213 F.3d 750 (D.C. Cir. 2000)
Frazier Industrial Company, Inc., Petitionerv.National Labor Relations Board, Respondent
No. 99-1297
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 11, 2000Decided June 9, 2000

[Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board
Robert Leinwand argued the cause for petitioner.  With  him on the briefs were Michael Hoffman and Robert G.  Hulteng.
Anne Marie Lofaso, Attorney, National Labor Relations  Board, argued the cause for respondent.  With her on the  brief were Leonard R. Page, General Counsel, Linda Sher,  Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and David S. Habenstreit, Supervisory Attorney.
Before:  Edwards, Chief Judge, Henderson and Rogers,  Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Dissenting opinion filed by Circuit Judge Henderson.
Rogers, Circuit Judge:


1
Frazier Industrial Company appeals the National Labor Relations Board's decision that the  company violated S 8(a)(1) and (3) of the National Labor  Relations Act.  See 29 U.S.C. S 158(a)(1), (3) (1994).  The  company contends that the Board's conclusion that it violated  S 8(a)(1) and (3) by discharging John Ramirez for engaging in  union activity was unsupported by substantial evidence, and  that his reinstatement with backpay was an abuse of discretion and inconsistent with the after-acquired evidence rule.We deny the petition and remand the case for enforcement of  the Board's order.

I.

2
Frazier Industrial Company manufactures steel storage  systems for warehouses.  The company has manufacturing  facilities at locations throughout the United States, and the  instant case involves its plant in Pocatello, Idaho, which  began operatingin March 1996.  During the plant's startup  phase, Dennis Haga, the plant manager, hired nine welders  and nine other employees to perform fabrication, maintenance, painting, and other duties.


3
One of the welders, John Ramirez, applied for the position  at the request of the International Association of Sheet Metal  Workers Association, Local 60 ("the union").1  Ramirez, a  member of the union, was asked to assist in organizing the  company's work force.  Ramirez started working for the  company on March 7, 1996.  Beginning in April, he solicited employees to attend organizational meetings and to sign  union authorization cards.  According to Ramirez, he spoke  with more than half of the plant's work force about the union,  and spoke with at least one person about unionization daily or  every other day before his discharge.  We review his activities in light of the company's contention that Ramirez was  harassing employees and, thus, his activities were not protected by the Act, and that even if Ramirez's conduct were  protected, the company would have terminated Ramirez even  in the absence of protected conduct.


4
In late May 1996, Ramirez approached Mike Jennings,  another welder, and asked him to sign an authorization card  while on break.  Jennings did not sign the card but told  Ramirez that he would take the card home and discuss it with  his wife.  Ramirez followed up with Jennings several times  during May 1996.  Jennings never brought the card back to  Ramirez, nor did he tell Ramirez that he was uninterested in  joining a union.  Jennings did speak with Clint Moosman, a  supervisor, and asked him whether he "was aware of what  was going on" in regard to Ramirez's attempts to interest  Jennings in the union.  Moosman told Jennings that "Ramirez could solicit ... before work, during breaks, and after  work, but not on company time."  At around the same time,  an employee remarked to a group of other employees in the  plant lunchroom during a break that they should start a  union.  Moosman overheard the remark, and angrily told the  employees, "Well if I hear of anyone going union ... they'll  be down the road."


5
Marty Hrabik, another supervisor, received two complaints  from employees about Ramirez's union activities in May and  June of 1996.  Hrabik and Moosman met with Haga, the  plant manager, in early June 1996.  Haga told them to warn  their employees "that they could do whatever they wanted to  on their own time, but on company time they need not [ ] talk  about the union or bother[ ] anybody about it."  Following  that meeting, Moos-man spoke with the welders at their work  stations and explained that there had been complaints about  some employees "harassing" others to join a union.  Moos-man warned each welder, including Ramirez, that what they  did on their own time was their business, but that they could  not "harass" employees about the union during "company  time."2  Moos-man then delivered the same message to a  group of employees, also including Ramirez, in thelunchroom  during a break.  During the meeting, Moos-man told the  employees that "he wanted to know about it if some one was  talking to [them] about the union on company time."


