In the
United States Court of Appeals
For the Seventh Circuit

Nos. 00-2040 & 00-2289

L.S.F. Transportation, Inc., a/k/a L.S.F.
Trucking, Inc.,

Petitioner/Cross-Respondent,

v.

National Labor Relations Board,

Respondent/Cross-Petitioner.

Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
Nos. 13-CA-33256, 13-CA-33289, 13-CA-33374-2,
13-CA-33385, 13-CA-33417, 13-CA-33511 & 13-CA-33539.

Argued November 29, 2001--Decided March 11, 2002


  Before Coffey, Easterbrook, and Ripple,
Circuit Judges.

  Coffey, Circuit Judge. This petition
asks us to review whether L.S.F.
Transportation, Inc. (LSF or
company)violated the National Labor
Relations Act, 29 U.S.C. sec. 151 et seq.
by unlawfully terminating employees in
retaliation for their union activity. The
National Labor Relations Board concluded
that LSF violated sec.sec. 8(a)(1) and
(3) of the Act by engaging in an anti-
union campaign of harassment and
intimidation and by discharging seven
employees because it believed they had
taken steps to organize a union to
represent LSF employees. LSF now
petitions for review of the Board’s
order, contesting its findings as to four
of the discharged employees; the Board
has filed a cross-application requesting
enforcement of its order. We deny the
petition for review and grant enforcement
of the Board’s order.

I.   Factual Background/1
A.   The Union Campaign

  LSF maintains and operates a trucking
operation in Hammond, Indiana, and is
owned and operated by the Faure family,
with Amy Faure serving as its president.
LSF’s day-to-day operations are managed
by Operations Manager Scott Belt. Other
LSF managerial personnel include Craig
Crohan, the vice president of operations;
Bill Burnson, manager; Jerry Helton,
comptroller; and Valerie Day, LSF’s
dispatcher.

  On March 20, 1995, the International
Brotherhood of Teamsters, Local 42, AFL-
CIO (union) began a campaign to organize
LSF’s drivers. By the next day, 12 out of
18 LSF drivers had signed petitions
authorizing the union to represent them
for the purposes of collective
bargaining, and on March 22 the union
filed a petition requesting a
representation election with the NLRB,
which was scheduled for April 29, 1995.

  LSF was none too thrilled with the
possibility of its drivers unionizing and
upon learning of the campaign it launched
an admittedly unlawful counter-campaign,
comprised of both oral and written
intimidation coupled with acts of
harassment, in an attempt to convince its
drivers to reject the union. In the month
preceding the election, LSF officials
coercively interrogated several employees
about their union support and activity.
The company interspersed its questions to
its employees with threats of plant
closure, loss of jobs, discharge and
other reprisals. For example, LSF
dispatcher, Valerie Day, told employees
that President Faure would close down the
company if the employees unionized.
Operations Manager Belt repeated Day’s
warning and told one employee that he
"did not know how much damage a union
could do to the company and that a union
at LSF could mean [his] job."

  Other reprisals were more tangible. On
March 27, 1995, a week after the union
campaign had begun, the company revoked
its policy of allowing drivers to get
cash advances with a company credit card.
Two weeks later, the company accompanied
the cash order with new, more
restrictive, work rules for the drivers.
On April 25, Faure issued a letter to
employees entitled "What Will Local 142
Bring to the Table," which threatened
that wages and benefits would be frozen
if the union were selected as their
collective-bargaining representative and
further advised the employees that they
were "gambling with" their wages and
benefits.

  The most serious of LSF’s reprisals, and
those at issue in this appeal, were the
adverse actions taken by the company
against the employees who had chosen to
sign the petition. Seven out of twelve of
the employees who signed the petition
were terminated by LSF either shortly
before or shortly after the April 29,
1995, election. Six of the seven
terminated employees also received
temporary layoffs or suspensions, work
reassignments, or disciplinary warnings
shortly before their discharge. LSF now
concedes that its pre-election anti-union
campaign was unlawful. In addition, LSF
no longer disputes that it unlawfully
terminated three union supporters (Mark
Hasse, Michael Dooley, and Ron Holland)
in retaliation for their union
activities. LSF does argue, however, that
the termination or constructive discharge
of four other employees (Dennis Hill,
Walter Michaels, William Owens, and John
Kawa) did not violate the NLRA.

