                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                         October 6, 2006
                                TENTH CIRCUIT                          Elisabeth A. Shumaker
                           __________________________                      Clerk of Court

 M IDN IGH T ROSE HOTEL &
 CASIN O, IN C.,

          Petitioner / Cross-Respondent,
                                                     No. 05-9502 & 05-9509
 v.                                             (National Labor Relations Board)
                                                      (No. 27-CA-17885-1)
 N A TIO N A L LA BO R R ELA TIONS
 B OA RD ,

          Respondent / Cross-Petitioner.
                         ____________________________

                            OR D ER AND JUDGM ENT *


Before O’BRIEN, EBEL, and TYM KOVICH, Circuit Judges.




      M idnight Rose Hotel & Casino, Inc., operates three casinos in Cripple

Creek, Colorado, including the M idnight Rose. The National Labor Relations

Board (NLRB) found the M idnight Rose violated Section 8(a)(1) of the National

Labor Relations Act (NLRA), 29 U.S.C. §§ 151-169, by threatening and

interrogating employees with respect to union organizing activities. The NLRB

also found the M idnight Rose violated Section 8(a)(3) and (1) by discharging one

      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
of its employees, M aureen Ostler, for engaging in union activities. The M idnight

Rose petitioned this Court to set aside that portion of the Board’s order dealing

with Ostler’s termination; the NLRB cross-petitioned seeking enforcement of the

order. 1 Exercising jurisdiction under 29 U.S.C. § 160(f), we affirm the N LRB’s

decision and order enforcement of its decision.

                                      Background

       M aureen Ostler began working at the M idnight Rose as a food service

waitress in 2000. Several months later, she became a bartender. In mid-

November 2001, Ostler and co-worker A pril Hendricks, who worked as a cocktail

waitress, discussed temporarily exchanging positions when they worked the same

shift. Although the rate of pay for the two jobs was different ($5.50/hour for a

cocktail waitress, $6.75/hour for a bartender), the women were looking for variety

in their work. The pay differential was not significant to the women, since the

majority of income from either position came from customer gratuities.

       After obtaining permission from their supervisor, Shelby M oon, the women

implemented their switch on November 17, 2001. Ostler arrived at the casino and

clocked in as a cocktail waitress, which required entering a new code into the

time clock (which would otherwise default to an employee’s usual job code - in

Ostler’s case, a bartender). Over the next three months, Ostler worked forty-



       1
        The Midnight Rose did not file exceptions to those portions of the administrative
law judge’s decision concerning the § 8(a)(1) issues and they are not part of this appeal.

                                            -2-
seven more shifts as a cocktail waitress. On those shifts, however, she did not

clock in as a cocktail waitress; rather, the time clock defaulted to the bartender

code (and corresponding rate of pay).

      In January 2002, Dean M odecker, an organizer from Teamsters Local

Union No. 537, began working with Patricia Donch, a blackjack dealer at the

M idnight Rose, regarding union organization efforts at the casino. A previous

effort had failed in 1998. D onch asked Ostler to become involved as well. On

January 16, M odecker sent a letter to Richard W enschlag, general manager of the

M idnight Rose, informing him the union was beginning another organizing effort

and identifying Donch as the leader of the campaign.

      In the course of soliciting support for the organizing campaign, Ostler

talked with fellow bartender Trent Costello. Costello sought input from his

girlfriend Brenda Franco, a blackjack dealer. Franco in turn spoke with her friend

and supervisor, Rebecca Vandiver, seeking her opinion. Vandiver told Franco the

previous campaign had been a “nightmare” and advised her to stay out of it. (R.

Vol. I at 217.) Vandiver also told Franco people had been laid off during the

previous campaign and W enschlag would likely close the blackjack pit if the

organizing efforts materialized. The next day, Vandiver contacted Franco and

asked who had approached Costello about the union efforts; Franco identified

Ostler.

      Around the same time, M oon asked one of her employees, Randi Carroll,

                                          -3-
whether she had witnessed any union activity in her area. Carroll, a blackjack

dealer, said she had been aware of activity for about three months. M oon

expressed dismay at the information, articulated her personal anti-union

sentiments, and mentioned a former employee, Sabrina Newberry, as someone

who had suffered negative consequences because of her pro-union beliefs. M oon

also spoke with M ichael M artinez, a shift manager, observing that Ostler seemed

to be spending a lot of time at the end of the bar conversing with employees.

M oon thought this might be a sign Ostler w as acting as an organizer.

       Sometime between mid-January and early February, W enschlag contacted

another blackjack dealer, M ark Shibe, and asked him to talk with Ostler to see if

she would confirm that union activities w ere occurring at the casino. Shibe did

so, but to no avail.

