UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MOHAVE ELEC COOP INC

v.

NLRB


98-1522a

D.C. Cir. 2000


*	*	*


Garland, Circuit Judge: Mohave Electric Cooperative, Inc.  petitions
for review of a decision and order of the National  Labor Relations
Board (NLRB), which concluded that the  company unlawfully discharged
employee Richard Michaels  for protected concerted activity in
violation of section 8(a)(1)  of the National Labor Relations Act
(NLRA), 29 U.S.C.  s 158(a)(1). The NLRB cross-petitions for
enforcement of its  order. We deny the petition for review and grant
the cross- petition for enforcement.


I


Mohave is an electric utility operating out of Bullhead City,  Arizona.
It has approximately seventy employees, roughly  twenty of whom are
represented by the International Broth- erhood of Electrical Workers,
Local 769, AFL-CIO ("the  Union"). The bargaining unit consists of
linemen, mechanics,  warehousemen, and between eight and twelve meter
readers.  The latter are responsible not only for reading electric me-
ters, but also for meter installation, meter connection and 
disconnection, and other related duties. Gene Quinn super- vises
Mohave's meter department and reports to Tom Long- tin, the operations


Consistent with the terms of its collective bargaining agree- ment
(CBA), Mohave uses several subcontractors to supple- ment its work
force. One subcontractor, Guard Force, has  provided Mohave with
additional meter readers since 1993.  Guard Force employees wear
uniforms like those of Mohave  meter readers, and they work out of the
same room on  Mohave's premises. Although they have their own on-site 
supervisor, David Drabek, he reports to Mohave's Gene  Quinn. See
Mojave Elec. Coop., 327 N.L.R.B. No. 7, 1998  WL 777462, at *4 (Oct.
30, 1998); Tr. at 74.1 Hence, all 




__________

n 1 Although the Board employs the spelling "Mojave," we use the 
spelling employed by the petitioner in this court.


meter readers--whether employed directly by Mohave or by  a
subcontractor--come within the scope of Quinn's superviso- ry


Richard Michaels worked as a meter reader for Mohave  from August 1991
until his termination on June 3, 1996. He  was one of two union
stewards at the Mohave facility and  served on a number of the Union's
committees. His work  history was generally uneventful until May


The parties dispute the details of the events that began  that month
and that ultimately culminated in Michaels' dis- charge. The
Administrative Law Judge (ALJ) who heard the  case found that on the
morning of May 8, Michaels called  Drabek, the Guard Force supervisor,
to complain that a  Guard Force employee had insisted that Michaels
trade  meter-reading routes for the day. Following that conversa-
tion, Drabek reported to Mohave that Michaels had been rude  to him.
Michaels denied the allegation, and his supervisor,  Quinn, ended the
matter by finding that Michaels "had acted  properly." Mojave Elec.,
1998 WL 777462, at *5.


Later that same month, Michaels learned from a friend  that someone
wearing a Mohave uniform had been stopped at  a local grocery store
for shoplifting. Pursuant to company  policy, Michaels reported this
to Quinn, who in turn advised  Longtin, Mohave's operations manager,
and Jay Nady, the  owner of Guard Force. According to Nady and
Longtin, the  story that reached them was that Michaels had reported
that  the person wearing the Mohave uniform was a Guard Force 
employee, who had been handcuffed and driven away by the  police. The
actual facts were somewhat less dramatic: there  had been no police
arrest; the store's own security force had  stopped the Guard Force
employee, who claimed to have  "forgotten" to pay for an item he took
from the store. Nady  and Longtin concluded that Michaels had
exaggerated the  story in order to discredit Guard Force. At the
hearing  before the ALJ, however, Michaels testified that he had 
merely reported what he had heard--that someone wearing a  Mohave
uniform had been stopped for shoplifting--and noth- ing more. Based on


found Michaels' testimony substantially more credible than  that of
Nady and Longtin. He therefore credited Michaels'  testimony and
concluded that if there had been any exaggera- tion, it had been by
Mohave's supervisors rather than Mi- chaels.


