Good Samaritan Medical Center v. NLRB

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; David J. Barron, Appellate Judge and Mary M. Lisi, U.S. District Judge. Published. BARRON, Circuit Judge, concurring in part and dissenting in part. [15-1347, 15-1412, 15-1877, 15-1941]

Case: 15-1347

Document: 00117161516

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Date Filed: 05/31/2017

Entry ID: 6096005

United States Court of Appeals
For the First Circuit
Nos. 15-1347, 15-1412
GOOD SAMARITAN MEDICAL CENTER,
Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner.
____________________
Nos. 15-1877, 15-1941
NATIONAL LABOR RELATIONS BOARD,
Petitioner, Cross-Respondent,
v.
1199 SEIU UNITED HEALTHCARE WORKERS EAST,
Respondent, Cross-Petitioner.
_____________________
PETITIONS FOR REVIEW OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD
____________________
Before
Torruella and Barron, Circuit Judges,
and Lisi,* District Judge.

Joseph W. Ambash, with whom Reyburn W. Lominack, III and
Fisher & Phillips LLP, were on brief, for Good Samaritan Medical
*

Of the District of Rhode Island, sitting by designation.

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Center.
Betsy Ehrenberg, with whom Pyle Rome Ehrenberg PC, was on
brief, for 1199 SEIU United Healthcare Workers East.
Gregoire F. Sauter, Attorney, National Labor Relations Board,
with whom Usha Dheenan, Supervisory Attorney, Richard F. Griffin,
Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel,
John H. Ferguson, Associate General Counsel, and Linda Dreeben,
Deputy Associate General Counsel, were on brief, for The National
Labor Relations Board.

May 31, 2017

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TORRUELLA, Circuit Judge.
probationary

employee

("Good Samaritan").

hired

by

Entry ID: 6096005

Camille A. Legley, Jr. was a

Good

Samaritan

Medical

Center

During an orientation training he questioned

a union delegate's alleged remark that he had to join 1199 SEIU
United Healthcare Workers East ("the Union"), in order to work at
Good Samaritan.

The exchange became heated and the following day

Good Samaritan terminated his employment claiming that his conduct
had violated its civility policy.

Upon Legley's complaint, an

administrative law judge ("ALJ"), followed by the National Labor
Relations Board ("NLRB" or "the Board"), found that the Union
caused Good Samaritan to discharge Legley because of his protected
conduct, in violation of Section 8 of the National Labor Relations
Act ("NLRA" or "the Act").

Good Samaritan Med. Health Ctr., 361

N.L.R.B. No. 145 (Dec. 16, 2014).

The NLRB ordered the Union and

Good Samaritan to, inter alia, reinstate Legley with back pay and
rescind

the

workplace

civility

policy.

Because

we

find

considerable contradictory evidence in the record that the NLRB
failed to consider, we do not find substantial evidence on the
record as a whole that Legley was discharged because of his
protected conduct and decline enforcement of the NLRB's order.

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I. Background
A. Hiring Process
During the fall of 2011 Legley applied and interviewed
for a position at Good Samaritan as a part-time boiler operator.
Good Samaritan has a collective-bargaining agreement with the
Union pursuant to which employees are required to either be members
of the Union or to pay it an agency-service fee. 1

Also of

relevance, Good Samaritan maintains a workplace civility policy.2

1

"Section 8(a)(3) of the [NLRA] permits an employer and an
exclusive bargaining representative to enter into an agreement
requiring all employees in the bargaining unit to pay periodic
union dues and initiation fees as a condition of continued
employment, whether or not the employees otherwise wish to become
union members." Commc'ns Workers of Am. v. Beck, 487 U.S. 735, 738
(1988).
2

The policy states:
[Good Samaritan] recognizes that excellent
care is best delivered in a work environment
of respect and cooperation.
As a [Good Samaritan] workforce member I will:

Treat all coworkers and individuals with
respect, patience and courtesy;

Refrain
from
conduct
that
would
intimidate or threaten other individuals;

Never engage in abusive or disruptive
behavior;

Not tolerate any threats of harm -either direct or indirect -- or any conduct
that harasses, disrupts, or interferes with
another workforce member's work or performance
or that creates a hostile work environment.
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Between September and November of 2011 Legley attended
multiple interviews with Facilities Manager Sean Brennan as well
as two employees who report to Brennan: Kevin Jordan and Neal
Nicholaides.

Jordan and Nicholaides are both union delegates.

On

November 28, 2011, Good Samaritan offered Legley a job on the
weekend evening shift at its Brockton, Massachusetts location.
December

5,

2011,

Legley

reported

to

Good

Samaritan's

On

human

resources department in order to complete required paperwork and
to submit to a required physical.

In their testimony to the ALJ,

three women who met with Legley that day, Human Resources Manager
Jennifer Patnaude, administrative assistant Jennifer Dorsey and
medical assistant Annette Miller, all testified that they found
Legley to be difficult.

Legley testified that on this date he met

with "two or three ladies,"3 and he did not perceive there to be
any conflicts; he believed he was cooperative and did not give
them a hard time in any way.

Patnaude, on the other hand, was so

concerned about Legley's behavior that she called Brennan to ask
if he really wanted to hire Legley.

3

Brennan replied in the

During his testimony, in contrast to his memory regarding male
staff members, Legley could only name by name one female employee
that he met during his time at Good Samaritan, and he could not
identify any of the females present during his testimony to the
ALJ including, apparently, the union delegate whose conduct is a
central concern to this case, Darlene Lavigne.
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affirmative stating that Legley had interviewed well and was being
hired to fill a difficult-to-staff shift.
B. Orientation Meeting
Legley's first day of work was December 19, 2011 when he
reported for a mandatory training.

Legley and three other new

hires (all women) reported to the building's lobby and then, due
to an elevator malfunction, were required to walk up five flights
of stairs to the training room.

Legley lagged behind the other

attendees and, as a result, the first session had already begun
when he entered the training room.

Legley took a seat at the head

of the table, closest to the presenter.
The

first

twenty

dedicated to the Union.

minutes

of

the

orientation

were

On this day the Union's portion of the

orientation was presented by Darlene Lavigne who had been employed
at Good Samaritan for almost 30 years. She had also been a union
delegate for the previous ten years and gave these presentations
approximately twice a month.

Lavigne's presentation typically

included information on the Union and its benefits and included
handouts explaining the Union as well as paperwork soliciting
contact information from the new employees.4

4

The paperwork itself is not at issue before us but we note that
neither the ALJ nor the NLRB discuss the confusing nature of the
form. Although the paperwork makes clear that employees do not
have to join the Union and can become fee payers, the portion of
the form soliciting contact information (information the Union
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The events of this meeting are under dispute.

Three

individuals testified about it before the ALJ: Lavigne, Legley and
Kimberly Derby, one of the other new hires.
when

he

arrived

in

the

room

he

Legley testified that

expected

to

find

an

HR

representative, so he was confused by the fact that the discussion
seemed to be focused on the Union.

He further testified that the

woman speaking (later identified as Lavigne) "was talking about
you had to join the union to work here and all of that."

Legley

stated that he "was so mixed up with what was going on," because
he expected a human resources representative and instead received
a "union steward."
Not long into the presentation, Legley reportedly said
to Lavigne "I understand there's a state or federal law that you
don't have to join a union," to which Lavigne reportedly stated
"You still have to join the union."

According to Legley, at this

point Lavigne "got kind of upset."
Lavigne

continued

with

her

presentation

proceeded to read the materials given to him.

and

Legley

Within these

materials he found a paragraph essentially stating that "you do

collects from every employee, whether that employee chooses to
become a member or simply a fee payer) appears to be a unionmember application form. Thus, while the paperwork makes clear
that no one is obligated to join the Union, the form that everyone
is required to fill out appears to be a membership application
form.
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not have to be a member of 1199, the union, and that you can
contribute your monies to some agency in the hospital."

Legley

proceeded to read the relevant language out loud to Lavigne, who,
according to Legley, "got very upset and mad."

Legley testified

that after this "she was in a different mood, she was -- you could
tell she was very upset and everything."

Legley believes that

Lavigne said on four to six occasions that they had to join the
Union in order to work at the hospital.
Legley admitted that he "was a little upset because I
didn't know what was going on.

I thought it was going to be an

HR meeting and it turned out to be a union meeting, and I just
never ran into a situation like this before," but he denied raising
his voice and being angry, disruptive or rude.5

In contrast, he

characterized Lavigne as "[r]ude, aggressive, she looked mad, she
was definitely upset that I asked a couple of those questions."
Legley testified that Lavigne looked at him with "evil eyes."
Derby testified that she also understood Lavigne to be
saying that "in order to work for Good Samaritan Hospital . . .
you needed to join the union."

Derby described the meeting as "an

5

Though he did testify that he was upset because he felt that
Lavigne was "not telling the truth over and over again," that he
felt he "was being intimidated to join this union" and that "she
was lying because she was telling [him] something that wasn't
true."
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open forum meeting, so I don't necessarily think he interrupted
her" and said that while he had a loud voice "he had a normal
tone."

Derby testified that Lavigne's response was that yes, he

did have to join the Union.

She testified that Lavigne became

irritated after Legley told her that he thought there was a law
saying that he did not have to join the Union.

Derby felt that

Legley's questions were not "being validly answered."
At
"conversation

the

same

time,

was

escalating"

Derby
and

Legley as "irritated" in demeanor.

also

described

stated
both

that

the

Lavigne

and

Derby referred to Legley's

demeanor as "irritated and passionate," said that his "voice became
louder," indeed, that "[b]oth parties had raised voices."

Derby

agreed that he was "pretty passionate about being sure there was
a law," "was very forceful and energetic in his presentation,"
that "he was a big guy with a big voice, so the impression he made
on you was of a big presence in the room," and that there seemed
to be an "escalation."
Derby testified that Legley asked if he could make copies
of all of the paperwork and that Lavigne "was really irritated
with him for asking to make copies."

Derby said that it was around

this time that Lavigne asked Legley his name and what department
he would be working in and "stated that she knew the people that
worked down there, and she was going to warn them that he was

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coming, and that they would not put up with him."

Entry ID: 6096005

Derby testified

to being horrified by this exchange because she took it to be "a
threat."
In contrast to Legley's testimony, Lavigne testified
that the first thing Legley did when he walked in the room was
point a finger at her and say "[y]ou were supposed to meet me in
the lobby."

She described him as interrupting a total of three

or four times to complain about not being met downstairs and having
to climb all the flights of stairs.
as

being

meeting."

overbearing.

She

felt

She described his presence
that

he

"was

consuming

the

She testified that "[h]e wasn't yelling, but he was

talking loudly.

He was exerting his power, like he was just --

it was all about him, all about him and his questions, his
concerns."

Lavigne testified that if someone does not want to

join the Union she typically tells them there is information in
"the yellow section on the back of [the] form" but that "he didn't
let me."

She testified that she "was upset because of the

interruptions, the rudeness, the overpowering of my presentation."
She described him as "[o]verbearing.
other ladies, myself.

I thought he was scaring the

I mean they're like they were shocked.

They were like waiting to see like what's going to happen next."
She said that at the end of the session she "was really emotionally
upset . . . To be treated in such a manner." She testified that he

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disrespectful

by

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"[c]onstantly

interrupting.

Entry ID: 6096005

Constantly

making me feel that I didn't know what I was doing, constantly
taking over the whole presentation, the whole presence of the
room."
whether

She testified that her main concern was not his questioning
he

had

to

join

the

Union

overpowering of the whole meeting.

but

"his

rudeness,

his

I mean I was just there to

give information to people, not to make people do anything."
By the end of the meeting Legley had completed the
application to join the Union.

He testified that he "wanted to

be like everyone else" and there "seemed to be a lot of benefits
to belonging to this union."

Derby completed an application in

which she elected to make a contribution to the political action
fund, though at a rate lower than that recommended by Lavigne.
Derby testified that when she left the meeting she "still felt
like I had to join the union."
C. Post-Orientation Meeting
Lavigne testified that as she exited from the meeting
she encountered Rebecca Cadima, the human resources representative
who would lead the remainder of the orientation, and told her "he
really, really gave me a hard time.
he gave me a hard time, too."

And [Cadima] said, I know,

She further testified that after

she arrived home she called Mary Ellen Leveille, an employee of
the Union who was the lead administrative organizer for the team

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that included Good Samaritan, to vent, saying to Leveille that she
owed her "big time" and that at the orientation Lavigne had
had this person, he was rude.
He was
constantly interrupting me. He wouldn't let
me give a proper presentation.
He was
overbearing. And I've never, ever had a new
employee act like this.
Why would someone
come into a new business, the first day, and
act like this? You don't do that.
Leveille testified that "[Lavigne] was choked up, like she was
crying"

and

situation."

"I've

never

seen

her

be

upset

like

with

this

Leveille further testified that Lavigne told her that

Legley "was very intimidating.

He started pointing his finger at

me and yelling at me, and I couldn't get through everything I had
to tell everybody."

Leveille stated that "my impression was that

she just got so flustered because he just came in the room and, in
her words, he blew up the orientation."

When asked if at some

point Lavigne mentioned his question of whether he had to join the
Union, Leveille replied
I don't recall. I mean because that wasn't
what the conversation was.
She was really
upset. I was trying to calm her down because
she just felt very intimidated by the
situation that had happened.
I don't even
recall talking about anything to do with union
membership,
because
that
wouldn't
be
important.
Lavigne next called Nicholaides, who testified that he
received a call from Lavigne on December 19 after the orientation
meeting.

Nicholaides said that he could tell from her voice that
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she "was extremely upset," that "her voice was shaky, she told me
she had never been treated this way before, that he came in right
from the get-go complaining that he had to walk up the stairs,"
and that "he was calling her a liar basically, and [saying] that
she wasn't telling the truth."6
Nicholaides testified that because "[Lavigne] was so
upset I immediately called [Cadima] . . . to see if she could just
give me some more insight on what happened."

Cadima reported that

she had not seen what transpired, but said that she felt they were
"going to have [their] hands full with [Legley]. He ran [them]
through the ringer."