       On February 12, W enschlag closed the blackjack pit. Donch was laid off as

a result of the closure. 2

       The same day, M oon returned to the casino after a two-week vacation and

conducted a payroll audit, during which she scrutinized time clock records

including job codes and pay rates. She discovered job code entries were missing

next to Ostler’s name, indicating Ostler had, except for one occasion on




       2
        The union’s original unfair labor practice charge alleged the closure violated
Section 8(a)(3). That allegation did not appear in the subsequent amended charges and
was not litigated further.

                                           -4-
November 17, been clocked in as a bartender, and thus had received the

bartender’s higher hourly wage even w hen working as a cocktail waitress.

Hendricks, on the other hand, had never clocked in as a bartender, even though

she had in fact switched jobs with Ostler on many occasions, and thus continued

to be paid at the lower waitress rate.

      M oon immediately contacted W enschlag. They decided Ostler had

comm itted a terminable offense. On February 13, Rick Pratt, the food and

beverage manager, called Ostler at home and told her she was being terminated

for theft. Ostler asked if her final paycheck was ready; when told that it was, she

arranged to come into the casino to pick it up. W hile there, she met with M ark

Lockwood, the human resources manager, and other management personnel.

Ostler denied she had stolen anything. She did admit, however, she knew she was

being overpaid. W hen asked, she demonstrated she knew how to clock in with the

proper job code. She also stated she believed her termination was union-related, a

contention she repeated in a meeting with W enschlag two days later.

      Once Ostler was discharged, the union had no organizers inside the casino,

bringing the organizing campaign to an end.

      On February 28, 2002, Teamsters Local Union No. 537 filed an unfair labor

practice charge against the M idnight Rose, which charge was amended twice. O n

April 16, a complaint was issued by the NLRB’s Regional Director. The

complaint alleged the M idnight Rose violated Section 8(a)(3) and (1) of the

                                         -5-
National Labor Relations Act by engaging in a prohibited response to union

organizing and by discharging Ostler for participating in organizing activities. 3 A

hearing was held on June 18 and 19, 2002, before an administrative law judge

(ALJ). On December 16, 2002, the ALJ issued his decision. He found the

M idnight Rose had violated Section 8(a)(1) w hen its managers and supervisors

interrogated employees about union activities, threatened them, and solicited an

employee to spy on Ostler. He also found the casino had violated Section 8(a)(3)

and (1) by discharging Ostler. The ALJ ordered the M idnight Rose to cease and

desist from its activities, post a notice at its casinos concerning the violation, and

reinstate Ostler with back pay and restoration of seniority.

      The M idnight Rose filed exceptions only to that portion of the decision

regarding Ostler’s discharge. A three-member panel of the NLRB issued its order

on December 16, 2004. A majority of the panel affirmed the ALJ’s decision and

adopted the recommended order. O ne member of the panel dissented. M idnight



      3
          29 U.S.C. § 158(a) provides in pertinent part:

      It shall be an unfair labor practice for an employer—

              (1) to interfere with, restrain, or coerce employees in the exercise of the
      rights guaranteed in section 157 of this title;

               ....

             (3) 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 . . . .

                                             -6-
Rose Hotel & Casino, Inc. (M idnight Rose), 343 N.L.R.B. No. 107 (2004).

       On January 11, 2005, M idnight Rose filed a petition for review with this

Court. The NLRB cross-petitioned on February 22, 2005, seeking enforcement of

the order. 4

                                       Discussion

       1. Ostler’s discharge - substantial evidence

       “Section 10 of the NLRA, which grants this Court jurisdiction to consider

[petitions for review of N LRB decisions], requires that ‘the findings of the Board

with respect to questions of fact if supported by substantial evidence on the

record considered as a whole shall be conclusive.’” Double Eagle H otel &

Casino v. NLRB, 414 F.3d 1249, 1252 (10th Cir. 2005) (quoting 29 U.S.C. §

160(e)), cert. denied, 126 S.Ct. 1331 (2006). Our “review of the Board’s

factfinding is quite narrow. W e must uphold the Board's factual findings if they

are supported by substantial evidence in the record as a whole.” Ready Mixed

Concrete Co. v. NLRB, 81 F.3d 1546, 1551 (10th Cir. 1996). “As to questions of

law , we generally afford the Board’s determinations ‘great weight,’ and uphold

[its] determinations if within ‘reasonable bounds.’” NLRB v. Greater Kansas City

Roofing, 2 F.3d 1047, 1051 (10th Cir. 1993) (internal citations omitted).




