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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-60257                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
DIRECTV HOLDINGS, L.L.C.,                                                   May 31, 2016
                                                                           Lyle W. Cayce
              Petitioner, Cross-Respondent                                      Clerk

v.

NATIONAL LABOR RELATIONS BOARD,

              Respondent, Cross-Petitioner




                        On Petitions for Review of an Order
                       of the National Labor Relations Board
                               NLRB No. 21-CA-39546


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
       DIRECTV Holdings, L.L.C. (“DirecTV”) petitions this court for review of
a final order of the National Labor Relations Board (“NLRB”), which affirmed
the determination of the Administrative Law Judge (“ALJ”) that DirecTV
unlawfully discharged Gregory Edmonds due to his union activity. The NLRB
cross-petitions for enforcement of the order. 1 Because we determine that the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 Both petitions concern only the NLRB’s decision regarding Edmonds.                     The
lawfulness of DirecTV’s work rules and policies is not before us.
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                                No. 15-60257
decision of the ALJ was not supported by substantial evidence, we GRANT the
petition for review and DENY the cross-petition for enforcement.
                     I. Factual and Procedural Background
      DirecTV provides satellite television to its customers. Gregory Edmonds
began working for DirecTV Home Services as an Installer in the fall of 2007.
He worked out of DirecTV’s Riverside facility, at which Freddy Zambrano was
the Site Manager. Scott Thomas was the Regional Director of Operations, and
Adrian Dimech was the Vice President of Operations for Southern California,
including the Riverside facility. The International Union of Machinists and
Aerospace Workers filed a charge with the NLRB, alleging in part that
Edmonds was terminated for engaging in protected activity. Beginning on July
19, 2011, a two-day hearing was conducted before the ALJ.
      According to the evidence presented before the ALJ, during Edmonds’s
tenure at DirecTV, he scored well for customer satisfaction and received two
raises. Edmonds testified before the ALJ that Zambrano asked him to apply
for a supervisor position, although Edmonds ultimately decided not to submit
an application. At the same time, however, Edmonds was subject to corrective
actions on nine occasions while employed at DirecTV, and, for the most part,
these corrective actions concerned performance issues.      He received seven
warnings, at least two of which were “final” warnings, meaning that future
incidents could be grounds for termination.
      At some point in the spring or summer of 2010, Edmonds met with union
representatives at the home of his coworker Brandon Ojeda. According to
Edmonds, the union representatives told him to get a feel for who would be
interested in joining the union, and Edmonds subsequently spoke to several
coworkers about this topic.




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                                      No. 15-60257
       After the meeting at Ojeda’s home, on a Saturday morning in either May
or June of 2010, 2 there was a mandatory meeting at the Riverside facility. The
precise purpose of and topics discussed at this meeting are the subject of some
dispute between the parties. According to Dimech, who led the meeting, its
purpose was to notify the Riverside facility about the results of a union election
that had occurred at the Rancho Dominguez facility. 3 According to Edmonds,
Dimech was inquiring about what issues he could address because “[i]f
everything was taken care of on that level, then there really wouldn’t be a need
for a union in his mind.” Edmonds further testified that at the meeting, he
complained about not being compensated for time that he spent driving to help
the facility in San Diego, as well as other compensation issues.                  He also
testified that he stated that “if we were a collective body[,] . . . maybe the
company might hear us,” and that in response to this comment Dimech “just
kind of turned red faced and didn’t really have much of a response at all.”
       Immediately following this meeting, Dimech approached Edmonds to
discuss what he could do about the issues that were brought up at the meeting.
He also gave Edmonds his business card. Corporate later informed Edmonds
that he was going to be paid for the travel-time issue that he raised at the
meeting. Edmonds testified that a couple of days after the meeting, Zambrano
said, “[w]ell, we’re going to go out and [Quality Control] all of [Edmonds]’s jobs
today.” Quality control refers to quality checks on an installer’s work. A
coworker who overheard the comment testified that it was equivalent to saying
that Edmonds was going to be kept under surveillance.