On May 21, angry about the alleged exaggeration, Nady  went to Mohave's
facility "to confront and straighten out  Michaels." Id. at *6
(internal quotation omitted). Unable to  find him, Nady instead
located Stuart Douglas, another Mo- have meter reader whom Nady had
often seen with Michaels.  Although the parties dispute the details of
the encounter, it  appears that Nady asked Douglas about Michaels'
where- abouts and that there was a brief physical confrontation 


The next day, when Michaels returned to work, Douglas  told him that he
had been physically and verbally assaulted  by Nady, and that Nady had
been "looking for" Michaels  when this occurred. Michaels promptly
told his supervisor  that he felt threatened, and he asked the company
for protec- tion. Quinn told him to "give it a couple of days" and
took no  further action, although later Longtin did advise Nady that 
Mohave "reserved to itself any issues of supervision or disci- pline
of its employees." Id. at *7. Concerned about their  physical safety,
Michaels and Douglas met with their co- workers and discussed their
options. They described Nady's  alleged assault on Douglas and stated
that they were consid- ering turning to the courts for protection.
Michaels gave  uncontradicted testimony that the other employees
agreed  with and supported such action. See Tr. at 189-90.


On May 23, in Bullhead City municipal court, Michaels and  Douglas
filed petitions for injunctions against harassment,  citing their need
for protection from "verbal and mental  abuse and possibly physical
violence" by Nady and Drabek.  App. at 139-43. The petitions requested
that Nady and 




__________

n 2 Douglas claimed "that he'd been physically and verbally as- saulted
by Nady, with Nady grabbing him by the shirt and shaking  him." Mojave
Elec., 1998 WL 777462, at *6. Nady claimed "that  any contact was
merely incidental to being bumped as both were  leaving the meter
reading room." Id.


Drabek have no contact with Douglas and Michaels, and that  they be
enjoined to stay away from the petitioners' homes  and place of
employment.


On May 29, Nady received copies of the petitions and  immediately
contacted Longtin. He told Longtin that, if the  injunctions were
granted, neither he nor Drabek would be  allowed on Mohave property.
This, he said, would prevent  them from performing their duties as
subcontractors. There- after, Longtin decided to terminate Michaels.
According to  Longtin's testimony, he did so because Michaels had
filed the  petition, exaggerated the shoplifting incident, spoken
rudely  to Drabek in the telephone conversation of May 8, and called 
Guard Force employees "scabs." Mojave Elec., 1998 WL  777462, at *8.
Longtin conceded, however, that when he told  Michaels that he was
being terminated, he told him "of no  other reason besides his having
filed the petition." Id. On  July 22, the municipal court denied both
Michaels' and Doug- las' petitions.


The ALJ concluded that the filing of the petitions was  protected
conduct under the NLRA, and rejected Mohave's  contention that the
filing was rendered unprotected because it  constituted "disloyalty."
Applying the familiar Wright Line  test,3 the ALJ found that a prima
facie violation of section  8(a)(1) had been established because
Mohave "admittedly  fired [Michaels], at least in part, because of his
having filed  the petition," id. at *11, and because Mohave did not
show  that it would have fired Michaels in the absence of that 
protected conduct, see id. at *9-11. The NLRB affirmed.4 




__________

n 3 See Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d  899
(1st Cir. 1981); see also NLRB v. Transportation Management  Corp.,
462 U.S. 393, 399-401 (1983) (approving Wright Line test).


4 The ALJ also concluded that Michaels had been discharged  because of
anti-union animus in violation of NLRA s 8(a)(3), 29  U.S.C. s
158(a)(3). In light of its conclusion that Michaels was  unlawfully
discharged in violation of section 8(a)(1) for filing the  civil
injunction petition, the Board found "no need to rely on the  judge's
conclusion that the discharge also violated Section 8(a)(3)." 