       4
         Even though the Midnight Rose “does not oppose” enforcement of the Board’s
order as to the Section 8(a)(1) issues (Petitioner’s Reply Br. at 1), it appears from the
briefs that no portion of the order has been enforced.

                                            -7-
      W e do not, of course, retry the proceedings before the Administrative
      Law Judge or those before the Board. We do not weigh the credibility
      of one w itness against another and we do not search for contradictory
      inferences. W e are not authorized to make contrary alternative
      inferences from the record evidence where there is substantial evidence
      to support the Board's determination. W e do not have a broad
      discretion to overturn the NLRB on factual issues. Indeed our authority
      is narrower than the Board's in its consideration of the findings of the
      Administrative Law Judge.

NLRB v. Wilhow Corp., 666 F.2d 1294, 1299 (10th Cir. 1981) (internal citation

and footnote omitted).

      This Court “may not overturn a Board decision just because we might have

decided the matter differently; rather, our function is to ascertain that ‘the B oard

acts w ithin reasonable bounds and that the supporting evidence is truly

substantial.’” Ready Mixed Concrete Co., 81 F.3d at 1551 (citation omitted).

“Substantial evidence is more than a mere scintilla. It means such evidence as a

reasonable mind might accept as adequate to support a conclusion.” NLRB v.

M einholdt M fg., Inc., 451 F.2d 737, 738 (10th Cir. 1971).

      The crux of the evidentiary dispute in this case is whether the M idnight

Rose discharged Ostler because of her union activities or for a legitimate reason

unrelated to such protected conduct. Due to the narrow nature of our review and

deference to the Board’s findings, we must affirm the Board’s decision, even

though we find the dissent persuasive.

      Because the M idnight Rose offered a non-discriminatory reason for Ostler’s

discharge, we must review the evidence in light of the test developed by the

                                          -8-
NLRB for analyzing “dual motivation” cases. Ready Mixed Concrete Co., 81

F.3d at 1550. “An employer violates 29 U.S.C. §§ 158(a)(1), (a)(3) by

discharging an employee for engaging in Union activity.” M onfort, Inc. v. NLRB,

965 F.2d 1538, 1547 (10th Cir. 1992). As the First Circuit noted in NLRB v.

Wright Line:

      [The Act] imposes a prohibition on employers w hich is simple to state
      but often difficult to apply in practice: they may not discharge an
      employee because of his union activity; but they may and should apply
      their usual rules and disciplinary standards to a union activist just as
      they would to any other employee. Hence, in a given discharge case it
      must be decided whether the employer acted because of the employee's
      union affiliation, or whether he acted because of some factor unrelated
      to the employee's union status.

662 F.2d 899, 901 (1st Cir. 1981).

      The NLRB enunciated a two-part test for determining whether an

employer’s discharge is violative of the Act: first, the General Counsel is

required to make a prima facie showing sufficient to support the inference that

protected conduct was a “motivating factor” in an employer's decision to

discharge an employer. If this is established, the burden shifts to the employer to

demonstrate that the same action would have taken place even in the absence of

the protected conduct. Wright Line, 251 N.L.R.B. 1083, 1089 (1980). This test

was adopted by the First Circuit in NLRB v. Wright Line, 662 F.2d 899 (1st Cir.

1981), and approved by the United States Supreme Court in NLRB v.

Transportation M anagement Corp., 462 U.S. 393 (1983). It has been adopted and



                                         -9-
consistently applied by this Court. M onfort, Inc., 965 F.2d at 1540; M J M etal

Prods., Inc. v. NLRB, 267 F.3d 1059, 1065 (10th Cir. 2001).

      Here, the ALJ found the General Counsel met his burden of establishing a

prima facie case, a conclusion with which the Board agreed, and which the

M idnight Rose does not now dispute. W e thus turn to the Board’s finding that the

M idnight Rose “failed to meet its Wright Line burden of establishing that it would

have terminated Ostler for the asserted reason — theft — even in the absence of

her union activity.” M idnight Rose, 343 N.L.R.B. at 2; see also App. at 17. One

member of the Board dissented, and this dissent is the linchpin of the M idnight

Rose’s appeal.

      The undisputed evidence is that Ostler and Hendricks received permission

to temporarily switch jobs. The first day they implemented this shift, November

17, 2001, Ostler clocked in as a cocktail waitress. For all subsequent shifts, the

time clock defaulted to Ostler’s usual job code as a bartender, whether Ostler

worked as a bartender or cocktail waitress. Hendricks never clocked in at the

higher-paying bartender rate and continued to be paid as a cocktail w aitress.

Ostler knew she w as being overpaid and did not bring that to management’s

attention. Hendricks was not aware she was being underpaid until she received

notification from the M idnight Rose.

