                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-2122


NATIONAL LABOR RELATIONS BOARD,

                Petitioner,

           v.

WHITE OAK MANOR,

                Respondent.



On Application for Enforcement of an Order of the National Labor
Relations Board. (11−CA−21786)


Argued:   September 22, 2011             Decided:   October 28, 2011


Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.


Application for enforcement granted by unpublished opinion.
Judge Diaz wrote the opinion, in which Judge Duncan and Judge
Davis joined.


ARGUED: Thomas Howard Keim, Jr., FORD & HARRISON, LLP,
Spartanburg, South Carolina, for Respondent.      Nicole Lancia,
NATIONAL    LABOR   RELATIONS  BOARD,   Washington,   D.C.,  for
Petitioner.    ON BRIEF: Kristin Starnes Gray, FORD & HARRISON,
LLP, Spartanburg, South Carolina, for Respondent.        Lafe E.
Solomon, Acting General Counsel, Celeste J. Mattina, Acting
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Linda Dreeben, Deputy Associate General Counsel, Usha
Dheenan, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Petitioner.
Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

      Petitioner National Labor Relations Board seeks enforcement

of an order that it entered in this case.                 The Board’s order

adopted the findings of the administrative law judge (“ALJ”),

concluding that respondent violated the National Labor Relations

Act   (“NLRA”)    by     terminating    an    employee        for     engaging    in

protected concerted activity.          Respondent contests petitioner’s

application     for    enforcement,    challenging      the    Board’s       ruling.

Because   substantial      evidence    supports   the    ALJ’s        findings     as

adopted   by   the    Board,   we   grant    petitioner’s      application        for

enforcement.



                                       I.

                                       A.

      Respondent White Oak Manor (“White Oak”) operates a long-

term care facility in Shelby, North Carolina.                   Nichole Wright-

Gore worked as a central supply clerk at White Oak until her

termination on November 16, 2007.

      After    receiving   a   “terrible     haircut”    and        unable   to   “do

anything with [her] hair,” Wright-Gore wore a hat to work on

October 23, 2007.       J.A. 66.    She continued donning the hat while

at work for the next week, and no supervisors commented on her

dress.    That changed on October 30, when Peggy Panther, White

Oak’s personnel director, explained to Wright-Gore that wearing

                                       3
a hat violated the company’s dress code.                       Later that day, Tammy

Whisnant,     White    Oak’s     assistant            director     of     nursing,       told

Wright-Gore    to     remove    the    hat,       but    she     refused.            Whisnant

reported     Wright-Gore’s      insubordination            to    Terry         Fowler,   the

director of nursing.           Fowler called Wright-Gore to her office,

where Whisnant and Panther were waiting.                         Fowler told Wright-

Gore that White Oak’s dress code forbade employees to wear hats

and that Wright-Gore should go home if she refused to remove her

hat.    Wright-Gore protested that other employees were allowed to

wear hats and singling her out was unfair.                              She declined to

remove her hat and left the facility for the day.

       Wright-Gore returned to White Oak for work the next day,

when she and other employees wore costumes in celebration of

Halloween.      She    dressed    as    a       race-car    fan,    and        her   costume

included a hat.        Andy Nelson, the administrator of White Oak,

suggested that Wright-Gore remove the hat, and she complied.

Still concerned about Wright-Gore’s refusal to follow Fowler’s

orders the day before, Nelson met with both employees later that

day.    Wright-Gore explained to Nelson that she felt that White

Oak was enforcing the dress code unevenly, but Nelson told her

to worry only about herself.                As the meeting concluded, Nelson

handed Wright-Gore a written warning for insubordination.

       In the days following her meeting with Nelson, Wright-Gore

paid    particular     attention       to       the     clothing        worn    by    fellow

                                            4
employees.     She        noticed    that    several       of     her    coworkers     were

wearing hats and displaying their tattoos, in violation of White

Oak’s dress code.          Management, however, failed to address these

obvious transgressions.             Upset at the disparate enforcement of

the dress code, Wright-Gore began talking to female employees to

enlist their support.            From around November 5 until November 12,

she   spoke   with    roughly       ten     employees       about       the   inequitable

implementation       of    the    dress      code.         Wright-Gore’s       coworkers

shared their own experiences with unequal enforcement of the

policy and expressed support for her grievance.