Thereafter, Mohave petitioned this court for review, and the  Board
cross-petitioned for enforcement.


II


As we have noted many times before, our role in reviewing  an NLRB
decision is limited. See, e.g., Pioneer Hotel, Inc. v.  NLRB, 182 F.3d
939, 942 (D.C. Cir. 1999); Time Warner  Cable v. NLRB, 160 F.3d 1, 3
(D.C. Cir. 1998). "We must  uphold the judgment of the Board unless,
upon reviewing the  record as a whole, we conclude that the Board's
findings are  not supported by substantial evidence, or that the Board
 acted arbitrarily or otherwise erred in applying established  law to
the facts of the case." International Union of Elec.,  Elec.,
Salaried, Mach. & Furniture Workers v. NLRB, 41  F.3d 1532, 1536 (D.C.
Cir. 1994) (internal quotations and  citation omitted). We are also
required to give "substantial  deference to the inferences drawn by
the NLRB from the  facts." Time Warner Cable, 160 F.3d at 3. Moreover,
absent  exceptional circumstances, we must accept the agency's deter-
minations regarding the credibility of witnesses. See Elastic  Shop
Nut Div. v. NLRB, 921 F.2d 1275, 1281 (D.C. Cir. 1990)  (stating that
"the Court must uphold Board-approved credi- bility determinations of
an ALJ unless they are 'hopelessly  incredible' or


Mohave seeks to overturn the Board's finding that it com- mitted an
unfair labor practice on two principal grounds.  First, it contends
that Michaels' conduct in filing the injunc- tion petition was
unprotected because it was "disloyal." Sec- ond, it contends that
Michaels' activity was unprotected be- cause it was inconsistent with
the collective bargaining  agreement. In addition, Mohave argues that
even if it did  discharge Michaels for protected activity, the remedy
should  be limited because the company would have fired him in any 
event based on evidence of unrelated misconduct it discover-




__________

n Mojave Elec., 1998 WL 777462, at *1. Accordingly, that issue is not 
before us.


ed after his termination.5 We consider each of these argu- ments
below.


A


Section 7 of the NLRA guarantees employees the "right to 
self-organization, to form, join, or assist labor organizations,  ...
and to engage in other concerted activities for the pur- pose of
collective bargaining or other mutual aid or protec- tion." 29 U.S.C.
s 157. Section 8(a)(1) of the Act imple- ments that guarantee by
declaring that "[i]t shall be an unfair  labor practice for an
employer ... to interfere with, restrain,  or coerce employees in the
exercise of the rights guaranteed  in [section 7]." Id. s 158(a)(1);
see PHT, Inc. v. NLRB, 920  F.2d 71, 73 (D.C. Cir. 1990). Thus, an
employer violates  section 8(a)(1) if it discharges an employee for
engaging in  concerted activity for the purpose of mutual aid or
protection.  See, e.g., Prill v. NLRB, 835 F.2d 1481, 1483 (D.C. Cir.
1987).  Moreover, the Supreme Court has confirmed that "the 'mutu- al
aid or protection' clause protects employees from retalia- tion by
their employers when they seek to improve working  conditions through
resort to administrative and judicial fo- rums." Eastex, Inc. v. NLRB,
437 U.S. 556, 565-66 & n.15  (1978) (citing with approval Walls Mfg.
Co., 137 N.L.R.B.  1317 (1962), enforced, 321 F.2d 753 (D.C. Cir.
1963), and  Socony Mobil Oil Co., 153 N.L.R.B. 1244 (1965), enforced,




