Clark's presence (see Part II.D. below).




13                                        II. DISCUSSION




14                Bozzuto in its petition for review contends principally (A) that

15   substantial evidence does not support the Board's findings that Clark's single

16   question to McCarty constituted an unlawful interrogation or that Bozzuto's


                                                20
 1   discharges of Greichen and McCarty were either punishment for statutorily protected

 2   activity or motivated by antiunion animus; and (B) that neither Bozzuto's conduct nor

 3   its history warrants the extraordinary remedy of ordering that the Board's remedial

 4   notice be read aloud to Bozzuto's employees.

 5                The Board petitions for enforcement of its findings in full, either for lack

 6   of timely objection by Bozzuto, or on the merits, i.e., contending

 7                # that its decision upholding two findings and recommendations
 8         of the ALJ--that Bozzuto violated § 8(a)(1) of the Act (a) by announcing
 9         and implementing wage increases in response to the union-organizing
10         activity, and (b) by its restrictive speech policy conditioning continued
11         employment for disciplined employees on their refraining from
12         discussing their discipline, etc., with coworkers--should be summarily
13         enforced because Bozzuto did not object to those ALJ findings before the
14         Board, see 29 U.S.C. § 160(e) (absent extraordinary circumstances, "[n]o
15         objection that has not been urged before the Board . . . shall be
16         considered by the court");

17                # that two other Board findings--that Bozzuto violated § 8(a)(1) of
18         the Act by warning Greichen not to discuss the terms of his employment
19         with other Bozzuto employees (a finding that Bozzuto no longer
20         challenges (see Bozzuto reply brief in support of petition for review
21         at 7-8)), and violated §§ 8(a)(1) and (3) by suspending McCarty--should
22         be summarily enforced because Bozzuto's opening brief contains no
23         challenges to those findings or the related orders, see, e.g., Fed. R. App.
24         P. 28(a)(8)(A) ("appellant's brief must contain . . . appellant's contentions
25         and the reasons for them, with citations to the authorities and parts of
26         the record on which the appellant relies"); and




                                                21
 1                # that the Board's findings that Bozzuto violated § 8(a)(1) by
 2         interrogating McCarty and discharging Greichen, and violated §§ 8(a)(1)
 3         and (3) by discharging McCarty, are supported by substantial evidence.

 4   The Board seeks enforcement of its entire remedial order, including the requirement

 5   of a public reading of the findings and the order to Bozzuto's employees, as within

 6   its broad discretion.

 7                In light of 29 U.S.C. § 160(e) and Fed. R. App. P. 28(a)(8)(A), the findings

 8   and orders that Bozzuto did not timely challenge will be summarily enforced.

 9                For the reasons that follow, we grant Bozzuto's petition with respect to

10   the questioning of McCarty and the discharge of Greichen, and the remedial orders

11   associated with those rulings, and with respect to the order that the Board's remedial

12   notice be read aloud to Bozzuto employees. In all other respects, we grant the Board's

13   petition for enforcement.




14   A. The National Labor Relations Act

15                Section 7 of the Act provides, as a fundamental matter, that employees

16   of an employer covered by the Act

17                shall have the right to self-organization, to form, join, or assist
18                labor organizations, to bargain collectively through
19                representatives of their own choosing, and to engage in other


                                                22
 1                concerted activities for the purpose of collective bargaining or
 2                other mutual aid or protection.

 3   29 U.S.C. § 157. Section 8(a) of the Act provides, in pertinent part, that "[i]t shall be

 4   an unfair labor practice for an employer--

 5                       (1) to interfere with, restrain, or coerce employees in the
 6                exercise of the rights guaranteed in section 157 of [Title 29 U.S.C.],

 7   29 U.S.C. § 158(a)(1) (emphases added), or

 8                       (3) by discrimination in regard to hire or tenure of
 9                employment or any term or condition of employment to encourage
10                or discourage membership in any labor organization,

11   29 U.S.C. § 158(a)(3) (emphases added).




12         1. Discipline and Discharge

13                An employer violates §§ 8(a)(1) and (3) of the Act by disciplining or

14   discharging an employee for engaging in union activity or other section 7 conduct.

15   See, e.g., NLRB v. Transportation Management Corp., 462 U.S. 393, 397-98 (1983)

16   ("Transportation Management"), abrogated on other grounds by Director, Office of Workers'

17   Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994). "Under

18   these provisions it is undisputed that if the employer fires an employee for having

19   engaged in union activities and has no other basis for the discharge, or if the reasons


                                                23
 1   that he proffers are pretextual, the employer commits an unfair labor practice."

 2   Transportation Management, 462 U.S. at 398 (emphasis added).

 3                However, while the Act "makes unlawful the discharge of a worker

 4   because of union activity, . . . employers retain the right to discharge workers for any

 5   number of other reasons unrelated to the employee's union activities." Id. at 394. An

 6   employer "does not violate the NLRA . . . if any anti-union animus that he might have

 7   entertained did not contribute at all to an otherwise lawful discharge for good cause."