       2The precise date of this meeting was a matter of dispute before the ALJ, and the ALJ
did not make a finding as to the date of the meeting. While DirecTV contended the meeting
occurred on May 22, 2010, the General Counsel maintained it did not occur until June.
       3The ALJ apparently discredited this testimony, finding that Dimech attended the
meeting to prevent the unionization efforts at Rancho Dominguez from spreading to
Riverside.
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                                     No. 15-60257
      The parties also entered evidence relating to two incidents that occurred
May 30, 2010, and June 14, 2010, respectively. On May 30, 2010, Edmonds
was involved in a car accident while driving the company vehicle. On June 14,
2010, a customer complaint was elevated to the Office of the President. In this
complaint, a customer alleged that Edmonds was late to an appointment and
did not adequately apprise him of the actual arrival time. Edmonds was not
disciplined for either of these incidents.
      On the morning of July 21, 2010, Edmonds was waiting to get equipment
for his day’s work, 4 when he saw Zambrano enter the warehouse. In front of
approximately fifty coworkers, Edmonds told Zambrano, “Freddy, can’t you do
something about this f*ing line? I stand in this f*ing line ten hours a day.” In
response, Zambrano walked over to Edmonds, put his arms out, and said
“[n]obody cut in front of Greg. Okay?”
      The next day, Edmonds’s supervisor told him that Zambrano wanted to
talk to him. Zambrano gave Edmonds an Employee Consultation Form that
noted Edmonds was being suspended for insubordination due to the July 21
incident. Edmonds subsequently apologized to Zambrano for his outburst.
According to Edmonds, when he asked Zambrano if he was going to be fired,
Zambrano responded, “No. When you get back from your suspension, you’ll go
back to work.” After the suspension, however, Zambrano told Edmonds that
after talking with Scott Thomas and the human resources department,




      4   The wait to get equipment was a large source of frustration among installers.
Edmonds testified that on some occasions he would wait for materials upwards of an hour.
Installers are paid on a piecework basis for the installations they complete. The more
installations they complete, the more money they make. However, they also have an hourly
rate if an Installer does not make a certain amount of pay via the piecework pay system.
Edmonds was concerned that by waiting in line, he had less time to complete installations,
and thus his effective hourly rate would be lower.
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                                      No. 15-60257
Edmonds’s employment was being terminated. According to Zambrano, 5 he
had to advise Thomas and human resources of termination decisions, and
Zambrano told an employee from human resources that he reviewed
Edmonds’s personnel file and Edmonds was on a final warning. Zambrano
testified that he made the decision to terminate Edmonds on July 23.
       Edmonds was not the only employee to be terminated for directing
profanity at a superior. DirecTV entered evidence of six other employees who
were disciplined in the Southern California region for similar conduct.
       After the hearing, the ALJ determined that Edmonds had been engaged
in protected union activity, but that the July 21, 2010, outburst did not itself
constitute protected activity. He further determined that DirecTV was aware
of this activity and disliked unionization. Ultimately, the ALJ concluded that
Edmonds was discharged in violation of the National Labor Relations Act
(“NLRA”). After a lengthy procedural history, 6 the NLRB issued the order at
issue in this case on March 31, 2015, affirming the decision of the ALJ as it
related to Edmonds’s termination. DirecTV now petitions this court for review
of the NLRB’s decision, and the NLRB cross-petitions for enforcement.