__________

n 5 In the Statement of Facts section of its brief, Mohave suggests 
that Michaels was not fired solely for the filing of the petition, but
 rather due to a continuing "pattern" of disloyal actions including, 
inter alia, exaggerating the shoplifting incident, speaking rudely to 
Drabek, and calling Guard Force employees names. See Mohave  Br. at
5-6; see also id. at 14. Even if this were true, there is  substantial
evidence to support the ALJ's conclusion that Mohave  failed to
overcome its Wright Line burden of showing it would have  fired
Michaels absent the filing of the petition. See Transportation 
Management Corp., 462 U.S. at 401-03 (holding that where protect- ed
activity is at least a "motivating factor," employer must show it 
would have taken same action in its absence). Moreover, as dis- cussed
below, there is substantial evidence to support the ALJ's  finding
that Michaels did not engage in the purported pattern of  disloyal


Mohave does not dispute the ALJ's conclusion that the  filing of a
judicial petition--supported by fellow employees  and joined by a
co-employee--constitutes concerted action  under the NLRA.6 Nor does
Mohave dispute that concerted  action to ensure greater workplace
safety through petitioning  for injunctive relief may constitute
protected conduct. In- stead, it contends that Michaels' conduct was
unprotected  here because it was "disloyal," in that if granted, the
injunc- tion would have interfered with the business relationship 
between Mohave and Guard Force.


It is true that an employer may discharge an employee for  disloyalty
without committing an unfair labor practice.7 But  the fact that an
employee's actions may cause some harm to  the employer does not alone
render them disloyal. See  NLRB v. Knuth Bros., Inc., 537 F.2d 950,
953 (7th Cir. 1976).  The activity at issue here involves the filing
of a petition for  judicial relief, and, as Mohave itself recites, the
"rule [is] that  filing a 'civil action by a group of employees is
protected  activity unless done with malice or in bad faith.' " Mohave
 Reply Br. at 5 (quoting Trinity Trucking & Materials Corp.,  221
N.L.R.B. 364, 365 (1975)) (emphasis added).8 Moreover, 




__________

n 6 See, e.g., Prill, 835 F.2d at 1483 (noting that complaint of 
single employee is deemed concerted action when taken "with the 
actual participation or on the authority of his co-workers"); Inter-
national Ladies' Garment Workers' Union v. NLRB, 299 F.2d 114,  115-16
(D.C. Cir. 1962) (finding concerted action where complaint  letter
written by single employee was "approved in advance by  several other


7 See, e.g., NLRB v. Local Union No. 1229 (Jefferson Standard  Broad.
Co.), 346 U.S. 464, 471 (1953) (upholding discharge where  employees
publicly disparaged quality of employer's product, with  no
discernible relationship to pending labor dispute); George A.  Hormel
& Co. v. NLRB, 962 F.2d 1061, 1064 (D.C. Cir. 1992)  (stating that
employee violates duty of loyalty by supporting boycott  of employer's
product, unless boycott is non-disparaging and related  to ongoing


8 Accord Leviton Mfg. Co. v. NLRB, 486 F.2d 686, 689 (1st Cir.  1973);
Socony Mobil Oil Co., 357 F.2d at 663-64; cf. Walls Mfg.  Co., 321
F.2d at 754 (holding that complaint to state health depart-


that the petition "was later dismissed on the pleadings would  not in
itself make the activity unprotected or establish bad  faith." Trinity
Trucking & Materials Corp., 221 N.L.R.B. at  365 (citing Walls Mfg.
Co., 137 N.L.R.B. at 1317).9


Mohave contends that Michaels' petition was in fact filed  "with malice
and in bad faith" because it was intended not to  protect employees
but rather to disrupt Mohave's relationship  with Guard Force. Mohave
Br. at 19. The ALJ, however,  found to the contrary, and we affirm
that finding as sup- ported by substantial evidence. As the ALJ
stated, "whether  or not one regards Michaels' fears as totally
realistic," it is  not possible to conclude that they were baseless.
Mojave  Elec., 1998 WL 777462, at *11. Testimony supported the  ALJ's
finding that "Nady did behave toward Michaels in an  angry fashion,
and did seek to find him for some sort of  confrontation." Id. at *10;
see Tr. at 80-81; General Counsel  Ex. 10. Moreover, the ALJ observed
that "Nady's imposing  size and evident state of fitness would strike
a disturbing  chord in virtually any man who learned as Michaels did
that  Nady had come onto [Mohave's] premises seeking a confron- tation
with him." Mojave Elec., 1998 WL 777462, at *10.  And as the ALJ also
noted, "Michaels sought assurances for  his safety" from Mohave, and
"resorted to the filing of a  petition only after such assurances were