B.   Dennis Hill

  In March 1994, roughly a year before the
drivers commenced their union-organizing
activity, Dennis Hill suffered a seizure
while making a delivery and was hospital
ized for two days. Hill’s neurologist
authorized him to return to work a few
days later, on March 14, 1994. Upon
returning to work, Hill was advised by
the former operations manager that he was
required to submit a medical
certification to clear him to drive,
pursuant to Department of Transportation
(DOT) regulations. Hill scheduled a phys
ical at the Hammond Clinic that revealed
him to be in "good general health," and
he received a valid medical certification
that allowed him to continue driving for
a 2-year period. LSF paid some of Hill’s
medical bills arising from his hospital
stay and subsequent physical examination.

  On March 20, 1995, Hill made the initial
contact with the union on behalf of the
drivers, requesting information regarding
union representation. Hill later
circulated and signed the petition
requesting that the union represent the
drivers for purposes of collective
bargaining and also frequently wore a
union button at work. But on March 21,
1995, immediately after Hill began his
organization efforts, dispatcher Day
questioned Hill about his union activity.
Among other things, Day warned Hill that
Faure would "close the doors" if she
found out they were trying to unionize.

  A few days after Hill’s conversation
with Day, LSF reassigned him from driving
primarily long-haul runs to short-haul
runs, resulting in a drop in Hill’s
weekly earnings. Around the same time,
LSF also transferred other employee’s
routes from short-haul runs to long-haul
runs. Manager Belt then asked Hill to
sign a document acknowledging that LSF
had advanced him money to cover his 1994
medical expenses and committing Hill to
payroll deductions to reimburse it for
the medical expenses in the amount of
$200/month. Hill refused to sign the
document.

  On April 12, 1995, LSF informed Hill
that it was required to place him on
medical leave and directed him to obtain
a second medical certification to
continue driving. Belt advised Hill that
DOT regulations required that he place
Hill on medical leave due to his history
of seizures, and Belt produced a letter
in support from Dr. Feldman, the director
of the Hammond Clinic where Hill had
received a physical examination and DOT
certification the year before. The letter
began "[t]o confirm a discussion you had
with Kelly from my office this morning,
the two drivers in question with the
history of seizures and chest pains
should not be driving until released to
return to work after complete
evaluations." The letter failed to
mention Hill by name, much less explain
why Belt had contacted the clinic in the
first instance when Hill had submitted a
two-year medical certification a year
earlier.

  At the conclusion of his meeting with
Belt, Hill asked if he would still have a
job after this, and Belt responded in the
affirmative. Hill began to arrange for a
medical examination during the following
week. On April 13, Belt telephoned Hill
and informed him that he was "a little
confused" about how Hill was going to
vote in the upcoming election. Hill
responded that he had no comment.

  On August 7, 1995, several months after
the election and while Hill was still on
medical leave, LSF informed Hill to
report to work on August 28, 2001, with a
current certified DOT license or he would
be presumed to have resigned. Hill was
unable to secure a medical certification
until September 22. After he obtained his
certification, Hill chose to work for
another employer, rather than return to
LSF.

C.   Walter Michaels

  Unlike Hill, Walter Michaels worked
primarily short-haul runs (those within a
120-mile radius of LSF’s facility) since
he was hired in 1992. Michaels’s
preference for making short-haul runs was
well known throughout LSF. In November
1994, LSF was awarded a contract to
deliver beer within a three-state area
and management asked Michaels to agree to
make some long-haul runs. Michaels
agreed, but only after receiving
assurances from Belt and Day that he
would be reassigned primarily to short-
haul runs when additional drivers were
hired to make the long-haul runs
generated by the November 1994 contract
mentioned above. Michaels made sporadic
long-haul runs from November 1994 through
January 1995 and then returned to short-
haul runs.

  On March 20, 1995, Michaels signed the
petition for the union. The next day, Day
asked him how the meeting had gone, and
he responded simply "okay." On March 27,
Michaels made a short run and after
completing it he returned home. Day
telephoned him at home to ask if he would
take a long run to Detroit, Michigan that
evening. Michaels declined, stating that
he had already worked a full day and did
not believe that DOT regulations
permitted him to drive to Detroit because
he had just completed a run earlier in
the day. A short time later, Day called
Michaels again and asked him to
reconsider, and Michaels once again
declined. Next Belt asked Michaels to
take the run, and when Michaels declined
Belt suspended him for two days.