6
In early June 1996, the union sponsored several meetings. The day after one meeting, Moos-man remarked to Robert  Rodriguez, an employee who had attended the meeting, that  he had heard a rumor about a "little bitch session" where  employees talked about "stuff" that they did not like about  the shop.  Moosman told Rodriguez that he "was disappointed" in him.  Rodriguez told Moosman that he and others had  discussed whether or not they wanted to continue working at  the shop with Haga, Hrabik, and Moosman being "the way  they were."  Following that remark, Moosman took out his  knife, opened it, handed it to Rodriguez handle first and said,  "[W]ell don't cut your own throat."  Later that day, Moosman  asked Rodriguez for the names of the employees who were at  the union meeting.  When Rodriguez did not disclose the  names other than his own, Moosman told him, "If you continue to cut your own throat I'm not going to be able to do  anything for you."


7
Hrabik discussed the union with some employees as well. Employee Allen Wilcox had promised Hrabik that he would  come to Hrabik's house one evening to help build a fence, but  Wilcox missed his appointment for personal reasons and to  attend a union meeting.  The next day, Hrabik asked Wilcox  how the meeting was.  When Wilcox asked if Hrabik referred  to his personal meeting, Hrabik replied, "[N]o you know what  meeting."  Hrabik had another discussion about unionizing  when Wilcox was at his house with Rodriguez to work on the  fence as he had promised.  While working, Hrabik was asked  what he thought about the union organizing, and Hrabik told  them that the company did not "have any stock here in  Pocatello" and that "Frazier isn't going to allow this, the  union to spread to the other companies, they'll just close this  plant up and they'll move on."  Hrabik added that if his job  were threatened he would "start cutting throats," and that if  he were fired, they were "going down" with him.  Shortly  afterwards, Hrabik asked Wilcox why certain employees  wanted a union, and upon hearing that perhaps employees  wanted better pay or better benefits, Hrabik said that before  the company "went union they would either hire non-union or  shut the plant down."


8
Also in June 1996, employees Todd Chandler and James  Frasure complained to Hrabik that Ramirez was "harassing"  them about attending union meetings.  Ramirez spoke to  Chandler five or six times over several days about an upcoming union meeting, and Chandler neither expressed an interest in attending a union nor told Ramirez that he was not  interested.  Similarly, Frasure was approached several times  by Ramirez, including four or five approaches on company  time on one particular day, each time to urge Frasure to  attend a union meeting.  Ramirez's remarks to Frasure were  brief and on each occasion Frasure said that he would think  about it, never telling Ramirez that he was uninterested.However, when Frasure talked to Hrabik about Ramirez, he  said that Ramirez's persistence about the union meetings was  "really pissing [him] off."  Hrabik told Moosman about these conversations, and both met with Haga, who said that "harassing" employees on company time "had to stop."  Later  that day, Moosman told the employees, including Ramirez,  that "there had been complaints about people being harassed  on company time that needed to stop."


9
Around the same time, Ramirez followed up on his earlier  discussions with Jennings about unionizing and invited him to  meet with a union organizer.  Jennings responded that he  would think about it.  Later that day, Ramirez talked to  Jennings, who at the time was working with employee Tom  Neilsen3.  Ramirez testified that thisconversation lasted  about twenty minutes, while Jennings stated that they spoke  for about forty-five minutes.  Several days later, Ramirez,  after the end of his workday, saw Jennings reporting for  work and spoke with Jennings for about ninety seconds in an  effort to persuade Jennings to meet with a union organizer. Jennings agreed to make an appointment, and then Ramirez,  noticing that Haga was watching them, ended the conversation.  After Ramirez left, Haga asked Jennings if Ramirez  was bothering him, and Jennings replied that "[Ramirez] was  bothering [him] about the damn union stuff and won't leave  [him] alone."  Later that day, Haga asked Moosman to tell  Ramirez to report to Haga's office the next morning.


