 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued January 18, 2018                  Decided May 4, 2018

                         No. 16-1315

 DAVID SAXE PRODUCTIONS, LLC AND VEGAS! THE SHOW,
 LLC AND DAVID SAXE PRODUCTIONS, LLC AND FAB FOUR
                    LIVE, LLC,
                   PETITIONERS

                              v.

            NATIONAL LABOR RELATIONS BOARD,
                      RESPONDENT


                 Consolidated with 16-1340


        On Petition for Review and Cross-Application
               for Enforcement of an Order of
            the National Labor Relations Board


    Melissa A. Murphy-Petros argued the cause for petitioners.
With her on the briefs was Bruno W. Katz.

    Kellie J. Isbell, Attorney, National Labor Relations Board,
argued the cause for respondent. On the brief were Richard F.
Griffin, Jr., General Counsel, John H. Ferguson, Associate
General Counsel, Linda Dreeben, Deputy Associate General
                               2
Counsel, Julie B. Broido, Supervisory Attorney, and Kyle A.
deCant, Attorney.

    Before: HENDERSON, ROGERS, and KAVANAUGH, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge ROGERS.

     ROGERS, Circuit Judge: The National Labor Relations
Board found that three companies (hereinafter, “the
Company”) producing shows in Las Vegas, Nevada violated
Section 8(a)(1) of the National Labor Relations Act. The
Company petitions for partial review. Because the Board seeks
a remand of certain of its findings and the Company does not
challenge others, what remains for the court to decide is
whether the Board’s finding that a dancer was discharged for
engaging in protected concerted activity is supported by
substantial evidence in the record considered as a whole. On
the current record, the answer to that question is not
straightforward.

     Applying Wright Line, 251 NLRB 1083 (1980), the Board
found the decision to discharge the dancer was motivated by
her protected concerted activity but divided on the question
whether the Company had met its burden to show, by a
preponderance of evidence, the same action would have been
taken even in the absence of her protected activity. A majority
of the Board found pretext but functionally rejected a key
credibility finding by the administrative law judge (“ALJ”)
without acknowledging that it was doing so. How the Board
reconciled its conclusion on pretext and the credibility finding
is unclear. The Board also appears not to account for evidence
detracting from its finding of pretext. Both circumstances
render unclear whether the Board adequately responded to the
analysis by the dissenting Member. Accordingly, we remand
                                3
for clarification by the Board of its treatment of the ALJ’s
credibility finding and the Company’s evidence that the
contract decisions were non-pretextual. Otherwise, we deny
the petition for review save for the issues on which the Board,
without objection by the company, has requested a remand.

                                I.

      The National Labor Relations Act provides in Section 7
that employees shall have “the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
. . . , and to engage in other concerted activities.” 29 U.S.C.
§ 157. Section 8(a)(1) of the Act provides, in turn, that it is an
“unfair labor practice for an employer . . . to interfere with,
restrain, or coerce employees in the exercise of [these] rights.”
Id. § 158(a)(1). Where an employer claims to have discharged
an employee for reasons unrelated to the employee’s protected
activity, the Board applies the two-part test of Wright Line to
determine whether the discharge was an unfair labor practice.
See NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 400–04
(1983). First, “the General Counsel [of the Board] is required
to ‘make a prima facie showing sufficient to support the
inference that protected conduct was a ‘motivating factor’ in
the employer’s decision’ to take adverse action.” Chevron
Mining, Inc. v. NLRB, 684 F.3d 1318, 1327 (D.C. Cir. 2012)
(quoting Wright Line, 251 NLRB at 1089). If that case is made,
then, second, “[t]he burden . . . shifts to the employer to show,
by a preponderance of the evidence, that it would have taken
the same action even if the employees had not engaged in
protected activity.” Id. (citing Wright Line, 251 NLRB at
1089). This second prong of the Wright Line test is at issue
here. David Saxe Prods., LLC, et al., 364 NLRB No. 100, at
*6 (2016) (“Dec.”); id. at *10 (Miscimarra, M., dissenting in
part).
                                4
     In May 2010, Carter signed a six-month contract to dance
in Vegas! The Show, which was produced by David Saxe,
owner of David Saxe Productions, LLC. He continued her
contract twice. Also, in spring 2011, Carter began dancing
part-time in the BeatleShow, produced by Fab Four Live, LLC,
co-owned by Saxe and Mitch McCoy; she did not have an
employment contract for this show. In December 2011, Carter
was informed her employment for both shows would not be
continued.