Nicholaides further testified that his

conversation with Cadima did not involve any discussion of the
content of the dispute between Lavigne and Legley and that his
primary concern was how upset Lavigne was because "it's just not
[Lavigne]'s nature to get that upset.

6

And I was very concerned

We note that the ALJ made a finding that there was no credible
evidence that Legley accused Lavigne of being a liar. It is not
clear whose credibility this finding is intended to impugn (if
anyone's).
Lavigne did not actually testify that Legley had
called her a liar. As identified here, Nicholaides testified that
Lavigne told him that Legley was "basically" calling her a liar,
which indicates that the term was a summation of how she felt
rather than a direct quote.
Nicholaides testified that Legley
accused Lavigne of lying to him, but that conversation occurred on
the following day and it does not appear from context to be what
the ALJ was referring to.
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for her when she called -- she sounded over the phone like she was
practically in tears."
Leveille testified that following her conversation with
Lavigne she called Nicholaides and, using "some choice words,"
said "what the heck is going on, a worker that is going to be
working with you guys just gave [Lavigne] a really hard time in
orientation.

She

called

me.

She's

crying.

And

[Lavigne]; this isn't like her, what's going on."

you

know

They both

testified that their conversation focused on how surprising it was
that someone would act like that on their first day of work.
Testimony is somewhat confusing as to when anyone in
management at the hospital heard about what happened.

There is

some indication that Nicholaides may have spoken to Brennan, the
facilities

manager.

7

Whenever

the

conversation

occurred,

Nicholaides was clear that the focus of any conversation was "how
disruptive [Legley] was at the meeting and how upset he got
[Lavigne]."

Nicholaides testified that the content of the dispute

was not discussed because he "was told [Legley] joined the union,
so to me that was a nonissue."

7

Scott Kenyon, head of facilities, testified that he had heard
of what happened at the orientation from Brennan, but his testimony
is not specific as to when or how this conversation came about.
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The next day, December 20, was Legley's first day in the
boiler room.

Jordan, whose job it was to train Legley, testified

that when Legley arrived at work that morning, he said "[w]e may
have

a

little

problem"

and

went

on

to

say

that

disagreement with the girl giving the orientation."

he

"had

a

Jordan took

Legley to meet with the other two union delegates, Nicholaides and
Monahan, because he thought it sounded as though there might "be
a disciplinary problem."

Jordan said that Legley told the three

of them that "the girl at the orientation wasn't telling the whole
truth.

She said you had to join the union" and he said something

to the effect of "[m]aybe I'm not a good fit here."8
Patnaude, Nicholaides and Kenyon each testified that
later that day at a luncheon Nicholaides approached Patnaude, Tom
Watts (the head of Human Resources) and Kenyon to talk about what
had happened at the orientation and how upset Lavigne was when he
spoke to her.

8

Legley also testified that at this meeting Nicholaides told him
that Lavigne had made complaints to the "head of the union in
Boston," "the head of HR," and "the head of personnel" and that
Nicholaides said that because of him Lavigne did not get any
contributions to the political action fund. Nicholaides testified
that at no point did he discuss with anyone (Legley or anyone else)
the political action fund contributions and that he typically would
not
even
have
information
about
those
contributions.
Additionally, Derby testified that she signed up to contribute to
the fund.
The testimony of Lavigne, Leveille, Nicholaides and
Patnaude indicates that the only persons Lavigne spoke with were
Cadima, Leveille and Nicholaides.
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Patnaude's testimony was the most detailed as to the
content of the conversation.

She testified that they

talked about the incidents at orientation, how
rude [Legley] was to [Lavigne], that he had
made her cry she was so upset. And I, at that
time, expressed the fact that I didn't want to
hire him in the first place and he was
disrespectful when he came in and interviewed
with me, he was very rude. And then when he
came in to complete his new hire paperwork, he
was rude to the HR staff. He was also rude
when he went to employee health.
After Nicholaides left, Patnaude, Watts and Kenyon
talked about the length of time it would take
to train [Legley], to get him up to speed with
the facility and the different duties that he
would have beyond what he would do as a boiler
operator, and decided at that point to cut our
losses and terminate his employment.
Kenyon testified that Legley's questions about joining
the union did not impact his decision to terminate him

and that

his primary concern was that "these are not the kind of individuals
that we want working at Good Samaritan, you know, we treat [people]
with dignity and respect.

We expect other people to treat other

people with dignity and respect."

Kenyon did not want to invest

resources training someone who was going to behave this way.
Kenyon further testified that he did know the content of Legley's
objections at the time he made the decision to terminate him.
Jordan testified that after the decision was made Kenyon told him
something to the effect of "Mr. Legley being trouble and not a

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good fit because of the 'I believe' code and said he wasn't going
to take a chance of having [a] disruption in the department."
Patnaude testified that ultimately it would have been
Kenyan who would terminate an employee in his department, though
she said that the decision was more typically a collaborative one
between herself, Watts and Kenyon.

She testified that Legley was

terminated "[f]or his inappropriate disrespectful behavior."

She

further elaborated that:
[H]e was disrespectful and rude at every point
along the process to hire him. And then once
he came on board, was very disrespectful in
the orientation, made our employee very upset
by his behavior, and then also expressed the
fact that he wasn't even sure he wanted to
work here the next day. And also taking into
account the fact that it would take time to
train him and the shift he would be on, and
there would really be no supervision on that
shift, and that was a concern.
She also explained that they were concerned that they could be
"subjecting our employees on the night shift to that behavior,"
meaning "getting upset, getting frustrated with [Lavigne], just
being, you know, being upsetting to other people. And if he's going
to do that on his first day of employment, what's he going to do
when

he's

comfortable[?]"

She

testified

that

his

"comments

regarding his questions about the necessity of joining the union"
did not play any role in the decision to terminate his employment.

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D. Procedural Background
1. ALJ
Legley filed a complaint with the NLRB.

Following a

hearing, the ALJ concluded that both Good Samaritan and the Union
had violated the NLRA in discharging and causing the discharge of
Legley

(respectively).

He

additionally

found

that

Lavigne

threatened unspecified reprisals against Legley in violation of
Section 8(b)(1)(A) of the Act.
In arriving at these findings the ALJ believed the
applicable precedent to be Atlantic Steel Co., which asks whether
an employee has lost protection of the Act via misconduct on his
part.

245 N.L.R.B. 814, 816 (1979).

He therefore focused his

analysis on the interaction between Legley and Lavigne, and he
concluded that Legley did not make "any statements that could be
construed as being threatening or profane," nor did he act in an
"overly aggressive manner."

Rather, "[a]t most, both Legley and

Lavigne raised their voices when he said he didn't have to become
a union member and she said that he did."

He determined that "the

evidence convinces me that nothing that [Legley] said or did at
this meeting could compel a conclusion that he lost the protection
of the Act by virtue of any misconduct on his part." Applying the
test

annunciated

in

Atlantic

Steel,

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he

found

that

Legley's

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misconduct could not justify his discharge, and stated that "in
the absence of legally defined misconduct," he could not
separate the protected nature of his comments
from the way he made the comments.
As his
behavior at the meeting did not meet the
criteria
of
Atlantic
Steel,
[Legley's]
statements regarding union membership and the
tone in which he made the statements cannot be
disentangled.
Therefore, as the Company
discharged Legley because of these protected
statements, a Wright Line analysis is not even
appropriate.
2. NLRB
The NLRB agreed with the findings and conclusions of the
ALJ, though with slightly modified legal analysis.

With regard

to the Union, the NLRB first found that the Union caused Legley's
discharge.

Applying

two

different

frameworks,

duty

of

fair

representation and Wright Line, the NLRB then concluded that the
Union's conduct in causing Legley's discharge violated the Act.
Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083 (1980),
enforced on other grounds, 662 F.2d 899 (1st Cir. 1981), cert.
denied, 455 U.S. 989 (1982), approved in NLRB v. Trans. Mgmt.
Corp., 462 U.S. 393 (1983).

With regard to Good Samaritan, the

NLRB applied Palmer House Hilton and Mohamad Safavi Unite Here,
Local 1, 353 N.L.R.B. 851 (2009), and concluded that "the Employer
learned of Legley's protected conduct at or near the same time as
the Union's effective request that he be disciplined for that
conduct" and then further "failed to show that it would have
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discharged Legley in the absence of his protected activity."
Having so concluded, the NLRB affirmed the ALJ's finding that both
the Union and the employer violated the Act.
II. Legal Frameworks
A. Standard of Review
In examining factual determinations, the question we
must answer is whether the NLRB's decision is "supported by
substantial evidence on the record considered as a whole." 29
U.S.C. § 160(e).

The requirement that there be "substantial

evidence" arose out of the Supreme Court's interpretation of the
Wagner Act, which provided that "[t]he findings of the Board as to
the facts, if supported by evidence, shall be conclusive." Act of
July 5, 1935, ch. 372, § 10(e), 49 Stat. 453.

The Supreme Court

interpreted this to indicate "substantial evidence," meaning "more
than a mere scintilla.

It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion."
Consolidated Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938).
Over time, however, it became the practice of some of the courts
of appeal to uphold the Board's findings whenever "the evidence
supporting the Board's result was 'substantial' when considered by
itself."

Universal Camera Corp. v. NLRB, 340 U.S. 474, 478 (1951).

In other words, all that was required of the reviewing court was
to "find in the record evidence which, when viewed in isolation,

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substantiated the Board's findings." Id.

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Apparent dissatisfaction

with this level of review led to an amended standard in the TaftHartley Act, which amended 29 U.S.C. § 160(e) to its present form:
"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."

Id. at 478-86.

Interpreting this

amended standard, the Supreme Court held that its effect was to
"definitively preclude[] . . . a theory of review" that allowed
the reviewing court "to determine the substantiality of evidence
supporting a . . . Board decision merely on the basis of evidence
which in and of itself justified it without taking into account
contradictory

evidence

or

inferences could be drawn."

evidence

from

which

Id. at 487-88.

conflicting

In other words,

"[t]he substantiality of the evidence must take into account
whatever in the record fairly detracts from its weight."

Id. at

488.
This means that while "the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative

agency's

finding

from

being

supported

by

substantial evidence," NLRB v. Hilliard Dev. Corp., 187 F.3d 133,
140 (1st Cir. 1999) (quoting Am. Textile Mfrs. Inst. v. Donovan,
452 U.S. 490, 523 (1981)), our review "must take contradictory
evidence in the record into account," Howard Johnson Co. v. NLRB,

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702 F.2d 1, 2 (1st Cir. 1983), and "[t]he Board . . . may not
distort the fair import of the record by ignoring whole segments
of uncontroverted evidence," Hilliard at 140 (quoting Maine Yankee
Atomic Power Co. v. NLRB, 624 F.2d 347, 360 (1st Cir. 1980)).
Moreover, "[w]hen the Board purports to be engaged in simple
factfinding, . . . it is not free to prescribe what inferences
from the evidence it will accept and reject, but must draw all
those inferences that the evidence fairly demands."

Allentown

Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 378 (1998).
While the substantial evidence standard governs our
review of the facts, we also evaluate the Board's decision for
"mistakes of law . . . and arbitrary and capricious reasoning."
Boch Imports, Inc. v. NLRB, 826 F.3d 558, 565 (1st Cir. 2016)
(quoting The Edward S. Quirk Co., Inc. v. NLRB, 241 F.3d 41, 42
(1st Cir. 2001)).
arbitrary

and

One of the bases for finding an agency decision

capricious

is

a

deviation

from

its

own

precedents without sufficient explanation or reasoning.

prior
Shaw's

Supermarkets, Inc. v. NLRB, 884 F.2d 34, 36-37 (1st Cir. 1989).
B. Protected Activity
The Act both grants employees the right to form and join
unions and to refrain from such activity, 29 U.S.C. § 157 (Section
7), and it defines as an unfair labor practice any action by the
employer

that

"interfere[s]

with,

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employees in the exercise" of those rights.
(Section 8(a)(1)).

Entry ID: 6096005

29 U.S.C. § 158(a)(1)

Employers may not discriminate "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. § 158(a)(3) (Section 8(a)(3)), and it is unlawful for a
labor organization or its agents either "to restrain or coerce (A)
employees in the exercise of the rights guaranteed in section 157
of this title," (Section 8(b)(1)(A)) or "to cause or attempt to
cause an employer to discriminate against an employee" (Section
8(b)(2)) in violation of this provision. 29 U.S.C. § 158(b)(1)(A),
(b)(2).

Neither side disputes that in asserting a right not to

join the Union Legley was engaging in protected activity.

The

question is whether Legley was discharged because of his protected
activity or for some other, lawful, reason.
C. Mixed Conduct Cases
Mixed conduct cases confront this very question: was the
employee terminated because of his protected conduct or was he
terminated for a lawful reason?

The decision of the ALJ focused

on Legley's actions during the orientation meeting and asked
whether they were such as to deprive Legley of the protections of
the Act "by virtue of any misconduct on his part."
question

this

way,

the

ALJ

relied

upon

the

In posing the
balancing

enunciated in Atlantic Steel, 245 N.L.R.B. at 816.

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test

In so doing

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the ALJ misconstrued Atlantic Steel and its applicability to the
facts of this case.

Atlantic Steel involved an employee who made

derogatory comments to his supervisor during a discussion over a
grievance regarding the assignment of overtime work.
In

resolving

the

evaluating

whether

protected

activity

case
an

the

NLRB

employee

can,

by

established
"who

is

opprobrious

a

engaged

Id. at 814.

framework
in

conduct,

for

concerted
lose

the

protection of the Act" and created a balancing test for those
situations.

Id. at 816.

In other words, as applied by the ALJ

in this case, the question was whether the employee's conduct was
such that it would "compel a conclusion that he lost the protection
of the Act."

Here the ALJ looked to whether Legley "made any

statements that could be construed as being threatening or profane"
or "acted in an overly aggressive manner."
Elsewhere, however, the NLRB has asserted that Atlantic
Steel is only applicable to employee-employer interactions "rather
than to employee-union confrontations."