 8   Id. at 398. For example, "insubordination, disobedience or disloyalty is adequate

 9   cause for discharge . . . ." NLRB v. Local Union No. 1229, International Brotherhood of

10   Electrical Workers, 346 U.S. 464, 475 (1953). And the Act expressly provides that

11                [n]o order of the Board shall require the reinstatement of any
12                individual as an employee who has been suspended or
13                discharged, or the payment to him of any back pay, if such
14                individual was suspended or discharged for cause.

15   29 U.S.C. § 160(c).

16                When the General Counsel files a complaint alleging that an employee

17   was discharged because of his union activities and the employer counters that it had

18   an unrelated, legitimate motive for its decision, "Wright Line analysis" is applied, see

19   Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899 (1st Cir. 1981), cert. denied



                                                 24
 1   455 U.S. 989 (1982); Transportation Management, 462 U.S. at 404. Under Wright Line

 2   analysis, the initial question is whether the General Counsel has carried his "burden

 3   of persuading the Board that an anti-union animus contributed to the employer's

 4   decision to discharge [the] employee, a burden that does not shift"; but if that burden

 5   has been carried, "the employer, even if it failed to meet or neutralize the General

 6   Counsel's showing, c[an] avoid the finding that it violated the statute by

 7   demonstrating by a preponderance of the evidence that the worker would have been

 8   fired even if he had not been involved with the Union." Id. at 395; see id. at 401-02

 9   (deferring to the Board's interpretation of the Act as designating the employer's

10   assertion of a purely union-unrelated motive "as an affirmative defense that the

11   employer has the burden of sustaining"). In effect, under this sequence, "'[i]nitially,

12   the General Counsel must establish a prima facie case that protected conduct was a

13   motivating factor in the employer's decision to fire. The burden then shifts to the

14   employer to show, as an affirmative defense, that the discharge would have occurred

15   in any event and for valid reasons.'" NLRB v. Starbucks Corp., 679 F.3d 70, 80 (2d Cir.

16   2012) (quoting NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 957 (2d Cir. 1988) ("S.E.

17   Nichols") (other internal quotation marks omitted), cert. denied, 490 U.S. 1108 (1989)).

18


                                               25
 1         "[T]he Board may infer [an employer's] discriminatory motive from

 2   circumstantial evidence," Abbey's Transportation Services, Inc. v. NLRB, 837 F.2d 575,

 3   579 (2d Cir. 1988); see also NLRB v. Windsor Industries, Inc., 730 F.2d 860, 863 (2d Cir.

 4   1984), which may include the employer's "knowledge of the employees' union

 5   activities," the timing of the discharge, or other antiunion activity by the employer,

 6   S.E. Nichols, 862 F.2d at 957.




 7         2. Interrogation

 8                While § 8(a)(1) of the Act prohibits interference with, inter alia, an

 9   employee's interest in joining a union, employers nonetheless have a First

10   Amendment right to engage in communications with employees about union activity,

11   see, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969); such communications do

12   not constitute unfair labor practices so long as they "contain[] no threat of reprisal or

13   force or promise of benefit," 29 U.S.C. § 158(c); see, e.g., NLRB v. Montgomery Ward &

14   Co., 192 F.2d 160, 163 (2d Cir. 1951) ("inquiries made by [a] manager concerning what

15   was being done in behalf of the union"-- even in conjunction with "statements as to

16   his not liking the union"--were not unlawful "to the extent that they constituted no



                                                26
 1   threat or intimidation, or promise of favor or benefit in return for resistance to the

 2   union").

 3                An employer's questioning of an employee will, however, amount to a

 4   violation of § 8(a)(1) if "either the words themselves or the context in which they are

 5   used . . . suggest an element of coercion or interference." Rossmore House, 269 N.L.R.B.

 6   1176, 1177 (1984) (internal quotation marks omitted), enforced sub nom. Hotel Employees

 7   Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). But "'the realities of the workplace'"

 8   require recognition that

 9                "[b]ecause production supervisors and employees often work
10                closely together, one can expect that during the course of the
11                workday they will discuss a range of subjects of mutual interest,
12                including ongoing unionization efforts."

13   Rossmore House, 269 N.L.R.B. at 1177 (quoting Graham Architectural Products v. NLRB,

14   697 F.2d 534, 541 (3d Cir. 1983) ("Graham")). "'To hold that any'" and every "'instance

15   of casual questioning concerning union sympathies violates the Act'" would thus

16   "'ignore[] the realities.'" Rossmore House, 269 N.L.R.B. at 1177 (quoting Graham).

17                Accordingly, an interrogation that is "not itself threatening[] is not held

18   to be an unfair labor practice unless it meets certain fairly severe standards," Bourne

19   v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964) ("Bourne"). The factors to be considered in



                                               27
 1   determining whether questioning is threatening or coercive include

 2                       (1) The background, i.e., is there a history of employer
 3                hostility and discrimination?

 4                       (2) The nature of the information sought, e.g., did the
 5                interrogator appear to be seeking information on which to base
 6                taking action against individual employees?

 7                      (3) The identity of the questioner, i.e., how high was he in
 8                the company hierarchy?

 9                       (4) Place and method of interrogation, e.g., was employee
10                called from work to the boss's office? Was there an atmosphere of
11                'unnatural formality'?

12                      (5) Truthfulness of the reply.