     The evidence at the hearing before an ALJ showed that
after the first few months of observing Carter in Vegas! The
Show, the choreographer, Tiger Martina, was dissatisfied with
the lack of versatility in Carter’s performance because the show
required dancers to portray different dancing and acting styles,
and he asked the dance captains to work with her. Those efforts
were unsuccessful. When Carter’s initial contract neared
completion in December 2010, Martina recommended to Saxe
that Carter’s contract not be renewed: Carter’s dance
performance was too wooden for the show and her behavior
backstage, including criticizing other dancers’ performance,
upset other cast members. Saxe nonetheless renewed Carter’s
contract because he is “very loyal and tr[ies] to keep people”
and wanted to give her another chance to improve her
performance. Hr’g Tr. 499 (Oct. 18, 2012). When this contract
was set to expire on April 26, 2011, Saxe extended it to January
2, 2012.

     In November 2011, Martina and Saxe held auditions for
new dancers for Vegas! The Show. Martina was “looking for a
replacement for Anne Carter” and had made this clear to Saxe.
Hr’g Tr. 676 (Dec. 12, 2012). Martina thought Carter’s
dancing “was no different from day one . . . [in that] it was still
the same stiff uninterested performance,” even while “the show
had become much more established, we were getting a great
                               5
deal of interest, even from other cities, people were starting to
write to us and . . . we were getting [applications from] some
pretty great dancers.” Id. at 677. Martina concluded Saxe “was
starting to see what was happening from [Martina’s]
standpoint.” Id. Nevertheless, they “decided to let the contract
ride out.” Id.

    Other evidence showed that Martina was not alone in his
concerns about Carter’s performance and attitude. Dance
captain Ryan Kelsey told Saxe and Martina that Carter would
usually become defensive when she received feedback on her
performance, and he told Martina that Carter’s performance did
not match the style required for the show. Additionally, Kelsey
and dance captain Claudia Mitria were troubled by Carter’s
negative attitude backstage, which caused other cast members
to complain. Toward the end of 2011, Kelsey shared his
concerns with Saxe about Carter’s negativity, which involved
not only criticizing other dancers’ performances but also
complaining      about     paid     leave,   scheduling,    and
accommodations for injuries. Kelsey told Martina and Saxe
that Carter’s “negativity backstage was outweighing any
benefit” from having her in the show. Hr’g Tr. 308 (Oct. 17,
2012). Mitria, in turn, recommended Saxe either not renew
Carter’s contract or place her on probation.

     Meanwhile, at the BeatleShow, Carter was unhappy. She
had been told by McCoy, one of the owners, to move a heavy
prop across the stage and refused to do so, expressing safety
concerns. Other dancers also expressed concern about moving
the prop. Still, McCoy told Carter to move the prop. McCoy
explained that Carter was also unhappy because she wanted
additional shifts in the show and he limited them.

    On December 13, 2011, Carter and other female dancers
in Vegas! The Show met with Saxe to discuss pay and other
                               6
terms and working conditions, such as time off for injuries and
adequate time to prepare in between shows. Carter, apparently,
spoke the most. According to Carter, when she asked about
providing increased rehearsal pay, Saxe said: “All you do is
bitch, bitch, bitch. I give you a job and all you do is bitch.”
Hr’g Tr. 117 (Oct. 16, 2012). At other times, Saxe responded
more positively that he understood her concern but he still did
not “want all this bitching.” Id. at 120.