  Following his suspension, Michaels went
on medical leave to undergo surgery for
an inguinal hernia. Shortly after
Michaels began his leave, Manager Burnson
asked him how he intended to vote in the
election, to which Michaels informed
Burnson that it was "none of [his]
business." When Michaels returned to work
on May 15 just two weeks after the
election, LSF dispatched him on three
consecutive long-haul runs, despite its
knowledge of Michaels’s desire to do
short-haul runs exclusively, knowledge of
Michaels’s recent surgery, and Michaels’s
repeated protests that he desired to be
assigned to short-haul runs only. At the
time, LSF provided Michaels with no
explanation why it reassigned him from
short-haul runs to long-haul runs. Upon
being informed that his next run would
likewise be a long-haul run, Michaels
telephoned his wife and they decided that
LSF was intentionally assigning him to
long-haul runs and that the assignments
would continue. Michaels informed Belt
that he was quitting because his body
could not handle the hours he had been
asked to work since his return from
medical leave and he did not want to risk
an accident.

D.   William Owens

  William Owens began working for LSF as
a driver in 1993. Owens’s commercial
driver’s license was a class B license,
rather than a class A license, meaning
that he was limited to driving straight
trucks only and was not licensed to drive
tractor-trailers. In December 1994, LSF
issued a memorandum advising drivers that
they would have to secure class A
licenses by January 15, 1995. Owens met
with Belt in early January, and Belt
assured him that he would not be required
to obtain a class A license in order to
preserve his job with LSF.

  Roughly two months later, on March 21,
1995, Owens signed the petition in
support of the union. While the election
was still pending, Owens received a
memorandum from the company on May 8,
1995, informing him that he had to secure
a class A license by May 19 and that
failure to comply would "result in
disciplinary action." Given the amount of
training required, it would have been
impossible for Owens to secure a class A
license in 11 days. On May 19, management
declined to dispatch Owens without a
class A license, and when Owens sought
clarification of his status, Belt
directed him to return all company
equipment, effectively discharging him.

E.   John Kawa
  John Kawa began to work for LSF in
September 1994, and worked primarily on
runs to and from Frank’s Nursery and
Crafts, which had locations in Indiana,
Michigan, and Kentucky. In January 1995,
Kawa enjoyed the runs to Frank’s and
became concerned that other employees
might be assigned runs to Frank’s. Kawa
asked for and received assurance from
Belt that he would not be taken off those
runs. But on March 22, one day after Kawa
signed the union petition, LSF assigned
him to a different route and thereafter
sharply reduced the number of Frank’s
assigned runs.

  On April 30, the day after the election,
Kawa was cited for speeding and given a
breathalyser test, which revealed that
Kawa had a .009 blood-alcohol
concentration (BAC). Kawa received a
second citation for having a detectable
amount of alcohol on his breath, but did
not receive a DUI citation, which
requires a .04 BAC. The Michigan officer
confiscated Kawa’s license to serve as a
cash bond to ensure that the fine imposed
would be paid. Upon informing Day about
the citations, Kawa was told to return to
LSF’s Hammond facility to meet with Belt.

  Belt suspended Kawa pending the return
of his license, instructing Kawa to
notify him when his license was returned
because he would "probably go back to
work." Kawa paid his fine and his license
was returned around May 18, 1995. On May
23, Kawa was informed by Belt that in
light of his citations LSF was required
to terminate him.

F. The ALJ’s Decision and The Board’s
Conclusions and Order

  In August 1995, the union filed charges
against LSF claiming that it had violated
sec.sec. 158(a)(1) & (3) & (5) of the
NLRA, which prohibits employers from
interfering with, restraining, or
coercing employee efforts to organize or
bargain collectively and discriminate
against employees based upon their
membership in a labor organization. The
union contended that LSF violated the Act
when it interrogated and harassed
employees regarding their union activity
when it imposed more restrictive work
rules, and when it discharged seven union
supporters. An administrative law judge
(ALJ) held a six-day hearing and both the
union and the company presented witness
testimony as well as written evidence in
support of their respective positions.