      Disputed is whether M oon told Ostler and Hendricks to clock in with the

appropriate job code each time they switched. Ostler and Hendricks said M oon

                                         -10-
made no mention of this requirement when approving the switch; M oon testified

she emphasized this to them. The ALJ discounted M oon’s testimony, noting “her

strong backing of [the M idnight Rose’s] efforts to blunt union organizing.” (App.

at 15-16.) In addition, the judge found Ostler’s failure to clock in using the

correct job code to be “an honest mistake” (App. at 15) and consistent with her

stated belief that the time clock would retain the last code entered.

      “Credibility determinations are particularly within the province of the

hearing examiner and the Board, and these are generally entitled to affirmance on

review.” Wilhow Corp., 666 F.2d at 1299-1300. “W hen, as here, the NLRB has

referred a matter to an administrative law judge, ‘[his] credibility resolutions

deserve great weight to the extent they are based on testimonial evidence of live

witnesses and the hearing judge has had the opportunity to observe their

demeanor.’” M J M etals Prods., 267 F.3d at 1065 (citation omitted); see also

Cardiovascular Consultants of Nevada, M I, 323 N.L.R.B. 67 n.3 (1977) (“The

Board's established policy is not to overrule an administrative law judge's

credibility resolutions unless the clear preponderance of all the relevant evidence

convinces us that they are incorrect.”). A bsent “extraordinary circumstances,”

this Court will not substitute its view of credibility for that of the ALJ.

Presbyterian/St. Luke’s M ed. Ctr. v. NLRB, 723 F.2d 1468, 1477 (10th Cir. 1983).

The Seventh Circuit has said “extraordinary circumstances” include “a clear

showing of bias by the A LJ, an utter disregard for uncontroverted sworn

                                          -11-
testimony or the acceptance of testimony which on its face is incredible.” Carry

Cos. of Ill., Inc. v. NLRB, 30 F.3d 922, 928 (7th Cir. 1994). W hile we might have

reached a different conclusion, there are no extraordinary circumstances in this

case that would permit us to substitute our view of credibility for that of the ALJ

and the Board.

       In addition to credibility determinations made in favor of the General

Counsel’s case, 5 the Board concluded the M idnight Rose failed to carry its burden

in establishing “that at the time it discharged Ostler, it had a reasonable belief

that she committed theft, i.e., that she knowingly took bartender base wages

without the [M idnight Rose’s] authorization, or by deception, during those times

that she worked as a waitress” and that it “acted on that belief in taking the

adverse employment action against [her].” M idnight Rose, 343 N.L.R.B. at 3.

The Board found “O stler engaged in no deception.” The M idnight Rose’s “failure

to conduct a fair investigation” demonstrated the M idnight Rose did not act on its

belief that Ostler committed theft in discharging her. Id.

       Undisputed facts are: Ostler and Hendricks were given permission to switch



       5
        In refuting a challenge to an ALJ’s “tendency [] to find the testimony of the
unionizing employees more believable and forthright,” we noted “[m]erely because the
Administrative Law Judge believed the employee's story does not furnish reasons to
overturn his credibility determinations. In order for the court to accept the findings of the
Administrative Law Judge it is sufficient for this court that the judge advanced plausible
reasons for his credibility findings.” Wilhow Corp., 666 F.2d at 1300 (internal quotations
and footnote omitted).


                                            -12-
jobs; Ostler clocked in correctly for her first shift as a cocktail waitress;

Hendricks never clocked in as a bartender; and Ostler continued to switch

between jobs over the next several months. The record also reflects M oon and

W enschlag decided on February 12 to terminate Ostler; she was notified of her

termination by Rick Pratt on February 13; and it was only after she alleged her

termination was motivated by her union activities that additional meetings were

scheduled with other management personnel to discuss the termination. This

evidence, coupled w ith the timing of O stler’s discharge and the M idnight Rose’s

commission of other unfair labor practices, is sufficient to support the B oard’s

decision. Ostler was discharged less than one month after the union notified the

casino about the initiation of organizing activities and shortly after management

began suspecting Ostler of being an organizer. See M J M etal Prods., 267 F.3d at

1065 (In evaluating whether an employer has carried its burden, the Board “may

consider factors such as the employer's knowledge of the employee's union

activities, the employer's commission of other unfair labor practices, the timing of

the employer's action, and the credibility of its explanation of the reasons for the

discharge.”); Wilhow Corp., 666 F.2d at 1302 (“Certainly the timing of events is

an important factor in determining the validity of an inference that there has been

a discriminatory firing.”). 6



       6
        With respect to “the employers’ commission of other unfair labor practices,” MJ
Metal Prods., 267 F.3d at 1065, the ALJ found the Midnight Rose violated Section