10
When Ramirez met with Haga in his office the next day,  Haga asked Ramirez, "[W]hat am I going to do with you,  John?"  Haga told him that people were complaining about  him "bothering them all the time" and that it was "affecting  ... productivity."  Ramirez denied that he was bothering  anyone.  When Haga repeated, "[W]hat am I going to do with  you," Ramirez replied, "[W]ell you're the plant manager you  do whatever you have to do."  Haga, who testified that  Ramirez had "a really bad attitude about it," offered him the  opportunity to quit, but Ramirez refused and Haga discharged him.  Later that morning, Hrabik spoke to Rodriguez about Ramirez's discharge and told him that Rodriguez  should now understand why he should not talk about the  union on company time.


11
Following his discharge Ramirez applied for unemployment  insurance, and stated on the application that although he was  discharged for organizing on company time, he never did  organize on company time.  The Idaho Department of Labor  denied his application.


12
Based on the foregoing evidence, the Board adopted the  Administrative Law Judge's findings that the company violated S 8(a)(1) by threatening to discharge employees who engage in union activities, coercively interrogating employees  about their union activities and sympathies,4 threatening employees that it would close the plant if employees chose union  representation, and maintaining and enforcing a rule prohibiting union talk while permitting other nonwork discussions. See Frazier Indus. Co., 328 N.L.R.B. No. 89, 3, 14-15 (June  14, 1999).  The Board, by a two to one vote, also adopted the  judge's findings that the company violated S 8(a)(1) and (a)(3)  by discharging Ramirez because of his union activity.  See id.  at 3, 15.  The Board ordered the company to cease and desist  from engaging in these unfair labor practices and ordered the  company to offer Ramirez full reinstatement and backpay for  any lost earnings and benefits.  See id.

II.

13
Section 8(a)(1) and (3) of the Act makes it an unfair labor  practice for an employer "to interfere with, restrain or coerce  employees in the exercise of the rights guaranteed" by the Act, 29 U.S.C. S 158(a)(1), and "by 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."  Id. S 158(a)(3).  To establish a causal  nexus between adverse employment decisions and an employee's union affiliation, the complaining party must first show  that protected activity "was a 'motivating factor' " in the adverseemployment decision, and then the employer may  show that it would have made the adverse decision even had  the employee not engaged in protected activity.  Wright  Line, Inc., 251 N.L.R.B. 1083, 1089 (1980);  see also NLRB v.  Transportation Management Corp., 462 U.S. 393, 403 (1983)  (approving of the Wright Line approach).  To establish an  employer's discriminatory motive, the Board may "consider[ ]  such factors as the employer's knowledge of the employee's  union activities, the employer's hostility toward the union, and  the timing of the employer's action."  Power, Inc. v. NLRB,  40 F.3d 409, 418 (D.C. Cir. 1994).  In addition, evidence that  an employer has violated S 8(a)(1) of the Act can support an  inference of anti-union animus.  See Parsippany Hotel Management Co. v. NLRB, 99 F.3d 413, 423-24 (D.C. Cir. 1996).


14
The court will affirm the findings of the Board unless they  are "unsupported by substantial evidence in the record considered as a whole," General Elec. Co. v. NLRB, 117 F.3d  627, 630 (D.C. Cir. 1997), or unless the Board "acted arbitrarily or otherwise erred in applying established law to the facts."  Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1358 (D.C.  Cir. 1997) (quotation and citation omitted).  Even if the court  might have reached a different conclusion had the court  considered the issue de novo, the court will uphold the  Board's decision if it is supported by substantial evidence in  the record.  See Synergy Gas Corp. v. NLRB, 19 F.3d 649,  651 (D.C. Cir. 1994).  The court gives even greater deference  to the Board's determination of questions of motive, see Laro  Maintenance Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir.  1995), and "accept[s] the ALJ's credibility determinations that  are adopted by the Board 'unless they are patently unsupportable.' "  Schaeff Inc. v. NLRB, 113 F.3d 264, 266 (D.C.  Cir. 1997) (quoting NLRB v. Creative Food Design Ltd., 852 F.2d 1295, 1297 (D.C. Cir. 1988));  see also Capital Cleaning  Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir.  1998).