  The ALJ made extensive findings of fact
and issued a 53-page decision. In short,
the ALJ found that the company’s pre-
election campaign of harassment violated
sec.sec. 158(a)(1) & (3) & (5) of NLRA
and that the terminations of the
employees, as well as their changes in
assignments or constructive discharge, of
Mark Hasse, Ron Holland, Michael Dooley,
Dennis Hill, Walter Michaels, William
Owens, and John Kawa were in violation of
the Act. Much of the ALJ’s decision
rested upon his findings that discredited
the testimony of LSF officials while
crediting that of the employees.

  LSF appealed the ALJ’s decision to the
National Labor Relations Board, excepting
to the ALJ’s determination that its pre-
election conduct violated sec. 158(a)(1)
and to the determination that its conduct
towards Hill, Michaels, Owens, Kawa, and
Hasse violated sec. 158(a)(3)./2 The
Board affirmed the ALJ’s rulings and
findings with some modifications not
relevant to this appeal, with one member
dissenting with regard to the Board’s
affirmance of the portion of the ALJ’s
ruling concerning Kawa and Michaels. LSF
requests us to review the Board’s action
in affirming the ALJ.

II.    Issues

  LSF argues that the Board erred in
determining that the company had violated
the NLRA with regard to its treatment of
and actions toward the active union
organizers Dennis Hill, John Kawa, Walter
Michaels, and William Owens.

III.    Analysis

A.    Standard of Review

  The standard governing our review of
unfair labor practice proceedings before
the Board is well-established. We ask
only whether the Board’s decision is
supported by substantial evidence and
whether its legal conclusions have a
reasonable basis in law. Multi-Ad
Services, Inc. v. NLRB, 255 F.3d 363, 370
(7th Cir. 2001). Substantial evidence in
this context means such relevant evidence
that a reasonable mind might accept as
adequate to support the conclusions of
the Board. Id. The presence of
contradicting evidence is not of
consequence as long as substantial
evidence supports the Board’s decision.
Beverly California Corp. v. NLRB, 253
F.3d 291, 294 (7th Cir. 2001). Further,
we defer particularly to the Board’s
findings regarding credibility, which
cannot be disturbed absent extraordinary
circumstances. Id. Indeed, we refuse to
interfere with the Board’s choice between
two permissible views of the evidence,
even though we may have decided the
matter differently had the case been
before us de novo. Multi-Ad Serv., Inc.,
255 F.3d at 371. This deferential
standard of review is appropriate in
light of Congress’ intent to confer upon
the Board broad authority to develop and
oversee national labor policy. Id.

  Section 8(a)(3) of the Act makes it an
unfair labor practice for an employer "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. . . ." 29 U.S.C. sec.
158(a)(3). An employer violates this
provision when it threatens an employee
with shop closure or discharge or
interrogates an employee coercively in
order to discourage union activity.
Multi-Ad Serv., Inc., 255 F.3d at 371.
Likewise an employer violates this provi
sion "’when it purposefully creates
working conditions so intolerable that
the employee has no option but to resign-
-a so-called constructive discharge.’"
Canteen Corp. v. NLRB, 103 F.3d 1355,
1365 (7th Cir. 1997) (quoting Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 894 (1984)).

  In determining whether an employee’s
discharge is unlawful under sec. 8(a)(3)
of the NLRA the employer’s "motivation is
paramount." NLRB v. Bestway Trucking,
Inc., 22 F.3d 177, 180 (7th Cir. 1994).
We employ a burden-shifting framework to
determine whether an employer’s action
and motive in terminating an employee was
lawful. Within this framework, once it is
shown that an employee’s union or
protected activity was a motivating
factor in the employer’s decision to take
adverse action against him, the employer
then has the burden of demonstrating that
"it would have taken the same action even
in the absence of protected activity."
Id.; see also Multi-Ad Serv., Inc., 255
F.3d at 371.

  On appeal LSF challenges the Board’s
findings that it discharged (or
constructively discharged) Dennis Hill,
Walter Michaels, William Owens, and John
Kawa. The company does not contest the
remainder of the Board’s findings. We
therefore summarily affirm those portions
of the Board’s order dealing with LSF’s
pre-election conduct and the discharge of
three other employees (Mark Hasse,
Michael Dooley, and Ron Holland).