The ALJ's observations are fully supported by Michaels'  testimony,
which the ALJ found to be of "superior" credibili- ty--a determination
to which we defer. Michaels testified  without contradiction that he
"felt very threatened" when he 




__________

n ment was protected conduct given lack of evidence that "the allega-
tions were made with intent to falsify or maliciously injure the 
[employer]").


9 See Walls Mfg. Co., 321 F.2d at 754 (upholding finding of lack  of
malice "notwithstanding the inaccuracy" of the complaint); see  also
Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1351 n.12 (3d  Cir. 1969)
("We are not concerned in this case with the merit or lack  of merit
of [the employee's] grievance.... [I]t is clear that Sec. 7  protects
his right to utter it as a matter of concerted activity with  other
employees for mutual aid.").


heard Nady had come looking for him, that he felt "the  physical
altercation between [Nady] and Douglas was actually  directed towards
[him]," and that he and Douglas filed their  petitions to protect
themselves from further harassment. Tr.  at 184-90. Mohave officials
conceded that Michaels commu- nicated his safety concerns to the
company both before and  after the petitions were filed, see id. at
92-93, 337, and that he  asked the company to take "some action to
protect" him, id.  at 85--a request Mohave initially put off with the
suggestion  to "give it a couple of days," Mojave Elec., 1998 WL
777462,  at *7; Tr. at 185. Although Mohave later "advised" Nady to 
leave any disciplining of its employees to the company, Mi- chaels was
not required to accept that admonition as provid- ing him with


Mohave contends that the filing of the petitions should not  be
considered in isolation, and that Michaels' bad faith is  evidenced by
the fact that the filing was part of a long-term  campaign to
discredit Guard Force and sever its contractual  relationship with
Mohave. Other elements of this asserted  campaign were Michaels'
alleged exaggeration of the shoplift- ing incident, his allegedly rude
telephone conversation with  Drabek on May 8, his purported practice
of calling Guard  Force employees "scabs," and the fact that after the
May 21  incident with Nady, Michaels filed a union grievance seeking 
the removal of Guard Force from Mohave's property. The  ALJ readily
disposed of each of these claims, see Mojave  Elec., 1998 WL 777462,
at *4 n.6, and we find those disposi- tions reasonable. The ALJ
determined based on witness  demeanor that it was Mohave's supervisors
rather than Mi- chaels who had exaggerated the shoplifting incident.
Super- visor Quinn concluded that Michaels had behaved properly in 
the May 8 telephone conversation with Drabek. The ALJ  credited
Michaels' denial that he had ever called Guard Force  employees scabs,
finding Longtin's contrary testimony to be  internally "inconsistent[
]" and a "makeweight." Id. at *8  n.12. Finally, the filing of the
union grievance in connection  with the same conduct for which
Michaels sought a civil  injunction is itself a protected activity.


Ruan Transp. Corp. v. NLRB, 404 F.2d 274, 284 (8th Cir.  1968); Walls
Mfg. Co., 321 F.2d at 753.


We conclude that substantial evidence supports the Board's  finding
that Michaels did not file his petition out of bad faith  or malice.
Accordingly, we reject Mohave's contention that  Michaels' conduct was
"disloyal" and therefore unworthy of  NLRA protection.


