254 F.3d 114 (D.C. Cir. 2001)
Tasty Baking Company, Petitionerv.National Labor Relations Board, Respondent
No. 00-1030
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 3, 2000Decided June 22, 2001

[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
On Petition for Review and Cross-Application for Enforcement of an Order of the  National Labor Relations Board
Barry Simon argued the cause and filed the briefs for  petitioner.
Frederick C. Havard, Supervisory Attorney, National Labor Relations Board, argued the cause for respondent.  With  him on the brief were Leonard R. Page, General Counsel,  Linda Sher, Associate General Counsel, Aileen A. Armstrong,  Deputy Associate General Counsel, and Jeffrey Horowitz, Attorney.  Frederick L. Cornnell, Jr. and Steven B. Goldstein, Attorneys, entered appearances.
Before:  Ginsburg, Randolph, and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Tasty Baking Company (TBC)  petitions this court for review of a decision and order of the  National Labor Relations Board (NLRB).  The Board found  that the company committed unfair labor practices in violation of sections (8)(a)(1) and (3) of the National Labor Relations Act (NLRA), 29 U.S.C.   158(a)(1), (3).  TBC alleges  that part of the complaint filed by the NLRB's General  Counsel was time-barred, that the hearing conducted by the  Board's Administrative Law Judge (ALJ) was procedurally  flawed, that the Board's factual conclusions are unsupported,  and that the Board's prescribed remedy is improper.  We  reject these challenges and grant the Board's crossapplication for enforcement of its order.


2
* TBC operates a plant in Philadelphia, Pennsylvania, where  approximately 700 workers produce baked goods on daytime  and overnight shifts.  In 1994, Teamsters Union Local 115  began an organizing drive among TBC employees.  The union  lost a representation election in April 1995, but, upon the  union's objection, the Board set aside the results and ordered  a new election in March 1996.


3
The events forming the basis of the present case began in  the summer of 1995, after the first representation election. In mid-June, Production Operations Director Thomas Kenney  demoted Edwina Flannery, the wife of well-known union  activist and "oven man" Michael Flannery,1 from the supervisory position she had held for nearly five years.  This demotion took place despite management's recent assurances that   her position was safe and that she was the company's "newest  rising star."  Tr. at 185.  On August 10, 1995, after Edwina  Flannery's demotion, Superintendent Charles Britsch told her  that the fact that her husband was outside the plant distributing union literature "was not helping [her] chances of staying  on day work," and that if he continued she "could very  seriously end up on night work."  Id. at 200.  Michael  Flannery continued leafleting, and a month later the company  transferred his wife to the night shift.


4
On January 16, 1996, Michael Flannery received a disciplinary warning from his supervisor, alleging that Flannery had  twice failed to remove crumbs from the crumbs depositor.2 Flannery filed a written grievance, protesting that it was not  his responsibility to remove the crumbs.  When Flannery met  with Britsch to discuss the grievance on January 18, Britsch  said that the warning stemmed from the company's new "get  tough" policy.  Id. at 124-25.  Britsch also said that he and  Flannery were "enemies," and that while Flannery might  think that he was doing the right thing for the employees,  Britsch felt that he (Britsch) was "doing the right thing for  Tasty Bake and will do whatever I have to to keep the union  out."  Id. at 125.


5
On January 26, 1996, Operations Director Kenney met with  an employee, William Martin, to discuss Martin's suggestion  that metal detectors be installed at the entrance to the  workplace.  Kenney told Martin that the suggestion was  "stupid," and speculated that Michael Flannery was behind it. Id. at 220.  Martin denied this, and then told Kenney that  Michael Flannery should not have received the "crumbs"  warning because it was Martin's, not Flannery's, responsibility to remove the crumbs from the depositor.  Kenney responded that he did not care whose job it was, and "that he  had told Mike that if Mike f**ked him, he would f**k Mike  back."  Id. at 221.  Kenney then told Martin that "if you f**k me, I'll f**k you back," and concluded:  "[N]ow I'm getting  Mike.  I told him I was going to do it.  Now I'm doing it." Id. at 221-22.


6
On January 31, 1996, sanitation employee Robert Nolan,  another vocal union supporter, received a three-day suspension and was subsequently issued a written warning for  "insubordination" resulting from an incident with Linda Casey, a substitute floor monitor.  According to Nolan, he had  been making a telephone call during his usual break time,  when Casey began "yelling and screaming" at him to get off  the phone.  Id. at 278.  Nolan told Casey that he was talking  to his wife, and asked to see his regular floor monitor.  Casey  refused to let Nolan explain or see his monitor, and instructed  him to get off the phone and return to work, which Nolan did. Nolan testified that thereafter his regular monitor told him  not to worry about the incident.  Nonetheless, Nolan received  a written warning and three-day suspension for insubordination.


7
On April 11, 1996, Kenney approached Michael Flannery  during his shift and said:  "[I] don't believe you.  After what  happened to your wife, you're still pushing the union and  calling OSHA [the Occupational Safety and Health Administration].  Are you going to make me fire you?"  Id. at 127. Two months later, on June 6, 1996, Flannery received a  written warning for reporting wrong "oven times" to other  employees.  Flannery received the warning notwithstanding  that he had disputed the allegation and been told that he  would merely receive a memo to his file.