     Kelsey recalled that after the December 13 meeting, he and
Mitria met with Saxe to recommend the non-renewal of
Carter’s contract. Saxe also conferred with Martina, and he
heard complaints from dancers about Carter’s attitude
backstage. On December 21, Carter and Saxe exchanged
emails: After other dancers had spoken with Saxe about
renewing their contracts, Carter asked Saxe if they could
discuss renewal of her contract and he responded that day that
he was not renewing her contract for Vegas! The Show “[d]ue
to [her] constant negative attitude and lackluster performance.”
He expressed the hope that she would respond professionally
until her contract expired on January 2, 2012. Also, after
consulting with McCoy, who did not want Carter in his show
because he thought that she lacked the proper appearance, Saxe
informed Carter that she was no longer in the BeatleShow.

     Several days later, Carter told Saxe that she was
“completely blindsided” by his non-renewal of her contract.
Hr’g. Tr. 122 (Oct. 16, 2012). She claimed that she had never
been disciplined or admonished for her supposed negative
attitude at the show. She also recalled that when she shared her
surprise with Kelsey and Mitria, Kelsey said: “Unfortunately
David [Saxe] flies off the handle and doesn’t like it when
people talk back to him.” Id. at 125.
                               7
     Carter filed two unfair labor practice charges against the
Company. The General Counsel of the Board filed a complaint
alleging that the Company had violated Section 8(a)(1) of the
Act, 29 U.S.C. § 158(a)(1), by discharging Carter for engaging
in protected concerted activity, as well as by including contract
clauses on non-disclosure and non-union jurisdiction over a
show, maintaining overbroad and discriminatory work rules,
prohibiting employees from engaging in protected concerted
activities, and disparaging and threatening them with discharge
and unspecified reprisals for engaging in those activities.

     After a five-day hearing, the ALJ recommended
dismissing the unfair labor practice charges relating to Carter’s
discharge from both shows. David Saxe Prods., et al., 2013
L.R.R.M. (BNA) ¶ 139954, at 21 (N.L.R.B. Div. of Judges
May 7, 2013) (“ALJ Dec.”). The ALJ concluded that although
the non-renewal of Carter’s contract was motivated by her
protected concerted activity (the first prong of the Wright Line
test), the Company did not violate the Act because it had
shown, by a preponderance of the evidence, that Saxe would
have let Carter’s contract expire notwithstanding her protected
activity (the second prong of the Wright Line test). The ALJ
credited Carter’s testimony as to not being disciplined or
counseled about her attitude, and as to Kelsey’s description of
Saxe’s reaction when people talk back to him. The ALJ also
found that Saxe’s testimony was “internally inconsistent.” Id.
Saxe initially testified that he had decided to let Carter’s
contract expire after the December 13 meeting based on
conversations with Martina, Kelsey, and Mitria, as well as
dancers who indicated Carter’s negative attitude upset them.
When recalled, Saxe testified that he made the decision in
October and was influenced by Carter’s unwillingness to
receive feedback and her performance, not by other dancers’
concerns about her complaining. Resolving this “troubling”
conflict, the ALJ reasoned that Saxe’s initial testimony was
                              8
supported by testimony of Martina, Kelsey, and Mitria, all of
whom the ALJ found to be credible witnesses. Id. at 21–22.
The ALJ found, therefore, that “Saxe based his decision on
[their] input,” provided in part after the December 13 meeting,
and that “the preponderan[ce] [of the] evidence shows that
without this input, Carter would not have been terminated for
her protected concerted complaints.” Id. at 22. The ALJ noted
that although another dancer had engaged in a heated exchange
with Saxe at the December 13 meeting, she had not been
disciplined by the company. Id. The ALJ also found that
although Carter’s discharge from the BeatleShow was
motivated by her protected activity, the discharge stemmed
from the valid non-renewal of her contract for Vegas! The
Show. In sum, the ALJ found that the Company had shown by
a preponderance of the evidence that it would have taken the
same action even absent Carter’s protected activity — that is,
that it would not have renewed her Vegas! The Show contract
and would have discharged her from the BeatleShow — as
Wright Line’s second prong requires.