      To bolster her complaint, Wright-Gore decided to document

dress-code violations.            On November 12 and 13, she used her cell

phone to take pictures of employees dressed contrary to company

policy.    Wright-Gore took pictures of four employees--Larry Shea

Roberts,   David     Layell,        Harold       Hopper,    and    Deborah     Mitchell.

Although   Roberts        and    Mitchell    gave       Wright-Gore       permission     to

photograph them, Hopper and Layell were unaware of Wright-Gore’s

actions.      Wright-Gore         enlisted        the   help    of      coworker   Angela

Hawkins when she took a picture of Roberts.

      Wright-Gore     shared        her   pictures       with     several      White    Oak

employees.    While showing the photographs to coworkers, Wright-

Gore explained that she had documented disparate enforcement of

the dress code.            The employees generally expressed agreement

with Wright-Gore’s grievance.                Again, Hawkins assisted Wright-

                                             5
Gore,      sharing    a      picture      with        coworker     Crystal         Henson    and

declaring “look what we got.”               Id. 289.

       On November 15, Kathy Gunter, White Oak’s business office

manager,       informed      Nelson       that       Wright-Gore       had    been     showing

coworkers pictures of employees violating the dress code.                                   That

same    day,     Roberts     complained        that         Wright-Gore      had    taken    his

picture     without       permission.            Nelson       convened    a   meeting       that

afternoon      with    Wright-Gore         and       Whisnant,     where      he    confronted

Wright-Gore       about      the    photographs.             Wright-Gore       explained      to

Nelson that she had a problem with what she perceived as uneven

enforcement of the dress code.                        She told Nelson, when asked,

that she had received permission to take the pictures.                                  Nelson

called     her    a   liar.          In    response          to   Wright-Gore’s        broader

grievance, Nelson wondered aloud whether she was “going to let a

hat come in between the food on [her] kids’ table.”                            Id. 114.

       Following the meeting, Nelson initiated an investigation.

He   was    particularly           concerned         that    Wright-Gore      had     violated

White Oak’s policy proscribing the taking of pictures inside the

facility     without      prior      written         authorization.           He    approached

employee       T.C.   Brooks,        whom      Gunter        claimed      Wright-Gore        had

photographed.         Brooks was unaware that Wright-Gore had taken a

picture of him, but he agreed to fill out a complaint form.

Nelson      spoke     with     other      employees,          ultimately       deciding       to

discharge Wright-Gore.

                                                 6
       The next day, November 16, Nelson called Wright-Gore to his

office and informed her that her employment had been terminated.

Nelson explained that his investigation had confirmed that she

had    taken    pictures        of     employees      without       their      permission.

According to the termination report prepared by Nelson, Wright-

Gore   had     violated      White     Oak’s       policy    barring     “[s]tealing     or

misappropriating (misusing) property belonging to the facility,

residents, or other employees.”                     Id. 515.        Elaborating on the

charge, Nelson wrote that Wright-Gore “took a picture of another

employee without his/her permission and in turn, showed it to

other employees.”         Id.        Nelson explained that he was discharging

Wright-Gore for taking a picture of Brooks.

       White Oak had not established a precedent for disciplining

employees      for     photographing           fellow       employees      absent     their

permission.          Indeed,    Wright-Gore’s          termination       was    the   first

time    that    White     Oak        had   enforced       the    policy.         Employees

routinely took pictures of each other--at facility events or

while “goofing off” at work--and never asked for or received

permission.       The staff freely shared these pictures, posting

them   on facility        bulletin         boards    or     passing    them    around   the

office.