15
The company contends that Ramirez "harassed" co-workers  regarding the union during working time, and on the company premises, and that such solicitations were not protected by  the Act.  The company maintains further that, even if Ramirez's actions constituted protected activities, its termination  of Ramirez's employment was lawful because it would have  discharged him in the absence of protected conduct for his  insubordination and dishonesty.  We hold that there is substantial evidence in the record to support the Board's conclusions that Ramirez's conduct was protected union activity  under the Act, that the company violated the Act by discharging Ramirez for engaging in such protected union activity,  and that the company's other proffered reasons for termination of Ramirez's employment--insubordination and dishonesty--are insufficient to meet its burden under Wright Line.


16
In support of its contention that Ramirez's conduct was not  protected by the Act because he was engaged in repeated  harassment of fellow employees during work time resulting in  frequent interruptions of work, the company relies on NLRB  v. General Indicator Corp., 707 F.2d 279 (7th Cir. 1983),  which held that "an employee who disrupts other employees  during working hours is not engaged in a protected activity  even though he is discussing union business."  Id. at 282.Similarly, Board precedent states that "activity that would  otherwise be protected may lose that protection if the means  by which that activity is conducted are sufficiently abusive or  threatening."  Patrick Indus., Inc., 318 N.L.R.B. 245, 248  (1995).  Under such precedent, the company contends, the  fact that Ramirez was attempting to organize the company's  work force is immaterial because he had no legitimate protected interest in repeatedly approaching and harassing his  co-workers while they were trying to work.  Although this  interpretation of evidence may be reasonable, the Board's  finding to the contrarywas supported by substantial evidence  in the record.


17
The Board found that Ramirez's activities were protected  because "it is clear that ... all of Ramirez' worktime solicitations were brief and did not involve any obvious disruption in  production."  Frazier, 328 N.L.R.B. No. 89, at 2.  Adding  that "there is no evidence that employees whom Ramirez  solicited more than once ever even told him that he was  interfering with their work or that further solicitations would  have that effect," id., the Board found that although Ramirez  tenaciously solicited employees to sign cards, attend the  union's meetings, or meet individually with a union organizer,  he did not pursue such matters with employees over their  expressed objections.  On the contrary, the Board found that  "his persistence, in the main, resulted in those instances  where he received tepid or inconclusive responses from the  employees with whom he spoke."  Id. at 13.5  The Board thus  concluded that Ramirez's conduct, while persistent, did not  rise "to the level of unprotected harassment."  Id. at 2.There is substantial evidence in the record to support the  Board's findings.


18
Ramirez followed up with Jennings about signing an authorization card only after Jennings stated that he would take  the card home, think about it, and discuss it with his wife.6Ramirez similarly followed up with employees Chandler and  Frasure only after they had given Ramirez the impression that they were at least feeling ambivalent about unionizing. By contrast, Ramirez never spoke to Neilsen about the union  again after Neilsen informed Ramirez in their initial conversation he "wasn't really for the union."  Neilsen was present  as a bystander to a conversation Ramirez had with Jennings  one evening, and this conversation was the only conversation  that was more than momentary, lasting twenty minutes according to Ramirez and forty-five minutes according to Jennings.  However, as the Board explained, there is "no evidence that anyone told the [company] about this incident  before Ramirez's discharge."  Id. at 2 n.5.  Therefore, how  long this particular conversation lasted and what Jennings  told Ramirez in the conversation are immaterial.  In addition,  there is no evidence that Ramirez's solicitations were other  than courteous or produced disruptive arguments.7