8
Between August 1995 and July 1996, the union filed unfair  labor practice charges with the NLRB concerning the abovedescribed events.  Those charges resulted in separate complaints filed by the Board's General Counsel, which were  eventually consolidated for hearing.  The complaints charged  that the company had violated sections 8(a)(1) and (3) of the  NLRA, which make it an unfair labor practice for an employer:  "to interfere with, restrain, or coerce employees in the  exercise of" their rights to form, join, or assist labor organizations, 29 U.S.C.   158(a)(1);  see id.   157, and "by discrimination in regard to ... any term or condition of employment  to encourage or discourage membership in any labor organization," id.   158(a)(3).  After a hearing, the ALJ sustained  the complaints with respect to the charges that are the  subject of the instant petition, and the company filed exceptions with the Board.


9
The NLRB affirmed the ALJ's conclusions with minor  modifications.  Tasty Baking Co. and Teamsters Union Local  115, 330 N.L.R.B. No. 80, 2000 WL 127513 (Jan. 31, 2000)  ("Tasty Baking Co.").  The Board found that TBC violated  section 8(a)(1) by:  (1) telling Michael Flannery that the  company had implemented a "get tough policy" in response to  his union activities;  (2) threatening William Martin with  retaliation if he engaged in union activities;  and (3) threatening Michael Flannery with discharge because of his union  activities and calls to OSHA.  The NLRB also found that  TBC committed unfair labor practices in violation of sections  8(a)(1) and (3) of the Act by:  (1) issuing a written warning to  Michael Flannery for the "crumbs" incident;  (2) issuing a  three-day suspension and written warning to Robert Nolan  for alleged insubordination in connection with the telephone  incident;  and (3) issuing a written warning to Michael Flannery for the "oven times" incident.  Finally, the Board found  that the company violated section 8(a)(1) by demoting Edwina  Flannery from her supervisory position in retaliation for her  husband's union activities, and violated sections 8(a)(1) and (3)  by transferring Edwina Flannery to the night shift because  her husband continued working for the union.


10
The company petitions for review.  It contends that the  General Counsel's complaint concerning Edwina Flannery's  demotion is time-barred because it was not "closely related"  to any charge that was timely filed with the NLRB.  TBC  also alleges that certain of its procedural rights were violated  during the hearing conducted by the ALJ.  The company  further argues that substantial evidence does not support any  of the Board's findings that the company committed unfair  labor practices.  Finally, TBC challenges the Board's authority to order reinstatement of Edwina Flannery to her supervisory position.

II

11
The company contends that the complaint concerning Edwina Flannery's demotion was time-barred under NLRA    10(b), 29 U.S.C.   160(b), which states that "no complaint  shall issue based upon any unfair labor practice occurring  more than six months prior to the filing of the charge."  TBC  notes that the NLRB has construed section 10(b) to permit  prosecution of an alleged violation that was not timely  charged if it is "closely related" to the allegations in a timely  filed charge.  See TBC Br. at 7-8 (citing Nickles Bakery of  Indiana, Inc., 296 N.L.R.B. 927, 928 (1989)).  TBC contends  that the allegation concerning Edwina Flannery's June 1995  demotion fails the "closely related" test.


12
The initial charge was timely filed on October 16, 1995, and  stated that the company had unlawfully "demot[ed] an employee for supporting and associating with the union."  J.A.  838.  On February 12, 1996, the General Counsel filed a  complaint based upon that charge, specifically alleging that  Edwina Flannery was demoted from her position as "supervisor" because of the union activities of one of her relatives. J.A. 832.  TBC argues, citing Drug Plastics & Glass Co. v.  NLRB, 44 F.3d 1017, 1021, (D.C. Cir. 1995), that the February 1996 complaint was not "closely related" to the October  1995 charge, because the complaint referred to a demoted  "supervisor"  while the charge had referred to a demoted  "employee."  TBC notes that these words--"supervisor" and  "employee"--have distinct meanings under the NLRA, see 29  U.S.C.   152(3), and it argues that because different legal  theories and defenses apply to the demotion of supervisors  and employees,  the allegations cannot be regarded as "closely related."  See TBC Br. at 13-16 (citing Nickles Bakery,  296 N.L.R.B. 927).


13
Far from failing the "closely related" test, however, we  think the complaint and charge are fairly read--notwithstanding the technical imprecision of the charge--as identifying the very same conduct.  The actual thrust of TBC's argument is  that the timely charge did not give the company "fair notice  of the acts alleged to constitute the unfair labor practice." Pergament United Sales, Inc. v. NLRB, 920 F.2d 130, 134 (2d  Cir. 2000).  We conclude that it did.