      The Board, upon exceptions filed by the General Counsel
and the Company, agreed with the ALJ that Saxe’s decision not
to renew Carter’s contract was motivated by protected activity.
Two Members disagreed with the ALJ’s conclusion that Saxe
still would have let her contract expire. “[F]or reasons not
considered by the [ALJ],” they concluded “that the
circumstances . . . warrant a conclusion that Saxe seized upon
these concerns [about her performance and attitude] as pretext
for discharging Carter for her protected activity at the
December 13 meeting.” Dec. at *6. They pointed to the timing
of Saxe’s decision, his inconsistent testimony, and his failure
to explain why he had “suddenly” decided to terminate her
when there was nothing new in the criticism of her dancing and
backstage attitude. Id. One Member dissented. The dissent
considered the timing of the decision not suspect because
                                9
Carter’s Vegas! The Show contract was due to expire January
2 and the decision would reasonably be made just before that
date. Id. at *10 (Miscimarra, M., dissenting). Even if the
decision were not finalized until December, evidence showed
that her non-renewal was “under serious consideration” before
the December 13 meeting as Saxe and Martina had agreed in
November to let Carter’s contract expire. Id. Also, that Carter
had been given the opportunity to improve did not mean the
Company “w[as] obligated to disregard Carter’s shortcomings
indefinitely.” Id. The ALJ had “appropriately evaluated
certain inconsistencies in Saxe’s testimony” in view of
Martina’s testimony about “Carter’s shortcomings as a dancer
and her inability or unwillingness to take instruction, as well as
that of several witnesses . . . that her fellow performers were
fed up with the environment Carter fostered backstage.” Id.
The Company petitions for review.

                               II.

     The scope of the court’s review of the Board’s decision
and order is limited. NLRB v. City Disposal Sys. Inc., 465 U.S.
822, 829 (1984); Laro Maint. Co. v. NLRB, 56 F.3d 224, 228–
29 (D.C. Cir. 1995). The court may not “displace the Board’s
choice between two fairly conflicting views, even though the
court would justifiably have made a different choice had the
matter been before it de novo.” Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951); see DIRECTV, Inc. v. NLRB,
837 F.3d 25, 33 (D.C. Cir. 2016). Still, the court’s review is
not without substance. The Board’s findings of fact are
conclusive only if supported by substantial evidence on the
record considered as a whole. See 29 U.S.C. § 160(f); Pac.
Coast Supply, LLC v. NLRB, 801 F.3d 321, 326 (D.C. Cir.
2015). Further, the court’s review of “[t]he substantiality of
evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera, 340 U.S. at 488.
                               10
And judicial “deference is not warranted where the Board fails
to adequately explain its reasoning, [or] where the Board leaves
critical gaps in its reasoning.” DHL Express, Inc. v. NLRB, 813
F.3d 365, 371 (D.C. Cir. 2016) (internal quotation marks and
citation omitted).

     The Company does not challenge the Board’s finding that
Saxe was motivated by Carter’s protected activity when he
made the decision not to renew her Vegas! The Show contract
and discharge her from the BeatleShow. Instead, the Company
contends that it would have made the same decisions about
Carter even absent her protected activity. To resolve that issue,
the ALJ had to assess the credibility of the witnesses. The
Company maintains that the Board’s decision and order
regarding Carter must be partially vacated because the Board
functionally disagreed with the ALJ’s credibility finding in
evaluating Saxe’s testimony without acknowledging its
rejection, and because the Board’s finding that Saxe’s
explanation for his decision was pretextual is not supported by
substantial evidence in the record.