19
Taking another tack, the company contends that the  Board's finding that Ramirez's activities were protected was  based on erroneous legal standards, requiring the company to  demonstrate Ramirez's interruptions were lengthy and resulted in a loss of production and requiring Ramirez'sco-workers  to confront Ramirez directly instead of complaining to supervisors. This contention  mischaracterizes the Board's findings.  The Board did not apply a general standard that work  time interruptions must be lengthy and result in a loss of  production in order for them to be harassment.  The question  that the Board was addressing was whether Ramirez's activities rose to the level of harassment, and, in order to make  that determination, the Board considered various factors,  such as how long each interruption lasted, how disruptive it  was, how courteous or abusive Ramirez was in each instance,  and whether he respected co-workers' requests not to be  bothered.  The Board noted that Ramirez's conduct was  neither lengthy nor disruptive only because they were, quite  reasonably, considered to be relevant to the Board's determination that his conduct was protected by the Act, and not  because it determined that only lengthy interruptions rose to  the level of harassment.


20
Contrary to the company's contention, this approach is  consistent with Patrick Industries and General Indicator.  In  Patrick Industries, the Board ruled that an employee's repeated solicitations of a coworker to sign an authorization  card were protected under the Act, and explained that in the  absence of evidence that the employee ever "threatened or  abused" the coworker or even "raised his voice," a conclusion  that the activity was unprotected could "significantly limit the  ability and willingness of employees to solicit their fellow  employees' support for, opposition to, a union, activity that is  central to the purposes of the Act."  Patrick Indus., 318  N.L.R.B. at 248.  Also, unlike the instant case, in General  Indicator, where the Seventh Circuit held that an employer  lawfully discharged an employee who engaged in union activities on company time, the discharged employee "had a history  of disrupting the work schedule of co-employees, and even  after he had been disciplined for this pattern of disruption  and had received a 'final warning,' he continued to approach  other employees and prevent them from completing their  assigned tasks in a timely manner."  General Indicator, 707  F.2d at 283.  The court concluded that the discharged employee's tenure with the company was "a continual pattern of  disruptive and insubordinate behavior and activities as well as  ... interfer[ence] with productivity."  Id.  By contrast, the  Board found that Ramirez's behavior was neither disruptive  nor threatening and that he voluntarily discontinued the  solicitation of any employee who failed to express at least  some interest in the union.


21
Similarly, the company's contention that the Board "faulted" Ramirez's co-workers "for complaining to their supervisors rather than directly confronting Ramirez" is groundless. Contrary to our dissenting colleague's criticism, the Board  did not assume that Ramirez's co-workers had a "duty ... to  inform Ramirez he was disturbing their work."  Again, the  Board considered various relevant factors in order to determine whether Ramirez's conduct was protected by the Act. One of the factors the Board considered relevant was that  Ramirez was persistent only with those who gave "tepid or  inconclusive responses."  Frazier, 328 N.L.R.B. No. 89, at 13.Therefore, when the Board stated that "there is no evidence  that employees whom Ramirez solicited more than once ever  told him that he was interfering with their work or that  further solicitations would have that effect," the Board was  not applying a general requirement that a behavior does not  constitute harassment until there is a direct confrontation.Instead, the Board was merely emphasizing that Ramirez,  while persistent as a union organizer, did not bother anyone  who expressly indicated that he was not interested or that he  did not want to be bothered.  Therefore, the company's claim  that the Board inappropriately required employees to rebuke  Ramirez first before complaining to the management is a  wholly inaccurate account of the Board's opinion.


22
Given that Ramirez's union activities are protected under  the Act, the remaining question is whether the company'sdischarge of Ramirez was lawful.  The Board found that  Ramirez's discharge was unlawful because "the chain of  events leading to the discharge was a direct result of the  [company's] enforcement of its unlawful rule prohibiting talk  about the Union during worktime."  Frazier, 328 N.L.R.B.  No. 89, at 2.  There is substantial evidence in the record to  support this finding.  Here, context is everything.  The company promulgated an invalid rule prohibiting employees from  talking about the union during working time.  See Industrial  Wire Prods., 317 N.L.R.B. 190, 190 (1995).  That rule was  implemented in direct response to rumors of Ramirez's union  organizing efforts, and the employees who subsequently informed the company of Ramirez's work time solicitations were acting in accordance with the company's directive that  they report union "talk" to management.  In addition, the  company's activities in violation of S 8(a)(1), violations the  company does not challenge, included threatening to discharge employees who engaged in union activities, coercively  interrogating employees about their union activities and sympathies, expressing disappointment in employees who attended union meetings, threatening to close the plant if employees  chose union representation, threatening to retaliate against  employees for their union activities, and remarking to an  employee after Ramirez's discharge that the employee should  now understand why he should not talk about the union on  company time.  Such factual findings by the Board constitute  substantial evidence to support its finding that Ramirez's  discharge by the company violated S 8(a)(3) and (1) of the  Act.