       5The ALJ found that Zambrano was not a credible witness because he “gave succinct
responses to leading questions in a manner that he believed would be most beneficial to
[DirecTV]’s position, regardless of their accuracy.”
       6 The NLRB issued its initial order in this case on January 25, 2013, and the parties
petitioned the Ninth Circuit for review and enforcement of that order. While that petition
was pending, the Supreme Court issued NLRB v. Noel Canning, 134 S. Ct. 2550 (2014),
wherein it determined that the appointments of three members of the NLRB were invalid.
In accordance with Noel Canning, the Ninth Circuit remanded the case to the NLRB for
further consideration. In its March 31, 2015, decision and order, the NLRB reviewed the
ALJ’s decision de novo as well as the NLRB’s January 25, 2013, decision and order. The
NLRB generally agreed with the rationale set forth in the January 25, 2013, decision and
order, and incorporated its reasoning by reference.
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                                 No. 15-60257
                     II. Jurisdiction and Standard of Review
      We have jurisdiction to review or enforce the NLRB’s order pursuant to
29 U.S.C. § 160(e) and (f).
      We will affirm the NLRB’s factual findings if they are supported by
substantial evidence on the record, considered as a whole. Poly-Am., Inc. v.
NLRB, 260 F.3d 465, 476 (5th Cir. 2001). “Substantial evidence is that which
is relevant and sufficient for a reasonable mind to accept as adequate to
support a conclusion.     It is more than a mere scintilla, and less than a
preponderance.” El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656 (5th Cir. 2012)
(emphasis omitted) (quoting Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.
1993)). Under this deferential standard of review, “the ALJ’s decision must be
upheld if a reasonable person could have found what the ALJ found, even if
the appellate court might have reached a different conclusion had the matter
been presented to it in the first instance.” Standard Fittings Co. v. NLRB, 845
F.2d 1311, 1314 (5th Cir. 1988). Furthermore, we are bound by the ALJ’s
credibility determinations unless “(1) the credibility choice is unreasonable,
(2) the choice contradicts other findings, (3) the choice is based upon
inadequate reasons or no reason, or (4) the ALJ failed to justify his choice.”
Asarco, Inc. v. NLRB, 86 F.3d 1401, 1406 (5th Cir. 1996) (citing NLRB v.
Motorola, Inc., 991 F.2d 278, 282 (5th Cir. 1993)).
      We review questions of law de novo, but will defer to the NLRB’s legal
conclusions if they are reasonably grounded in the law and not inconsistent
with the NLRA. Poly-Am, 260 F.3d at 476.
                                 III. Discussion
                                       A.
      Under the NLRA, an employer may not engage in “discrimination in
regard to hire or tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor organization.” 29 U.S.C.
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                                       No. 15-60257
§ 158(a)(3). Additionally, an employer may not “interfere with, restrain, or
coerce employees in the exercise of [their collective bargaining rights].” Id.
§ 158(a)(1). 7 An employer violates the NLRA by taking an adverse employment
action against an employee for engaging in protected union activity. New
Orleans Cold Storage & Warehouse Co., Ltd. v. NLRB, 201 F.3d 592, 600 (5th
Cir. 2000).
       Under the so-called Wright Line test, the NLRB’s General Counsel must
first establish that the employee’s protected union activity was a motivating
factor in the employer’s adverse employment decision. Id. at 600–01 (adopting
the test set forth in Wright Line, 251 N.L.R.B. 1083 (NLRB 1980)). Once the
General Counsel meets this burden, the burden shifts to the employer to show
that the adverse employment action would have occurred in the absence of the
protected activity. Id. at 601.
                                             B.
       Evidence supporting the “motivating factor” determination is very weak.
Evaluating this issue is complicated by the lack of ALJ finding on when the
disputed “May or June” meeting occurred.                  If it occurred in May, then
Zambrano’s failure to use the car accident and customer complaint to fire
Edmonds substantially undercuts the “motivating factor” conclusion.                      See
Asarco, 86 F.3d at 1409; Vermeer Mfg. Co., 187 N.L.R.B. 888, 892 & n.30
(NLRB 1971). However, even if we assume arguendo that Edmonds’s protected
union activity was a motivating factor in his termination, we conclude that the
NLRB’s determination that DirecTV failed to establish that it would have