B.   Dennis Hill

  LSF argues that the Board’s conclusion
that it unlawfully discharged Dennis Hill
because of his union activity is not
supported by substantial evidence. The
essence of the company’s argument is that
it was required to discharge Hill because
he had "serious medical problems" that
caused his DOT license to "come[ ] into
question." In support, LSF submits that
it received a letter from Dr. Feldman,
its DOT physician, advising it that
drivers with histories of seizures and
chest pain should not be driving until
released to work after complete physicals
and evaluation.

  But the ALJ found and the Board affirmed
that Hill had undergone a physical
examination, at the Hammond clinic where
Dr. Feldman was employed on April 7,
1994, and that the results of the
examination and corresponding clearance
for employment as a driver were valid for
two years. The record reflects that LSF
failed to submit any evidence to suggest
that one year after this examination it
had any valid reason to became genuinely
concerned about Hill’s medical status.
Furthermore, it failed to offer any
evidence in support of its implied theory
that Hill’s seizures had recurred or
worsened during the course of the
intervening year, much less any
explanation why the medical certification
obtained by Hill one year earlier was
insufficient.
  Further, the ALJ ruled that it was
"firmly convinced that Belt set up the
chain of events which led Dr. Feldman to
unwittingly issue his letter, thereby
providing Belt with an excuse to rid
himself, once and for all, of one of the
union’s most ardent supporters. For these
reasons, I place no credence in Dr.
Feldman’s letter." LSF has not devoted
even a sentence in its brief to the ALJ’s
credibility determination, and instead
continues to insist without any support
in the record that it discharged Hill
because he did not have the required
medical certification. The Board affirmed
the ALJ’s findings with regard to Dennis
Hill and LSF has failed to offer a
scintilla of evidence to suggest any
"extraordinary circumstances" that would
have warranted setting aside the ALJ’s
credibility determination finding that
Belt was responsible for setting up a
chain of events that culminated in Dr.
Feldman’s letter and the Board’s finding
of fact that Belt contrived to secure Dr.
Feldman’s letter in order to provide him
with an excuse to terminate Dennis Hill.
See J.C. Penney Co. v. NLRB, 123 F.3d
988, 995 (7th Cir. 1997). After review,
we agree that the record reflects a
substantial amount of evidence in support
of the Board’s and the ALJ’s finding that
Belt’s sudden concern with Hill’s medical
status was a pretext to discharge him in
retaliation for his union activity.

C.   Walter Michaels

  LSF offers a number of explanations for
its actions with regard to Walter
Michaels./3 Initially, the company
argues that Michaels voluntarily chose to
resign from his position at LSF and
further that he was not constructively
discharged. In support, the company
argues that Michaels returned to work
after hernia surgery on May 15 with a
medical clearance that allowed him to
work without restriction. LSF suggests
that it assigned Michaels to three
consecutive long-haul runs between May 15
to May 18 because the number of short-
haul runs needed by LSF’s customers had
decreased.
  But Michaels’s interest in making only
short-haul runs was common knowledge in
the company for sometime. Indeed, when
Michaels agreed to make infrequent and
intermittent long-haul runs from November
1994 to January 1995 (before his union
activity) because the company had
developed a sudden increase in long-haul
runs at that time. He did so only after
receiving assurances from management that
he would be reassigned to short-haul runs
upon the company’s hiring of additional
drivers. The company’s suggestion that
Michaels was amenable to being assigned
to long-haul runs simply lacks factual
support in the record.

  Furthermore, the unusual timing and
suspicious circumstances surrounding
Michaels’s unanticipated and unexpected
reassignment to the long-haul runs in
spite of his well-known preferences and
recent medical problems further suggest
that it was done in retaliation for his
union activity. For example, LSF’s
questions towards Michaels regarding his
union activity prior to the election can
be classified as coercively
interrogating. In addition, shortly
before the election LSF suspended
Michaels for two days after he refused a
long-haul assignment (the unlawfulness of
which LSF does not challenge in this
petition), and in so doing made its
intentions clear that it would assign
Michaels to long-haul runs regardless of
his desire to avoid them. The ALJ further
found that when LSF ultimately reassigned
Michaels to three consecutive long-haul
runs it failed to provide him with any
reason for its decision.