23
Nor, as the company contends, did the Board's conclusion  contradict Patrick Industries and BJ's Wholesale. In Patrick  Industries, the Board found that the company's discipline,  while unlawful under S 8(a)(1), did not independently violate  S 8(a)(3) because "the discipline was not discriminatory and  was not done in order to encourage or discourage membership in any labor organization."  Patrick Indus., 318 N.L.R.B.  at 248.  As noted, the Board's finding in the instant case was  based on numerous indications of the company's discriminatory prohibition on union talk, its repeated solicitation of complaints regarding union solicitation, and numerous other instances reflecting the company's anti-union animus.  The  company's reliance on BJ's Wholesale fares no better.  As the  Board explained, in BJ's Wholesale, the employee had previously been counseled under the employer's anti-harassment  policy for conduct unrelated to the union, and, unlike the  instant case, the employer had not promulgated an unlawful  rule prohibiting all working-time union speech.  See BJ's  Wholesale, 318 N.L.R.B. at 684.  Moreover, in finding the  discipline in BJ's Wholesale to be lawful, the Board emphasized that the employer had not solicited complaints from  employees about union activity.  See id.  The record here  shows that the company repeatedly solicited complaints about union "harassment," and that Moosman told the employees  that he "wanted to know about it if some one was talking to  [them] about the union on company time."  Moreover, the  purported "complaint" from Jennings that immediately precipitated Ramirez's discharge was directly solicited by Haga's  inquiry as to whether Ramirez was harassing him.  Therefore, the Board's findings are consistent with BJ's Wholesale and Patrick Industries.


24
The Board reasonably rejected the company's Wright Line  defense that Ramirez would have been terminated even in the  absence of the protected activity because of his insubordination and dishonesty when questioned by Haga.  Substantial  evidence supports the Board's finding that Haga decided to  terminate Ramirez for the union activities, and not for insubordination and dishonesty.  As the Board emphasized, Haga initially testified that Ramirez was discharged solely for  "harassing" company employees.  In addition, none of the company's filings with regard to Ramirez's application for  unemployment benefits mentioned any grounds for terminationother than alleged harassment.  Therefore, the company has failed to provide sufficient evidence to overcome the  Board's finding that it would have terminated Ramirez even  in the absence of the protected activity for his insubordination  and dishonesty.  In the end, the company offers no reason for the court to disturb the Board's finding of unlawful discharge.

III.

25
The company also challenges the Board's remedy, contending that the Board abused its discretion by awarding Ramirez  reinstatement.  The company takes the position that Ramirez's failure to disclose fully his employment history at the time he applied for employment as a welder and his false  statements regarding his union activities on his unemployment benefit application warranted immediate termination  and preclude reinstatement.  The company relies on the after-acquired evidence rule of McKennon v. Nashville Banner Publishing Company, 513 U.S. 352 (1995), which held  that "neither reinstatement nor front pay is an appropriate remedy" for an unlawful termination "where there is after acquired evidence of wrongdoing that would have led to  termination on legitimate grounds had the employer known  about it."  Id. at 361-62.  Following McKennon, the Board  has limited reinstatement and backpay based on after acquired evidence that an employee who was unlawfully discharged had engaged in misconduct that would have led to  the employee's termination.  See, e.g., Marshall Durbin Poultry Co., 310 N.L.R.B. 68, 70 (1993), enforced in pertinent  part, 39 F.3d 1312, 1317 (5th Cir. 1994);  John Cuneo, Inc.,  298 N.L.R.B. 856, 857 (1990);  Axelson, Inc., 285 N.L.R.B.  862, 866 (1987).  The difficulty for the company stems from  the fact that it makes a bare assertion.