Laborers' Int'l Union of

N. Am., 359 N.L.R.B. No. 117, slip op. at 3 n.10 (May 3, 2013).
Perhaps for this reason, in reviewing the ALJ's decision, the NLRB
shifted the legal terrain and applied three different frameworks:
(1) duty of fair representation, (2) the Wright Line test and (3)
the Palmer House Hilton scenario.9

9

It applied the first two to

The NLRB did not expressly "pass on whether the Atlantic Steel
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the Union's actions in allegedly causing Legley's discharge and
the latter to Good Samaritan's decision to terminate Legley's
employment.
1. Duty of Fair Representation
The duty of fair representation refers to the Union's
"statutory obligation to serve the interests of all members without
hostility or discrimination toward any, to exercise its discretion
with complete good faith and honesty, and to avoid arbitrary
conduct."

Vaca v. Sipes, 386 U.S. 171, 177 (1967).

applies to all union activity.

This duty

Air Line Pilots Ass'n, Int'l v.

O'Neill, 499 U.S. 65, 67 (1991).

A breach of this duty occurs

"only when a union's conduct toward a member of the collective
bargaining unit is arbitrary, discriminatory, or in bad faith."
Vaca, 386 U.S. at 190.

Indeed, the doctrine has its origins in

"a series of cases involving alleged racial discrimination by
unions."

Id. at 177.
The standard is "tripartite," which means that the union

activity in question cannot be arbitrary or discriminatory or in

framework is applicable." Given its express decision to evaluate
this case under alternative frameworks, we will likewise not apply
Atlantic Steel, although we note, while the NLRB did not, that
this necessarily shifts the focus in this case from the question
of 'was the employee's conduct so bad that he could be discharged
despite his protected conduct,' to 'what actually motivated the
union and the employer in their decision to report or discharge
the employee.'
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bad faith.

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O'Neill, 499 U.S. at 77.

Entry ID: 6096005

Union actions are arbitrary

"only if [the union's conduct] can be fairly characterized as so
far outside a 'wide range of reasonableness,' that it is wholly
'irrational' or 'arbitrary.'"

Id. at 78 (quoting Ford Motor Co.

v. Huffman, 345 U.S. 330, 338 (1953)).

Discrimination refers to

racial and gender discrimination as well as other distinctions
made

among

workers,

including

lack

of

union

membership.

Breininger v. Sheet Metal Workers Int'l, 493 U.S. 67, 78 (1989).
"A union acts in bad faith when it acts with an improper intent,
purpose,

or

motive,"

and

"[b]ad

faith

encompasses

dishonesty, and other intentionally misleading conduct."

fraud,
Spellacy

v. Airline Pilots Ass'n-Int'l, 156 F.3d 120, 126 (2d Cir. 1998);
see also Márquez v. Screen Actors Guild, Inc., 525 U.S. 33, 47
(1998)

(finding

no

bad

faith

where

there

was

"no

intent

to

mislead"); Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 531 (10th
Cir. 1992) ("Bad faith requires a showing of fraud, deceitful
action or dishonest action."); Baxter v. United Paperworkers Int'l
Union, Local 7370, 140 F.3d 745, 747 (8th Cir. 1998) ("[t]o prove
bad faith, [plaintiff] needed to establish the existence of fraud,
deceitful action, or dishonest conduct").
In instances where the allegation is that the union
caused an employee's discharge, the NLRB has employed a presumption
that any such act is itself a violation of Section 8.

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Int'l Union

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of Operating Eng'rs, Local 18, 204 N.L.R.B. 681 (1973) enforcement
denied 555 F.2d 552 (1977) ("When a union . . . causes an employee's
discharge, it has demonstrated its influence over the employee and
its power to affect his livelihood in so dramatic a way that we
will infer--or, if you please, adopt a presumption that--the effect
of its action is to encourage union membership on the part of all
employees who have perceived that exercise of power.").

This

presumption can be rebutted either by arguing that the union acted
pursuant to a union security clause (not at issue here) or through
what is referred to as a "necessity defense."

Radio-Elecs.

Officers Union v. NLRB, 16 F.3d 1280, 1284 (D.C. Cir. 1994).

This

defense consists of showing that the union's actions were "done in
good faith, based on rational considerations, and were linked in
some way to its need effectively to represent its constituency as
a whole."

Operative Plasterers & Cement Masons, Local No. 299,

257 N.L.R.B. 1386, 1395 (1981).
2. Wright Line
In this case the NLRB applied a second framework for
evaluating the Union's conduct, derived from the NLRB's decision
in Wright Line. 251 N.L.R.B. at 1083.

The question in Wright Line

was whether an employee was terminated because of protected conduct
or because of his unprotected behavior.

The NLRB held that the

General Counsel had to make a prima facie showing "that the

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conduct

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protected

by

Date Filed: 05/31/2017

§

7

motivating factor in the discharge."
399-400.

was

a

Entry ID: 6096005

substantial

or

a

Transp. Mgmt., 462 U.S. at

This test is satisfied by demonstrating: "(i) the

employee's

engagement

employer's

knowledge

in
of

the
that

protected
activity;

activity;
(iii)

the

(ii)

the

employer's

antipathy toward it; and (iv) a causal link between the antipathy
and the adverse employment action."

E.C. Waste, Inc. v. NLRB, 359

F.3d 36, 42 (1st Cir. 2004) (citing Transp. Mgmt., 462 U.S. at
401-3).
The defendant can either rebut this prima facie showing,
or it can seek to prove "by a preponderance of the evidence that
the discharge rested on the employee's unprotected conduct as well
and that the employee would have lost his job in any event."
Transp. Mgmt., 462 U.S. at 400.

In other words, "proof that the

discharge would have occurred in any event and for valid reasons
amount[s] to an affirmative defense on which the employer carrie[s]
the burden of proof by a preponderance of the evidence."
Wright

Line

itself

did

not

involve

union

Id.
activity.

Rather, it concerned an employer who had terminated an employee
for

allegedly

legitimate

reasons.

The

framework

that

case

established, however, has been applied by the NLRB in cases
involving union activity.

See Int'l Union, SPFPA, Local 444, 360

N.L.R.B. No. 57, slip op. at 10-11 (Feb. 28, 2014); Teamsters

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"Gen." Local Union No. 200, 357 N.L.R.B. 1844, 1852 (2011); Int'l
Ass'n of Bridge, Structural and Ornamental Ironworkers, Local 340,
347 N.L.R.B. 578, 579 (2006); United Paperworkers Int'l Union,
Local 1048, 323 N.L.R.B. 1042, 1044 (1997).
3. Palmer House Hilton
The Board cited Palmer House Hilton in upholding the
ALJ's determination that "the Employer violated the Act when it
discharged Legley."

Palmer House Hilton involved an employee who

was discharged because he was delinquent in paying his union dues
even though he had entered into a payment plan with the union.
353 N.L.R.B. at 852.

The Board there held that "[a]n employer

violates the Act when it discharges an employee at the request of
the union when it has reasonable grounds for believing that the
request was unlawful."

Id. (citing Valley Cabinet & Mfg., 253

N.L.R.B. 98, 99 (1980), enforced, 691 F.2d 509 (9th Cir. 1982))
(internal citations removed).
Palmer House Hilton and the cases it cites all involved
a union request to discharge an employee pursuant to a union
security clause.

By definition, those cases do not involve a

motivation for the employer to discharge the employee other than
the union's request.
complicated.

However, the facts of this case are more

Here, Good Samaritan asserts a lawful motivation for

the discharge of Legley.

That moves this case out of the Palmer

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House Hilton line of cases (in which the only motivation is the
union request) and into the Wright Line framework (which is focused
on determining which motivation, among multiple possibilities,
actually led to the employee's discharge).

Indeed, the NLRB

appears to have recognized this when it found that Good Samaritan
"failed to show that it would have discharged Legley in the absence
of his protected activity."

This is an affirmative defense under

the Wright Line analysis, though it has no role to play under the
Palmer

House

Hilton

scenario.

We

therefore

find

that

Good

Samaritan's decision to discharge Legley should be evaluated under
the Wright Line test, not Palmer House Hilton.10

10

In its brief the NLRB suggests that the citation to Palmer
House Hilton indicates that the NLRB believed that Good Samaritan
had a duty to independently investigate the events that occurred
at the orientation. While this argument attempts to rationalize
the NLRB's citation to Palmer House Hilton, it puts a
characterization on the NLRB's decision that the decision itself
fails to support. We will not read into the decision a rule that
the decision itself does not clearly articulate. See Citizens
Awareness Network, Inc. v. U.S. Nuclear Regulatory Comm'n, 59 F.3d
284, 291 (1st Cir. 1995) (refusing to affirm an agency's change in
precedent on a ground not adequately explained); P.R. Sun Oil Co.
v. EPA, 8 F.3d 73, 79 (1st Cir. 1993) ("[T]he agency's decision
cannot be supported on reasoning that the agency has not yet
adopted"). In its brief, the NLRB fails to cite any case in which
the NLRB has previously imposed the Palmer House Hilton duty to
investigate outside of the union security context. In the absence
of a clearer statement to that effect, we will not read such a
rule into the NLRB's decision. See Fort Dearborn Co. v. NLRB, 827
F.3d 1067, 1074 (D.C. Cir. 2016)("an unexplained divergence from
[the Board's] precedent would render a Board decision arbitrary
and capricious").
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There is an alternative line of cases that the NLRB could
have turned to if its intent was to impose a heightened duty on
the employer: NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964);
Associated Grocers of New Eng., Inc. v. NLRB, 562 F.2d 1333, 1338
(1st Cir. 1977).

This line of cases applies where an employee is

discharged for unprotected conduct that has not in fact occurred,
even though the employer was motivated by the alleged unprotected
conduct in discharging the employee.
Counsel

has

the

burden

of

"affirmatively

misconduct did not in fact occur."
474 (2000).

In these cases, the General
show[ing]

that

the

Pepsi-Cola Co., 330 N.L.R.B.

The NLRB did not cite this line of cases in its

decision, however, suggesting that it perceived the case to fall
squarely within Wright Line, and we believe for good reason.11

11

The

We note that in its briefing to us the NLRB does cite this line
of cases in support of its argument that Good Samaritan's
"purported 'good-faith belief' that Legley violated the civility
policy is no defense." Again, as we stated above with regard to
Palmer House Hilton, we will not enforce a Board decision based on
reasoning it has not adopted nor explained. See supra n.10; see
also Sutter East Bay Hosp. v. NLRB, 687 F.3d 424, 437 (D.C. Cir.
2012) (refusing to uphold NLRB decision as meeting its "analytical
burden by simply stating that the application of Burnup & Sims
would reach the same conclusion without providing any analysis or
explanation").
The NLRB nowhere in its decision states that
Legley was not uncivil and the ALJ's evaluations of Legley's
behavior were conducted under the heightened Atlantic Steel test
(a much different standard than that established by Good
Samaritan's civility policy). If the NLRB had intended to base
its decision on a finding that Legley absolutely did not engage in
any unprotected conduct then it needed to have explicitly said so.
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question is whether any conduct at all occurred that could have
been interpreted by the employer as a violation of the civility
policy.

So long as some such conduct occurred, our analysis is

squarely within Wright Line, which "is designed to preserve what
has long been recognized as the employer's general freedom to
discharge an employee 'for a good reason, a poor reason, or no
reason at all, so long as the terms of the [Act] are not violated.'"
MCPC, Inc. v. NLRB, 813 F.3d 475, 488 (3d Cir. 2016) (citing Meyers
Indus., Inc. (Meyers I), 268 N.L.R.B. 493, 497 n.23 (1984)).
Therefore, given the inapplicability of Burnup & Sims,
a crucial consideration under the Wright Line analysis is "whether
the employer had a good faith belief" that the "employee actually
engaged in the misconduct." Sutter East Bay, 687 F.3d at 435.

If

"management reasonably believed those actions occurred, and the
disciplinary actions taken were consistent with the company's
policies and practice, then [the company] could meet its burden
under Wright Line regardless of what actually happened." Id. at
435-6.

The NLRB has itself employed this "reasonableness" test:
In order to meet its burden under Wright Line,
an
employer
need
not
prove
that
the
disciplined
employee
had
committed
the
misconduct alleged. Rather, it need only show
that it has a reasonable belief that the
employee had committed the alleged offense,
and that it acted on that belief when it took
the disciplinary action against the employee.

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DTR Industries, Inc., 350 N.L.R.B. 1132, 1135 (2007). The question
therefore in analyzing a defense under Wright Line is whether there
is a good faith or reasonable belief that the alleged misconduct
occurred.
III. Analysis
Applying these principles to the facts of this case, we
must ascertain whether there is substantial evidence on the record
as a whole to support the NLRB's finding that the Union, in causing
Legley's discharge,12 and Good Samaritan, in discharging Legley,
violated Section 8 of the NLRA.
A. The Union
The

threshold

question

is

whether

the

Union

caused

Legley's discharge because of his protected activity, which is
evaluated under Wright Line.

Only if we find that it did not do

so do we need to evaluate whether, nevertheless, in causing his
discharge the Union violated its duty of fair representation.
1. Wright Line
The entirety of the NLRB's analysis under Wright Line is
as follows:

12

The Union argues that in reporting his behavior to the
hospital's management it could not have foreseen that Legley would
be discharged and therefore cannot be said to have caused Legley's
discharge.
Because we can resolve this case without having to
address this question, we will assume without deciding that the
Union's actions caused Legley's discharge.
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The elements commonly required to establish
discriminatory motive are established in the
record here: Legley engaged in protected
activity, the Union had knowledge of that
activity, and Lavigne's unlawful threat of
unspecified reprisal shows the Union's animus
against his protected conduct. We find that
the General Counsel met his initial burden,
and that the Union failed to meet its rebuttal
burden by showing that it would have taken the
same
action
absent
Legley's
protected
activity.
The

NLRB's

additional insight.

recitation

of

the

facts

provides

little

Indeed, it appears to have followed the ALJ's

focus on the events at the orientation and given little attention
to the Union's decision to report its concern regarding Legley's
behavior to Good Samaritan.
on

the

events

of

the

misapplication of law.

As noted above, however, this focus

orientation

occurred

because

of

a

The ALJ was applying Atlantic Steel, with

its focus on whether the employee's behavior was bad enough to
justify discharge.