14
As the Board explained, the term "employee," used in its  generic rather than NLRA-specific sense, can certainly refer  to someone employed as a supervisor.  Tasty Baking Co., slip  op. at 1.3  Moreover, other allegations in the same timely filed  charging document made clear that it was Edwina Flannery  who was the referenced "employee."  That document alleged  that the company had "depriv[ed] an employee of seniority  rights" and "transferr[ed] an employee to the night shift"-both of which the company had done to Flannery (and, as far  as the record reflects, only to Flannery) soon after it demoted  her from her supervisory position.  This additional information was more than sufficient to give TBC fair notice of the  charge against it.  See NLRB v. Mackay Radio & Telegraph  Co., 304 U.S. 333, 349-50 (1938) (holding that the discrepancy  between a charge alleging discriminatory refusal to reinstate,  and the Board's finding of discriminatory discharge, did not  violate the company's due process rights).  Compare Pergament United Sales, Inc., 920 F.2d at 135-36 (granting enforcement of an NLRB order where the Board had charged  the employer with violating section 8(a)(3), but ultimately  found it to have violated section 8(a)(4) with respect to the  same employees), with Lotus Suites, Inc. v. NLRB, 32 F.3d  588, 592 (D.C. Cir. 1994) (denying enforcement where the  charge contained only a "boilerplate allegation that the Employer violated   8(a)(1) and [was] utterly lacking in factual  specificity").

III

15
TBC next argues that procedural irregularities in the complaint and hearing before the ALJ require us to set aside the NLRB's findings regarding threats Kenney and Britsch made  to employees.  TBC argues that those findings should be set  aside because the General Counsel's complaint did not put the  company on notice of the conduct at issue, and because the  ALJ improperly sequestered Kenney and Britsch during the  proceeding, preventing them from hearing the allegations  that union witnesses made against them.  TBC claims that  these irregularities violated both due process and NLRB  rules.  We disagree.  See Pergament United Sales, Inc., 920  F.2d at 134 (holding that "due process is satisfied when a  complaint gives a respondent fair notice ... and when the  conduct implicated in the alleged violation has been fully and  fairly litigated").


16
The company's principal challenge to the complaint is that  it alleged that Kenney and Britsch threatened employees on  dates different from those proven at the hearing.  The complaint alleged that Kenney made a threat "on or about"  January 12, 1996, while the evidence showed that Kenney's  threat to William Martin took place two weeks later, on  January 26.  Similarly, the complaint alleged a threat made  by Britsch "on or about" January 24, 1996, while the evidence  concerned statements he made to Michael Flannery six days  earlier, on January 18.  These minor variances in "on or  about" dates, however, were insufficient to prejudice the  company's hearing preparation.  Indeed, courts have permitted variances of the same and greater magnitude between  dates charged in criminal indictments and those later proven  at trial, notwithstanding that in such cases the defendant's  very liberty is at stake.  See, e.g., United States v. Kimberlin,  18 F.3d 1156, 1158-59 (4th Cir. 1994) (finding nonprejudicial a  variance of nearly one month between the date charged in the  indictment and that proven at trial);  Robinson v. United  States, 210 F.2d 29, 31 (D.C. Cir. 1954) (holding that "[t]here  is no material variance between March 16 and 'about March  1' ").  Moreover, at the hearing itself, TBC had a full opportunity to cross-examine the General Counsel's witnesses about  the circumstances surrounding the threats, and to put Kenney and Britsch on the stand to rebut those witnesses.  See  Pergament United Sales, Inc., 920 F.2d at 136.


17
The company also challenges the manner in which the ALJ  applied the NLRB's sequestration rule, under which an ALJ  may exclude witnesses from the hearing room while others  are testifying.  Exempt from the rule are, inter alia, a party's  designated representative and "a person who is shown by a  party to be essential to the presentation of the party's cause." Greyhound Lines, Inc., 319 N.L.R.B. 554, 554 (1995);  see  Fed. R. Evid. 615(3) (same).  The purpose of the rule is to  prevent one witness from "shaping his testimony to match  that given by other witnesses at the trial."  Queen v. Wash.  Metro. Area Transit Auth., 842 F.2d 476, 481 (D.C. Cir. 1998)  (citations omitted).


18
TBC selected its Vice President for Human Resources,  William Mahoney, as its designated representative to assist in  its defense, and the ALJ excepted him from sequestration. The ALJ excluded four other company managers from the  hearing room, including Kenney and Britsch.  The company  argues that the exclusion of Kenney and Britsch was improper, because they were "essential" witnesses.  The ALJ retains considerable discretion in determining which witnesses  are "essential" within the meaning of the rule, however, and  we find no abuse of that discretion here.  Cf. Polythane Sys.  v. Marina Ventures Int'l, 993 F.2d 1201, 1209-10 (5th Cir.  1993) (holding that whether a witness is "essential" under  Fed. R. Evid. 615 is "a matter soundly within the discretion of  the trial court");  Queen, 842 F.2d at 482 (same).