       Testifying       at     the     administrative           hearing,       Wright-Gore

reflected on her efforts to document disparate enforcement of

the    dress    code.        She      explained      that     she     spoke    with   other

                                               7
employees “[t]o get their support so I could go to management

and say, you know, there’s [sic] other people that are agreeing

with me that, you know, the dress code is not being enforced

fairly.”    Id. 131.        Wright-Gore denied that she had taken action

solely for her own benefit, maintaining instead that she took

pictures to demonstrate to supervisors “that their dress code

wasn’t being enforced fairly for the entire facility.”                          Id. 170.

At bottom, she “wanted the dress code to be enforced equally and

fairly with everyone.”            Id. 161.



                                           B.

        Wright-Gore responded to her termination by submitting a

charge to the Board, in which she claimed that White Oak had

violated the NLRA.          The Board’s General Counsel, in turn, filed

a complaint with the Board, alleging that White Oak violated

section     8(a)(1)    of     the    NLRA,        29     U.S.C.      §   158(a)(1),     by

interrogating,      threatening,          and    discharging        Wright-Gore    as    a

result of her protected concerted activity.                       White Oak contested

the allegations, and the parties proceeded to an administrative

hearing.

     The    ALJ    concluded       that    White        Oak   had    violated    section

8(a)(1) of the NLRA by discharging Wright-Gore for her protected

concerted    activity.        Viewing       the    evidence         globally,   the   ALJ

found     that    “what     had     initially          started      as   an   individual

                                             8
complaint by [Wright-Gore], that she was being treated unfairly

by being required to remove her hat, evolved into a campaign by

[Wright-Gore] to have the dress code enforced in a fair and

equitable manner.”        J.A. 634.    According to the ALJ, Wright-Gore

engaged in protected concerted activity by speaking with other

employees   about    disparate   enforcement      of   the   dress     code   and

documenting the problem through photography:

     It is clear that [Wright-Gore] was addressing the
     perceived unfair enforcement of the dress code and was
     seeking to obtain the support of the female employees
     to come together and make their positions known to
     Respondent’s management and particularly Nelson, that
     these employees wanted the Respondent to remedy the
     unfair   enforcement  of   the   dress   code.    This
     constituted a joining together of the employees for
     their mutual aid and protection as the wearing of hats
     and other items outlined in the dress code would
     affect terms and conditions of employment.

Id. 636.

     The    ALJ   reasoned    that    Hawkins’s   assistance     and    Wright-

Gore’s conversations with other employees satisfied the NLRA’s

requirement that an employee be engaged in concerted activity.

The concerted activity was also protected under the NLRA, stated

the ALJ, because Wright-Gore “was engaged in a joint discussion

of the unfairness of the dress code, and . . . it was implicit,

therein, that she was seeking a change in the enforcement of the

dress   code.”      Id.     Because   Wright-Gore’s    picture    taking      was

protected concerted activity and White Oak discharged her for



                                       9
that activity, the ALJ determined that White Oak had violated

the NLRA.

     Wright-Gore       did     not       lose    protection        of     the    NLRA   by

violating a White Oak rule prohibiting the taking of pictures of

other employees without permission, concluded the ALJ.                           He found

that employees freely took pictures of each other, without first

receiving     permission,          and     often    displayed           these    pictures

throughout the facility.             Thus Wright-Gore’s purported violation

of White Oak policy was not so egregious as to strip her of the

NLRA’s safeguards.

     The ALJ declined to carry out a dual-motive analysis under

Wright Line, 251 N.L.R.B. 1083 (1980).                     Because the reason for

termination    was    not     at    issue--all      agreed    that       White    Oak   had

discharged    Wright-Gore          for   photographing       an    employee       without

permission--the ALJ concluded that Wright Line was inapposite.

     The    ALJ     ordered     White      Oak     to    comply    with     the    NLRA’s

provisions, post appropriate notice, offer Wright-Gore immediate

reinstatement, and give her back pay with interest.