                                          -13-
      W e find ourselves more persuaded, however, by the dissent, which would

have found the M idnight Rose acted on a reasonable belief that Ostler was

engaged in misconduct. Ostler admitted she knew she was being overpaid, but

“made no effort to correct the situation,” although she freely admitted she would

have brought any underpayment to management’s attention. M idnight Rose, 343

N.L.R.B. at 5 (Schaumber, dissenting). It is undisputed she demonstrated she

knew how to clock in properly; there is evidence she even bragged “she was

probably the best” at clocking in. (R. Vol. I at 247.) Her explanation for her

failure to clock in as a cocktail waitress (with its corresponding lower rate of pay)

for forty-seven shifts over a three-month period of time, i.e. that she believed the

time clock retained the last code entered, was offered for the first time at the

hearing, four months after her termination, a delay which discounts the credibility



8(a)(1) by interrogating employees about union activities, threatening employees with job
loss for seeking union representation, and soliciting an employee to spy on Ostler’s union
activities. All of these violations occurred shortly before Ostler’s discharge. The
Midnight Rose did not file exceptions to the ALJ’s findings in this regard and they were
upheld by the Board. Midnight Rose, 343 N.L.R.B. at 1, 4. Now, however, the Midnight
Rose contends these violations are “irrelevant and tangential” to the issue at hand, and
should not be considered in evaluating whether as an employer it has proven its
affirmative defense. (Petitioner’s Reply Brief at 2 & 2 n.1.) This Court has deemed it
appropriate for the Board to consider a discharge in the context of all of an employer’s
actions, MJ Metal Products, 267 F.3d at 1065, which in this case include the violations of
Section 8(a)(1). “[T]hose findings remain in the case, and we are free to draw upon them
to put the contested violation - [the employee’s] firing - into proper perspective.” E.C.
Waste, Inc. v. NLRB, 359 F.3d 36, 41 (1st Cir. 2004); see also NLRB v. Clark Manor
Nursing Home Corp., 671 F.2d 657, 660 (1st Cir. 1982) (“We note the obvious, that [the
unchallenged activities] do not disappear by not being mentioned in a brief. They remain,
lending their aroma to the context in which the [remaining] issues are considered.”).

                                           -14-
of her explanation. M idnight Rose, 343 N.L.R.B. at 5 (Schaumber, dissenting).

Further discounting this explanation is the fact Ostler shuttled back and forth

between cocktail waitress and bartender during the months of November through

early February. “If Ostler assumed the machine would retain the last-entered job

classification, cocktail waitress, however, why would she fail to override the

machine again to reflect when she working the higher-paid bartender position?”

Id. at 5-6.

       Finally, the M idnight Rose re-evaluated its decision to terminate Ostler

once she alleged her termination was discriminatorily motivated. W hile the

evidence is clear the initial decision was made on February 12, and that Ostler

was told she was terminated on February 13, the record is equally clear that

management personnel met with Ostler twice, decided to think about their actions

over the weekend, and compensated Ostler for that weekend. This evidence

strongly supports the dissent’s position that the M idnight Rose “established by a

preponderance of the evidence that it would have terminated Ostler for theft even

in the absence of her protected concerted activity,” and therefore her discharge

was lawful. Id. at 7.

       Ultimately, the issue is not whether the M idnight Rose “could have

discharged [Ostler] for her actions, but whether it would have done so regardless

of her union activities.” Presbyterian/St. Luke’s M edical Center, 723 F.2d at

1480. But for the narrow constraints which limit our review, we would answer

                                         -15-
this question in the affirmative. Nevertheless, we will not “retry this case on a

cold record.” Ready Mixed Concrete Co., 81 F.3d at 1552.

      2. Enforcement of the order

      The M idnight Rose did not challenge the findings regarding the Section

8(a)(1) violations (threatening and interrogating employees with respect to union

organizing activities). Therefore, the NLRB is entitled to summary enforcement

of its order as to those aspects of this case. M onfort, Inc., 965 F.2d at 1540 n.1.

      W ith respect to the finding that the M idnight Rose violated Section 8(a)(3)

and (1) by discharging Ostler, we hold the Board correctly interpreted and applied

the law, and its factual findings are supported by substantial evidence in the

record as a whole. Thus, enforcement of the order is granted. Presbyterian/St.

Luke's M edical Center, 723 F.2d at 1471.

A FFIRME D.

                                        Entered by the C ourt:

                                        Terrence L. O ’Brien
                                        United States Circuit Judge




                                          -16-