Under the Wright Line analysis, however, our

focus is on the motivations behind the Union's decision to report
Legley to Good Samaritan.
is

cursory

at

best.

The NLRB's treatment of this decision

Indeed,

as

such

the

NLRB

includes

no

discussion of the decision to discuss Legley with Good Samaritan.
That

decision

appears

to

have

unfolded

over

a

series

of

conversations among the Union workers themselves regarding the
events of the orientation, which were followed by two discussions
with management concerning those events.
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a. Legley voluntarily joins to the Union
As an initial matter, at the end of the orientation
session Legley, by his own testimony, voluntarily joined the Union.
This fact, while relevant to the Union's motivation in discussing
the events of the orientation with Good Samaritan, was never
discussed by the ALJ or the NLRB.
b. Intra-Union discussions
The first intra-Union discussion that occurred following
the orientation was Lavigne's call to Leveille.

The NLRB and the

ALJ both summarize this call, as Lavigne reporting "that Legley
was mean to her."
simply

ignores

content.

the

The characterization of this conversation
extensive

testimony

concerning

the

call's

Leveille testified that when Lavigne called "she was

choked up, like she was crying," and that she reported:
I had orientation this morning, and there was
a man who came in and he was, you know, he was
very intimidating.
He started pointing his
finger at me and yelling at me, and I couldn't
get through everything I had to tell
everybody. He kept interrupting me . . . he
kept saying that I never met him in the lobby
and then he had to climb up the stairs.
Leveille was specifically asked "up to that point [in
the conversation], what if anything had she said about the union
or about union membership," to which Leveille replied "[n]othing.
It was his, you know, when he came in the room and he really just
started badgering her about not meeting him in the lobby and then
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having to take the stairs . . . she really felt discombobulated
because he just kept interrupting her."

Leveille testified that

her "impression was that she just got so flustered because he just
came in the room and, in her words, he blew up the orientation."
Leveille was again asked if "at some point in your conversation
with her was there any mention of anything Mr. Legley said about
having to join the union or not having to join the union," to which
she replied:
I don't recall. I mean because that wasn't
what the conversation was.
She was really
upset. I was trying to calm her down because
she just felt very intimidated by the
situation that had happened.
I don't even
recall talking about anything to do with union
membership,
because
that
wouldn't
be
important.13
Although Leveille testified that she thought that the protected
statements came up at some point, she stated that her "immediate
concern was about [Lavigne's] emotional state.
to join the union, I don't care.
Thus,

the

characterization

that

If he didn't want

That wasn't of importance."
Lavigne

called

Leveille

and

reported that Legley had been "mean" fails to discuss the actual
content of the call, including the fact that neither of them were

13

On cross-examination Leveille clarified what Lavigne apparently
meant by "intimidating": "Mr. Legley came in the room and was
pointing at her, and was using a loud voice, and he was a big man.
And it was in that term that he was intimidating, overpowering,
taking over the room."
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focused on Legley's protected statement and that in fact their
primary concern was Legley's behavior, which Lavigne felt had
involved a big man with a loud voice, pointing a finger at her and
interrupting

her

presentation.

so

that

she

could

not

get

through

her

All of this is relevant in evaluating the Union's

motivation to report Legley's conduct to Good Samaritan and none
of it is acknowledged or discussed by the NLRB.
After
Nicholaides.

she

spoke

with

Lavigne,

Leveille

called

She testified that their conversation concerned how

upset Lavigne was and "the fact that isn't it outrageous that
someone on their first day of work would act like this."

Leveille

does not recall discussing Legley's protected statements at all
with Nicholaides.

Leveille's stated concern at the end of these

two conversations was that "I'm going to have to be defending this
guy somewhere down the line if he's going to continue to act like
this."

At no point in this discussion did Leveille or Nicholaides

discuss reporting Legley to management.
Lavigne also called Nicholaides.

While it is clear that

Legley's protected statements came up during this conversation,
Nicholaides stated that it was not the questions themselves that
upset Lavigne, it was "the mannerism in which he did it."

He

reported that Lavigne "was extremely upset" when she called him,
which he "could hear . . . in her voice."

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Following the conversation with Lavigne, Nicholaides
called Cadima to ask "her if she could give me any input on what
happened."

He testified that he "didn't report anything to her,"

that he called "[b]ecause [Lavigne] was so upset."

Cadima told

Nicholaides that she was not present during Lavigne's portion of
the orientation but that she felt that "[w]e're going to have our
hands full with him.

He ran us through the ringer."

Nicholaides

testified that his conversation did not include Legley's protected
statements at all because his primary concern was how upset Lavigne
was because "it's just not [her] nature to get that upset.

And I

was very concerned for her when she called -- she sounded over the
phone like she was practically in tears."
In the absence of an adverse credibility finding with
regard to this testimony, the fair inferences that can be drawn
from it must be made.

Allentown Mack, 522 U.S. at 378 (holding

that the Board "is not free to prescribe what inferences from the
evidence it will accept and reject, but must draw all those
inferences that the evidence fairly demands").

Those inferences

are that following the orientation meeting, while Leveille and
Nicholaides

were

aware

of

the

protected

statements,

statements were not the focus of their concern.

those

Their focus was

on how upset Lavigne was, which based on their knowledge of her
(Leveille and Nicholaides each testified that they had known

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Lavigne for many years and had never observed her become this
upset), supports the Union's contention that it was the level of
unsettledness that they observed in Lavigne that motivated their
decision to discuss Legley with management, not, in fact, his
protected statements.14

14

Because Wright Line focuses on the motivation behind the
decision this is where we focus our analysis. We note, however,
that much of the NLRB decision appears to be based on a belief
(seemingly directed by the ALJ's interpretation of Legley's
conduct, which we have already noted was guided by the high
standard for misconduct established in Atlantic Steel) that
because nothing in Legley's conduct was 'that bad,' Lavigne was
not justified in being as upset as she was, therefore, the only
reason she had for being upset is Legley's protected statements.
There are a number of problems with this line of reasoning,
however.
First, it turns on its head the proper focus of the
inquiry. The question is what motivated the Union in reporting
Legley's behavior.
The seriousness of Legley's conduct is
relevant to that inquiry, but it cannot, as it appears to under
this line of reasoning, end the inquiry. Moreover, if the NLRB
is going to base its finding that the Union violated Section 8 in
reporting Lavigne's statements and state of mind following the
orientation to management because those statements and state of
mind were themselves based solely on Legley's protected conduct,
then it needs to have clearly said so.
Indeed, as previously
noted, it has a line of cases starting with Burnup & Sims that
would have guided that analysis. We will not infer such a line
of reasoning in the absence of an explicit statement to that
effect. Finally, in the absence of such a line of reasoning by
the NLRB, its decision reads as though it were itself deciding
whether Legley's conduct actually violated the civility policy,
deciding that it did not and then deciding that all statements
made by Lavigne and the Union therefore had to have been based on
a discriminatory motivation. But the NLRB did not make an explicit
finding of pretext and the record as a whole does not support such
a finding. Additionally, although the NLRB could theoretically
have found that none of this contradictory testimony was credible,
it did not explicitly make that finding either and nothing in the
record demands that we make such an inference.
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c. Union discussion with Legley
On the morning of December 20 Legley discussed the events
of the orientation with Jordan, Gerry Monahan (another union
delegate

who

worked

in

the

boiler

room)

and

Nicholaides.

According to Jordan, Legley showed up for work and said "[w]e may
have a little problem."

He said that he "had a disagreement with

the girl giving the orientation."
Monahan and Nicholaides.

Jordan took him to meet with

According to Legley, he wanted to "meet

with this lady," "shake her hand whatever and settle this."

He

testified that Nicholaides said "[o]h . . . it's gone way past
this . . . [s]he's made complaints about you to the head of the
union in Boston.

She's made complaints to the head of HR, and she

made complaints to personnel, the head of personnel.
know what's going to happen."

We don't

While the NLRB mentions this

statement in its recitation of facts, it does not discuss any of
the previously mentioned testimony demonstrating that in fact
Lavigne had not spoken to the head of the Union in Boston (she
only spoke to Leveille who is not the head of the union), had not
reported the incident to HR (her only comment was in passing to
Cadima leaving the orientation; Cadima is not the head of HR) and
there was no allegation that Lavigne complained at all to personnel
(again, aside from her passing comment to Cadima).

Thus, the NLRB

simply restated Legley's allegation of Nicholaides' statement

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without provided any of the uncontradicted conflicting evidence
that is evident in the record.
d. Nicholaides speaks to management
The NLRB's treatment of Nicholaides' conversations with
management are similarly perfunctory.

The NLRB simply states that

on December 19 "Nicholaides reported the Legley incident to Brennan
and . . . Kenyon," and that at lunch on December 20 Nicholaides
"told Patnaude, Kenyon, and . . . Watts that Legley was rude to
Lavigne during orientation and had 'negative behavior' during his
meeting with him earlier that day."

It concludes its recitation

of these facts with the ALJ's findings that "Kenyon and Patnaude
were aware that Legley had questioned Lavigne about the need to
become a member of the Union."
At some point on December 19 Nicholaides may have spoken
to either Brennan or Kenyon (he testified that he did not recall
speaking to one of them.

Kenyon thought that he had heard about

what happened from Brennan on December 19).

Nicholaides was asked

"[i]n fact didn't you tell Mr. Brennan that Legley had told you
that he didn't feel that he needed to join the union" to which
Nicholaides replied "I never mentioned that.

I was told he joined

the union, so to me that was a nonissue."

Instead, Nicholaides

reports the focus of the conversation being the fact that Legley
"was very disruptive at the meeting." Nicholaides was again asked

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whether "it was brought up that [Legley] had disagreed with
[Lavigne] about whether or not he had to join the union" to which
Nicholaides again replied "that was never discussed because I was
told he joined the union. . . . I just -- I brought up how
disruptive he was at the meeting and how upset he got [Lavigne]."
Nicholaides reports having told management that Lavigne
had
called me up -- I'm not sure how much after
the meeting, but she was extremely upset, her
voice was shaky, she told me she had never
been treated this way before, that he came in
right from the get-go complaining that he had
to walk up the stairs. He also -- even after
all the complaints he -- I can't remember -yeah, he had to walk up the stairs, no one met
him when he first came in, and that he didn't
even know if he wanted to work at a place like
this.
Nicholaides summarized the conversation as "it was discussed about
his behavior at the orientation."
testimony

that

he

did

not

Nicholaides made clear in his

remember

ever

discussing

Legley's

protected statements with Brennan or Kenyon.
On December 20 Nicholaides again spoke to management,
this time Patnaude, Watts and Kenyon together.
that

they

discussed

with

Nicholaides

Patnaude testified

"the

incidents

at

orientation, how rude he was to [Lavigne], that he had made her
cry she was so upset."

She later said, " [Nicholaides] was talking

about how upset [Lavigne] was." She also testified that Nicholaides

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had mentioned his discussion with Legley that morning at which
"Mr. Legley had said something to the extent of if you guys don't
want me here, I'll just go."

Kenyon testified that at this meeting

Nicholaides raised concerns "around Mr. Legley's behavior" and
that "in general" he was "concern[ed] with [Lavigne], the rude and
condescending behaviors that were observed."
The only testimony that actually supports the NLRB's
assertion that the protected statements were known to management
when it made its decision to discharge Legley came from Kenyon,
who testified that he knew about them, though he does not say how.
Otherwise, the testimony overwhelmingly supports an inference that
the

Union's

discussions

with

management

focused

on

Legley's

behavior, which Nicholaides believed was troubling because it had
so upset Lavigne.

Moreover, based on his knowledge of Lavigne,

he interpreted her level of upset to be directly related to
Legley's behavior rather than his protected statements.

Thus, the

testimony of the relevant parties, i.e., Nicholaides, Patnaude and
Kenyon, all support the inference that the focus of the discussions
was on how upset Lavigne was and Legley's behavior.
None of this testimony was discussed by the NLRB.

It

is impossible for us to know whether the NLRB's decision that "the
Union failed to meet its rebuttal burden by showing that it would
have taken the same action absent Legley's protected activity" is

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based in the record as a whole in the absence of any discussion of
the contradictory evidence that is present in the record.

See

NLRB v. Int'l Bhd. of Teamsters, Local 251, 691 F.3d 49, 60 (1st
Cir. 2012) (failing to find substantial evidence on the record as
a whole where the NLRB decision ignored contradictory evidence).
The Board
may not distort the fair import of the record
by
ignoring
whole
segments
of
the
uncontroverted evidence; for '[i]t would seem
that the purpose of the 'whole record' test is
to limit the opportunity for transmuting a
preconception into judgment by picking and
choosing what will support that preconception
and willfully ignoring whatever weighs against
it.'
Maine Yankee Atomic Power Co. v. NLRB, 624 F.2d 347, 360 (1st Cir.
1980) (quoting Louis Jaffe, Judicial Control of Administrative
Action 607 (1965)).

Ultimately "a decision by the Board that

'ignores a portion of the record' cannot survive review under the
'substantial evidence' standard," particularly where, as here, the
Board ignores all contradictory testimony from the Union and
management as well as unfavorable testimony by the discharged
employee.

Carey Salt Co. v. NLRB, 736 F.3d 405, 410 (5th Cir.

2013) (quoting Lord & Taylor v. NLRB, 703 F.2d 163, 169 (5th Cir.
1983)).

Indeed, the Act itself calls upon the NLRB to base its

findings of facts upon a de novo review of the entire record.
Standard Dry Wall Products, 91 N.L.R.B. 544, 545 (1950), enforced,

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188 F.2d 362 (3d Cir. 1951).

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This is especially necessary in a

case such as this where the NLRB opts for a different legal
framework than that employed by the ALJ.

In the absence of any

indication of a de novo review and in a case such as this where
there is significant contradictory evidence that goes unaddressed
by the NLRB's decision, we simply cannot uphold that decision as
based on substantial evidence on the record considered as a whole.
29 U.S.C. § 160(e).
2. Duty of Fair Representation
Because we find that the Union did not cause Legley's
discharge because of his protected activity, we must further
consider whether, in causing his discharge, the Union violated its
duty of fair representation.

