United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Submitted November 21, 2019        Decided December 20, 2019

                        No. 15-1426

DHSC, LLC, DOING BUSINESS AS AFFINITY MEDICAL CENTER,
                     PETITIONER

                              v.

           NATIONAL LABOR RELATIONS BOARD,
                     RESPONDENT

        NATIONAL NURSES ORGANIZING COMMITTEE,
                     INTERVENOR


                 Consolidated with 15-1499


        On Petition for Review and Cross-Application
               for Enforcement of an Order of
             the National Labor Relations Board


     Bryan T. Carmody and Kaitlin A. Kaseta were on the briefs
for petitioner.

    Peter B. Robb, General Counsel, National Labor Relations
Board, David Habenstreit, Acting Deputy Associate General
Counsel, Elizabeth Heaney, Supervisory Attorney, and Barbara
A. Sheehy, Attorney, were on the brief for respondent.
                                -2-

     Nicole J. Daro and Carol A. Igoe were on the brief for
intervenor National Nurses Organizing Committee in support of
respondent.

    Before: GARLAND, Chief Judge, GRIFFITH, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.

    Opinion for the Court filed by Chief Judge GARLAND.

     GARLAND, Chief Judge: DHSC, LLC operated Affinity
Medical Center, a hospital in Massillon, Ohio. Seven years ago,
Affinity’s registered nurses voted to unionize. The National
Labor Relations Board found that Affinity committed four unfair
labor practices in the following months by: (1) disciplining,
firing, and reporting to the state nursing board a pro-union
nurse; (2) excluding a union organizer from the hospital; (3)
threatening nurses who filled out union complaint forms; and (4)
refusing to bargain with the union. DHSC, LLC, 362 N.L.R.B.
654 (2015). Because the Board’s determinations with respect to
the first three charges are supported by substantial evidence, and
because we are without jurisdiction to review the only defense
that Affinity raises to the refusal-to-bargain charge, we deny
Affinity’s petition for review and grant the Board’s cross-
application for enforcement.1

                                  I

    The principal unfair labor practice charge arises out of
Affinity’s adverse actions against a pro-union nurse soon after
the union election. The election, which the union won, took


    1
      This petition for review and cross-application for enforcement
were considered on the record from the National Labor Relations
Board and on the briefs of the parties. See FED. R. APP. P. 34(a)(2);
D.C. CIR. R. 34(j).
                               -3-

place on August 29, 2012. That same day, Affinity began an
investigation that led to the firing of Ann Wayt, a 23-year
veteran of Affinity with no prior disciplinary record. See DHSC,
362 N.L.R.B. at 660 & n.8. Affinity alleged that Wayt failed to
conduct a head-to-toe exam or round on a patient but recorded
that she did so in the patient’s chart. The next week, Affinity
gave Wayt a written warning for an unrelated, alleged failure to
correct a discrepancy in a medication-storage system. On
September 26, 2012, Affinity fired Wayt and reported her to the
Ohio Board of Nursing for the exam and recording incident.

     The union filed an unfair labor practice charge alleging that
Wayt’s disciplinary warning, firing, and reporting were
retaliation for her union support. An Administrative Law Judge
(ALJ) and the National Labor Relations Board agreed.2 Without
deciding the validity of the allegations against Wayt, the Board
concluded that Affinity’s actions were retaliatory in light of
“strong circumstantial evidence[,] . . . including the timing of
discipline, the inadequate and indifferent nature of [Affinity’s]
investigation of Wayt’s alleged misconduct, disparate treatment,
and the pretextual nature of the allegations against her.” DHSC,
362 N.L.R.B. at 654 n.4.

     The second unfair labor practice charge stems from a letter
sent by union organizer Michelle Mahon in Wayt’s defense.
That letter gave Wayt’s account of the exam and recording
incident, and included the patient’s room number and other
details but not the patient’s name. Affinity’s patient privacy
officer, Patricia Kline, concluded that Mahon violated the Health
Insurance Portability and Accountability Act (HIPAA) by


    2
      The Board adopted the ALJ’s findings and conclusions with
minor modifications not relevant here. See DHSC, 362 N.L.R.B. at
654 & nn.3-4. For simplicity, this opinion attributes the ALJ’s
findings and conclusions to the Board.
                               -4-

copying union officials on the letter. Thereafter, Affinity
banned Mahon from hospital grounds. The Board concluded
that, even if Mahon had violated HIPAA, the extent of her
punishment was discriminatorily motivated. DHSC, 362
N.L.R.B. at 654 n.4.