13   Id.; see, e.g., Rossmore House, 269 N.L.R.B. at 1178 n.20 (considering the above Bourne

14   factors); Regal Recycling, Inc., 329 N.L.R.B. 355, 365 (1999) (deeming employer's

15   inquiries coercive in part because employees gave false answers or failed to respond);

16   Town & Country Supermarkets, 340 N.L.R.B. 1410, 1423-24 (2004) (deeming employer's

17   inquiries coercive in part because employee gave responses that were evasive); see also

18   Vista Del Sol Health Services, Inc., 363 N.L.R.B. No. 135, slip op. at 17 (2016)

19   (considering also "the timing of the interrogation and whether the interrogated

20   employees are open and active union supporters"); Gardner Engineering, Inc., 313

21   N.L.R.B. 755, 755 (1994) (deeming employer questions coercive in part because the


                                               28
 1   employee was not "an open and active union supporter at the time of the

 2   interrogation"), enforced as modified on other grounds, 115 F.3d 636 (9th Cir. 1997).

 3                In sum, the Bourne factors "are not to be mechanically applied," Rossmore

 4   House, 269 N.L.R.B. at 1178 n.20; and in order to determine whether questioning

 5   constituted an unfair labor practice, the Board assesses the "totality of the

 6   circumstances," i.e., it considers "whether under all the circumstances the

 7   interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed

 8   by the Act," id. at 1178 & n.20.




 9         3. Standards of Decision

10                Section 10(c) of the Act requires that the Board hear evidence on claims

11   of unfair labor practices and grant relief if it finds such claims established by a

12   "preponderance" of the evidence. 29 U.S.C. § 160(c). Sections 10(e) and 10(f) of the

13   Act, 29 U.S.C. §§ 160(e) and (f), allow petitions to the relevant court of appeals by,

14   respectively, the Board for enforcement of its order and the respondent in opposition.

15   Each of those sections provides that on such review, the "findings of the Board with

16   respect to questions of fact if supported by substantial evidence on the record

17   considered as a whole shall" "be conclusive," 29 U.S.C. §§ 160(e) and (f). In this


                                                29
 1   respect,

 2                [s]ubstantial evidence is more than a mere scintilla. It means such
 3                relevant evidence as a reasonable mind might accept as adequate
 4                to support a conclusion. . . . Accordingly, it must do more than
 5                create a suspicion of the existence of the fact to be established.

 6   Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal quotation marks

 7   omitted).

 8                Further, proper assessment of "[t]he substantiality of evidence must take

 9   into account whatever in the record fairly detracts from its weight." Id. at 488 (emphasis

10   added). However, when choosing between "two fairly conflicting views," we will not

11   overturn the Board's fact finding, even if we would have come to "a different choice

12   had the matter been before [us] de novo." NLRB v. G & T Terminal Packaging Co., 246

13   F.3d 103, 114 (2d Cir. 2001) (internal quotation marks omitted). "[R]eversal based

14   upon a factual question will only be warranted if, after looking at the record as a

15   whole, we are left with the impression that no rational trier of fact could reach the

16   conclusion drawn by the Board." NLRB v. Katz's Delicatessen of Houston Street, Inc., 80

17   F.3d 755, 763 (2d Cir. 1996) (internal quotation marks omitted).

18                We review the Board's conclusions of law "to ensure that they have a

19   reasonable basis," and in so doing, we "afford the Board a degree of legal leeway."



                                                30
 1   NLRB v. Caval Tool Division, 262 F.3d 184, 188 (2d Cir. 2001) (internal quotation marks

 2   omitted). We "will uphold the Board's legal determinations 'if not arbitrary and

 3   capricious.'" NLRB v. Consolidated Bus Transit, Inc., 577 F.3d 467, 474 (2d Cir. 2009)

 4   ("Consolidated Bus") (quoting Cibao Meat Products, Inc. v. NLRB, 547 F.3d 336, 339 (2d

 5   Cir. 2008)).




 6   B. McCarty

 7                  Bozzuto challenges the Board's rulings that (1) Clark's single question to

 8   McCarty, and (2) the 2014 discharge of McCarty, violated the Act. We find merit in

 9   the first challenge, but not the second.




10         1. Interrogation

11                  The ALJ noted that Clark's "what's going on with this union stuff"

12   question to McCarty, was a "single act of interrogation [that] might be viewed as an

13   offhand and somewhat innocuous comment"; but he found that it violated § 8(a)(1)

14   simply because it "occurred at or near the same time of the unlawfully motivated pay

15   increase and the unlawful discrimination against Greichen." 365 N.L.R.B. No. 146,

16   slip op. at 18. The Board majority, after considering, inter alia, Rossmore House and the


                                                 31
 1   Bourne factors and the totality of the circumstances, see id. at 2-3, agreed with the ALJ.

 2   It stated as follows:

 3                Clark was a high-ranking official; he initiated a conversation in
 4                which he questioned an active, but not yet open, union supporter;
 5                McCarty . . . did not answer Clark's question; and the inquiry
 6                occurred at or near the same time as [Bozzuto's] unlawful
 7                discrimination against union supporter Patrick Greichen,
 8                including his disciplinary warning and discharge, and its
 9                unlawfully motivated pay increase to employees.