       7 “Although §§ [158(a)(1)] and (a)(3) are not coterminous, a violation of § [158(a)(3)]
constitutes a derivative violation of § [158(a)(1)].” Metro. Edison Co. v. NLRB, 460 U.S. 693,
698 n.4 (1983).
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                                 No. 15-60257
terminated Edmonds in the absence of his protected union activity was not
supported by substantial evidence.
      It was undisputed that on July 21, 2010, Edmonds directed profanity
toward his superior, Zambrano, in front of numerous coworkers. It was also
undisputed that Edmonds had a lengthy disciplinary history at DirecTV, and
had received nine violations in a period of less than three years. On multiple
occasions, DirecTV warned Zambrano that “[i]mmediate satisfactory and
sustained improvement must be shown or further disciplinary action may be
taken up to and including termination.” In fact, at the time of the July 21,
2010, incident, Zambrano was on a final warning, meaning that he could be
terminated for further violations.
      The ALJ’s decision set forth Edmonds’s disciplinary history, but the ALJ
engaged in minimal discussion regarding the implications of this tarnished
record. The mere fact that Edmonds was not fired for previous violations
should not be used against DirecTV. See Delco-Remy Div., Gen. Motors Corp.
v. NLRB, 596 F.2d 1295, 1306 (5th Cir. 1979). Moreover, in a case in which
the employee had a similar work history, we determined that the record lacked
substantial evidence to support the NLRB’s conclusion that the employer had
not met its burden to show that it would have discharged the employee in the
absence of the union activity. Poly-Am., 260 F.3d 465. In Poly-America, “[t]he
uncontradicted evidence in the record [was] that [the terminated employee] did
not follow safety regulations with respect to his goggles, insulted one of his
supervisors, and voiced his dislike for his job with frequency.” 260 F.3d at 491.
Although the employee was in a probationary period in Poly-America, there
was no evidence that the company treated the employee’s probation different
from other employees’ probation. Id. In the case currently before us, the record
reflects that Edmonds accumulated a substantial disciplinary history, and


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                                        No. 15-60257
although he scored well on customer satisfaction, 8 he had a string of issues
with his work performance and directed profanity at his supervisor in front of
other employees. 9
       Moreover, “[w]e have often observed that the essence of discrimination
in a [29 U.S.C. § 158(a)(3)] violation consists of treating like cases differently.”
Delco-Remy, 596 F.2d at 1305 (citation omitted). “The [NLRA] does not prevent
an employer from disciplining an employee for violating established company
rules and policies, especially when the discipline is provided in a manner
consistent with discipline given for similar conduct in the past.” Asarco, 86
F.3d at 1409.
       Although our review is deferential, “a decision by the Board that ‘ignores
a portion of the record’ cannot survive review under the ‘substantial evidence’
standard.” Carey Salt Co. v. NLRB, 736 F.3d 405, 410 (5th Cir. 2013) (quoting
Lord & Taylor v. NLRB, 703 F.2d 163, 169 (5th Cir. 1983)). Our deference has
limits; we review the record as a whole. Id. DirecTV entered evidence that
six 10 employees were terminated for using profanity, and some of these


       8 Similarly, the employee in Poly-America received occasional praise for his work. 260
F.3d at 491.
       9  Our opinion in Poly-America raises significant concerns about whether, given
Edmonds’s work history, the decision of the NLRB was supported by substantial evidence.
While the dissenting opinion is correct in noting that there are distinctions between this case
and Poly-America, that case makes clear that the NLRB cannot ignore evidence of
disciplinary history. Here, the NLRB did not adequately address the effect of Edmonds’s
disciplinary history on its decision, and “a decision by the Board that ‘ignores a portion of the
record’ cannot survive review under the ‘substantial evidence’ standard.” Carey Salt Co. v.
NLRB, 736 F.3d 405, 410 (5th Cir. 2013).
       10  The NLRB contends that the discipline of five of these employees is not relevant
because they did not work out of the Riverside facility, but rather worked out of other
facilities in the Southern California region. But the ALJ, and subsequently the NLRB,
determined that somebody intervened to change Zambrano’s mind about termination, and
the only individuals identified as possibly being this intervenor worked at the regional level,
not just at the Riverside facility. In fact, the individual at whom the charge of anti-union
sentiment was perhaps most heavily directed throughout the hearing, Dimech, worked at the
regional level. Accordingly, for comparison purposes, it is appropriate to consider employees
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                                         No. 15-60257
terminations were based on conduct less flagrant than Edmonds’s outburst.
The ALJ, however, considered only one of these employees, John Barrios, and
found the conduct underlying Barrios’s termination to be distinguishable.
Similarly, the NLRB did not address the remaining five employees. Given the
evidence as a whole, we conclude that the NLRB’s decision that DirecTV failed
to meet its burden to establish that it would have terminated Edmonds in the
absence of his union activity is not supported by substantial evidence.
       Although the General Counsel attempted to rebut this evidence with
testimony that profanity was somewhat commonplace in the workplace, there
was no evidence that employees directed profanity at supervisors in front of a
warehouse full of employees in a manner that would undermine the
supervisor’s authority without repercussion. 11 Rather, the evidence showed
that employees used profanity among themselves or in discussions and private
meetings with supervisors. Moreover, there was no evidence that any of the
individuals that generally used profanity had the same extensive disciplinary
history or that any of these employees were on a final warning.
       Finally, the NLRB makes much of the fact that Edmonds’s initial
suspension was transformed into a termination. The ALJ found that because
Zambrano told Edmonds that he would not be terminated, “someone