     The    Board    affirmed        the   ALJ’s        findings    and    adopted      his

recommended order. 1        The Board resisted White Oak’s challenges to


     1
       The Board initially affirmed the ALJ in a January 30, 2009
decision.   White Oak responded by filing a petition for review
in the U.S. Court of Appeals for the D.C. Circuit.     Before the
D.C. Circuit ruled on the petition, the Supreme Court issued its
decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635
(Continued)
                                            10
the ALJ’s credibility determinations, discerning no basis for

upsetting these findings.      It also endorsed the ALJ’s conclusion

that Wright-Gore’s picture taking was not sufficiently egregious

to remove her from the NLRA’s protection.               It found that White

Oak did not enforce its rule prohibiting photographing absent

permission, as employees routinely took and posted photographs

of     each   other.    Moreover,    the      Board   noted   that   the   ALJ

determined that White Oak’s basis for terminating Wright-Gore’s

employment--that she photographed Brooks without his permission-

-was groundless, because Wright-Gore never took a picture of

Brooks.

       The General Counsel’s application for enforcement of the

Board’s order is now before us.



                                     II.

       The thrust of White Oak’s argument against enforcement is

that    Wright-Gore’s   motives     sounded    purely    in   self   interest,

precluding a finding that she engaged in protected concerted



(2010), which invalidated the Board’s two-member decisions. Id.
at 2644. Because only two Board members had participated in the
2009 decision, the D.C. Circuit vacated the decision and
remanded the case for further proceedings.    White Oak Manor v.
NLRB, Nos. 09-1068, 09-1098, 2010 WL 4227419, at *1 (D.C. Cir.
Sept. 20, 2010). A three-member panel of the Board then decided
the   case   on   September  30,   2010,  reaffirming  its  2009
conclusions.    White Oak Manor, 355 N.L.R.B. No. 211 (Sept. 30,
2010).


                                     11
activity.     According to White Oak, the record establishes that

Wright-Gore complained about the dress code and documented its

uneven enforcement for her sole benefit, never intending to act

on behalf of a broader group of employees.                  Because the evidence

does not support a determination that Wright-Gore engaged in

protected     concerted      activity,      White     Oak    insists     that   her

discharge did not violate the NLRA.

       We disagree.     Layers of deference inhering in the review of

Board decisions counsel hesitation before disturbing the ALJ’s

factual     determinations.         Substantial      evidence      in   the   record

before us supports the ALJ’s findings that Wright-Gore joined

with other employees to challenge White Oak’s uneven enforcement

of its dress code.          Accordingly, White Oak violated the NLRA by

discharging Wright-Gore for engaging in this protected concerted

activity.



                                       A.

       Contrary to White Oak’s suggestion at oral argument, our

review of Board decisions is carefully circumscribed.                    “[W]e are

obliged to uphold the Board’s legal interpretations if they are

‘rational    and     consistent’    with    the   [NLRA].”         Anheuser-Busch,

Inc. v. NLRB, 338 F.3d 267, 273 (4th Cir. 2003) (quoting Sam’s

Club   v.    NLRB,    173    F.3d   233,    239     (4th    Cir.   1999)).      The

substantial-evidence standard governs our review of the factual

                                       12
findings made by the ALJ and affirmed by the Board.                           Id. at 273–

74.       If findings of fact are supported by substantial evidence,

looking to the record as a whole, “we must uphold the Board’s

decision ‘even though we might have reached a different result

had we heard the evidence in the first instance.’ ”                           Medeco Sec.

Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998) (quoting

Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir. 1997)).

“Substantial       evidence”       means     “ ‘such        relevant    evidence    as    a

reasonable        mind     might     accept       as    adequate        to    support     a

conclusion.’ ”         Anheuser-Busch, 338 F.3d at 274 (quoting NLRB v.

Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262, 1269 (4th Cir.

1994)).

          Critically here, the determination of whether an employee

was engaged in protected concerted activity is also reviewed

under the substantial-evidence standard.                      Alton H. Piester, LLC

v. NLRB, 591 F.3d 332, 337 (4th Cir. 2010).



                                             B.

          The NLRA confers on employees “the right . . . to engage in

.     .   .    concerted      activities     for    the      purpose     of    collective

bargaining or other mutual aid or protection.”                         29 U.S.C. § 157.