10   Id. at 2 (footnotes omitted). The majority also found that "despite McCarty's 'good

11   relationship' with Clark, it is telling that McCarty did not feel comfortable telling

12   Clark 'what was going on' with the organizing campaign." Id. at 2 n.6.

13                The Board Chairman, dissenting--also considering Rossmore House and

14   the Bourne factors and the totality of the circumstances, see id. at 7-9--disagreed,

15   concluding that only one Bourne factor, the fact that Clark was an officer, was any

16   indicator of coercion, see id. at 8. The dissent noted, inter alia, that McCarty was

17   known to Bozzuto management to be a union supporter, and that "Clark's question

18   was no more objectionable than the manager's question found lawful in Rossmore

19   House itself ('What is this about a union?'), and it was clearly less intrusive than the

20   owner's inquiry also found lawful in Rossmore House, where the owner asked an



                                                32
 1   employee why he was 'trying to get a union in here.'" Id. at 8 n.7 (quoting Rossmore

 2   House, 269 N.L.R.B. at 1178) (emphases in dissent)).

 3                 Our review of the record persuades us that some of the majority's

 4   findings with regard to the Clark question are not supported by the record as a

 5   whole. First, neither the record nor certain other findings made by the majority

 6   support its view that Clark's question was coercive in part because it was asked when

 7   McCarty was "not yet [an] open[] union supporter." 365 N.L.R.B. No. 146, slip op.

 8   at 2. While the General Counsel's complaint had alleged that Clark's question to

 9   McCarty occurred on September 27, the Board majority refused to accept that date,

10   stating that "the record and the judge's decision as a whole indicate that it occurred

11   about October 1." Id. at 1 n.5. Yet the majority found that "the campaign began on

12   Monday, September 23," id. at 2 n.5; that Bozzuto's "management became aware of

13   McCarty's involvement from another employee early in the organizing campaign,"

14   id. at 2 n.10; see, e.g., id. at 1 n.4 ("[t]he record shows that sometime before October 1,

15   an employee told . . . Clark[] of McCarty's involvement in the organization efforts");

16   and that McCarty himself testified that "' within that first week I was not secret about [the

17   union campaign] at all,'" id. at 2 n.10 (quoting Tr. 693 (emphasis ours)). The majority's

18   view that "this testimony"--by McCarty himself--"does not establish that McCarty was

                                                  33
 1   open at the time of the interrogation," 365 N.L.R.B. No. 146, slip op. at 2 n.10 (emphasis

 2   added), is at odds with the fact that the Union campaign began on September 23 and

 3   the majority's own insistence that the interrogation occurred on October 1, which was

 4   the ninth day of the campaign. And while the majority was entitled to its view that

 5   management's "aware[ness] of McCarty's involvement from another employee early

 6   in the organizing campaign" did not necessarily "equate[] to openness on McCarty's

 7   part," id., the majority's refusal to accept as true McCarty's own statement that he

 8   became open--"'not secret . . . at all'"--"'within that first week,'" id. (quoting Tr. 693),

 9   strikes us as arbitrary and capricious. The majority's view that "the record does not

10   support the conclusion that McCarty was an open union supporter at the time of the

11   interrogation," 365 N.L.R.B. No. 146, slip op. at 2 (emphasis in original), is itself

12   contradicted by the record.

13                Second, the generality of Clark's question did not suggest that

14   management sought to identify or discipline employees because they were union

15   sympathizers; it was no more intrusive than the question asked by the manager in

16   Rossmore House, "What is this about a union," which was found not to violate the Act.

17   The majority, without attempting any explanation as to why the language of Clark's

18   question, "what's going on with this union stuff," was in any way significantly


                                                 34
 1   different, cited the fact that the employer in Rossmore House "had not" committed any

 2   unfair labor practices before the questioning occurred. See 365 N.L.R.B. No. 146, slip

 3   op. at 3 n.11. But it is hardly clear that this was not also true of the present case. The

 4   only unfair labor practices by Bozzuto in the fall of 2013 that are sustained here

 5   occurred on October 1: the pay raise, the restrictive speech policy of continuing to

 6   employ suspended employees only if they would agree not to discuss their discipline,

 7   etc., with coworkers, and the warning to Greichen to stop talking to his coworkers

 8   about conditions of employment. If the majority was correct in its finding that

 9   McCarty was not an open union supporter at the time of Clark's question, that

10   question would had to have been asked prior to September 30; and at that time

11   Bozzuto--indistinguishably from employer in Rossmore House--would not have

12   committed any prior unfair labor practice.

13                We also note that McCarty testified that the Clark question occurred in

14   the second week of the Union campaign (see Tr. 485). The campaign had begun on

15   Monday September 23. While the majority stated that "[i]t goes without saying that

16   the week after the September 23 start date of the campaign was the week of October 1,"

17   365 N.L.R.B. No. 146, slip op. at 2 n.5 (emphasis added)--a convenient date because

18   that was the date on which there were confirmable unfair labor practices--in fact that


                                                35
 1   second week began on Monday September 30, a date that itself may, consistent with

 2   McCarty's testimony, have been the day of Clark's question. September 30, however,

 3   was prior to Bozzuto's commission of any unfair labor practice.