within the Southern California region, as this unit was an alleged source of discrimination,
not just the Riverside facility.
       11   According to the ALJ,
                 The record shows that employees, supervisors, and managers
                 alike used profanity in the workplace. The record does not
                 show, however, any prior instances of employees cussing out
                 supervisors or managers in the workplace, in the presence of
                 other employees, for failing to do the job that employees
                 expected them to do. Accordingly, while there is precedent for
                 the Respondent’s acceptance of profanity in the workplace,
                 there is no precedent for the Respondent’s acceptance of profane
                 outbursts in the workplace towards management.
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                                 No. 15-60257
intervened . . . to cause Zambrano to change his mind and convert the
suspension to a termination.” This statement is unsupported speculation. See
Brown & Root, Inc. v. NLRB, 333 F.3d 628, 639 (5th Cir. 2003) (noting that
although a finding of a violation “may be supported through circumstantial,
rather than direct evidence, . . . [t]hat evidence . . . must be substantial, not
speculative, nor derived from inferences upon inferences”); cf. Berry Sch. v.
NLRB, 627 F.2d 692, 704 (5th Cir. 1980) (determining that “inferences about
events which might have happened ‘behind closed doors,’” were “speculations
unsupported by the evidence”).      But even crediting this conclusion, this
circumstantial evidence does not undermine the uncontradicted evidence in
support of DirecTV’s position that it would have fired Edmonds anyway,
namely Edmonds’s extensive disciplinary history and the termination records
for employees engaged in similar conduct. “[A] company may discharge an
employee even where union activity is a motivating factor in that discharge if
the company can prove that the termination decision would have been the
same regardless of the protected conduct.”        Poly-Am., 260 F.3d at 491.
Substantial evidence does not support the NLRB’s decision that DirecTV failed
to meet this burden.
      For the foregoing reasons, the NLRB’s determination that DirecTV
violated the NLRA by terminating Edmonds is not supported by substantial
evidence. Accordingly, DirecTV’s petition for review is GRANTED, and the
NLRB’s petition for enforcement is DENIED. The NLRB’s order is set aside in
accordance with this opinion.




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                                       No. 15-60257
KING, Circuit Judge, dissenting:
        Substantial evidence supports the NLRB’s decision. And substantial
evidence supports the majority’s decision. In that situation, we are bound to
enforce the NLRB’s decision. Accordingly, I would deny DirecTV’s petition for
review and grant the NLRB’s petition for enforcement.
       This court reviews the NLRB’s factual determinations 1 under the
substantial evidence standard announced by the Supreme Court in Universal
Camera Corp. v. NLRB, 340 U.S. 474 (1951). See NLRB v. Cal-Maine Farms,
Inc., 998 F.2d 1336, 1339 (5th Cir. 1993). “Substantial evidence is that which
is relevant and sufficient for a reasonable mind to accept as adequate to
support a conclusion,” El Paso Elec. Co. v. NLRB, 681 F.3d 651, 656 (5th Cir.
2012) (quoting Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993)), and “the
ALJ’s decision must be upheld if a reasonable person could have found what
the ALJ found, even if” this court would have reached a different conclusion
had it heard the case in the first instance, Standard Fittings Co. v. NLRB, 845
F.2d 1311, 1314 (5th Cir. 1988). “In determining whether the Board’s factual
findings are supported by the record, we do not make credibility
determinations or reweigh the evidence.” NLRB v. Allied Aviation Fueling,
490 F.3d 374, 378 (5th Cir. 2007); accord Ill. Cent. R.R. Co. v. Norfolk & W. Ry.
Co., 385 U.S. 57, 69 (1966) (“It is not for the court [on substantial evidence
review] to strike down conclusions that are reasonably drawn from the
evidence and findings in the case.”). And “[o]nly in the most rare and unusual
cases will an appellate court conclude that a finding of fact made by the . . .
Board is not supported by substantial evidence.” Merchs. Truck Line v. NLRB,