19
Moreover, we are unable to discern any prejudice suffered  by the company on account of the sequestration.  See Bricklayers Int'l Union of Am. v. NLRB, 475 F.2d 1316, 1323 (D.C.  Cir. 1973) (noting that under 5 U.S.C.   706, "due account  shall be taken of the rule of prejudicial error").  Under the  NLRB's rule, "counsel for a party may inform counsel's own  witness of the content of testimony ... given by a witness for  the opposing side in order to prepare for rebuttal of such  testimony."  Greyhound Lines, Inc., 319 N.L.R.B. at 554.  In  light of company counsel's ability thus to prepare Kenney and  Britsch, and of the fact that both men did testify in rebuttal  to the General Counsel's witnesses, such prejudice seems  highly unlikely.  See Desert Hosp. v. NLRB, 91 F.3d 187, 190 (D.C. Cir. 1996) ("The burden of showing prejudice from  assertedly erroneous rulings is on the party claiming injury.").


20
TBC offers only one example of such purported prejudice. It contends that the ALJ wrongly interpreted Kenney's uncertainty about details of his meeting with Martin as evidence  of Kenney's lack of credibility.  The true reason for Kenney's  uncertainty, the company argues, is that the complaint alleged a meeting date that was off by two weeks, and that the  sequestration order prevented Kenney from hearing Martin's  description of that meeting.  But even if this contention were  true, Kenney's uncertain description of the meeting with  Martin was the last and least important of the grounds the  ALJ gave for doubting Kenney's credibility.  The ALJ found  Kenney's responses vague with respect to numerous other  incidents;  found that although he had no difficulty remembering events when questioned on direct examination by company counsel, he had inexplicable failures of memory when  under cross-examination;  and found Kenney generally "evasive" in responding to questions from the General Counsel. Tasty Baking Co., slip op. at 20.  Moreover, in concluding  that Kenney had threatened Martin, the ALJ principally  relied not on the vagueness of Kenney's testimony, but on the  fact that his testimony was inconsistent and at points selfcontradictory, while Martin testified "in an honest and truthful manner."  Id. at 13.  In sum, even were the complaint  misleading and the sequestration order erroneous, the company could not fairly blame those factors for the ALJ's finding  that Kenney unlawfully threatened William Martin.

IV

21
TBC also disputes the Board's findings that the company  committed unfair labor practices on the ground that those  findings are not supported by substantial evidence.  Our role  in reviewing such a claim is limited.  Pioneer Hotel, Inc., 182  F.3d at 942.  We must uphold the findings of the Board as  long as they are "supported by substantial evidence on the  record considered as a whole."  29 U.S.C.   160(e).  In making that determination, "we ask only whether on this  record it would have been possible for a reasonable jury to  reach the Board's conclusion[,].... and we give substantial  deference to the inferences drawn by the NLRB from the  facts."  Halle Enters., Inc. v. NLRB, 247 F.3d 268, 271 (D.C.  Cir. 2001) (citations and internal quotations omitted).  Moreover, we "must accept the ALJ's credibility determinations  ..., as adopted by the Board, unless they are patently  insupportable."  Gold Coast Rest. Corp. v. NLRB, 995 F.2d  257, 265 (D.C. Cir. 1993) (citations and internal quotations  omitted).  We apply this standard of review to each of the  findings challenged by the company.


22
* We first consider TBC's challenge to the Board's findings  that three threats made by the company's supervisors to  Michael Flannery and William Martin violated section 8(a)(1)  of the Act.  That section forbids coercive statements that  threaten retaliation against employees for the exercise of  their rights to organize and to participate in union activities. See Southwire Co. v. NLRB, 820 F.2d 453, 457 (D.C. Cir.  1987).  An employer's statement violates the NLRA if, considering the totality of the circumstances, the statement has a  reasonable tendency to coerce or to interfere with those  rights.  See Avecor, Inc. v. NLRB, 931 F.2d 924, 931 (D.C.  Cir. 1991).


23
The Board found a section 8(a)(1) violation based upon  Britsch's statements to Michael Flannery on January 18,  when Flannery met with Britsch to discuss his grievance over  the "crumbs" warning.  According to Flannery, Britsch told  him that the warning stemmed from the company's new "get  tough" policy, which had been instituted because too many  people were "screwing up."  Tr. at 124-25;  see Tasty Baking  Co., slip op. at 9.  Britsch said that Flannery and he were  "enemies over this," and that while Flannery might think that  he was doing the right thing for the employees, Britsch felt  that he (Britsch) was "doing the right thing for Tasty Bake  and will do whatever I have to to keep the union out."  Tr. at 125;  see Tasty Baking Co., slip op. at 9.  The ALJ recognized  that "if viewed in isolation, Britsch's mention to Flannery of a new 'get tough' policy and about people 'screwing up' is arguably subject to more than one interpretation." Tasty Baking Co., slip op. at 14.  He concluded, however,  that in context, "Flannery could reasonably have construed  Britsch's remarks to mean that the warning issued to him  was part of Britsch's admitted strategy of doing what it took  to keep the Union out, and as a threat that he and other  union supporters faced further reprisals under [the] ... new  'get tough' policy should they persist in their union efforts." Id.