 4                Further, we do not find that the record supports the majority's view that

 5   McCarty's response to Clark's question indicates that the question was coercive on the

 6   basis that "McCarty did not feel comfortable telling Clark 'what was going on' with

 7   the organizing campaign," id. at 2 n.6. As the Board has noted in the past, "[i]t is

 8   actually none of [management's] lawful business as to [an employee's] evaluation of

 9   union activities," Medical Center of Ocean County, 315 N.L.R.B. 1150, 1154 (1994)

10   ("Medical Center"), and McCarty's response apparently so recognized. While the

11   majority again saw this case as different from Rossmore House, stating that the

12   employee there "responded to the inquiry ['What is this about a union,'] candidly and

13   without hesitation," 365 N.L.R.B. No. 146, slip op. at 3 n.11, the record here contains

14   no indication that McCarty had any hesitance whatever in saying "I'm not going to

15   talk about it with you, Mr. Clark" (Tr. 485). That answer provided no information

16   that was responsive to the question, but it also evinced no discomfort in telling Clark,

17   in a most civil way, that the union activity was none of Clark's lawful business.

18   McCarty's response cannot be viewed as an indicium of coercion.


                                               36
 1                 We conclude, as did the dissent, that the record supports the conclusion

 2   that all of the Bourne factors, except Clark's position as a company officer, point

 3   toward a finding that Clark's question was not coercive and did not violate the Act.

 4   There is no evidence in the record as to any history whatever prior to this union-

 5   organizing effort of any animosity of Bozzuto toward unions. Indeed, the ALJ

 6   expressly found that Bozzuto had not violated the Act in the past (and he saw no

 7   indication that it was likely to do so in the future). See 365 N.L.R.B. No. 146, slip op.

 8   at 19. The question was asked by Clark during a chance encounter as McCarty was

 9   leaving a restroom. It was asked of an employee who was, by then, an open

10   supporter of the union. The question was entirely general, the sort of question that

11   might pass between any two employees, regardless of rank; it did not ask about

12   individuals, and it carried no portent of discipline. It produced McCarty's direct

13   response that he would not discuss the matter with Clark. And no further questions

14   were asked.

15                 The Board majority in finding Clark's question coercive cited nearly two

16   dozen cases. All of the cases in which a question was found to be coercive involved

17   either supervisors calling employees into their offices for closed-door exploration of

18   the identities of union supporters, or repeated or insistent questioning, or threats of


                                                37
 1   discipline, or imposition of more severe working conditions, or threats to close or

 2   move the company, or a backdrop of numerous unfair labor practices. See, e.g., Seton

 3   Co., 332 N.L.R.B. 979, 981-82 (2000) (in questioning that took place "against a

 4   background of numerous other unfair labor practices including threats of plant

 5   closure . . . and more onerous working conditions," supervisor interrogated employee

 6   as to whether he had been "talking about the Union" and threatened the employee

 7   that "if he was caught talking about the Union he could be fired"); Acme Bus Corp., 320

 8   N.L.R.B. 458, 461, 478 (1995) (for several months, supervisor "spent about 45 minutes

 9   of every 2 hours . . . speaking to employees regarding the Union," asking, inter alia,

10   as directed by upper management, "whether the[ employees] supported the Union,"

11   and "where union meetings would be held," and reported back to management on his

12   findings); Management Consulting, Inc., 349 N.L.R.B. 249, 258 (2007) (manager called

13   an employee into his office and asked the employee a series of questions as to his

14   union activity and that of his fellow employees); Medical Center, 315 N.L.R.B. at 1154

15   (supervisor called employee, who was not an open union supporter, "into his office

16   and closed the door" and asked employee about union activity; employee had worked

17   at this company for 10 years and had "never worked with [that supervisor] . . . and

18   had never been called into an office for a conversation with his supervisor where the


                                               38
 1   door was closed"). Not one of the cases relied on by the majority found the Act

 2   violated in circumstances paralleling those here: a single very general question, asked

 3   in a chance encounter, by a supervisor whose company had no history of union

 4   animosity, where the question was met with a simple and forthright refusal to

 5   discuss, was not followed by any questions to McCarty or any other employee, and

 6   was not accompanied by pervasive unlawful conduct as occurred in the cases cited

 7   by the Board majority.

 8                In these circumstances, which fall far short of meeting the "fairly severe

 9   standards" needed to constitute an unfair labor practice, Bourne, 332 F.2d at 48, the

10   Board's finding instead comes close to creating a per se rule that no manager can,

11   without committing an unfair labor practice, ask an employee any question about

12   ongoing union activity.     We conclude that the Board's finding that Bozzuto

13   unlawfully interrogated McCarty is not supported by the record as a whole.




14         2. McCarty's Discharge

15                In contrast, we reject, without a need for extended discussion, Bozzuto's

16   challenge to the finding that it violated the Act by terminating McCarty's employment

17   in February 2014. The record is clear that Bozzuto told McCarty he was being


                                               39
 1   discharged because of low productivity, and that the basis for that assessment was

 2   data that, although originally entered correctly in the company's computer system,

 3   had thereafter been altered to decrease McCarty's perceived level of productivity.