      The third unfair labor practice charge involves union-issued
complaint forms. The union encouraged nurses to use these
forms to “work collaboratively” and “speak up together” about
unsafe hospital practices. Hr’g Tr. 478 (J.A. 202). Hospital
supervisor Susan Kress did not take kindly to the forms.
According to Kress herself, she stood in her unit and said: “I
feel like slapping these on your forehead so you can walk
around and look how stupid you look with them.” Id. at 684
(J.A. 257). According to another nurse, Kress said: “[I]f you
fill out one of these forms, I’m going to smash it through your
forehead.” Id. at 409 (J.A. 176). That nurse also recounted
other retaliation and threats Kress made to nurses who filled out
the forms. The union contended that this, too, was an unfair
labor practice, and the Board agreed.

    The fourth unfair labor practice charge is that Affinity
refused to bargain with the union, which the Board certified on
October 5, 2012. Affinity acknowledges that it refused to
bargain. Answer 4 (J.A. 30). It did so intentionally, in order to
challenge the union’s certification in the unfair labor practice
proceeding. Affinity Br. 7; see Oberthur Techs. of Am. Corp. v.
NLRB, 865 F.3d 719, 723 (D.C. Cir. 2017). The Board
concluded that the union was properly certified, making
Affinity’s refusal to bargain an unfair labor practice.

                                II

    Affinity’s petition largely comes down to an attack on the
Board’s factual conclusions. We “must uphold the judgment of
                              -5-

the Board unless, upon reviewing the record as a whole, we
conclude that the Board’s findings are not supported by
substantial evidence, or that the Board acted arbitrarily or
otherwise erred in applying established law to the facts of the
case.” Am. Baptist Homes of the W. v. NLRB, 858 F.3d 612, 614
(D.C. Cir. 2017) (internal quotation marks omitted). Substantial
evidence is not a high bar. “It means -- and means only -- such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148,
1154 (2019) (internal quotation marks omitted).

    The Board’s decision easily clears that bar.

     1. First, the Board properly concluded that Affinity
committed an unfair labor practice by disciplining, firing, and
reporting Wayt. To determine whether employee discipline
constitutes an unfair labor practice, we apply the Board’s Wright
Line test. See Wright Line, a Div. of Wright Line, Inc., 251
N.L.R.B. 1083 (1980). To state a prima facie case, the Board’s
General Counsel must show: (1) that the employee engaged in
protected activity; (2) that the employer knew about that
activity; and (3) that “the protected activity was a motivating
factor in the employer’s decision to take adverse action.” Inova
Health Sys. v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 2015) (internal
quotation marks omitted). The employer can rebut this case by
showing that “it would have taken the same action in the
absence of the unlawful motive.” Id. (internal quotation marks
omitted).

    The first two elements of Wright Line are established by the
undisputed facts that Wayt’s name and photograph prominently
appeared on a pro-union flyer (as well as on a poster in the
cafeteria) in the week before the election and that two key
managers involved in her warning and firing knew about Wayt’s
pro-union activity. Hr’g Tr. 116-17, 151, 423-24 (J.A. 99-100,
                               -6-

110, 179-80); Flyer (J.A. 436). To show motive, the Board
focused on the timing of the adverse actions, the inadequate
investigation, and disparate treatment. All of those are relevant
under our precedents. See Inova, 795 F.3d at 82-84; Tasty
Baking Co. v. NLRB, 254 F.3d 114, 126 (D.C. Cir. 2001);
Vincent Indus. Plastics, Inc. v. NLRB, 209 F.3d 727, 737 (D.C.
Cir. 2000).

     The Board’s determination about motive is supported by
substantial evidence. Affinity initiated the investigation that led
to Wayt’s firing the very day of the union election; the
medication-storage incident that led to the written warning took
place the next day. DHSC, 362 N.L.R.B. at 662, 663. With
respect to Wayt’s written warning, the Board noted that Wayt
did not violate any hospital policy and that other nurses were not
disciplined for similar conduct. Id. at 670. With respect to the
firing and reporting, the Board found that Affinity had no basis
for concluding that Wayt did not perform the head-to-toe exam
when it decided to fire her, delayed interviewing a key witness
until after it decided to fire her, and repeated a false claim that
Wayt did not enter the patient’s room for three hours. Id. at
661-62, 664-66.

     The Board also found that Affinity treated Wayt unusually
harshly. A nurse who faced similar allegations of omitting and
misrepresenting care received only a warning. Id. at 667. In
fact, the only other nurse fired or reported to the Ohio Board of
Nursing for a first offense had taken a photograph of a deceased
patient after the patient’s eyeballs were removed for
transplantation. Id. Collectively, this circumstantial evidence
provides substantial support for the Board’s determination that
Affinity discriminatorily punished Wayt.