       1 As does the majority, I focus on the ALJ’s decision as opposed to the NLRB’s decision
here because the ALJ engaged in the initial fact-finding with which the NLRB agreed. See,
e.g., N.L.R.B. v. Gulf States United Tel. Co., 694 F.2d 92, 95 (5th Cir. 1982) (focusing on the
findings of the ALJ, which were later adopted by the NLRB).
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                                 No. 15-60257
577 F.2d 1011, 1014 n.3 (5th Cir. 1978) (quoting Ward v. NLRB, 462 F.2d 8, 9
(5th Cir. 1972)).
      Before turning to the application of the substantial evidence test here, I
briefly recount the relevant facts and procedural history to provide greater
context for that test. Applying the two step analysis from Wright Line, a Div.
of Wright Line, Inc., 251 NLRB 1083 (1980), the ALJ in this case concluded
that (1) Gregory Edmonds’s protected union activity was a motivating factor in
DirecTV’s decision to terminate Edmonds and (2) DirecTV failed to establish
that it would have terminated Edmonds absent his protected activity. In
reaching these conclusions, the ALJ made a number of specific factual findings.
As to Edmonds’s history, the ALJ noted that, while Edmonds was not a model
employee given his disciplinary record, he had received higher-than-average
customer satisfaction ratings, been recommended to apply for a supervisor
position, received the highest salary possible given his position following
several raises, and attained the classification of “service technician” based on
his demonstrated skills and the work that he could competently perform. The
ALJ noted that Edmonds first engaged in union activity in the spring or
summer of 2010, when he met with union representatives at the home of
coworker Brandon Ojeda.
      Following the Ojeda meeting, in either May or June of 2010, Adrian
Dimech, a DirecTV superior, conducted a meeting at the Riverside facility and
expressed his opposition to unionization of the employees at that facility. At
the Dimech meeting, Edmonds voiced several complaints and implied a desire
for the employees at the Riverside facility to unionize. A few days after this
meeting, Freddy Zambrano informed Edmonds that all of his work in the field
for the day would be monitored, reviewed, and evaluated (although apparently
the monitoring, etc. never actually occurred). On July 21, 2010, Edmonds
loudly cursed at his supervisor, Zambrano, in front of a number of other
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                                 No. 15-60257
employees, expressing concern about the long wait times required to obtain
equipment. The next day, Zambrano suspended Edmonds, stating explicitly
that Edmonds was not going to be terminated. However, during Edmonds’s
suspension, Zambrano communicated with Scott Thomas and the “HR
department” and decided to terminate Edmonds.
      Based on these facts, the ALJ found that Edmonds had been engaged in
protected activity at the Dimech meeting, and that “Zambrano warned
Edmonds that his work was to be monitored as a result of his protected . . .
union activity.” The ALJ further found that these actions, combined with
Edmonds’s subsequent suspension and firing, were sufficient under Wright
Line to establish that Edmonds’s protected union activity was a motivating
factor in DirecTV’s termination decision. Therefore, the ALJ concluded that
DirecTV had the burden to prove that it would have terminated Edmonds
absent his union activity under the second step of the Wright Line analysis.
      With respect to the second step, the ALJ found that “from the date of the
Dimech meeting until July 22, Edmonds was never disciplined . . . for any
reason.” When he received his initial suspension, Zambrano explicitly told
Edmonds that he would not be terminated, and the form indicating his
suspension did not include the term “pending investigation.” Based on this,
the ALJ found that “Zambrano had . . . decided . . . shortly after the incident .
. . that Edmonds would be suspended but would not be discharged for his
outburst.” The ALJ then found that “someone intervened between July 22
[when Edmonds was initially suspended] and July 28 [when Edmonds was
terminated] to cause Zambrano to change his mind and convert the suspension
to a termination.” The ALJ specifically discredited Zambrano’s testimony that
“he did not have his mind made up to discharge Edmonds” when Edmonds was
initially suspended and noted that Zambrano “implicated others by telling
Edmonds that after talking with Scott Thomas—Zambrano’s boss and
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                                     No. 15-60257
Dimech’s subordinate—and the HR department, it had been determined that
his employment was being terminated.” Based on these findings, the ALJ
concluded that DirecTV had not “affirmatively demonstrated that whatever it
was that caused Zambrano to change his mind and convert Edmonds’[s]
suspension to a discharge was not motivated by unlawful considerations.”
      With respect to the first step of the Wright Line analysis, the majority
characterizes the evidence supporting the ALJ’s determination that Edmonds’s
union activity was a motivating factor in his termination as “very weak,”
especially given that the ALJ made no specific finding as to when the Dimech
meeting occurred. 2 However, in light of the fact that Edmonds engaged in
protected activity, was singled out shortly after this activity for monitoring,
and was later terminated, a “reasonable mind” could accept this evidence as
“adequate to support [the] conclusion” that Edmonds’s union activity was a
motivating factor in DirecTV’s decision to terminate his employment. El Paso
Elec. Co., 681 F.3d at 656 (quoting Spellman, 1 F.3d at 360). Accordingly, I
would hold that the ALJ’s conclusion was supported by substantial evidence—
even if that decision was not supported by a preponderance of the evidence—
instead of simply assuming arguendo this conclusion, as the majority does. See
id. (“[Substantial evidence] is more than a mere scintilla, and less than a
preponderance.” (emphasis omitted)).