 4   Bozzuto's own eventual internal investigation in April 2014 confirmed that McCarty's

 5   data had been so altered.

 6                Bozzuto's contention that, despite the fact that the alterations had been

 7   made using a supervisor's access code, its internal investigation was unable, because

 8   of the company's lax security, to establish "conclusively" who made those alterations

 9   (Bozzuto reply brief in support of petition for review at 26), and hence that the

10   alterations themselves should not be attributed to management--even if it were

11   sustainable--is of no moment. The fact remains that Bozzuto discharged McCarty on

12   the basis of fraudulent data.

13                Bozzuto's contention that its discharge of McCarty did not violate the Act

14   because the company did not know at that time that his productivity data had been

15   altered--because it did not receive McCarty's screen shots proving such alterations

16   until after his discharge--is doubly flawed. First, the distorted notion that an

17   employer could successfully defend its improper firing of an employee simply

18   because the employee did not show the employer his proof that the employer's own


                                               40
 1   relevant records were fraudulent, would turn the law on its head. Second, the record

 2   amply supports the Board's finding that Bozzuto's assertion that McCarty was being

 3   fired because of low productivity was pretextual. In August 2013, just a month before

 4   commencing his union activity, McCarty had been celebrated by Bozzuto for his high

 5   level of productivity (see Bozzuto's High Achievers, August 23-25, 2013, "Todd

 6   McCarty" ("always doing the right job!")). And McCarty testified that in the past

 7   when he brought compensation discrepancies to management's attention they would

 8   be corrected. Yet after McCarty's involvement with the Union was known to

 9   management, Bozzuto chose to ignore his persistent complaints to supervisors and

10   management that his productivity data were being altered, and instead to suspend

11   him, and five weeks later to fire him, for low productivity, without making any effort

12   to look into his complaints of alteration. After receiving the NLRB's April 2014 letter,

13   it took Bozzuto less than five days to verify what McCarty had been protesting--that

14   his data had been altered.

15                The Board's finding that the discharge of McCarty was motivated by

16   antiunion animus and violated the Act was supported by the record as a whole.

17   Bozzuto's petition for review in this regard is denied.




                                               41
 1   C. The Discharge of Greichen

 2               In ruling that the discharge of Greichen violated the Act, the Board

 3   majority found that Bozzuto's stated reason for summoning him to the meeting on

 4   October 8--i.e., to enlighten and reassure Greichen as to the bona fides of the

 5   company's labor standards--"was a pretext," 365 N.L.R.B. No. 146, slip op. at 4, and

 6   instead was "an outgrowth of [Bozzuto's] earlier unlawful warning [on October 1] to

 7   Greichen for discussing those standards with other employees," id. (emphasis added);

 8   (see also Board brief in support of petition for enforcement at 40 (arguing that

 9   substantial evidence supports finding the October 8 events were linked to Greichen's

10   "earlier protected conduct")). The majority found that Greichen would not have been

11   summoned to an October 8 meeting had it not been for his pre-October 1 protected

12   conduct. 365 N.L.R.B. No. 146, slip op. at 5 n.19; see also id. at 4 (opining that if

13   Bozzuto was seriously concerned about Greichen's spreading accusations of corporate

14   dishonesty, "it would have done more than simply discharge Greichen"). The

15   majority also found that when Winans and Vaughan told Greichen that he would not

16   be discharged if he attended the meeting, they did not tell him he would not be

17   disciplined in any other way. See id. at 4 n.15. We conclude that none of these

18   findings are supported by substantial evidence in the record as a whole.


                                              42
 1                First, to support its inference that summoning Greichen to the October

 2   8 meeting was pretextual, the Board principally stated that

 3                [t]he evidence shows that the meeting was not organized in a manner
 4                typical to those held to address complaints about production and safety
 5                standards. Jamie Wright, the industrial engineer Clark directed to
 6                participate in the meeting, testified that, contrary to past practice,
 7                Clark was "vague and [unspecific,] saying [he wanted] to have a
 8                meeting with an associate about standards." Wright asked for
 9                more information and Clark declined to give him any more
10                information, noting only that the meeting was about standards.
11                Wright testified that he was not told about the nature of the
12                complaint or given any information to prepare for the meeting and that
13                it was "atypically vague" and "frustrating."

14   Id. at 4 (emphases added). We have several difficulties with this rationale, given

15   Wright's testimony as a whole.

16                Although the Board emphasized the facts that Rick Clark did not tell

17   Wright either who the employee was or the nature of the concerns, some lack of

18   specificity is understandable, given that Greichen was not complaining about a

19   particular task or standard but had made a broadside assault on the company,

20   claiming that it was manipulating the labor standards every day for the purpose of

21   cheating the employees. And as to any impact of the lack of detail, Wright said it was

22   "[a] little frustrating" (Tr. 606), that he was only "vaguely frustrated and I got over it

23   in a hurry. I mean this is not a big ordeal [sic]. To me it was just okay, Rick, you want


                                                43
 1   me to prepare for a meeting. Okay. Alright. I'll talk about standards. . . . [And the

 2   identity of the employee] wasn't something that mattered to me" (id. at 614-15; id.