In its decision the NLRB does not

explain what the interaction is, or should be, between the duty of
fair representation and Wright Line.

Numerous of the NLRB's most

recent Section 8(b)(2) cases, rather than providing analysis under
the duty of fair representation, focus on Wright Line analysis.
Thus, for example, in Int'l Union, SPFPA, the NLRB reasoned that
an alleged Section 8(b)(1)(A) violation would be evaluated under
the duty of fair representation, which it stated would be breached
if the union's "conduct toward a unit employee is arbitrary,
discriminatory or in bad faith."

360 N.L.R.B. No. 57 at 9.

The

NLRB further found that a Section 8(b)(2) violation would be

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Similarly, in Teamsters "Gen." Local

Union No. 200, the NLRB found that where a violation of Section
8(b)(1)(A) or 8(b)(2) is alleged, and where that "violation turns
on motive . . . the Board requires that the charge be analyzed
under the framework set out in Wright Line."
1852.

357 N.L.R.B. at

Earlier, in United Paperworkers, the NLRB held that "Wright

Line provides the analytical mode and determines the allocations
of burdens of proof in all cases of alleged discrimination."

323

N.L.R.B. at 1044.
All of the cases cited above involved allegations that
union

members

were

discriminated

against

because

of

their

protected activity and in each case the Section 8 violation was
found because of the protected activity.

There was therefore no

need to go any further because no other reason for the discharge
was found.

Another line of cases evaluate when the Union causes

an employee's discharge for reasons other than protected activity.
In its decision below the NLRB points to Operating Engineers.
There the NLRB adopted a presumption that "[w]hen a union prevents
an employee from being hired or causes an employee's discharge
. . . the effect of its action is to encourage union membership on
the part of all employees who have perceived that exercise of
power."

204 N.L.R.B. at 681.

This presumption can be rebutted

by showing that "the union action was necessary to the effective

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performance of its function of representing its constituency."
Id.

Below, the NLRB concluded that the Union had provided no

defense

of

presumption

its
that

actions
it

was

and
in

therefore
violation

did
of

not

overcome

the

8. 15

This

Section

15

Before this court the NLRB therefore argues that the Union has
waived any such defenses.
We lack jurisdiction to hear any
"objection that has not been urged before the Board, its member,
agent, or agency." 29 U.S.C. § 160(e).
However, "[t]he
specificity required for a claim to escape the ban imposed by [§
160(e)] is that which will 'apprise the Board of an intention to
bring up the question.'" NLRB v. Watson-Rummell Elec. Co., 815
F.2d 29, 31 (6th Cir. 1987) (internal citation omitted) (quoting
May Dep't Stores v. NLRB, 326 U.S. 376, 386 n.5 (1945)).
"An
objection was 'urged before the board' if it was raised with
sufficient specificity in briefing prior to the Board's decision,
or in a subsequent motion for reconsideration." Int'l Union, United
Auto., Aerospace, 844 F.3d 590, at 598-99 (citing Woelke & Romero
Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982)).
The Union makes numerous arguments in response to the NLRB,
including the fact that the ALJ made no mention of the duty of
fair representation and it therefore was not required to anticipate
a defense to a legal issue that the Board itself raised in the
first instance. For our purposes, the deciding factor is that the
evidence that the Union presents to this Court in defense of its
conduct under the duty of fair representation is the same as that
it argued to the NLRB in contending that the ALJ should have
applied a Wright Line framework.
The NLRB asserts in response
that this Court cannot consider the parties' briefs before the
NLRB as they are not part of the administrative record. We reject
this claim and consider the briefs relevant to resolving this
question. The Union's brief below focused almost in its entirety
on Legley's unprotected conduct and specifically asserted, inter
alia, that had Wright Line been correctly applied the ALJ would
have been forced to conclude that in reporting Legley's behavior
to Good Samaritan, the Union was motivated by Legley's unprotected
conduct rather than his protected statements.
Given this
argument, we can hardly say that the NLRB did not have an
opportunity to consider the Union's arguments presented here under
the duty of fair representation that it reported Legley's conduct
because it was concerned about his treatment of a fellow worker,
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conclusion, however, was not based on substantial evidence on the
record as a whole given that the Union did argue that it reported
Legley's behavior because of its belief that he had mistreated one
of its members.
The question the NLRB should have evaluated was whether
this justification is sufficient to support the Union's actions
under the duty of fair representation.

The dissent argues that

by citing to Operating Engineers and the "necessity defense," in
its

decision,

the

NLRB

was

signaling

a

desire

to

adopt

the

seemingly onerous showing required by that case, and would remand
to the NLRB to determine whether the Operating Engineers standard
has been met in this case.

In making this argument we believe the

dissent is articulating a rationale for the NLRB's decision that
the NLRB itself has not made.

This is significant because the

NLRB cannot depart from its own precedent unless it articulates
reasons for the departure.
37.

Instead,

we

find

Shaw's Supermarket, 884 F.2d at 36that

the

NLRB's

more

recent

cases

interpreting the threshold of what is required by the Union to
rebut the presumption established in Operating Engineers lower the

which report was in furtherance of its duty to represent the needs
of its constituency as a whole. The real issue, it seems to us,
is that the NLRB failed to consider the record as a whole and
therefore assumed that the reason the Union reported Legley to
management was because of his protected conduct.
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rebuttal burden required by the Union and that the Union's stated
justification for reporting Legley easily meets this standard.
For example, in Operative Plasterers the NLRB, citing
Operating

Engineers,

summarized

both

the

presumption

and

the

resulting standard to rebut that presumption as:
not only that a union may not take action
impairing a represented employee's job tenure
or prospects based on arbitrary, unfair,
irrelevant, or invidious considerations, but
also that the union bears the practical
affirmative burden of justifying virtually any
such 'impairment' action by showing that its
action was taken to fulfill its overriding
duty to represent the legitimate interests of
its constituency.
257 N.L.R.B. at 1395.

This latter requirement can be met when the

Union shows that its actions were "done in good faith, based on
rational considerations, and were linked in some way to its need
effectively to represent its constituency as a whole."

Id.

Shortly after Operative Plasterers, the NLRB further clarified
that the union could rebut the Operating Engineers presumption "by
evidence of a compelling and over-riding character showing that
the conduct complained of was referable to other considerations,
lawful in themselves, and wholly unrelated to the exercise of
protected employee rights or to other matters with which the Act
is concerned."

Glaziers Local Union 558, 271 N.L.R.B. 583, 585

(1984), enforcement denied on other grounds, 787 F.2d 1406 (1986)
(quoting Carpenters Local 1102, 144 N.L.R.B. 798, 800 (1963)).
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The Operative Plasterers formulation was cited by the NLRB in its
most recent case on point, Caravan Knight Facilities Mgmt., Inc.,
362 N.L.R.B. No. 196, slip op. at 5 (Aug. 27, 2015), enforcement
granted in part and denied in part sub nom., Int'l Union, United
Auto., Aerospace and Agric. Implement Workers of Am. v. NLRB, 844
F.3d 590 (2016).

There the NLRB found that the Union acted in

good faith and had a rational and legitimate interest, "consistent
with its duty to represent all unit employees," in reporting an
employee's threat to fight with other employees.

Id. at 6.

The Union asserts that it had a rational reason based on
good faith to report Legley's behavior -- namely that it was
concerned about his treatment of a fellow employee and union
member.

We find that this reason easily meets the standard

established by Operative Plasterers and Caravan Knight.
actions

were

taken

in

"good

faith,

based

on

The

rational

considerations" and the Union had a valid interest in ensuring
that someone abusing employees be reported to the employer for the
protection of its own fellow members.

Operative Plasterers, 257

N.L.R.B. at 1395.
The other cases cited by Caravan Knight similarly employ
an expansive definition of what counts as "necessary" to include
anything in which the Union has a "legitimate interest . . .
consistent with its duty to represent all unit employees." 362

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N.L.R.B. No. 196 at 6 (citing Acklin Stamping, 355 N.L.R.B. 824,
825-26 (2010) and Graphic Communc'ns Local 1-M (Bang Printing),
337 N.L.R.B. 662, 674 (2002)).

Given this line of cases and given

that "an unexplained divergence from [the Board's] precedent would
render a Board decision arbitrary and capricious," we will not
assume that the Board intended to revert to a heightened standard
under Operating Engineers absent a clear statement by it to that
effect.

Fort

Dearborn,

827

F.3d

at

1074;

see

also

Shaw's

Supermarket, 884 F.2d at 36-37.
Before us now the NLRB makes three arguments to support
its contention that the Union has not met its rebuttal burden under
the duty of fair representation.

First, it argues that Legley was

not uncivil, therefore it was unnecessary to report his conduct to
management.

Second, it argues that Legley's protected conduct was

mentioned "at every step of the discussion" both among union
delegates and with Good Samaritan, which it suggests indicates
that Lavigne's "well-being" was not the Union's primary concern.
Third, it argues that Nicholaides's report of Legley's statement
that 'maybe this isn't the best fit for me' indicates that the
Union had a motivation other than protecting its members from
uncivil conduct.
We find none of these arguments persuasive.

With regard

to the first argument, we have already stated that the NLRB failed

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to analyze this case under Burnup & Sims, therefore there cannot
be an allegation that no unprotected conduct occurred.

Instead,

the question of how uncivil Legley actually was in his behavior
can only be relevant in evaluating whether the Union was acting in
good faith in reporting his behavior to management, but we are not
tasked

with

determining

for

ourselves

whether

Legley

was

sufficiently uncivil as to merit dismissal under Good Samaritan's
code of conduct. In reviewing the Union's statements to management
(outlined above) we fail to find substantial evidence that the
Union was deliberately misleading in reporting Legley's behavior
to management, Screen Actors Guild, 525 U.S. at 47, nor that they
were deceitful or dishonest, T.G. & Y. Stores, 971 F.2d at 531;
United Paperworks, 140 F.3d at 747.
The
protected

NLRB

additionally

statements

unprotected conduct.

were

cites

mentioned

the
in

fact

that

discussions

Legley's
of

his

However, as examined above, a full review

of the record gives no indication (much less substantial evidence
to support) that Legley's protected statements were mentioned at
every stage, either among the Union members or in discussions
between the Union and management.

Leveille testified that she did

not discuss the protected statements with Nicholaides; Nicholaides
testified that he did not mention the protected statements to
Cadima;

and

all

reports

of

Nicholaides's

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Patnaude, Watts and Kenyon focused on Legley's behavior rather
than his protected statements.

While it is Kenyon's testimony

that he knew about Legley's protected statements, there is actually
no

testimony

supporting

the

NLRB's

assertion

that

Legley's

protected and unprotected conduct were consistently discussed
together.
Finally, given all of the above, we find Nicholaides'
report of Legley's negative attitude (his statement that maybe
Good Samaritan was not a good fit for him) to be of little
consequence.

There is not substantial evidence to support a

conclusion that it motivated the Union's decision to discuss
Legley's behavior with management in the first instance, and it
does not seem to have played a central role in management's
decision to discharge him.
We therefore find that the Union's report of Lavigne's
level of upset following the orientation meeting does not rise to
the level of being either arbitrary, discriminatory, or in bad
faith

and

reporting

that
to

it

has

management

orientation meeting.

cited

a

what

valid
it

"necessity"

believed

defense

happened

at

in
the

There is no allegation that Lavigne was not,

in fact, in tears following the orientation.

In communicating

this fact to management, the Union had a legitimate consideration,
one

employee's

mistreatment

of

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relevant

to

its

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representation of its constituency as a whole.

Entry ID: 6096005

The NLRB conducted

no analysis under this framework and failed to discuss any of the
contradictory evidence supporting the Union's assertion that it
believed it necessary to report Legley's behavior to management.16
B. Good Samaritan
As noted above, having determined that the Wright Line
analysis applies in situations such as this, where the question of
motivation is central to the analysis, we must determine whether
the NLRB has provided substantial evidence that Legley's protected
conduct was a motivation in Good Samaritan's decision to discharge
him.

Moreover, the question is whether Good Samaritan had a

reasonable belief that the alleged misconduct occurred. Sutter
East Bay, 687 F.3d at 435.

Discovering significant contradictory

evidence that the NLRB failed to consider, we again find that it
has not based its decision on substantial evidence on the record
as a whole as required by the Act.

29 U.S.C. § 160(e).

While both the ALJ and the NLRB in its arguments to this
court treat the question of whether Legley was in fact sufficiently
uncivil

as

to

merit

being

discharged

16

as

central

to

their

Because we believe that it had all of the evidence and arguments
it needed in order to articulate a contrary position and, if it
actually intended to take such a position, neglected to do so
because of its failure to consider the record as a whole, we
decline the dissent's invitation to remand to the NLRB for
reconsideration.
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determination of the case, this focus is misplaced and is based in
the ALJ's misapplication of Atlantic Steel.

Given that there has

been some unprotected conduct,17 then the question of whether the
employee's conduct merits discharge becomes the sole provenance of
the employer, because the decision to employ a given individual
belongs solely to the employer.

MCPC, Inc., 813 F.3d at 488;

Meyers I, 268 N.L.R.B. at 497 n.23.

This is because, as a

probationary employee, Legley was essentially at-will, and Good
Samaritan could discharge him for any reason at all so long as it
was not on account of his protected conduct.

The central question

is thus Good Samaritan's motivation in actually discharging him,
not the ALJ's, NLRB's or even our evaluation of whether we believe
that his behavior constituted a violation of the civility policy
or whether he should have been kept on as an employee.

See

Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1105 (D.C.
Cir. 2001) ("The Board does not have authority to regulate all
behavior in the workplace and it cannot function as a ubiquitous

17

As stated above, the NLRB's decision indicates that it opted
against applying Burnup & Sims, 379 U.S. 21. Thus, the level of
Legley's incivility is only relevant in evaluating Good
Samaritan's motive. It would be difficult for the NLRB to allege
that there has been no unprotected conduct at all. Derby described
an escalation in Lavigne's and Leveille's interaction, including
a raising of voices and a number of non-protected behaviors were
cited by other witnesses as contributing towards their negative
perception of Legley, including being generally difficult.
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'personnel manager,' supplanting its judgment on how to respond to
unprotected, insubordinate behavior for those of an employer.").
The decision to discharge Legley was made at a luncheon
on December 19.