24
Although TBC suggests that this conversation may never  have occurred, Flannery's testimony--found credible by the  ALJ--provides substantial evidence that it did.  Indeed,  Britsch conceded that the conversation did occur and did not  deny the truth of Flannery's version;  Britsch simply testified  that he did not specifically remember what was said.  Tr. at  420;  see Tasty Baking Co., slip op. at 14.  TBC further  contends that if the conversation did occur, it was equally  plausible that the references to people "screwing up" and to  the new "get tough" policy had nothing to do with union  activity.  While this may be so, we must uphold the Board's  findings as long as they rest upon reasonable inferences, and  we may not reject them simply because other reasonable  inferences may also be drawn.  See Halle Enters., Inc., 247  F.3d at 271.  In this case, the Board's inference that Britsch's  statements constituted a threat of anti-union reprisal is a  reasonable one.


25
The second threat found by the Board occurred on January  26, 1996.  On that date, William Martin told Kenney that  Michael Flannery should not have received the "crumbs"  warning, because it was Martin's responsibility as operator of  the crumbs depositor, not Flannery's responsibility as oven  man, to remove the crumbs from the depositor.  According to  Martin, Kenney replied that he did not care whose job it was. Kenney said that he "had told Mike that if Mike f**ked him,  he would f**k Mike back," and that "[n]ow I'm doing it."  Tr.  at 221-22;  see Tasty Baking Co., slip op. at 13.  Kenney also warned Martin that "if you f**k me, I'll f**k you back."  Tr.  at 221;  see Tasty Baking Co., slip op. at 13.


26
Martin's testimony, judged "honest and truthful" by the  ALJ, Tasty Baking Co., slip op. at 13, provides substantial  evidence that the conversation occurred as Martin recounted. And Kenney's statement, that actual culpability for the  crumbs incident was irrelevant to which employee had been  disciplined, supports the ALJ's finding that Martin "could  reasonably have concluded, particularly in light of Flannery's role as an open and active union adherent, that the  [crumbs] warning ... was linked to [Flannery's] involvement  with [the] Union."  Id.  That statement also supports the  ALJ's determination that the message to Martin was that  "involvement with the Union could lead to unspecified reprisals being taken against him" as well.  Id.


27
The final management threat came on April 11, 1996, when,  according to Michael Flannery's testimony, Kenney told him: "[I] don't believe you.  After what happened to your wife,  you're still pushing the union and calling OSHA.  Are you  going to make me fire you?"  Tr. at 127.  The ALJ credited  Flannery's testimony as "honest and straightforward," and,  with the exception of the reference to OSHA, Kenney did not  controvert it.  Tasty Baking Co., slip op. at 13.  Accordingly,  we have no doubt that the Board's finding--that Kenney  threatened Michael Flannery in violation of section 8(a)(1)--is  supported by substantial evidence.

B

28
We next consider TBC's challenge to the Board's determinations that the company violated sections 8(a)(1) and (3) by  taking disciplinary action against employees Michael Flannery and Robert Nolan.  It is well settled that an employer  violates the NLRA by taking an adverse employment action,  such as issuing a disciplinary warning, in order to discourage  union activity.  See Gold Coast Rest. Corp., 995 F.2d at 26465.  The central question is the employer's motivation for  taking the adverse action, and to make that determination the  NLRB employs the so-called Wright Line test.  See Wright Line, 251 N.L.R.B. 1083, 1089 (1980), enforced, 662 F.2d 899  (1st Cir. 1981);  see also NLRB v. Transp. Mgmt. Corp., 462  U.S. 393, 401-03 (1983) (approving Wright Line test);  TICThe Indus. Co. Southeast v. NLRB, 126 F.3d 334, 337 (D.C.  Cir. 1997) ("TIC") (citing Wright Line).  Under that test, the  General Counsel must first "make a prima facie showing  sufficient to support the inference that protected [i.e., unionrelated] conduct was a motivating factor in the ... adverse  action."  TIC, 126 F.3d at 337 (citations and internal quotations omitted).  In determining whether the employer had a  discriminatory motive, "the NLRB 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.' "  Vincent Indus. Plastics,  Inc. v. NLRB, 209 F.3d 727, 735 (D.C. Cir. 2000) (quoting  Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994)). Once a prima facie case has been established, the burden  shifts to the company to show that it would have taken the  same action in the absence of the unlawful motive.  TIC, 126  F.3d at 337.


29
The first adverse action at issue is the January 12, 1996  written warning to Michael Flannery for allegedly failing to  empty the crumbs from the crumbs depositor.  As the ALJ  concluded, the General Counsel had a strong prima facie case  that the warning was motivated by Flannery's union activities, given his well-known status as a union activist and the  extensive evidence of anti-union animus provided by Kenney's  and Britsch's threats, as well as by Britsch's statements to  Edwina Flannery.  Tasty Baking Co., slip op. at 15.  The  company, by contrast, was unable to demonstrate that it  would have issued the warning absent this motivation.  The  company conceded that no other employee had "ever been  issued a disciplinary warning for failing to clean out a depositor."  Tasty Baking Co., slip op. at 9;  see Tr. at 325.  There  was also substantial evidence that it was not Flannery's  responsibility to empty the crumbs, including the testimony of  both Flannery and Martin, as well as documentation showing  that it was the function of the depositor operator, not Flannery (the oven man), to remove the crumbs from the depositor.  Tr. at 169-70, 221;  Gen. Counsel Ex. 14 (J.A. 912-13); see Tasty Baking Co., slip op. at 15.  Finally, the coup de  grace was Kenney's statement to Martin that he did not care  whose job it was to remove the crumbs, and that he had  issued the warning merely to "f**k Mike back."  As the ALJ  said, this comment "provides near irrefutable evidence that  the warning had nothing to do with crumbs being left in the  depositor."  Tasty Baking Co., slip op. at 15-16.