 3   at 611 ("It was about standards.").)

 4                Further, while the Board also emphasized that Wright himself did not

 5   make special preparations for this meeting, Wright testified that when Clark told him

 6   on October 8 "to attend a meeting with an employee who had questions about

 7   standards," Wright asked whether he could bring "David Heatley, who was [his]

 8   senior industrial engineer, and [Clark] said yes. And David developed a small . . .

 9   packet of information to review with the employee" (Tr. 557).

10                The Board found that Heatley's preparation of materials for the October

11   8 meeting, "which included a 1-page example of Greichen's work," did not undermine

12   "Wright's testimony or [the Board's] conclusion that the stated reason for the meeting

13   was a pretext," giving as its reasons only that "Heatley did not testify" in the hearing

14   before the ALJ and that there was "no evidence indicating why Heatley chose to

15   include an example of Greichen's work in the packet of materials," 365 N.L.R.B. No.

16   146, slip op. at 4 n.17. It is true that Heatley did not testify. But there is no dispute

17   that he had in fact prepared materials for the meeting, apparently having determined

18   that the employee in question was Greichen (see, e.g., Tr. 612-13); that Heatley


                                                44
 1   appeared for the scheduled meeting with the prepared materials in hand (see id.

 2   at 614-15, 559); that he gave copies of those materials to Wright, his boss (see id.

 3   at 615); and that the materials themselves were introduced in evidence at the hearing

 4   before the ALJ (see id. at 557-58). Further, Wright testified before the ALJ as to the

 5   nature of the materials, which were screen prints of a "portion of a labor standards

 6   table," an example of a "work assignment that ha[d] not been . . . assigned to

 7   somebody yet," and an assignment that "actually had been assigned to and was

 8   worked [on] by Mr. Greichen." (Id. at 558.) Wright also testified that he had "used

 9   materials like this before in meetings with other employees." (Id.)

10                In sum, the Board's finding that "the [October 8] meeting was not

11   organized in a manner typical to those held to address complaints about production

12   and safety standards," 365 N.L.R.B. No. 146, slip op. at 4, is not supported by the

13   record as a whole. It is instead belied by the facts that the chief industrial engineer

14   was asked to attend the meeting; he was told that the subject was labor standards; he

15   asked to have his senior assistant engineer attend the meeting; that assistant

16   assembled, in advance of the meeting, materials on the labor standards and reporting

17   forms to be used by employees; the assistant engineer determined the identity of the

18   employee in question and included in the meeting materials an example of that


                                               45
 1   employee's records; the assistant engineer gave copies of the materials to the chief

 2   engineer for the meeting; both engineers showed up at the time and place scheduled

 3   for the meeting; and the chief engineer testified that he had "used materials like this

 4   before in meetings with other employees" (Tr. 558).

 5                Given the context of a meeting called to correct Greichen's understanding

 6   of the labor standards, it is difficult to fathom the Board's stated need for additional

 7   evidence as to why the materials brought to the meeting included not only generic

 8   labor standard materials but also an example of Greichen's own work, as a frame of

 9   reference with which Greichen would be familiar. What does seem atypical was the

10   accusatory nature of Greichen's complaint.

11                Second, the Board appears to have found that Greichen in fact was not

12   given any assurance "that there would be no adverse consequences if he attended the

13   [October 8] meeting," 365 N.L.R.B. No. 146, slip op. at 4 n.15 (emphasis added), stating

14   that the recorded evidence




15                of Winans' and Greichen's conversation prior to the meeting
16                reflects only that Greichen understood that he would not be
17                discharged if he attended the meeting, rather than that he would
18                not be disciplined as he had been just a week earlier,



                                               46
 1   id. (first emphasis added; other emphases in original). The tape itself does not reflect

 2   that Greichen's understanding was so limited, for in that conversation--surreptitiously

 3   recorded by Greichen--his acknowledgement of his understanding as to whether he

 4   would or would not be discharged was not the end of the discussion (see

 5   Transcription of Tapes ("Tape") at 21). Rather, the Board failed to note that after that

 6   acknowledgement, Greichen evinced concern precisely about the possibility of lesser

 7   disciplines as well, as he proceeded to point out that he had attended a meeting the

 8   week before, in which he was criticized for his "behavior" (id.). And after further

 9   discussion, Vaughan reiterated that if Greichen refused to attend the meeting "that

10   is considered insubordination" and "you're going to be suspended pending

11   [termination]" (Tape at 24); but Vaughan told him if you do attend "there's nothing

12   here that's unsafe or discriminatory or harassment in this meeting," "you're not going

13   to lose incentive [or pay]," "we're not doing anything negative to you" (id.) (emphases

14   added)). Greichen then said "My choice is not to go to the meeting." (Tape at 24-25.)

15   The finding that Greichen did not understand that attending the meeting would not

16   expose him to "any[]" discipline is not supported by the record.