Patnaude and Kenyon were the only two individuals

who testified to that conversation.

Patnaude does not mention

Legley's protected comments as having come up at all in the
decision to discharge him.

Indeed, Patnaude was specifically

asked if they would have fired him if Lavigne had lied to Legley
(presumably in telling him that he had to join the Union), and
Patnaude replied that "[i]t was not the question that he asked, it
was how he asked it and that he was badgering her."

Kenyon

testified that Legley's protected statements had no impact on the
decision to discharge him and that his concern was that he did not
want "to put time into somebody, make an investment, and hav[e] to
deal with those issues right out of the gate."

The issues he

identified were:
[Patnaude] had mentioned even during her
interview process, she had concerns at that
time. Also in that conversation, it came out
about a report from employee health about how
difficult Mr. Legley had been at employee
health.
In that conversation, it also came
out about how difficult Mr. Legley had been
during orientation and that came up through
[Nicholaides], through [Lavigne], I believe.
And [Cadima] from orientation had observed how
upset [Lavigne] was.

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the

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ALJ

and

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the

NLRB

each

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dismissed

as

irrelevant Legley's behavior on December 5 when he went to human
resources to fill out paperwork.

However, as the previous quote

indicates, it clearly colored how Patnaude and Cadima interpreted
Lavigne's and Nicholaides' reports concerning the orientation.
Moreover, it had an impact on the overall decision to discharge
Legley given Patnaude's statements to Watts and Kenyon that she
had not wanted to hire him in the first place.
As an initial matter, it is not clear to us that the
General

Counsel

met

his

burden

in

demonstrating

that

Good

Samaritan's antipathy towards Legley's protected activity was a
motivating factor in its decision to discharge him.

Returning to

the Wright Line test, prongs one and two are easily met (Legley
engaged in protected conduct and Kenyon admitted knowing about
it), but the NLRB did not specify what facts it relied upon to
determine that prongs three and four were met (the employer's
antipathy toward the protected activity and the causal link between
that antipathy and the decision to discharge).

The situation in

this case is far different from that found in other of our cases,
such as E.C. Waste where the company had a "litany of generalized
section 8(a)(1) violations" making the company's animus "seem[]
evident." 359 F.3d at 43.

In its decision the NLRB does not

specify what facts support a finding of animus.

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finds that "the Employer learned of Legley's protected conduct at
or near the same time as the Union's effective request that he be
disciplined for that conduct."

In so stating, the NLRB's decision

is

knowledge

effectively

stating

that

of

protected

conduct

followed by an adverse employment decision suffices to demonstrate
a potential violation of Section 8.
In its briefing to us the NLRB provides an additional
factor supporting animus, asserting that the timing of Legley's
discharge is circumstantial evidence of animus.

However, in

making this point it cites E.C. Waste where the firing occurred
"in the critical interval between the time that the Union filed
its

petition

for

recognition

and

the

planned

presentation

election," making the "probative value" of the timing "obvious."
359 F.3d at 43.

Here the probative value of the timing is far

from obvious given that the protected and unprotected conduct
occurred at the same time.

In the absence of any other proffered

evidence of animus, it is not obvious to us that the NLRB has
demonstrated substantial evidence that the General Counsel met his
prima facie burden connecting the adverse employment decision to
antipathy towards the protected conduct.
Even if the General Counsel had made such a showing,
however,

we

do

not

believe

that

the

NLRB

has

established

substantial evidence on the record as a whole that Good Samaritan

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would not have made its decision to discharge Legley despite the
protected activity.

It is true that

[e]ven if the employer proffers a "seemingly
plausible explanation," the Board need not
accept such an explanation at face value.
Rather, "[i]f the Board supportably finds that
the reasons advanced by the employer are
either
insufficient
or
pretextual,
the
violation is deemed proven."
Hosp. Cristo Redentor v. NLRB, 488 F.3d 513, 518 (1st Cir. 2007)
(internal citations omitted) (quoting E.C. Waste, 359 F.3d at 42
and Holsum De Puerto Rico, Inc. v. NLRB, 456 F.3d 265, 269 (1st
Cir. 2006)).

Here, the NLRB simply stated that Good Samaritan

failed to prove that it would have discharged Legley in the absence
of his protected activity.

At most this can be read to assert

that Good Samaritan's proffered reasons for discharging Legley
were insufficient.

Such a finding is not supported by substantial

evidence on the record as a whole, however, given all of these
statements from individuals involved in the decision to discharge
Legley, all of whom stated that their only concern was Legley's
apparently difficult interactions with numerous Good Samaritan
employees.

In the absence of an adverse credibility finding or a

finding of pretext, the fair inference to be drawn from these
statements is that Good Samaritan discharged Legley because of how
it reasonably perceived his behavior not because of his protected
conduct.

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IV. Remaining Issue
Having thus resolved the central issues in this case, we
are left holding one piece of the puzzle.

The NLRB additionally

found that the Union threatened Legley with unspecified reprisals
when Lavigne requested information on which department Legley
would be working in and then stated "that she knew the people that
worked down there, and she was going to warn them that he was
coming, and that they would not put up with him."

The NLRB does

not actually state its reasons for concluding that Lavigne's threat
was an "unlawful threat of unspecified reprisal."

The ALJ was

similarly circumspect, merely stating that he construed Lavigne's
statement "as [a] threat of unspecified reprisals."
A. Legal Framework
As stated above, Section 8(b)(1)(A) "makes it an unfair
labor practice for a labor organization or its agents to restrain
or coerce employees in the exercise of rights protected by the
Act." Int'l Bhd. Of Teamsters, Local 391, 357 N.L.R.B. No. 187,
slip op. at 1 (2012).

Threats have been interpreted to constitute

restraint or coercion within the meaning of the Act.

NLRB v.

Unión Nacional de Trabajadores, 540 F.2d 1, 7 (1st Cir. 1976).
The question is whether the statement's "natural tendency . . . is
to deter the exercise of [Section] 7 rights by the employees who
either witness it or learn of it."

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Id.

"It is the coercive

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tendency

of

[the]

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statements,

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not

their

constitutes a violation of the Act."

actual

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effect,

that

NLRB v. Marine Optical,

Inc., 671 F.2d 11, 18 (1st Cir. 1982).

The threat must be

connected to an employee's exercise of Section 7 rights.

Amsted

Indus., 309 N.L.R.B. 860, 862 (1992).
B. Analysis
Neither the ALJ nor the NLRB cite an evidentiary basis
for

their

finding

that

Lavigne's

threat

was

unlawful.

The

strongest support for an interpretation of the statement as a
threat comes from the testimony of Derby who stated that after
Legley asked to make copies Lavigne asked where Legley would be
working and made the statement that she was going to warn them
that he was coming and they would not put up with him down there.
Derby testified that she was "pretty horrified" by this statement
and took it to be "a threat."

In describing their demeanor at

this time Derby described it as "escalating" and they both seemed
"irritated." While Derby's testimony thus establishes a perception
that the statement is threatening, it does not answer the question
of

whether

statements.

the

threat

was

connected

to

Legley's

protected

Indeed, the proximate cause of the statement appears

to have been Legley's interruption to request to photocopy all of
the documents.

Derby's testimony simply does not resolve the

question before us because in order to be unlawful the threat has

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to be directed at the exercise of Section 7 rights rather than
unprotected conduct, and Derby's testimony does not establish that
nexus.

Amsted Indus., 309 N.L.R.B. at 862.
The Union points to Lavigne's conversations following

the orientation to demonstrate that what upset Lavigne and what
was

the

source

of

her

statement

was

not

Legley's

protected

statements, but rather his conduct and behavior throughout the
orientation.

It argues that this supports the inference that what

Lavigne was saying "they" would not put up with had nothing to do
with his statements that he did not have to join the Union but
with what she perceived to be his rude behavior.
Although this question is a much closer one, we again
find that where the Board's decision "ignores a portion of the
record" it cannot survive review under the "substantial evidence"
standard.

Lord & Taylor, 703 F.2d at 169.

Again, there simply

is not "substantial evidence on the record considered as a whole"
that Lavigne's statement was specifically directed at Legley's
protected statements rather than at his unprotected conduct.
U.S.C. § 160(e).

29

Given the NLRB's failure to discuss any of

Lavigne's post-orientation conversations, all of which focused on
Legley's conduct rather than his protected statements, we cannot
find substantial evidence that at the time the statement was made

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Lavigne's primary concern was Legley's assertion of his right not
to join the Union.
V. Conclusion
For the foregoing reasons the petitioners' requests for
relief are granted, and the NLRB's application for enforcement of
its order is denied.
Enforcement denied.

"Concurring in part and Dissenting in part opinion follows"

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BARRON, Circuit Judge, concurring in part and dissenting
in part.

I join this excellent opinion in all respects except for

the conclusion that the Union has met its burden to show that it
did not commit an unfair labor practice in causing Good Samaritan
to effect the discharge of one of its employees, Camille Legley.
To explain my reasons for dissenting on this issue, it helps to
step back from the facts of this case, messy as they are, in order
to

consider

the

broader

complicated though it is.

legal

context

in

which

it

arises,

Doing so reveals, in my view, why we

are not in a position to deny enforcement at this stage and why,
instead, the proper course is to vacate and remand to the Board
for a more fulsome explanation of the grounds for its ruling.
I.
The Board made clear in Wright Line, a Div. of Wright
Line,

Inc.,

251

N.L.R.B.

1083

(1981),

that,

if

an

employer

discharges an employee, and the Board can make a prima facie
showing that the employee's protected conduct -- that is, conduct
protected by section 7 of the National Labor Relations Act ("NLRA"
or the "Act"), 29 U.S.C. § 157 -- was a "motivating factor" for
the

discharge, 18 then

the

employer

18

will

be

presumed

to

have

Section 7 provides: "Employees shall have the right to selforganization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
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committed an unfair labor practice, under section 8(a)(3) of the
Act.19

Id. at 1089.

The Board has also made clear that, in order

to rebut that presumption, an employer has the burden of showing
that it would have discharged the employee, even in the absence of
the employee's protected conduct, on the basis of a legitimate
business reason.

Id.

Under Board precedent, it is equally clear that a union
that causes an employer to effect the discharge of an employee may
be deemed to have committed an unfair labor practice, under section
8(b)(2),20 if the union did so because of the employee's section
7-protected activities.

For, just like an employer, a union has

and shall also have the right to refrain from any or all of such
activities except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 158(a)(3) of this
title." 29 U.S.C. § 157.
19

Section 8(a)(3) provides: "It shall be an unfair labor practice
for an employer . . . by discrimination in regard to hire or tenure
of employment or any term of condition of employment to encourage
or discourage membership in any labor organization." 29 U.S.C.
§ 158(a)(3).
20

Section 8(b)(2) provides: "It shall be an unfair labor practice
for a labor organization or its agents . . . to cause or attempt
to cause an employer to discriminate against an employee in
violation of subsection (a)(3) of this section or to discriminate
against an employee with respect to whom membership in such
organization has been denied or terminated on some ground other
than his failure to tender the periodic dues and the initiation
fees uniformly required as a condition of acquiring or retaining
membership." 29 U.S.C. § 158(b)(2).
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special power in the workplace.

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Therefore, a union must show that

its reasons for causing the employee's discharge were not aimed at
wrongly leveraging that power by, say, using the union's ability
to cause the employer to take action against an employee who had
spoken out against the union because of that speech.

The test

that the Board uses to determine if the union had an improper
motive in causing the employer to discharge an employee is the
same Wright Line test that the Board applies to employers.

See

Freight, Constr., Gen. Drivers, Warehousemen and Helpers, Local
Union 287, 257 N.L.R.B. 1255 (1981).
But, significantly for present purposes, the motivebased test set forth in Wright Line is not the only one that the
Board has applied to determine whether a union has violated section
8(b)(2) of the Act and thus committed an unfair labor practice by
causing an employer to discharge an employee.

The Board has also

subjected unions -- in certain circumstances -- to an additional
measure of scrutiny beyond that mandated in Wright Line.

And here

is why.
The

Board

has

recognized

that

a

union,

unlike

an

employer, may have a separate and special obligation -- known as
its duty of fair representation.
(1967).

Vaca v. Sipes, 386 U.S. 171, 176

This duty arises when the union has been designated the

"exclusive bargaining representative" of employees in a particular

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bargaining unit -- that is to say, when a union has obtained
"statutory authority to represent all members of a designated
unit," not just those within the bargaining unit who have opted to
join the union.

Id.

Pursuant to that duty, a union must "serve the interests
of all members without hostility or discrimination toward any, to
exercise its discretion with complete good faith and honesty, and
to avoid arbitrary conduct."

Id.

Thus, the Board has made clear

that, in assessing whether a union, in causing an employer to
discharge an employee that the union represents, has committed an
unfair labor practice, it is critical to take account of how that
union conduct looks in light of what may be a particular union's
special duty of fair representation.

Caravan Knight Facilities

Mgmt., Inc., 362 N.L.R.B. No. 196, slip op. at 4 & n.10, 2015 WL
5113236 (Aug. 27, 2015).21
Deciding just what it would mean to take account of the
duty of fair representation in evaluating the conduct of a union
in causing an employer to discharge an employee represented by the
union is critical to the proper disposition of this case.

In

fact, it is the way in which the majority treats the Board's manner

21

To be clear, the Board in these cases does not charge the union
with breaching the duty of fair representation. Rather, the Board
simply takes account of the duty of fair representation in
determining whether an unfair labor practice was committed.
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of taking account of that duty that causes me to dissent.

But,

before saying more about why I disagree with the majority in this
regard, it first makes sense to turn back to the case at hand to
explain how this issue arises here, as the issue concerning the
application of the duty-of-fair-representation framework comes to
us in a most complicated fashion.
II.
As an initial matter, I am convinced that, in this case,
the record supports the Board's conclusion that the Union did cause
the employer to discharge the employee in question, Legley.