     To rebut this determination, Affinity must show that, but for
anti-union animus, “it would have fired the employee, not that
                                -7-

it could have done so.” Bally’s Park Place, Inc. v. NLRB, 646
F.3d 929, 937 n.5 (D.C. Cir. 2011) (internal quotation marks and
alterations omitted). Affinity argues only that it had a valid
basis for firing Wayt -- in other words, that it could have done
so. In light of the Board’s careful analysis, its conclusion that
Affinity committed an unfair labor practice in disciplining,
firing, and reporting Wayt is supported by substantial evidence.

     2. The Board’s conclusion that Affinity excluded Mahon
from its property out of anti-union animus is also supported by
substantial evidence. Under Board law, “selectively and
disparately denying nonemployee union organizers access” to a
facility is an unfair labor practice. S. Md. Hosp. Ctr., 293
N.L.R.B. 1209, 1216 (1989). Kline, Affinity’s privacy officer,
testified that she would normally issue a verbal warning in this
situation. Hr’g Tr. 1160 (J.A. 363). But when asked whether
the letter “raised a different problem” because it “was sent to the
individuals it was sent to,” she responded that “it increased the
exposure of the violation.” Id. That testimony is ambiguous.
She could have meant that Mahon’s letter was worse because it
went to people outside the hospital, or she could have meant that
it was worse because it went to union officials. Affinity
contends that Kline meant the former. The Board concluded
that she meant the latter. On substantial evidence review, we
defer to the Board’s reasonable reading of the testimony.

    3. Affinity does not dispute that Kress, the hospital
supervisor, threatened and retaliated against nurses who filled
out the union-issued complaint forms.3 Instead, its sole


    3
       The Board adopted the ALJ’s findings that Kress “threaten[ed]
to plaster [the] forms on the forehead of any employee who submitted
such a form; more closely scrutiniz[ed] patient charts; stat[ed] how
much she would enjoy disciplining a prominent union supporter; and
retaliat[ed] against employees whom she suspected of submitting [the]
                                -8-

argument in this court is that those forms did not constitute
protected activity because they were outside the hospital’s usual
reporting system. But it is an unfair labor practice to retaliate
against employees for engaging in “concerted activities for the
purpose of . . . mutual aid or protection,” 29 U.S.C. § 157; see
id. § 158(a)(1), even if those activities “ignored an employer’s
chain of command,” Yellow Enter. Sys., 342 N.L.R.B. 804, 821
(2004). The complaint forms, which the nurses used to “speak
up together” about unsafe hospital practices, Hr’g Tr. 478 (J.A.
202), plainly constitute such a concerted activity.

     4. Finally, the only defense that Affinity raises in this court
to the refusal-to-bargain charge (a defense that it also raises with
respect to the other three charges) is that the Board’s Acting
General Counsel lacked authority to prosecute the complaint
because his continued service was invalid under either the
National Labor Relations Act, 29 U.S.C. § 153(d), or the Federal
Vacancies Reform Act, 5 U.S.C. § 3345(b)(1); see Sw. Gen.,
Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), aff’d, 137 S. Ct. 929
(2017). Those contentions need not detain us because Affinity
did not raise them before the Board. As a consequence, we lack
jurisdiction to consider them. 29 U.S.C. § 160(e); H&M Int’l
Transp., Inc. v. NLRB, 719 F. App’x 3, 4 (D.C. Cir. 2018). The
Board’s sua sponte discussion of the Acting General Counsel’s
authority, DHSC, 362 N.L.R.B. at 654 n.1, does not excuse
Affinity’s failure to raise the issue on its own. HTH Corp. v.
NLRB, 823 F.3d 668, 673 (D.C. Cir. 2016); Contractors’ Labor
Pool, Inc. v. NLRB, 323 F.3d 1051, 1061 (D.C. Cir. 2003).




forms by reducing the number of nurses in the intensive care unit.”
DHSC, 362 N.L.R.B. at 654 n.2.
                                 -9-

                                  III

     For the foregoing reasons, we deny Affinity’s petition for
review and grant the Board’s cross-application for enforcement.4

                                                         So ordered.




     4
        Affinity advises us that its Massillon, Ohio facility closed in
March 2018, nearly three years after the Board’s decision. We leave
it to the Board to determine in compliance proceedings how its order
can be carried out. See Bolivar Tee’s Mfg. Co. v. NLRB, 61 F. App’x
711, 711 (D.C. Cir. 2003); Cap Santa Vue, Inc. v. NLRB, 424 F.2d
883, 886 (D.C. Cir. 1970).