Section 8(a)(1) of the Act forbids “an employer to interfere

with,      restrain,     or    coerce   employees       in     the   exercise     of     the

rights        guaranteed      in   section    157      of    this    title.”       Id.    §

                                             13
158(a)(1).        Disciplinary      measures        are   the   very     archetype    of

coercion under the NLRA, and an employee may not be discharged

for engaging in protected concerted activity.                       See NLRB v. Air

Contact Transp. Inc., 403 F.3d 206, 213 (4th Cir. 2005).

       By   its   plain    terms,   the    NLRA      protects    employees      in   the

exercise of conduct engaged in “for the purpose of . . . mutual

aid or protection.”            29 U.S.C. § 157.              “The ‘mutual aid or

protection’ clause . . . protects employees who ‘seek to improve

terms and conditions of employment or otherwise improve their

lot    as    employees      through       channels        outside      the   immediate

employee-employer relationship.’ ”                  New River Indus., Inc. v.

NLRB, 945 F.2d 1290, 1294 (4th Cir. 1991) (quoting Eastex, Inc.

v. NLRB, 437 U.S. 556, 565 (1978)).                 An employer’s dress code is

one such “condition[] of employment which employees may seek to

improve,” and such efforts qualify as protected activity under

the NLRA.     Id.

       Not only must the activity be protected, but it must be the

product of concerted action.               See 29 U.S.C. § 157.                 We have

affirmed     that    the   term   “concerted        activity,”      as   used   in   the

NLRA, “ ‘clearly enough embraces the activities of employees who

have   joined       together   in   order      to    achieve     common      goals.’ ”

Piester, 591 F.3d at 337 (quoting NLRB v. City Disposal Sys.

Inc., 465 U.S. 822, 830 (1984)).                The inquiry is flexible, and

“employees need not ‘combine with one another in any particular

                                          14
way’ ” to support a finding of concerted activity.                               Id. (quoting

City Disposal, 465 U.S. at 835).                    Indeed, “ ‘the lone act of a

single employee is concerted if it stems from or logically grew

out of prior concerted activity.’ ”                     Id. (quoting NLRB v. Mike

Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir. 1995)).                                   Even “a

conversation         involving      only     a    speaker       and        a    listener       may

constitute concerted activity,” so long as “ ‘the conversation

was engaged in with the object of initiating or inducing or

preparing for group action or . . . had some relation to group

action in the interest of the employees.’ ”                          Id. (quoting Krispy

Kreme    Doughnut        Corp.    v.     NLRB,    635   F.2d        304,       307    (4th     Cir.

1989)).

       To     qualify    as    concerted     activity,         an    employee’s           actions

need not spring from a formalized plan.                        For instance, a single

employee’s conversations with management about a condition of

employment may constitute concerted activity even if a broader

group       of    employees      never    appointed       her       spokesperson.              Id.

“[I]ndividual protests of a management decision may properly be

characterized as concerted action so long as those disagreeing

with    the      decision     ‘considered        that   they    had        a   grievance       and

decided,         among   themselves,       that    they   would        take          it   up   with

management.’ ”           Id. (quoting NLRB v. Guernsey-Muskingum Elec.

Coop., Inc., 285 F.2d 8, 12 (6th Cir. 1960)).



                                             15
     That an employee’s self-interest catalyzed her decision to

complain    about   working     conditions       does     not   inexorably      bar   a

determination      that   her   actions       were   protected    and    concerted.

Id. at 341 (construing Joanna Cotton Mills Co. v. NLRB, 176 F.2d

749, 753 (4th Cir. 1949), as “explaining that [an] individual’s

personal motivation for attempting to further group action does

not prevent the conduct from being protected”).                         Motives are

often not monolithic, and an employee may seek both to mitigate

a problematic policy affecting her and to improve the lot of her

coworkers.      Though a speaker may articulate a grievance with

reference only to herself, such an activity is protected under

the NLRA so long as the sought-after remedy would necessarily

benefit other employees.              Id. (“As for the fact that Chapman

stated his objections in terms of the effect that it was having

on his paycheck, that would at most show only that it was his

concern for his own finances rather than those of the group that

motivated    his    support     for    the    drivers’     collective     position.