Thus,

the Board quite rightly did evaluate whether the Union's conduct
in having Legley fired constituted an unfair labor practice.
Moreover, while the Board applied the Wright Line test
to determine whether the Union committed an unfair labor practice
by causing the employer to discharge Legley, I agree with the
majority that the Board erred in applying that test.

In my view,

the record simply does not provide sufficient support for the
Board's conclusion that, under that test, the Union committed an
unfair labor practice.
The Board concluded that the Union was motivated by
animus against Legley's protected conduct.

But, as the majority

describes, the record as a whole does not contain substantial
evidence to support that conclusion.

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The record evidence at most

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shows that the Union was motivated by Lavigne's distress at
Legley's disruptive behavior during a meeting in the workplace
rather than by Legley's protected conduct -- namely, any arguably
anti-union sentiments he expressed at that time.

Thus, if Wright

Line alone provided the test for assessing whether the Union
committed an unfair labor practice, the Board's ruling against the
Union could not be sustained.
But, as the majority acknowledges, the Board did not
only apply the Wright Line test in evaluating whether the Union's
conduct in causing the employer to fire Legley constituted an
unfair labor practice.

The Board also separately evaluated the

Union's conduct under the duty-of-fair-representation framework.
And, in doing so, the Board determined that, under that framework,
too, the record showed that the Union's conduct amounted to the
commission of an unfair labor practice.
In consequence, in order to decide whether the Board's
decision may be affirmed, we must decide whether the record
evidence that supports the conclusion that the Union was motivated
only by Lavigne's distress at Legley's disruptive behavior and not
by the Union's desire to retaliate against Legley for his protected
conduct is enough to satisfy the Union's burden under the dutyof-fair-representation framework, just as it is clearly enough to
satisfy the Union's burden under the Wright Line test.

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such evidence is also enough to satisfy the Union's burden even
under that separate framework, then the Board's ruling in this
case cannot be upheld.
In considering this issue, it is important to note at
the outset that there is no question but that the Board was right
to undertake the additional scrutiny of the Union's conduct that
is

required

under

the

duty-of-fair-representation

framework.

After all, in this case, the Union did have that special duty of
fair representation. It is the exclusive bargaining representative
for the bargaining unit that Legley, the discharged employee,
joined.

And so, under Board precedent, the Board was obliged to

take account of that duty in assessing the propriety of the Union's
action in causing Legley's firing.

Nor does the Union contend

otherwise.
The question, then, is simply whether the Board properly
took account of that special duty of the Union here.

The answer

to that question depends, at least initially, on understanding how
the Board determined that the Union acted improperly in light of
its duty of fair representation.

Did the Board do so simply by

redundantly applying a test that amounted to the motive-based
Wright Line test, in which case the Board's finding of an unfair
labor practice could not be affirmed under the duty-of-fairrepresentation framework any more than it could be affirmed under

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Or, did the Board instead apply a different

test that, precisely because of the Union's special duty of fair
representation, focused less on motive and thereby imposed a
different burden on the Union to show that it acted properly in
causing the employer to discharge Legley?

And, if the Board did

apply a different test, just what did the Union need to show in
order to satisfy it?
The natural place to look to find answers to these
questions, of course, is in the Board's decision in this case.
But,

because

concerns,

in

my

divergence

large

part,

from

the

the

proper

majority
reading

on
of

this
the

issue

Board's

decision, I think that, before diving in and parsing precisely
what the Board said on that score, it helps to keep in mind that,
as a matter of policy, the Board might well want the applicable
test

under

the

duty-of-fair-representation

framework

to

be

to

be

different from the one set forth in Wright Line.
To

see

why

the

Board

might

want

that

test

different, consider that it is hardly unusual for employers to
decide that an employee must be discharged when there is a good
business reason to do so.

In light of that fact, one can

understand why there might be no reason for the Board to be
concerned about the effect that an employer's discharge of an
employee may have on a workplace if the employer can prove that

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the discharge was motivated by some reason unrelated to the
employee's protected conduct -- notwithstanding that the employee
had engaged in protected activity under the Act.

After all, the

Board may not wish to second-guess the employer's business judgment
in firing an employee once it is convinced that the employer acted
against that employee for a reason unrelated to employee conduct
protected by federal labor law.
In

accord

with

this

logic,

Wright

Line

permits

an

employer to rebut the presumption that it committed an unfair labor
practice in firing an employee who had engaged in protected
conduct, so long as the employer can show that it acted on the
basis of a bona fide reason, unrelated to the employee's protected
conduct, in firing that employee.

In other words, under Wright

Line, the strength of the employer's business justification is not
independently subject to scrutiny.

What matters is simply whether

a business justification was the actual justification.
When

a

union

that

is

subject

to

the

duty

of

fair

representation takes action to cause an employee to be fired by an
employer, however, there might be reason for the Board to pursue
a distinct line of inquiry into the union's conduct -- and one
that is less focused on ferreting out the motive the union had for
going after the employee.

In the normal course, after all, one

might not expect a union to be seeking to fire the workers that it

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Thus, when a union does

engage in the unusual behavior of taking steps to get an employer
to fire an employee that the union is obliged to fairly represent,
the Board might well be concerned about whether the union's action
constitutes an unfair labor practice, notwithstanding that the
union

was

not

motivated

by

an

intent

to

retaliate

for

the

employee's protected conduct.
Specifically, the Board might be concerned about the
effect on the employees that the union represents of the union's
unusual actions in targeting one of those employees for discharge.
The Board might thus require that the union have an especially
good reason for seeking the employee's discharge.

Only then, the

Board might conclude, would it be clear that the union's action
did

not

--

even

if

only

unintentionally

--

represent

an

intimidating and thus impermissible display of union power.
Indeed, the Board explained this reasoning in an early
one of its precedents -- Int'l Union of Operating Engineers, Local
18, 204 N.L.R.B. 681 (1973) -- which the Board has subsequently
made clear involved the Board's application of the duty-of-fairrepresentation framework to assess whether a union had committed
an unfair labor practice in adversely affecting the employment
opportunities of those it represented.

See Caravan Knight, 362

N.L.R.B. No. 196, slip op. at 4 & n.10.

And, in setting forth its

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reasoning, the Board did adopt a test for determining whether the
union committed an unfair labor practice that is quite different
from Wright Line.
The Board did so by stating first that, where a union
prevents an employee it represents from being hired, or causes the
discharge of an employee it represents, that action "encourage[s]
union membership on the part of all employees who have perceived
that exercise of power," and thus is presumptively an unfair labor
practice.

Operating Eng'rs, 204 N.L.R.B. at 681.

The presumption

reflected the Board's concern that a union's causing an employer
to take an adverse action against an employee that it represents
might intimidate other employees into being more supportive of the
union than they would otherwise be.

The Board then explained that

this presumption can be rebutted only by the union showing either
that the "interference with employment was pursuant to a valid
union-security clause," or "in instances where the facts show that
the union action was necessary to the effective performance of its
function of representing its constituency."

Id. (emphasis added).

In other words, the Board did not focus simply -- as
Wright Line did -- on whether the union was motivated by the
employee's protected conduct.

Instead, the Board also looked

independently at the strength of the union's interest in acting as
it did.

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The facts of Operating Engineers are also illuminating,
as they reveal how demanding this non-motive-based test is.

In

that case, an employee had engaged in offensive conduct at the
union hiring hall and had acted disruptively in a union meeting.
On that basis, the Board found, the union denied him his normal
seniority on a hiring hall referral list and thereby prevented him
from being hired by the employer.

Id.

But, even though the Board

did not dispute that the union took that action in consequence of
the disruptive conduct of the employee in union settings and not
because of any protected conduct by the employee, the Board still
found that the union committed an unfair labor practice.

Id.

The Board pointed out that the union had options short
of preventing the employee's hiring to redress the problematic
conduct of the employee in union settings, including by imposing
internal union discipline in the form of fines or suspensions.
Id. at 681-82.

Thus, the Board was concerned by the fact that the

union,

than

rather

proportionate

availing

responses

tied

itself
to

of

the

these
union's

seemingly
own

more

effective

functioning, had instead acted to adversely impact the employment
opportunities of the employee -- notwithstanding the union's duty
of fair representation.
union

committed

an

In consequence, the Board stated that the

unfair

labor

practice

because

"while

the

evidence proffered here might indeed show that the Union had no

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intent to encourage union membership by interfering with Murphy's
employment, yet the display of union power exhibited by an exercise
of control over employment opportunity solely for reasons relating
to the conduct of an employee as a union member would necessarily
have that effect."

Id. at 682 (emphasis in original).

In sum, in Operating Engineers, the Board appeared to
reject under the duty-of-fair-representation framework the very
kind of showing that the Union makes here with respect to the
firing of Legley, and that we agree satisfies the Wright Line
test -- namely that the Union was motivated to take action against
him by his disruptive behavior and not by his protected conduct.
For, in Operating Engineers, the Board found the union committed
an unfair labor practice in seeking to get the employer to take
adverse action against the employee it represented, even though
the Board agreed the union was not motivated to take action against
the employee by that employee's protected conduct.

And Operating

Engineers reached that conclusion because the union's actions were
not necessary to its functioning, and thus had an intimidating
effect on the other employees, whom the union was duty-bound to
fairly represent.
III.
Against this background, it is no surprise to me that
when we turn to the particulars of the Board's decision in this

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case regarding its application of the duty-of-fair-representation
framework, we do find what seem to me to be strong signals that
the Board applied a different test from Wright Line.

And, in

fact, we find what seem to me to be very strong signals that the
Board applied the very test that I have just described the Board
as having set forth in Operating Engineers -- in other words, a
test that zeroes in on the degree to which the union's action was
necessary (or proportionate) to the union's interest in ensuring
its own effective functioning, rather than on whether the union's
action was motivated by a desire to punish the employee for having
engaged in protected conduct.22
The first of these signals appears in a footnote to the
Board's decision in this case.

There, the Board explained that

it has in the past "characterized the union's rebuttal burden under
the duty-of-fair-representation framework in different ways."
Board then set out two formulations.

The

The first formulation was

that the union must show that its "action was necessary to the
effective performance of its constituency" -- a showing about the
importance of the union's interest -- for which the Board cited

22

I note in this regard that the Board has never held that actions
by a union that do not constitute unfair labor practices under the
Wright Line test therefore also do not constitute unfair labor
practices
under
the
duty-of-fair-representation
framework.
Rather, the Board has consistently applied the tests in parallel.
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The second formulation was that the union

must show "the conduct complained of was referable to other
considerations, lawful in themselves, and wholly unrelated to the
exercise of protected employee rights or other matters with which
the Act is concerned," for which the Board cited Glaziers Local
Union 558, 271 N.L.R.B. 583, 585 (1984).

And while the Glaziers

formulation may sound like one that, like Wright Line, is oriented
around the union's motivation in causing the employer to effect a
discharge of the employee, the context of the case reveals the
formulation is actually, like Operating Engineers, setting forth
a test for scrutinizing the importance of the union's interest.23

23

In Glaziers, a union staged a walkout to attempt to get the
employer to replace one class of employees, so-called permit
workers, with another, journeymen. Glaziers, 271 N.L.R.B. at 586.
The Administrative Law Judge applied the very same test set forth
in Operating Engineers and determined that the Union did not commit
an unfair labor practice under the duty-of-fair-representation
framework because it had staged the walkout without any intention
to advantage union over non-union workers, even though the
journeymen were union members and the permit workers were not.
Id. at 596. Rather, the ALJ found, the union had simply sought
to enforce a traditional labor practice known as "bumping," which
would give preference in hiring to the more experienced journeymen
over the less experienced permit workers, regardless of their union
or non-union status. Id. at 596-97. And the ALJ determined that
the union's interest in promoting the traditional hiring practice
redounded to the benefit of all the workers represented by the
union and thus qualified as an interest sufficiently tied to the
union's effective functioning to satisfy Operating Engineers. Id.
The Board then reversed, but not because it found that the union's
true interest in promoting bumping was to favor union members over
non-union members.
Id. at 585-86.
Rather, the Board simply
determined that the union failed to demonstrate that its interest
in promoting bumping was actually one that was "sufficient" to
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Thus, both of these formulations are concerned with the
importance of the union's interest when the union acts to cause
the employer to discharge an employee that the union represents.
So, the Board clearly seems to understand the test under the dutyof-fair-representation framework to be -- whatever its precise
content -- a distinct one from the motive-based test of Wright
Line, a case that, as I noted at the outset, did not even involve
a discharge precipitated by the actions of a union that was subject
to the duty of fair representation.
The second of these signals appears in the Board's
application of the duty-of-fair-representation framework in this
case.

The Board, in actually evaluating whether the Union met its

evidentiary burden under that framework, stated that the Union
"[did] not contend that the discharge [of Legley] was necessary to
the effective performance of its function of representing its
constituency."
Operating

Thus, the Board used the very formulation that

Engineers

set

forth

--

and

not

the

alternative

formulation in Glaziers that the Board had also mentioned in the
footnote, which, in any event, was itself a case involving the
application of the test set forth in Operating Engineers.

justify
the aim
had "no
legally

the targeted walkout even if was not an interest rooted in
of favoring union members because the practice of bumping
objective basis" and was not a practice the employer was
obliged to follow. Id. at 586.
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Consistent with my conclusion that the Board in this
case applied the "necessary" test from Operating Engineers, the
Board's counsel states in its brief to us that the Board did just
that.

And, further, the Union never directly disputes that the

Board did so.
Thus, it would appear that, as the case comes to us, the
Board determined that, in order for the Union to meet its burden
under the duty-of-fair-representation framework, the Union had to
show

that

causing

Legley's

discharge

was

"necessary

to

the

effective performance of [the Union's] function of representing
its constituency."

And that conclusion brings us, then, to the

question of how the Board actually applied that test.
IV.
Here,

the

Board

applied

the

"necessary"

test

from

Operating Engineers by ruling against the Union on the ground that
the Union failed to meet its burden under that test because the
Union made no effort to meet it.

Indeed, the Board asserted that,

rather than attempting to satisfy that test, the Union instead
gave a reason for the employee's firing that the Board concluded
was one that no one disputes showed the Union was motivated by
Legley's protected statements.

In other words, according to the

Board, the Union merely set forth a reason that would not pass
muster even under the motive-focused test of Wright Line.