  LSF argues that Michaels’s assignment to
long-haul runs only minimally changed the
conditions of his employment and that
because after his hernia surgery he was
medically cleared (May 15) to work
without restrictions, its decision to
reassign Michaels to long-haul runs could
not support a constructive discharge. But
there is no question that long-haul runs
are certainly more strenuous, taxing, and
difficult on the human body and mind and
require drivers to spend nights away from
home, many sleeping in the cramped
compartments of their tractor trailers.
See Bestway Trucking, Inc., 22 F.3d at
181. In the past we have found that an
employer’s sudden reassignment of an
employee from short-haul runs to long-
haul runs, contemporaneous with anti-
union actions or comments made by
management, suffices to create an
intolerable working condition for the
reassigned employee. Id. Accordingly, we
agree with the Board that the record
contains substantial evidence in support
of the ALJ’s determination that LSF
constructively discharged Michaels.

D.   William Owens
  LSF insists that it had no choice other
than to fire William Owens because of
Owens’s failure to obtain a class A CDL,
which would allow him to operate tractor
trailers in addition to straight trucks.
But the ALJ found that Belt met with
Owens and another LSF employee, Bill
Sadler, in January 1995 and assured Owens
that "he would protect him from having to
get his class A license, and further
offered to give him a written statement
guaranteeing he would not have to drive a
tractor trailer." LSF does nothing to
refute the ALJ’s finding that Belt
assured Owens he would not be required to
obtain a class A CDL, and in fact
references it in its own argument.
Further testimony from Sadler before the
ALJ corroborated the conversation between
Belt and Owens, and Sadler testified that
Owens told Belt that he had "no
intentions of getting a class A license"
and asked whether he was in danger of
losing his job to which Belt responded in
the negative.

  But on May 8, a mere 10 days after the
union election, Owens received a
memorandum from Belt advising him that he
had but 11 days to obtain the class A
license. Owens testified that it would be
a practical impossibility to learn the
skills and complete the paperwork
necessary to obtain a class A license in
11 days. When Owens arrived at work on
May 19, 1995 he was informed by Belt that
he could not be dispatched on any
assignments for LSF without a class A
CDL. Owens asked whether he should turn
in his LSF equipment, and Belt directed
him to do so and his services were
terminated.

  The ALJ found Owens’s testimony that
Belt had assured him in January that he
need not secure a class A CDL to be
credible. The ALJ further found that LSF
managers made many anti-union comments to
Owens before the election, and that its
decision to terminate him 10 days after
the union election for failing to obtain
a class A CDL was motivated by Owens’s
union activity. LSF for the first time in
this appeal, advances the argument that
it had eliminated all of its straight
trucks and therefore it had no vehicles
that Owens was licensed to drive. We
observe, as we have before, that LSF’s
argument fails once again as required by
Circuit Rule 28 to point us to any part
of the record in support of its claim.
Furthermore, we observe that according to
the record before us LSF never advanced
this non-discriminatory reason for
Owens’s discharge before the Board, and
therefore, has waived it. NLRB v. Alwin
Mfg. Co., 78 F.3d 1159, 1162 (7th Cir.
1996). In short, LSF fails to make any
argument whatsoever as to why we should
set aside the ALJ’s credibility
determinations that support his
determination that the company unlawfully
terminated Owens. Given the timing of
Owens’s firing, LSF’s knowledge of
Owens’s union support, and LSF’s
extensive anti-union tactics, we agree
with the Board that LSF terminated Owens
because of his union activity.

E.   John Kawa

  Finally, the company argues that it
discharged John Kawa for non-
discriminatory reasons. On May 1, 1995,
two days after the union election, Kawa
received two driving citations, one for
speeding and one for having a "detectable
amount" of alcohol on his breath./4 The
police officer made it a point to inform
Kawa that he was not being cited for
driving under the influence (which
required a BAC more than four times
greater than Kawa’s) and furthermore that
the citation for having a detectable
amount of alcohol would not be reflected
on his driving record.