     In rejecting challenges to certain of the ALJ’s credibility
findings, the Board referred to its “established policy” not to
overrule such findings “unless the clear preponderance of all
the relevant evidence convinces [the Board] that they are
incorrect.” Dec. at *1 n.1. Indeed, the Board “should be
reluctant to disturb [the ALJ’s] findings unless error is clearly
shown.” Universal Camera, 340 U.S. at 494 (internal
quotation marks and citation omitted). Yet, as the Company
contends, the Board functionally overruled the ALJ’s
credibility finding on Saxe’s reasons for not renewing Carter’s
contract. The court has no need now to consider whether to
adopt a “special scrutiny” standard of review where the Board
expressly overrules an ALJ’s credibility finding. See Pet’r’s
Br. 33–35, 41 (citing Slusher v. NLRB, 432 F.3d 715, 727 (7th
                               11
Cir. 2005); Weather Shield Mfg., Inc. v. NLRB, 890 F.2d 52, 58
(7th Cir. 1989); NLRB v. Stor-Rite Metal Prods., Inc., 856 F.2d
957, 964 (7th Cir. 1988)).

     At the heart of the matter is Saxe’s conflicting testimony.
The ALJ resolved the conflict by explaining that “the timing of
events, the contents of [his] December 21 email, and witness
testimony,” ALJ Dec. at 21, corroborated Saxe’s initial
testimony that he decided to let Carter go in December after
consulting with others, id. at 21-22. His post-December 13
consultations with Martina and others, the ALJ reasoned,
would have been unnecessary had he already made up his mind
not to extend Carter’s contract. Id. at 21. The Board never
directly disputes this credibility finding. Rather, the Board
concluded that “Saxe seized upon the[] concerns” about
Carter’s performance and attitude “as pretext for discharging
Carter for her protected activity at the December 13 meeting.”
Dec. at *6 (emphasis added). It is unclear whether the Board
determined that Saxe’s testimony — that he decided to let
Carter go after December 13 because of performance and
attitude problems — was inherently incredible in view of the
other circumstances on which it relied. If not, then the Board
needs to explain how it could consider Saxe’s explanation to
be pretextual while at the same time purporting not to reject the
ALJ’s credibility finding.

     Even accepting that the Board was relying on
circumstances “not considered” by the ALJ, Dec. at *6, rather
than rejecting the ALJ’s credibility finding on Saxe, the Board
“must take into account whatever in the record fairly detracts
from its [conclusion’s] weight,” Universal Camera, 340 U.S.
at 488. Yet the Board has not accounted for evidence
indicating that Saxe, after renewing and extending Carter’s
contracts, was no longer willing to continue to do so. Instead,
it relied on the timing of Saxe’s decisions, the previous
                              12
continuances of Carter’s contract, and Saxe’s inconsistent
testimony. The Company offered evidence, principally
provided by Martina, whom the Board credited, see Dec. at *6,
that Saxe had come to agree with Martina that Carter, despite
being afforded opportunities, had shown no improvement in
her dancing or backstage attitude while Vegas! The Show had
progressed and received interest from many talented dancers.
The Board offers no account of Martina’s testimony that by
November 2011, Saxe’s earlier reasons for extending Carter’s
contract — to stick with people and to give her another chance
— no longer had the same resonance, much less of evidence
that the timing of Saxe’s non-renewal decision on Carter’s
contract was consistent with the timing of decisions on other
dancers’ contracts. It appears not to have considered the
likelihood that Saxe had reached his tipping point in terms of
tolerating Carter’s deficient performance and demoralizing
backstage behavior. If the Board’s reliance on “reasons not
considered” by the ALJ, Dec. at *6, fails to account for
evidence addressing Saxe’s non-pretextual reasons for the non-
renewal of Carter’s contract, then its findings would be
unsupported by substantial evidence in the record considered
as a whole. See Universal Camera, 240 U.S. at 488. The
Board’s clarification of its treatment of the ALJ’s credibility
finding on Saxe’s reasons for his decisions may not resolve
whether not accounting for non-pretext evidence would
warrant granting this part of the company’s petition for review,
and therefore requires clarification on remand.