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In light of these aspects of the Board's decision, one
might be forgiven for thinking that the resolution of the issue
regarding whether the Union committed an unfair labor practice
under

the

duty-of-fair-representation

framework

Legley's discharge is quite straightforward.

in

causing

The Board applied a

particular test under the duty-of-fair-representation framework to
evaluate the Union's conduct.

The Board then explained that the

Union made no effort to meet that test.

Case closed.

But, alas, things are not so simple.

As it turns out,

the Board's ruling under the Operating Engineers test cannot be
upheld on either of the two grounds that the Board offered.
As the majority rightly notes, the Administrative Law
Judge did not apply the duty-of-fair-representation framework at
all -- let alone the test under that framework set forth in
Operating Engineers.

Ante at 19.

The Board thus arguably did not

give the Union notice that it would need to satisfy the duty-offair-representation test as articulated in Operating Engineers.
And so, because the Union's failure to argue to the Board that the
test was met is excusable, waiver is no ground for upholding the
Board.
The Board is also wrong to have characterized the Union
as having been motivated by Legley's protected conduct.

As the

majority well explains, the record does not provide substantial

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evidence to show that the Union was motivated by Legley's protected
conduct rather than by Lavigne's distress.

Because the Board's

characterization of the Union's reason for discharging Legley is
unsupportable, the Board may not rely on that characterization to
justify its conclusion that the Union failed to show that its
action was necessary to its continued functioning.

And thus the

Board may not rely on that reasoning to conclude that the Union
failed to meet its burden under the distinct Operating Engineers
test that the Board seemingly applied.
Nevertheless, the problems with the Board's reasoning in
applying the test from Operating Engineers do not relieve the Union
of its obligation to make some argument that it does in fact meet
the "necessary" test that Operating Engineers set forth in applying
the duty-of-fair-representation framework.

And, unless the Union

has done so, we have no choice but to sustain the Board's ruling.
We thus come to the final issue: has the Union done so?
V.
As best I can tell, in its briefing to us, the Union
does not directly argue that it has satisfied the Operating
Engineers test.

Rather, it argues only that it has met three

other standards for evaluating its conduct -- the one described in
Wright

Line

that

we

have

already

discussed,

as

well

as

two

developed by the Board in a pair of cases decided after Operating

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Engineers but that are nevertheless cast by the Board as tests
that, like Operating Engineers and unlike Wright Line, may be
deployed to determine whether a union has committed an unfair labor
practice in light of its duty of fair representation.
The first of these two formulations of the standard is
laid out in Glaziers, 271 N.L.R.B. 583, which, as I have discussed,
itself involved an application of the Operating Engineers test,
but arguably uses a formulation that emphasizes the need to focus
on the union's motive.

The second of these two formulations of

the standard is set forth in Caravan Knight, which seems on its
face distinguishable from the motive-based one used in Wright Line,
even though it perhaps could be read to be a good deal less
demanding than the test deployed in Operating Engineers itself.
Caravan Knight, 362 N.L.R.B. No. 196, slip op. at 4 (describing
the union's rebuttal burden as one that requires showing that its
actions were "done in good faith, based on rational considerations,
and were linked in some way to its need effectively to represent
its constituency as a whole") (emphasis added).24
By invoking Wright Line, Glaziers, and Caravan Knight,
but not Operating Engineers, the Union's brief, generously read,
does not thereby bypass the only issue that matters -- whether the

24

We note that the Board has not determined whether either of
these tests may satisfy the test laid out in Operating Engineers.
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Union has met the test that the Board applied in this case in
evaluating

the

Union's

conduct

representation framework.
precedents

and

under

the

duty-of-fair-

Rather, by invoking these three Board

eschewing

any

effort

to

address

Operating

Engineers, the Union's brief appears to be arguing that a union's
rebuttal burden under the duty-of-fair-representation framework is
not as different from the one set forth in Wright Line as Operating
Engineers would seem to indicate that it is.

And, further, the

Union's brief seems to be arguing that, in this very case, the
Board understood the test that it applied under the duty-of-fairrepresentation

framework

to

be

more

motive-focused,

and

thus

Wright Line-like, than might seem to be the case on a first read
of

the

Board's

decision,

given

the

decision's

use

of

the

from

the

"necessary" test that Operating Engineers deployed.
Such

an

argument

draws

support,

arguably,

existence of the other formulations of the test that the Board has
relied on to determine whether a union has met its rebuttal burden
under the duty-of-fair-representation framework -- formulations
that the Board acknowledges in its opinion in this very case when
it notes that it has "characterized the union's rebuttal burden
under
ways."

the

duty-of-fair-representation

framework

in

different

The Union's argument thus may be understood to proceed

that, in light of this jumble of Board precedents on this issue,

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the seemingly strict "necessary" test from Operating Engineers has
been watered down over time such that "necessary" doesn't really
mean "necessary."

In consequence, on this view, this test is,

despite Operating Engineers, really focused on the union's motive
in acting rather than on the strength of its interest in acting,
as virtually any lawful motive for a union acting as it did that
is not based on animus against the employee's protected conduct
would suffice.

See Glaziers, 271 N.L.R.B. at 585 (holding that

the union need show only that "the conduct complained of was
referable

to

other

considerations,

lawful

in

themselves,

and

wholly unrelated to the exercise of protected employee rights or
other matters with which the Act is concerned"); Caravan Knight,
362 N.L.R.B. No. 196, slip op. at 4 (holding that the union need
show only that its conduct was "done in good faith, based on
rational considerations, and were linked in some way to its need
effectively to represent its constituency as a whole").

And so,

the Union might fairly be read to be arguing that, under the
Board's

precedent,

it

can

win

under

the

duty-of-fair-

representation framework the same way it can win under Wright Line:
by showing that the Union acted against Legley because Legley was
disruptive in the workplace rather than because of any protected
conduct in which he engaged.

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Insofar as the Union is contending that the test under
the duty-of-fair-representation framework that the Board applied
in this case -- though stated in words that mimic the distinct,
strength-of-interest

test

from

Operating

Engineers

--

is

in

substance a motive-based test like the Wright Line test, I am quite
skeptical that the argument has much force.

As I have explained,

the Board's reasoning in Operating Engineers indicates that it
would have sound reason to inquire not just into a union's motives,
but also the nature and significance of its interest in causing an
employee's discharge.

Such a further inquiry would help ensure

that the other employees whom the union is duty-bound to represent
would not mistake the action taken by the union against that
employee for a signal that they need to support the union or risk
suffering a similar fate.

And, as I have also explained, the

Board's use of Operating Engineers in this case indicates that the
Board applied that distinct inquiry.
But, in the end, it is up to the Board to make the call
as

to

whether

the

test

under

the

duty-of-fair-representation

framework is one that focuses on ferreting out the union's ill
motivation or one that focuses on guarding against the potentially
unintended

intimidating

effect

of

the

union's

scrutinizing the union's need to act as it did.

action

by

Thus, I see no

harm in requiring the Board to make that call more clearly in this

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case than it has, given the somewhat cryptic nature of the Board's
articulation of its reasoning in its decision in this case; the
fact that the Union did not have clear notice of its need to engage
on this issue below; and the fact that the Board's precedents in
this area, by the Board's own admission in this case, have used
different formulations.

There is, after all, good reason to make

agencies turn square corners, given the deference that they request
from us.

And so I see the virtue of making the Board turn them

here.
I do not see any good reason, however, for us simply to
assume that the Board was applying a test under the duty-of-fairrepresentation framework that in this case would be more favorable
to the Union than the one that the Board applied in Operating
Engineers -- whether that test is best described by the formulation
in Glaziers or Caravan Knight or whether it is, in practical
effect, substantively identical to Wright Line.

After all, the

Board explicitly relied on the language of Operating Engineers in
its analysis.

Thus, in my view, we should remand to the Board so

that it can consider the arguments that (1) the "necessary" test
it applied in this case actually means something other than what
it meant in Operating Engineers, and (2) the "necessary" test the
Board applied here in fact may mean something that is (a) no
different from (or, at least, very close to) the test set forth in

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Wright Line itself or (b) though different, no stricter than the
test set forth in Caravan Knight.

Cf. 29 U.S.C. § 160(e) ("No

objection that has not been urged before the Board, its member,
agent, or agency, shall be considered by the court, unless the
failure or neglect to urge such objection shall be excused because
of extraordinary circumstances."); NLRB v. Richards, 265 F.2d 855,
862 (3d Cir. 1959) (remanding to the Board to rule on objection
made for the first time to the appeals court, where the petitioner
had no opportunity to present the argument earlier).

To do

otherwise, it seems to me, is to permit the Union to win on the
basis of a rule that we have no reason to believe is the right
rule in the Board's judgment.

And, that course would permit the

Union to win on the basis of a rule that the Board has never
applied with the benefit of our explanation as to why its Wright
Line analysis fails.
To be sure, the Board, on remand, may explain that it
intended to apply a test that is oriented around determining
whether

the

union's

motivation

was

based

on

the

employee's

protected conduct and thus is one that in substance is the same as
the Wright Line test.

And, it may do so by concluding that the

"necessary" test first set forth in Operating Engineers has come
to mean something so different from what it first seemed to mean
that it is in effect the Wright Line test.

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chooses that course, then, presumably, the Union will win for the
same reason we conclude that it should win under Wright Line.
But, it is also possible that the Board may reaffirm the
applicability of the test set forth in Operating Engineers as it
was applied in that case -- an approach that would ensure that the
inquiry under the duty-of-fair-representation framework is not a
redundant reprise of the inquiry already required by Wright Line.25
And, if the Board chooses that course -- as the Board's precedent
suggests to me that it will -- a remand will still have been
useful.

On remand, the Board will face a more difficult question

in applying that test, as it now knows that it may not rule against
the Union under that test on the ground that the Union actually
fired Legley for his protected conduct.

Thus, the Board will have

to decide -- as it did not decide the first time around -- whether
Legley's disruptive conduct in the workplace provided a sufficient
basis for the Union not merely to take some less drastic measure
in response but instead to seek to have his employer fire him.
Perhaps the Board would conclude that such a reason
passes muster under Operating Engineers.

But it is not at all

clear to me that, under Board precedent, the Board would do so. In

25

Insofar as adherence to Operating Engineers would mark a change
from subsequent formulations articulated by the Board, the Union
makes no argument that the Board is barred from making that change.
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Operating Engineers itself, disruptive employee behavior in union
settings was deemed not to be sufficient reason for the union to
attempt to get an employee fired.

I cannot say with any confidence

that the fact that the disruptive conduct here occurred in a
workplace setting rather than a union one requires a change in the
analysis.
Finally, it is possible that the Board will conclude
that Caravan Knight best stated the rule of "necessary" test, which
is not as strict as Operating Engineers would make it seem.

In

Caravan Knight, which was decided after Operating Engineers, the
Board required the union to show not only that it has a lawful
motivation but also that its interest in causing the discharge is
"linked in some way to its need to effectively represent its
constituency as a whole."

362 N.L.R.B. No. 196, slip op. at 4.

The Union then won under that test only after the Board determined
that the union's interest was in preventing physical violence by
an employee.

Id. at 5-6.

to rise to that same level.

The facts here do not appear, however,
Thus, these facts do not appear -- of

necessity -- to require the Board to reach a similar conclusion in
this case.
So, to sum up, I don't see a basis for simply reversing.
Between Caravan Knight -- in which the Board held that a union
interest stronger than the one at issue here did suffice -- and

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Operating Engineers -- in which the Board held that a union
interest weaker than the one at issue here did not suffice -- we
are left without guidance from the Board on what determination it
would reach in this case.

Only if Wright Line were the test would

it be appropriate for us to reverse.

But that is the outcome

hardest to square with the Board's opinion in this case.
For these reasons, a remand would not only serve the
purpose of forcing the Board to make clear what standard it is
applying, but also ensure that the Board has a chance to apply
whatever standard it identifies as the right one to the facts of
this case.
813,

816

See Manhattan Ctr. Studios, Inc. v. NLRB, 452 F.3d
(D.C.

Cir.

2006)

("If

we

conclude

that

the

Board

misapplied or deviated from its precedent, we often remand with
instructions to remedy the misapplication/deviation."); see also
Regal Knitwear Co. v. NLRB, 324 U.S. 9, 13 (1945) ("Administrative
agencies have considerable latitude to shape their remedies within
the scope of their statutory authority and, where the infirmity is
inadequacy of findings to show appropriateness of the choice made
in the particular case, are ordinarily entitled to have the case
remanded for further consideration.").
VI.
I realize that I have addressed this one discrete issue
at some length.

And I realize, too, that in the end this extended

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analysis results in what may seem like a rather modest divergence
from

the

position

taken

by

the

majority.

After

all,

the

distinction between reversing, on the one hand, and vacating and
remanding, on the other, may seem like a technical one.

And, in

a sense, it is.
But, in another sense, it is not, which is why I have
thought it important to explain my understanding of what is at
issue here in such detail.

If the Board has erred in not speaking

with the clarity that we should demand of it, the fact remains
that the Board has been charged by Congress with the task of
administering this statute.

See Auciello Iron Works, Inc. v.

NLRB,

(1996)

517

U.S.

781,

787-88

(noting

the

"considerable

deference that the Board is due by virtue of its charge to develop
national labor policy" (citation omitted)). The Board should not
be precluded from performing that administrative task.
Just what the Board thinks that task is remains arguably
up for debate.

For that reason, I have thought it useful to spend

some time laying out my own understanding of what the Board's
precedents -- somewhat hard to decipher though they are -- suggest
that the Board believes that task to be.

Doing so, I hope, will

help ensure that the Board does not engender the kind of confusion
in

the

future

in

applying

the

framework that it has engendered here.

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Date Filed: 05/31/2017

Entry ID: 6096005

But, insofar as the Board has not made clear what it
thinks it must decide in applying that framework, my concern is
that, by deciding the matter for ourselves and giving the Board no
chance to clear things up, we inevitably substitute our own less
informed understanding of labor dynamics for that of the Board.
Because I do not believe Congress has given us any warrant to do
so, I respectfully dissent.

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