There was no testimony that Chapman sought a personal exemption

from the surcharge change that would not have applied to the

other drivers as well.” (citation omitted)).



                                         C.

     With    the    foregoing     principles         in   mind,    we    hold    that

substantial evidence supports the findings of the ALJ that White

                                         16
Oak discharged Wright-Gore for engaging in protected concerted

activity.        As a preliminary matter, we note that the termination

of   Wright-Gore’s        employment      most     assuredly        qualifies     as

“coercion” proscribed by section 8(a)(1) of the NLRA, see Air

Contact, 403 F.3d at 213, a point neither party contests.                        Nor

do   the        parties    dispute     the      grounds     for      Wright-Gore’s

termination--her taking and distributing a photograph of Brooks.

Thus our inquiry is limited to determining whether Wright-Gore’s

photographing of fellow employees--as part and parcel of her

larger      grievance      over      dress-code      enforcement--constitutes

protected concerted activity under the NLRA.                     We conclude that

it does.

     Wright-Gore’s         complaints     about     White        Oak’s    disparate

enforcement of its dress code are protected under the NLRA.                      See

New River, 945 F.2d at 1294 (holding that dress codes are a

“condition[] of employment which employees may seek to improve”

while receiving the safeguards of the NLRA).                 As part of the res

gestae      of      her    overarching        grievance      about       dress-code

enforcement,       Wright-Gore’s     documenting    of     the    problem   through

photography       is   similarly   protected     conduct.         See    Media   Gen.

Operations, Inc. v. NLRB, 394 F.3d 207, 213 (4th Cir. 2005)

(endorsing determination that conduct that is part of the res

gestae     of    protected   concerted        activities    benefits      from   the

NLRA’s safeguards).

                                         17
       Wright-Gore’s    activities       moreover    were    the    product    of

concerted action.       Wright-Gore spoke with roughly ten employees

about    uneven    enforcement     of    White    Oak’s   dress    code.      Her

coworkers     sympathized      with   her    concerns,    raising    their    own

independent       complaints    about       dress-code    implementation      and

expressing their hopes for more equitable enforcement.                 At least

one employee, Hawkins, assisted Wright-Gore with her efforts to

document the problem, encouraging Roberts to pose for a picture

and sharing pictures with Henson.             Indeed, Hawkins felt a sense

of ownership in the enterprise, remarking to Henson “look what

we got” when showing her a photograph.            See J.A. 289.

       Because    Wright-Gore’s       conversations       were    initiated    to

induce group action--she explained that she spoke with other

employees “[t]o get their support so I could go to management

and say, you know, there’s [sic] other people that are agreeing

with me that, you know, the dress code is not being enforced

fairly,”    id.    131--they     constitute      concerted   activity.        See

Piester, 591 F.3d at 337.               To be sure, Wright-Gore’s fellow

employees did not formally appoint her spokesperson regarding

complaints over dress-code enforcement, but substantial evidence

supports the conclusion that the employees determined that they

had a collective grievance and resolved to “ ‘take it up with

management.’ ”      See id. (quoting Guernsey-Muskingum, 285 F.2d at

12).

                                        18
     In an effort to resist the analysis outlined above, White

Oak maintains that Wright-Gore’s interest in benefiting herself

ineluctably       precludes     a    finding       that      she    was     engaged    in

protected     concerted       activity.             But       White        Oak’s     rigid

formulation--that an employee may not be motivated by both self-

interest    and    collective       well   being--finds        support       in    neither

common    sense    nor    precedent.            White    Oak’s      position       ignores

Wright-Gore’s consistent assertions that she “wanted the dress

code to be enforced equally and fairly with everyone,” J.A. 161.