26
The McKennon Court explained, "Where an employer  seeks to rely upon after-acquired evidence of wrongdoing, it  must first establish that the wrongdoing was of such severity  that the employee in fact would have been terminated on  those grounds alone if the employer had known of it at the  time of the discharge."  McKennon, 513 U.S. at 362-63.  The  Court added that "[t]he concern that employers might as a  routine matter undertake extensive discovery into an employee's background or performance on the job to resist claims is  not an insubstantial one."  Id. at 363.  Accordingly, the  Board has placed on the employer the burden of showing that  it would have discharged the employee because of the misconduct, not simply that it could have done so.  See, e.g., Marshall Durbin, 310 N.L.R.B. at 70;  John Cuneo, 298  N.L.R.B. at 859.  The Board has broad remedial discretion to  devise remedies that effectuate the policies of the Act, see  ABF Freight System, Inc. v. NLRB, 510 U.S. 317, 324 (1994),  and because the company has not produced evidence to  overcome that deference and to show that it would have  terminated Ramirez's employment for his misconduct, we find  that the Board did not abuse its discretion in ordering  reinstatement.


27
It is undisputed that Ramirez falsified his employment  application by omitting information about his previous employment with G&L Metal;  however, the Board reasonably  concluded that the company failed to show that he would have been discharged for his failure to disclose the information had  the company learned about it before the discharge.  As the  Board noted, the employment application that Ramirez filled  out states merely that false information, omissions, or misrepresentations may result in a discharge of the employee.  See  Frazier, 328 N.L.R.B. No. 89, at 15.  In other words, the  language on the form warns of dismissal only as a potential  option, and the company has provided no evidence that its  practice has been to dismiss employees for similar omissions. The company's assertion that the company's policy manual,  which specifies that "[f]alsifying or altering Company records" is a violation "warranting immediatedismissal of an employee," is sufficient evidence that it would have discharged Ramirez for his omission fails not only because the  manual was not distributed to him before the termination of  his employment and there is no evidence otherwise to indicate  that he was made aware of this falsification rule, but because  the company offered no evidence that it has routinely dismissed employees for similar omissions.


28
Similarly, the company's reliance on the evidence of Ramirez's false statement on his unemployment benefits application is misplaced.  The company has not provided sufficient  evidence to show that Ramirez's misrepresentations amounted to "[f]alsifying or altering Company records," given that it  is not obvious why unemployment insurance applications filed  with a state agency would be considered company records for  the purposes of the company policy at issue.  Neither has the  company proffered any other evidence to show that Ramirez's  misconduct precludes his reinstatement.  While we do not  understand the Board to suggest that the company would  have to demonstrate that other employees had been discharged on this ground, as there will always be a first case, a  bare assertion merely referring to a company policy that  seems remotely related is insufficient.  Hence, the Board  reasonably distinguished Vilter Mfg. Corp., 271 N.L.R.B. 1544  (1984), in which the Board found no unfair labor practice for  failure to reinstate a discharged employee where the employer demonstrated that an employee's post-termination dishonesty would have resulted in the employee's discharge under  the employer's progressive discipline system.  See Frazier, 328 N.L.R.B. No. 89, at 15;  Vilter, 271 N.L.R.B. at 1546-47.


29
Accordingly, we deny the petition and remand the case for  enforcement of the Board's order.



Notes:


1
 Previous to his employment at the Frazier Industrial Company, he was an employee of G&L Metal but was discharged for  absenteeism and for attempting to organize workers. When he  applied for employment at the company, Ramirez failed to disclose  this information.