      2  The majority also notes that, assuming the Dimech meeting occurred in May,
DirecTV had two opportunities to terminate Edmonds that it did not take advantage of,
suggesting that anti-union animus was not a motivating factor in its ultimate termination
decision. Evidence introduced by the parties showed that Edmonds was involved in a car
accident while driving a company vehicle in May 2010 and that a customer complaint
concerning Edmonds was forwarded to the Office of the President in June 2010. However,
the ALJ explicitly found that Edmonds was not responsible for the car accident and that the
complaint lacked merit. Therefore, according to the ALJ, DirecTV had no opportunity to use
these incidents to terminate Edmonds, so the failure to previously terminate Edmonds did
not suggest a lack of anti-union animus in the ultimate decision to terminate Edmonds.
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                                       No. 15-60257
       With respect to the second step of the Wright Line analysis, I similarly
disagree with the majority’s conclusion as to whether substantial evidence
supported the ALJ’s conclusion that DirecTV failed to carry its burden to show
that it would have terminated Edmonds absent his union activity.                          The
majority offers three general reasons for why substantial evidence did not
support the ALJ’s determination: (1) the “ALJ engaged in minimal discussion”
of Edmonds’s disciplinary record; (2) DirecTV has terminated at least six other
employees for similar reasons as it terminated Edmonds; and (3) the ALJ
improperly inferred, based on the evidence, that Zambrano’s decision to
terminate Edmonds was motivated by unlawful considerations.                        However,
none of these reasons supports the conclusion that substantial evidence did not
support the ALJ’s conclusion.
       As to the majority’s first criticism of the ALJ’s decision: while Edmonds
did have a disciplinary record, he had also been promoted, received raises, and
been invited to apply for a supervisor position.                 Therefore, the relative
importance of Edmonds’s disciplinary history and his workplace achievements
in DirecTV’s decision to terminate Edmonds was an inherently fact-intensive
inquiry. And the ALJ ultimately emphasized Edmonds’s achievements over
his failings in the workplace in concluding that DirecTV would not have
terminated Edmonds absent his union activity. Given the record before the
ALJ, “a reasonable person could have found what the ALJ found,” and I would
not disturb that finding here. 3 Standard Fittings Co., 845 F.2d at 1314.