Wright-Gore’s grievance may have started as an individual gripe

about    being    disciplined       for    wearing       a   hat,    but    substantial

evidence supports the ALJ’s determination that it “evolved into

a campaign . . . to have the dress code enforced in a fair and

equitable manner,” id. 634. 2

     White    Oak’s      position     similarly         overlooks     our    precedent,

which does not find mutually exclusive an employee’s acting in

self-interest and her engaging in protected concerted activity.


     2
        White Oak repeatedly mentions Wright-Gore’s purported
“admission” that she was the only employee who wanted to wear a
hat. This myopic focus on hat wearing misses the forest for the
trees.   Wright-Gore may indeed have been the only employee who
bristled at the dress code’s proscription on hat wearing, but
this has no bearing on the overarching complaint about uneven
enforcement of the dress code.      Wright-Gore’s grievance--and
that of her coworkers--was not about the terms of the dress
code, but rather the disparate enforcement of those terms. That
no other employee wished to wear a hat to work does not in the
least detract from the force of this broader complaint.


                                           19
Even       if   an   employee’s        grievance     sounds       entirely       in     self-

interest, it still constitutes protected concerted activity so

long as the remedy will benefit other employees.                             Piester, 591

F.3d       at   341.        Equitable           enforcement       of    a     dress      code

definitionally benefits all.                As such, Wright-Gore’s conduct was

protected concerted activity under the NLRA, even if she was

motivated       by   a    sense    that    White     Oak    was    both      treating     her

unfairly and unevenly enforcing the dress code. 3



                                            III.

       Even      assuming       that      Wright-Gore        engaged        in   protected

concerted       activity,       White     Oak    contends    that      her    decision     to

photograph other employees violated a valid company rule and

thereby authorized her termination.                        Because Wright-Gore took

pictures of employees without securing their permission, White

Oak    maintains         that   it     discharged     her     consistent         with    the

dictates of the NLRA.             We disagree.

       3
       White Oak attacks the ALJ’s credibility determinations in
an effort to challenge the Board’s conclusions.         “ ‘[W]hen
factual findings rest upon credibility determinations, they
should be accepted by the reviewing court absent exceptional
circumstances.’ ”   NLRB v. CWI of Md., Inc., 127 F.3d 319, 326
(4th Cir. 1997) (quoting Fieldcrest Cannon, Inc. v. NLRB, 97
F.3d 65, 69 (4th Cir. 1996)). Cognizant that “ ‘[t]he balancing
of witnesses’ testimony is at the heart of the fact-finding
process,’ ” WXGI, Inc. v. NLRB, 243 F.3d 833, 842 (4th Cir. 2001)
(quoting Fieldcrest Cannon, 97 F.3d at 71), we find no
“exceptional circumstances” compelling us to disturb the ALJ’s
credibility determinations as adopted by the Board.


                                                20
     An     employee,         though     otherwise       engaging       in        protected

concerted activity, “can lose the [NLRA’s] protections if his

‘conduct is so egregious as to take it outside the protection of

the Act, or of such a character as to render the employee unfit

for further service.’ ”           Anheuser-Busch, 338 F.3d at 280 (quoting

Consumers Power Co., 282 N.L.R.B. 130, 132 (1986)); see also

Stanford,       N.Y.,   LLC,     344   N.L.R.B.       558,    558   (2005)    (“When       an

employee    is    discharged       for   conduct       that    is   part     of    the    res

gestae of protected concerted activities, the pertinent question

is whether the conduct is sufficiently egregious to remove it

from the protection of the [NLRA].”).                        To be stripped of the

safeguards of the NLRA, an employee’s conduct must meet a high

threshold of egregiousness.               E.g., Media Gen. Operations, 394

F.3d at 213 (reaffirming that conduct “ ‘occurring during the

course     of    otherwise       protected       activity       remain[s]          likewise

protected unless . . . so violent or of such serious character

as to render the employee unfit for further service’ ” (quoting

Sullair    P.T.O.,      Inc.     v.    NLRB,    641    F.2d    500,    502    (7th       Cir.

1981))).