2
 The company distributed an employee handbook on its policies  and rules at other locations, but did not give Pocatello employees  the handbook until July 1996, subsequent to the events underlying  Ramirez's discharge.  The handbook stated the company's no harassment policy as follows:  "[h]arassment of an employee ... is  unacceptable and will not be tolerated" and "[m]anagers and supervisors are responsible for promoting and maintaining a working  environment which is free of such harassment for all employees."  The handbook further stated that "[i]n the event such harassment  does occur, managers and supervisors must take immediate corrective action, including, where appropriate, dismissal of the offender."  Before the handbook was distributed, company supervisors orally  informed the Pocatello employees of the company's policies on an ad  hoc basis, and the plant culture was one in which employees  engaged in diverse personal conversations during working time,  with the knowledge of management.


3
 This meeting took place after Ramirez had already approached  Neilsen on a previous occasion.  Ramirez asked him at their initial  meeting for his opinions on unionizing, and Neilsen responded then  that he "wasn't really for the union."


4
 Although the Board unanimously found that the company  unlawfully interrogated employees about their union activities on  various occasions, the finding that Haga's inquiry of Jennings as to  whether Ramirez was bothering him the day before Ramirez was  discharged constituted an unlawful interrogation was made by a two  to one vote.  The dissenting member thought that Haga's questioning was "lawful in view of the repeated complaints by employees,  including Jennings, of harassment by Ramirez."  Frazier, 328  N.L.R.B. No. 89, at 6 n.12.


5
 The Board also rejected the company's contention that, although no employees had directly asked Ramirez not to approach  them in the future, its warnings that employees were not to  "harass" coworkers about the union on working time put Ramirez  on notice that future entreaties to the complaining employees about  the union would be considered harassment.  See Frazier, 328 N.L.R.B. No. 89, at 13-14.  The Board's conclusion was reasonable; those warnings, themselves unlawful, did not identify for Ramirez  the employees who did not wish to be solicited, nor did they provide  any guidance as to what constituted harassment, other than that  union organizing on company time was unwelcome.


6
 The company claims that Jennings repeatedly told Ramirez  that he was not interested, and Jennings testified to that effect; however, the Administrative Law Judge did not credit this assertion.  See id. at 13.


7
 The company maintains that Ramirez's solicitations were disruptive and cites the instance in which employee Clair Monson  started screaming at him when Ramirez approached him.  (Presumably, our dissenting colleague's description, "almost to the point of a  physical fight," refers to this incident.)  However, the Board has  ruled that mere hostile reactions to protected union solicitation do  not render that conduct unprotected.  In Patrick Industries, the  Board stated that "the test for determining whether a given union  card solicitation was protected is not the perhaps idiosyncratic  reaction of the particular employee who happened to be on the  receiving end of that activity," and that "it is for the Board to  decide whether or not the Act's protections apply."  Patrick Indus.,  318 N.L.R.B. at 248.



30
Karen LeCraft Henderson, Circuit Judge, dissenting:


31
I would grant the petition for review for the reasons  expressed so convincingly by the dissenting member of the  National Labor Relations Board.  John Ramirez repeatedly  pestered the same employees while they were trying to  perform their jobs, as many as four times in a single day and  once almost to the point of a physical fight.  This was not  protected activity but harassment.  His fellow employees  were under no duty, as the majorities of this panel and of the  Board seem to think, to inform Ramirez he was disturbing  their work.  That should have been, and surely was, as  obvious to him as it was to them.  As the dissenting Board  member noted, Ramirez's discharge did not violate section  8(a)(1) or (3) of the National Labor Relations Act because the  employer "was lawfully responding to multiple complaints  from multiple employees regarding Ramirez' repeated harassment of them during worktime about the Union."  Frazier Indus. Co., 328 N.L.R.B. No. 89, slip op. at 59 (1999) (footnote  omitted).  Further, "even assuming that the General Counsel  has established a prima facie showing that Ramirez' protected  conduct was a motivating factor in his discharge, the Respondent has met its burden of showing that the discharge would  have occurred even in the absence of protected activity."  Id.  (citing Wright Line, 251 N.L.R.B. 1083 (1980), enf'd., 662 F.2d  899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982)).  Accordingly I dissent.