30
The second adverse action is the February 5, 1996 warning  and suspension of Nolan for alleged insubordination.  A  replacement floor monitor, Linda Casey, accused Nolan of  using the telephone when not on break and of failing to go  back to work when asked to do so.  The ALJ found a prima  facie case of unlawful discrimination, both because Nolan was  an open and active union adherent whose union sympathies  were well known to TBC, and because there was substantial  evidence of the company's anti-union animus, much of which  has been described above.  As the ALJ correctly determined,  whether TBC could rebut that case depended upon whose  account of the phone incident was believed.  Id. at 17.  According to Nolan:  he had permission from his regular monitor to take a break at the time he was making the call;  when  Casey saw him, she immediately began screaming at him; and when he asked to see his regular monitor, Casey told him  to get back to work, which he quickly did.  Tr. at 264-82;  see  Tasty Baking Co., slip op. at 17.  Casey's version was that: she had caught Nolan making a call when he was not on  break;  she directed him to return to work in a normal tone of  voice;  and Nolan refused.  Tr. at 290-91;  see Tasty Baking  Co., slip op. at 17.  The ALJ found Nolan to have testified in  an "honest and truthful manner," while characterizing Casey's  demeanor as that of "someone who was willing to slant her  testimony to help her employer's cause."  Tasty Baking Co.,  slip op. at 17-18.  The ALJ found further evidence that the  insubordination claim was a pretext in the fact that neither  Casey nor higher-level supervisors gave Nolan a chance to  explain before imposing the warning and suspension, as was  required by company policy.  Id. at 18.  In light of the  deference we owe to an ALJ's credibility determinations, we affirm the NLRB's finding with respect to this incident.  See  Gold Coast Rest. Corp., 995 F.2d at 265;  see also Elastic Stop  Nut Div. of Harvard Indus., Inc. v. NLRB, 921 F.2d 1275,  1281 (D.C. Cir. 1990) (holding that a reviewing court "must  uphold Board-approved credibility determinations of an ALJ  unless they are 'hopelessly incredible' or 'self-contradictory' "  (citations omitted)).


31
The final adverse action we consider in this section is the  company's June 6, 1996 written warning to Michael Flannery  for allegedly giving wrong oven times to other employees. Flannery testified that his supervisor originally told him he  would receive only a memo to his file, and that when a  performance warning issued instead, the supervisor told him  that "the powers that be" had decided a warning was justified  because production time had been lost.  Tr. at 131;  see Tasty  Baking Co., slip op. at 10.  We agree with the Board's  conclusion that the company's repeated statements and  threats regarding Flannery provide substantial evidence for a  prima facie case of anti-union animus, and we further conclude that substantial evidence supports the Board's determination that the company failed to show it would have disciplined Flannery had he not engaged in union activity.  See  Tasty Baking Co., slip op. at 16-17.  The evidence showed  that Flannery was given the oven times by someone else-either a supervisor or fellow employee--and that the company never inquired as to whether the times that person gave  Flannery were wrong from the outset.  Id. at 10-11.  This is  particularly significant because the person most likely to have  given Flannery the oven times had furnished wrong times to  the baking department just one month earlier.  Tr. at 392; see Tasty Baking Co., slip op. at 17.  Moreover, although the  company claimed it issued Flannery a warning because the  error had resulted in a loss of production, TBC had no  evidence that it actually experienced any such loss.  Tasty  Baking Co., slip op. at 17.

C

32
We now consider TBC's challenge to the Board's conclusions that the company violated the NLRA by demoting Edwina Flannery from her supervisory position, and by subsequently transferring her to the night shift, in retaliation for  her husband's union activities.


33
* The Board concluded that in June 1995, TBC violated  section 8(a)(1) by demoting Edwina Flannery from supervisor  to packer because of anti-union animus toward her husband,  Michael Flannery.  As a matter of law, the Board appropriately concluded that section 8(a)(1) prohibits a company from  terminating or demoting a supervisor because of a family  member's union activities.  Id. at 19-20.  This court has  recognized the general principle that, although supervisors  are not themselves protected by the NLRA, an action taken  against a supervisor "is unlawful when it interferes with the  right of employees to exercise their rights."  Parker-Robb  Chevrolet, Inc., 262 N.L.R.B. 402, 404 (1982), aff'd sub nom.  Auto. Salesmen's Union Local 1095 v. NLRB, 711 F.2d 383  (D.C. Cir. 1983);  see Pioneer Hotel, Inc., 182 F.3d at 942  (holding that an employer violates section 8(a)(1) when it  discharges a supervisor for refusing to commit an unfair labor  practice).  And courts have approved as well the Board's  more specific conclusion that section 8(a)(1) is violated when  an employer takes action against a supervisor in retaliation  for a relative's union activities.  See Kenrich Petrochem., Inc.  v. NLRB, 893 F.2d 1468, 1477-78 (3d Cir. 1990) ("Kenrich I"),  vacated on other grounds by 907 F.2d 400, 402 (3d Cir. 1990)  (en banc) ("Kenrich II");  NLRB v. Advertisers Mfg. Co., 823  F.2d 1086, 1088-89 (7th Cir. 1987).  As Judge Posner has  explained, to "retaliate against a man by hurting a member of  his family is an ancient method of revenge," and retaliation  aimed at a relative who is a supervisor can have "only one  purpose, and that [is] to intimidate union supporters--consisting mainly of workers protected by the Act ...--by showing  the lengths to which the company would go to punish one of  them."  Advertisers Mfg. Co., 823 F.2d at 1088.