     White       Oak    has    failed    to     make    the    requisite          threshold

showing    of     egregiousness.          The     company’s         utter    failure      to

enforce its picture-taking policy militates against a finding

that Wright-Gore’s conduct removed her from the aegis of the

NLRA.      Indeed,       White    Oak    had     never       before    disciplined         an

                                           21
employee for taking pictures of coworkers without first securing

their permission.      Quite the opposite, the company had allowed

employees   to   freely    take     pictures       of     each      other    absent

permission, and to share the photographs and even post them on

facility bulletin boards.         White Oak’s claim that Wright-Gore’s

conduct “ ‘is so egregious’ ” as to “ ‘render [her] unfit for

further   service,’ ”    Anheuser-Busch,     338        F.3d   at   280     (quoting

Consumers Power, 282 N.L.R.B. at 132), thus rings hollow.

     More   fundamentally,    the    act    for     which      Wright-Gore      was

terminated never even occurred.            Nelson stated that the sole

reason for Wright-Gore’s discharge was her photographing Brooks.

The ALJ and the Board concluded that Wright-Gore never took a

picture of Brooks.      Because White Oak discharged Wright-Gore for

conduct in which she never engaged, it can find no refuge in the

egregiousness safe harbor.



                                    IV.

     Moving beyond the substance of the Board’s ruling, White

Oak lodges two procedural challenges.             First, it argues that the

ALJ and Board were obligated to perform a Wright Line motive

analysis.   Second, White Oak maintains that we must revise the

Board’s proposed notice to reflect that Wright-Gore has waived

reinstatement    and    settled    her    claim    for     back      pay.       Both

contentions are groundless.

                                     22
                               A.

     The Board in Wright Line crafted a test to employ in “dual

motive” cases--disputes in which there is “both a ‘good’ and a

‘bad’ reason for the employer’s action [that] requires further

inquiry into the role played by each motive.”       251 N.L.R.B. at

1084.   We have clarified that invocation of the Wright Line

analysis is appropriate only in “situations where the employer’s

motive is at issue, such as cases where the employee claims that

the employer took action against him for engaging in protected

activity and the employer claims that it took action against the

employee for some other reason.”    Air Contact, 403 F.3d at 215;

see also Allied Aviation Fueling of Dallas, LP, 347 N.L.R.B.

248, 248 n.2 (2006) (concluding that the Wright Line analysis

should not be used “where an employer admits that it discharged

an employee for engaging in protected activity”).

     Because White Oak’s motive is not in dispute, application

of the Wright Line analysis is inappropriate.   White Oak and the

Board agree that Wright-Gore was terminated for photographing a

coworker without his permission, in violation of a company rule.

The crux of this appeal is whether that activity, viewed as part

of Wright-Gore’s grievance about enforcement of the dress code,

constitutes protected concerted activity under the NLRA.       This

is manifestly not a case in which the employer’s motive--i.e.,

its “real” reason for discharging the employee--is at issue, and

                               23
application of the Wright Line test is not warranted.                           See Air

Contact, 403 F.3d at 215.



                                           B.

       Finally,   without      passing      on   the      merits    of    White    Oak’s

challenge to the Board’s proposed notice, we simply conclude

that    this   appeal    is   not    the    proper     proceeding        in    which   to

resolve the dispute.          The Supreme Court has long recognized that

a compliance proceeding, taking place after the merits have been

finally resolved, is the proper forum in which to adjudicate

disagreements over the proposed notice and attendant remedies.

Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898–99 (1984).                          White Oak

will have ample opportunity to press its arguments about the

proper    “tailoring      [of]      the    remedy      to    suit   the       individual

circumstances      of    [this]     discharge”       in      subsequent       compliance

proceedings.      See id. at 902.



                                           V.

       Substantial      evidence     supports    the        ALJ’s   conclusion      that

White    Oak   discharged      Wright-Gore       for        engaging     in    protected

concerted activity, in violation of the NLRA.                       Accordingly, we

grant the Board’s application for enforcement.



                                          APPLICATION FOR ENFORCEMENT GRANTED

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