17                Finally, while the Board majority agreed with the ALJ's view that it was

18   impossible to "separate" the October 8 order that Greichen meet with management


                                               47
 1   from the improper October 1 warning to Greichen that he should not discuss terms

 2   and conditions of employment with his coworkers, see, e.g., 365 N.L.R.B. No. 146, slip

 3   op. at 17 (ALJ stating "I frankly don't see how one can separate these"); id. at 4 (Board

 4   "agree[ing] with the judge that [Bozzuto's] insistence that Greichen attend the October

 5   8 meeting to discuss his ongoing concerns about [Bozzuto's] productivity standards

 6   was an outgrowth of [Bozzuto's] earlier unlawful warning [on October 1] to Greichen

 7   for discussing those standards with other employees"), the record does not reveal

 8   such a connection. We have seen no evidence, for example, that after October 1

 9   Bozzuto subjected Greichen to surveillance to see whether he was disregarding its

10   (unlawful) instruction not to discuss working conditions with his coworkers, or

11   otherwise targeted him in an effort to "create[ an] allegedly 'for cause' basis for

12   discharge," Consolidated Bus, 577 F.3d at 479 (emphasis in original); see id. at 474 n.2

13   (employer conceded that it followed and surveilled an employee, and singled him out

14   for performance testing because of its antiunion animus). Rather, on October 8,

15   Bozzuto was responding to Greichen's approach to Winans, and to Greichen's

16   disclosure that he had begun engaging in conduct that was qualitatively different.

17                Whereas Greichen had previously been complaining merely that the

18   standards did not provide enough time to complete the assigned tasks, there is no


                                                48
 1   evidence that his October 1 complaints impugned the company's honesty and

 2   integrity. On October 8, however, "Greichen told Winans that 'he tells anybody and

 3   everybody he can that he believes [the Company is] purposely changing the daily

 4   standards in order to screw the associates'" (Board brief in support of petition for

 5   enforcement at 8-9 (quoting Winans Memorandum of Greichen's October 8

 6   statements (emphases ours))). This is a serious qualitative difference. As stated by

 7   the Board dissenter, "This should go without saying, but I will say it anyway:

 8   complaining that [Bozzuto's] production standards are too demanding and accusing

 9   [Bozzuto] of being a wage cheat are very different matters . . . ." 365 N.L.R.B. No. 146,

10   slip op. at 10 (emphases added). The Board majority's view that if Greichen had made

11   no previous complaints about the standards he would not have been called upon by

12   management to address his accusations of corporate dishonesty--which he said he

13   was telling to anyone who would listen--is unrealistic.

14                In sum, despite Bozzuto's now-conceded violation of the Act on October

15   1 by warning Greichen for complaining to coworkers about the stringency of the labor

16   standards, we cannot conclude that substantial evidence supports the Board's finding

17   that, if he had not previously complained about tight labor standards, Greichen

18   would not have been ordered to attend the October 8 meeting with respect to his


                                                49
 1   accusation--which, according to his own description, he widely trumpeted--that

 2   Bozzuto was intentionally "screw[ing]" the employees.

 3                Greichen's refusal to attend the meeting constituted insubordination. For

 4   such conduct, Bozzuto had a no-tolerance policy that predated any union-related

 5   activity and called for termination of an employee upon the first occurrence of

 6   insubordination. Bozzuto's insistence that Greichen, in light of his accusations of

 7   cheating, attend a meeting with the engineers in order to educate him as to why he

 8   was wrong about the labor standards, and its termination of his employment upon

 9   his steadfast refusal to attend, did not violate the Act.




10   D. The Board's Remedies

11                In light of our conclusions that Bozzuto did not violate the Act in

12   discharging Greichen and posing the "what's going on with this union stuff" question

13   to McCarty, the remedies ordered by the Board with respect to those findings are not

14   enforced.

15                We also do not enforce the Board's order that its findings of unfair labor

16   practices and its remedial notice be read aloud by Clark, or by a Board member in

17   Clark's presence, at a meeting of Bozzuto's employees.          The ALJ declined to


                                                50
 1   recommend such an extraordinary remedy, finding it inappropriate. While the Board

 2   majority ordered the public reading, it did so without making findings contrary to

 3   those of the ALJ that Bozzuto had not been guilty of any prior unfair labor practices

 4   and that it was not likely to engage in unfair labor practices in the future. In these

 5   circumstances, and with two of the unfair labor practice findings of the ALJ and the

 6   Board being overturned, the extraordinary remedy of a public reading to employees

 7   is even more inappropriate.

 8                Bozzuto remains liable for engaging in several unfair labor practices--

 9   raising wages in an attempt to discourage employees from joining the Union,

10   adopting a restrictive speech policy for disciplined employees, warning Greichen

11   against talking with coworkers about conditions of employment, and suspending and

12   firing McCarty in reliance on fraudulent alterations of his production records. These

13   are not inconsequential violations. But they do not warrant an order for a public

14   reading.




                                              51
1                                         CONCLUSION




2                We have considered all of the parties' arguments in support of their

3   respective positions on these petitions and, except as indicated above, have found

4   them to be without merit. The petition for review is granted with respect to the

5   rulings and orders relating to the interrogation of McCarty and the discharge of

6   Greichen, and with respect to the order that the Board's remedial notice be read aloud

7   at a meeting of employees. In all other respects, the petition for review is denied. The

8   Board's cross-petition for enforcement is granted in all respects except those in which

9   the petition for review is granted.




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