34
To determine whether TBC violated section 8(a)(1) in this  manner, the Board properly applieed the Wright Line test. See Tasty Baking Co., slip op. at 20.  Substantial evidence for  the prima facie case included the unlawful threats and warnings issued directly to Michael Flannery--in particular, Kenney's statement to Michael Flannery that Kenney couldn't  believe that "[a]fter what happened to your wife, you're still  pushing the union."  Tr. at 127.  The Board also reasonably  concluded that the company had failed to rebut this prima  facie case by showing that Edwina Flannery would have been  demoted absent discriminatory motivation.  The company  argued that, as part of a reorganization, it had selected  Flannery for demotion because, in Kenney's words, she  "couldn't get [the job] done" and her department was the  "poorest in the bakery."  Id. at 457-58;  see Tasty Baking  Co., slip op. at 20.  The ALJ rejected this explanation for a  host of reasons.4  First, the ALJ did not believe Kenney's  testimony, noting that he was evasive and inconsistent in his  responses and unable to recollect even the year in which  employees allegedly made complaints about Flannery's work. Tasty Baking Co., slip op. at 20.  Second, the ALJ noted that  TBC's written appraisals of Flannery's performance showed  that she had consistently met or exceeded the company's  expectations for her job as supervisor of the Krimpet department;5  indeed, she had received a merit increase for her work  in 1994.  See Gen. Counsel Ex. 13 (J.A. 905-08);  Tasty  Baking Co., slip op. at 20-21.  Third, the ALJ pointed out  that although Flannery was not the only supervisor with  responsibility for her department's performance, the company  offered no explanation as to why in that department she alone  was singled out for demotion.  Tasty Baking Co., slip op. at  21.  Finally, the ALJ credited Flannery's testimony that at the end of 1994, a company vice president had assured her  that she was the company's "newest rising star."  Tr. at 185; see Tasty Baking Co., slip op. at 21.


35
Following the recitation of these reasons for rejecting the  company's Wright Line rebuttal, the ALJ cited two other  factors that give us some pause.  First, the ALJ noted that  the company had not produced Edwina Flannery's 1995 performance evaluation.  He concluded that such an evaluation  must have existed and must have been favorable (as the 1994  evaluation had been), else the company would have submitted  it into evidence.  Tasty Baking Co., slip op. at 21.  This  conclusion is questionable, as Flannery's 1995 demotion and  transfer may have rendered the preparation of her 1995  evaluation moot.  Second, the ALJ stated that he was unconvinced that a reorganization had actually taken place, because  no documents dated prior to Edwina Flannery's demotion  referred to such a reorganization.  Id. at 22.  This conclusion  seems weak as well, because reorganizations need not be  preceded by documents and because TBC did produce other  documents, roughly contemporaneous with Flannery's demotion, that used the word "restructure" in connection with her  demotion.  TBC Exs. 20-23 (J.A. 1066-69).


36
Notwithstanding the weakness of these last two elements of  the Board's reasoning, we will not remand an administrative  adjudication where we have no "substantial doubt that the  administrative agency would have reached the result it did  absent reference" to the questionable factors.  Barnes v.  Small, 840 F.2d 972, 979 n.6 (D.C. Cir. 1988) (citations  omitted);  see Puerto Rico Mar. Shipping Auth. v. Fed. Mar.  Comm'n, 678 F.2d 327, 344 (D.C. Cir. 1982) ("The essential  question on judicial review [is] whether the agency would  have come to the same conclusion had it been aware of its  error.").  We have no such doubt here, both because of the  strength of the other record evidence, and because the ALJ  expressly relied on that other evidence to reject TBC's  Wright Line defense before he even considered the two  further factors that we found to be questionable.  See Tasty  Baking Co., slip op. at 21-22.

2

37
More readily disposed of is TBC's challenge to the Board's  conclusion that, soon after demoting Edwina Flannery from  her supervisory position, the company again violated the  NLRA by transferring her to the night shift because of her  husband's continued union activity.  By that time, of course,  Edwina Flannery was a statutory "employee," and hence was  herself protected by the NLRA.  See Advertisers Mfg. Co.,  823 F.2d at 1088.