     Finally, the Board’s dismissive response of the dissenting
Member, “reject[ing] his position essentially for the same
reasons that we reverse the [ALJ],” Dec. at *7 n.14, “leaves
critical gaps in its reasoning,” DHL Express, 813 F.3d at 371
(internal quotation marks and citation omitted). See Fred
Meyer Stores, Inc. v. NLRB, 865 F.3d 630, 638 (D.C. Cir.
2017); Haw. Dredging Constr. Co., Inc. v. NLRB, 857 F.3d
                              13
877, 881–82 (D.C. Cir. 2017). Doubtless, as the Board noted,
it has precedent for determining whether an employer’s
explanation is pretextual by looking to factors such as the
timing of a discharge decision, inconsistent explanations, or
lack of explanation for a termination where a situation appears
unchanged. See Dec. at *6 n.12, *7 (citing MDI Commercial
Servs., 325 NLRB 53, 75 (1997), enforced, 175 F.3d 621 (8th
Cir. 1999); Diversified Bank Installations, Inc., 324 NLRB
457, 476 (1997); GATX Logistics, Inc., 323 NLRB 328, 335
(1997), enforced, 160 F.3d 353 (7th Cir. 1998); Trader Horn
of N.J., Inc., 316 NLRB 194, 199 (1995); Dumbauld Corp., 298
NLRB 842, 848 (1990)). But the dissenting Member suggested
why these circumstances were unpersuasive upon considering
the record evidence as a whole. Dec. at *10 (Miscimarra, M.,
dissenting in part).

     The Board, of course, is not required to reach the same
conclusion as the ALJ. For purposes of the court’s review,
“[t]he ‘substantial evidence’ standard is not modified in any
way when the Board and its examiner disagree.” Universal
Camera, 340 U.S. at 496. Rather, “[t]he rejected factual
determinations of the ALJ are simply a factor for the reviewing
court to consider in its substantial evidence inquiry.” Kay v.
FCC, 396 F.3d 1184, 1189 (D.C. Cir. 2005) (citing Universal
Camera, 340 U.S. at 496–97). But before the court can resolve
whether the Board’s finding of pretext is supported by
substantial evidence in the record considered as a whole,
clarification is needed on the Board’s treatment of the ALJ’s
credibility finding on the reasons given for the non-renewal of
Carter’s contract and its treatment of the company’s evidence
as to non-pretext, particularly in light of the dissenting
Member’s analysis of the evidence.

    Accordingly, we grant the petition in part and remand the
Section 8(a)(1) violations based on the non-renewal of Carter’s
                              14
contract for Vegas! The Show and Carter’s discharge from the
BeatleShow. The Company does not object to a remand on
these issues. Oral Arg. Tape 11:03–12, 11:51–12:02 (Jan. 18,
2018). We also grant the Board’s unopposed request for a
voluntary remand of its findings that the company violated
Section 8(a)(1) as a result of the non-disclosure and non-union
contractual clauses because it has overruled the precedent upon
which it relied. Letter from Linda Dreeben, NLRB Dep. Assoc.
Gen. Counsel, to Mark J. Langer, Clerk of the Court (Jan. 5,
2018) (Docket No. 1711650); see Limnia, Inc. v. U.S. Dep’t of
Energy, 857 F.3d 379, 386–87 (D.C. Cir. 2017). Additionally,
we grant the Board’s cross-application for summary
enforcement of its unchallenged findings that the company
violated Section 8(a)(1) by prohibiting and discouraging
employees from engaging in protected concerted activity
through threats, disparagement, and discrimination.