       3 The majority’s reliance on Poly-Am., Inc. v. NLRB, 260 F.3d 465 (5th Cir. 2001), in
reasoning that this court has held that the termination of an employee in a similar situation
as Edmonds was not supported by substantial evidence is misplaced. As the majority notes,
the employee in that case was still on a probationary period. Id. at 491. And while the
majority recognizes that the employee received occasional praise in addition to exhibiting
disciplinary issues, id., the praise received did not involve a promotion, multiple raises, and
suggestions of applying for a supervisor position as in this case.
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                                     No. 15-60257
       As to the majority’s second criticism, the majority emphasizes that the
ALJ discussed only one of the six other employees DirecTV had terminated for
similar reasons as Edmonds.            However, the ALJ did not conclude that
Edmonds would not have been fired absent union activity because his
disciplinary issues were less egregious than other employees’ issues. Instead,
the ALJ concluded that Edmonds would not have been fired for his profane
outburst because he made a specific factual finding that Zambrano had decided
not to terminate Edmonds before speaking to his superiors.                  This factual
finding was independent of how DirecTV had addressed disciplinary problems
with other employees in the past. The ALJ concluded that Zambrano only
decided to terminate Edmonds after speaking with the HR department and
Scott Thomas, inferring from the facts before him that Zambrano decided to
terminate Edmonds as a result of anti-union animus following this discussion.
This factual finding, combined with the ALJ’s consideration of the only
employee who had been terminated for profanity while working at the same
facility as Edmonds, is sufficient to survive this court’s substantial evidence
review. 4
       With respect to the majority’s final criticism, I cannot agree with the
majority as to the impropriety of the ALJ’s inference that Zambrano’s
conversation with his superiors caused him to change his mind and terminate
Edmonds and that this change was motivated by unlawful considerations. As
described above, the ALJ carefully analyzed the facts surrounding Zambrano’s




       4 Moreover, I agree with the NLRB’s explanation that these five other employees, who
worked at a different facility than Edmonds, were not directly comparable to Edmonds and,
thus, the ALJ was under no obligation to consider them. The majority claims that, because
it was Zambrano’s superiors who imparted anti-union animus to Zambrano’s decision to
terminate Edmonds, the proper point of comparison is all employees in the Southern
California region. However, these other employees were not supervised by Zambrano, and
other facilities may have enforced DirecTV’s rules and policies differently.
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                                       No. 15-60257
change of heart and reasonably inferred that anti-union animus motivated
Zambrano’s termination decision after Zambrano admitted that he discussed
Edmonds’s punishment with his superiors. While I agree that this inference
was not compelled based on the facts in the record, I would not hold that this
inference was unreasonable. 5
       Granting that Zambrano’s inference was reasonable, the majority
concludes that “this circumstantial evidence does not undermine the
uncontradicted evidence in support of DirecTV’s position that it would have
fired Edmonds anyway.”             However, “this circumstantial evidence” was
anything but uncontradicted, as Zambrano had decided not to terminate
Edmonds until he spoke with his superiors. Additionally, Edmonds’s extensive
workplace achievements, as emphasized by the ALJ, are evidence that DirecTV
would not have terminated Edmonds absent his union activity.
       Overall, the majority points to a number of reasons as to why the ALJ
and NLRB could have reached a different result in this case. The majority
correctly points out that substantial evidence supports findings contrary to
those of the ALJ. However, the Supreme Court has explained that “[a] court
reviewing an agency’s adjudicative action should accept the agency’s factual
findings if those findings are supported by substantial evidence . . . [and]
should not supplant the agency’s findings merely by identifying alternative
findings that could be supported by substantial evidence.”                    Arkansas v.
Oklahoma, 503 U.S. 91, 112–13 (1992).                 Because I would conclude that
substantial evidence supports the NLRB’s decision in this case, I would deny




       5 Moreover, the ALJ’s inference regarding Zambrano’s motives in terminating
Edmonds rested, at least in part, on the ALJ’s finding that Zambrano was not a credible
witness. And “this court will accord special deference to the [Board’s] credibility findings.”
Cal-Maine Farms, 998 F.2d at 1339–40.
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                                No. 15-60257
DirecTV’s petition for review and grant the NLRB’s petition for enforcement.
I respectfully dissent.




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