38
The Board's case against TBC could hardly have been  stronger.  Edwina Flannery testified that on August 10, 1995,  two months after her demotion, Superintendent Britsch told  her that her husband's continued distribution of union literature outside the plant "was not helping [her] chances of  staying on day work."  Tr. at 200;  see Tasty Baking Co., slip  op. at 7.  According to Flannery, Britsch said that "upper  management would interpret this as a slap in the face,"  because Michael Flannery was continuing his union activities  notwithstanding that the company was being "so nice" to her  by letting her remain on the day shift.  Tr. at 200.  If this  continued, Britsch warned, she "could very seriously end up  on night work as a result of this."  Id.  (emphasis added). Edwina Flannery responded that her husband was a "grown  man," and that she could not tell him what to do.  Id.;  see  Tasty Baking Co., slip op. at 22.6  On September 13, 1996,  Michael Flannery again distributed union literature outside  TBC, and one week later the company transferred his wife to  the night shift.  Tasty Baking Co., slip op. at 22.


39
In its defense, TBC explained that when Edwina Flannery  was demoted from her supervisory position, she lost her  seniority pursuant to established company policy.  That loss  of seniority, TBC claimed, rendered Flannery eligible only for  the night shift.  But the company was unable to produce any  documentation that such a policy, applicable to Flannery's situation, existed.  Id. at 22-23.  And Britsch himself conceded that, although he believed such a policy did exist, TBC  had not consistently applied it to demoted supervisors.  Tr. at  423-24;  see Tasty Baking Co., slip op. at 22-23.  In light of  this evidence, the Board reasonably rejected the company's  Wright Line defense, and concluded that TBC transferred  Edwina Flannery to the night shift in retaliation for her  husband's continued union activity.

V

40
Finally, TBC alleges that the Board exceeded its remedial  power by ordering the company to reinstate Edwina Flannery  as a supervisor.  We disagree.  As a general matter, the  Board enjoys "broad discretionary power ... to fashion remedies that effectuate the policies of the Act," and "the Board's  exercise of its discretion is subject to quite limited judicial  review."  Petrochem Insulation, Inc. v. NLRB, 240 F.3d 26,  34 (D.C. Cir. 2001);  see Kenrich II, 907 F.2d at 406.  Although it might be "anomalous to force the company to  reinstate a supervisor who was on the union's side," Advertisers Mfg. Co., 823 F.2d at 1089, there is no evidence in the  record that Edwina Flannery was herself a union supporter. Indeed, Flannery's only response to Britsch's denouncement  of her husband's activity was that he was "a grown man," and  that she could not tell him what to do.  Tr. at 200;  see Tasty  Baking Co., slip op. at 22.  Hence, in Judge Posner's colorful  turn of phrase, "[t]he company is not being asked to grasp a  viper to its bosom."  Advertisers Mfg. Co., 823 F.2d at 1089. Edwina Flannery "is not being reinstated so that she can help  the union but so that [her husband] and other protected  employees will not be deterred from exercising their rights  ... by fear that if they do the company will try to get back at  them in any way it can, including by firing their relatives." Id.  Under these circumstances, reinstatement is an appropriate exercise of the Board's remedial authority.  Id.7

VI

41
For the above reasons, we deny TBC's petition for review  and grant the Board's cross-application for enforcement of its  order.



Notes:


1
 At TBC, the oven man maintains control of the heat for the  ovens, coordinates the oven heating times with the floor monitor  and the operator of the crumbs depositor, and ensures that the  baked product is carried away on a conveyor belt.


2
 The crumbs depositor, used in the company's production of  crumb cakes, receives crumbs from a chute and deposits them onto  cake batter.  Crumbs must be removed from the depositor before  production can be switched from crumb cakes to cupcakes.


3
 Indeed, by the time the charge was filed in October 1995,  Edwina Flannery had already been demoted and was thus an  "employee" in both the generic and NLRA-specific senses.


4
 Cf. Matson Terminals, Inc. v. NLRB, 114 F.3d 300, 301 (D.C.  Cir. 1997) (holding that although evidence supported the company's  position that the challenged promotions were part of a planned  reorganization, substantial evidence also supported the Board's  conclusion that the timing of the promotions was part of an unlawful  effort to interfere with unionization).


5
 A "Krimpet," not to be confused with the English "crumpet," is  a small, sweet, crimped cake, either filled with jelly or topped with  butterscotch frosting.


6
 Although Britsch disputed Flannery's description of the conversation, the ALJ declined to credit Britsch's effort to characterize it  as nothing more than helpful advice from a "Dutch uncle."  Tasty  Baking Co., slip op. at 22;  see Tr. at 419.


7
 See Kenrich II, 907 F.2d at 411 ("[W]here a company fires an  employee's close relative to punish the employee, that employee is  likely to reasonably believe that the employer will go to any lengths  to get rid of the union and that the next step in that scheme may be  her own discharge.  Reinstatement in this situation ... serves to  dispel employees' fears and concomitant reluctance to fully exercise  their rights, by demonstrating that the law sets boundaries on  employers' ability to engage in this sort of conduct with impunity.").