  LSF placed Kawa on suspension, pending
"further investigation," while he awaited
the return of his license, which had been
seized as bail bond at the time he was
issued citations. Several LSF
administrators assured Kawa that he would
return to work when he received his
license. On May 23, 1995, more than three
weeks after the citations were issued,
LSF decided to discharge Kawa, allegedly
because of his citation three weeks
earlier for having a detectable amount of
alcohol on his breath when operating a
company vehicle. According to LSF, its
attorney advised it that it would be in
violation of DOT regulations if it were
to allow Kawa to continue driving, and
thus it had no alternative but to
discharge him. But we are unable to
discern any such requirement among the
regulations. The DOT regulations only
provide for the disqualification of a
driver who drove with an alcohol
concentration of .04 percent or more, and
we are confident that they certainly did
not direct LSF to fire John Kawa for
having a BAC of .009. 49 C.F.R. sec.
391.15 LSF’s continued erroneous
insistence that it was merely following
DOT regulations when it terminated Kawa,
without displaying any letter much less
policy or regulation mandating it, has
further cast doubt upon the credibility
and legitimacy of its explanation.

  The ALJ found that LSF discharged Kawa
because of his union activity, and not
because of the two citations referenced
above. The ALJ also noted that LSF never
explained why it waited more than three
weeks after the citations were issued to
discharge Kawa if they were the true
reason for his discharge. The ALJ also
ruled that Belt’s testimony regarding
LSF’s reasons for terminating Kawa were
less than truthful for Belt never did
explain why in the first instance he
assured Kawa that he could return to work
once he regained his license and three
weeks later terminated him because of the
citations. Accordingly, the ALJ found
that the employer’s proffered reason for
firing John Kawa, that he had consumed
alcohol prior to drinking, was false. As
we have stated, an employer’s proffering
of a false explanation for its actions
justifies an inference that its real
motive for a discharge was unlawful. See
Jet Star, Inc. v. NLRB, 209 F.3d 671, 678
(7th Cir. 2000). LSF never even attempted
to rebut the ALJ’s findings, much less
offer a non-discriminatory reason for its
firing of John Kawa. Instead it only
continues to adhere to its red-herring
argument and insists (erroneously) that
the DOT regulations required that they
terminate Kawa because of his citations.

IV.   Conclusion

  LSF has done little and failed to call
into question the validity of the Board’s
order. Instead, they have simply repeated
the same arguments that they raised (and
which the ALJ discredited) before the
ALJ. It is not sufficient that we might
have arrived at a different conclusion
than the ALJ if we reviewed the evidence
in the first instance. Rather, LSF must
establish that the ALJ’s and the Board’s
conclusions are not supported by
substantial evidence. They have not.
LSF’s petition for review is denied and
we grant enforcement of the Board’s
order.

FOOTNOTES

/1 We pause briefly to bring to petitioner’s atten-
tion Federal Rule of Appellate Procedure 28(a)
(7), which requires a party’s statement of facts
to contain appropriate references to the record
and Circuit Rule 28(c), which provides in rele-
vant part that "[n]o fact shall be stated in this
part of the brief unless it is supported by a
reference to the page or pages of the record or
the appendix where that fact appears." Appellant
has failed to comply with these rules, providing
but five (5) citations to the record in the
entire six page statement of facts. Further,
appellant has referenced evidence (without cita-
tion) that was explicitly excluded by the admin-
istrative law judge, which exclusion it did not
except to before the Board. Fed. R. App. P.
28(a)(7) and Circuit Rule 28(c) are essential to
meaningful judicial review, and we caution peti-
tioner and counsel that they should not "expect
the court to peruse the record without the help
of pinpoint citations." Day v. Northern Indiana
Pub. Serv. Corp., 164 F.3d 382, 384 (7th Cir.
1999). We further caution counsel that violations
of Fed. R. App. P. 28(a)(7) and Circuit Rule
28(c) in the future very well could lead to the
brief being stricken, summary affirmance, togeth-
er with other sanctions. See id.

/2 LSF excepted to other portions of the ALJ’s
decision and order that it no longer presses in
its petition for review before this court.

/3 LSF once again in violation of Circuit Rule 28
refers to, without any citation to the record, a
drug screen that it received after Michaels’s
constructive discharge. But the company had no
knowledge of the screen until after the relevant
events, and thus the ALJ explicitly disallowed
any reference to it. LSF failed to except to the
ALJ’s decision to the Board and cannot now raise
this argument in its appeal.

/4 Kawa’s blood-alcohol concentration (BAC) was .009
percent, well under the statutory limit of .04
percent.