B


Mohave also contends that the filing of Michaels' judicial  petition
was unprotected because it was "contrary to the  express terms of the
collective bargaining agreement between  [Mohave] and Michaels'
union." Mohave Br. at 20. That  agreement, the company argues, not
only "permit[ted] [Mo- have] to contract with Guard Force, it
specifically prohibited  Michaels from interfering with that and other
aspects of  [Mohave's] operations." Id. at 20-21. Thus, the company 
contends, by seeking an injunction that would have impaired  Guard
Force's ability to fulfill its contract with Mohave,  Michaels


Mohave is correct that conduct in breach of a collective  bargaining
agreement is one of "the normal categories of  unprotected concerted
activities." NLRB v. Washington Al- uminum Co., 370 U.S. 9, 17 (1962).
But its claim that  Michaels breached the agreement at issue here is
truly  breathtaking in its scope. The company does not contend  that
the filing of the petition breached the agreement; rath- er, Mohave's
contention is that the breach would occur if the  petition were
granted. "If granted," the company argues, an  order directing Guard
Force's owner and supervisor to stay  away from Michaels' place of
business would limit Mohave's  ability "to enjoy the benefits of [its]
contractual relationship"  with Guard Force. Mohave Br. at 16. In
essence, Mohave's  contention is that if an employee asserts a right
under state  law to be free of physical harassment, and if a judge
deter- mines on the merits that a stay-away order is necessary to 
vindicate that right, the employee has violated the collective 
bargaining agreement struck between Mohave and the Union. 


Mohave is not dissuaded by the implications of this position.  At oral
argument, its counsel agreed this would mean that if  an employee were
sexually harassed by Mohave's president, it  would be a breach of
contract for the employee to seek a  judicial restraining order. The
employee's only recourse,  counsel suggested, would be to sue the
Union for having  "shackled" the employee with a CBA that barred
access to  the courts.


It is doubtful that a collective bargaining agreement could  waive an
employee's statutory rights10 in the manner claimed  by Mohave.11 But
even if this were the kind of right that a  CBA could waive, the
Supreme Court has held that such a  waiver must be "clear and
unmistakable." Wright v. Univer- sal Maritime Serv. Corp., 119 S. Ct.
391, 396 (1998) (holding  that general arbitration clause in CBA did
not waive employ- ee's right to judicial forum for claim of employment
discrimi- nation). "We will not infer from a general contractual
provi- sion," the Court said, "that the parties intended to waive a 
statutorily protected right unless the undertaking is explicitly 
stated. More succinctly, the waiver must be clear and unmis- takable."
Id. (internal quotations omitted).


Nothing in the collective bargaining agreement at issue  here even
approaches this "clear and unmistakable" standard  for waiver. The
provision upon which Mohave relies bears  the title "NO STRIKE" and
reads as follows:


During the terms of this Agreement, under no circum- stances will the
Union or the employees engage in,  instigate, cause, permit,
encourage, or take part in any 




__________

n 10 Michaels' petition was based on Ariz. Rev. Stat. s 12-1809,  which
authorizes courts to grant injunctions against harassment.


11 See Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S.  728,
745 (1981) (holding that employees' rights under Fair Labor  Standards
Act are not waivable through collective bargaining);  Alexander v.
Gardner-Denver Co., 415 U.S. 36, 51 (1974) (holding  that CBA cannot
prospectively waive employees' statutory rights  under Title VII); cf.
Hawaiian Airlines, Inc. v. Norris, 512 U.S.  246, 260 (1994) (holding
that Railway Labor Act does not preempt  state-law causes of action
that are independent of CBA).


strike, boycott, work stoppage, slowdown, cessation of  work,
interruption of work, sympathy strike, unfair labor  practice strike,
picket, curtailment of work, reduction of  production, or interference
of any kind with the opera- tions of the Employer.


App. at 123 (emphasis added). As is immediately apparent,  the
provision does not mention the exercise of statutory  rights or the
filing of lawsuits at all. Rather, as its title  makes clear, it is
principally a no-strike provision, and the  specific prohibitions it
sets forth are all against work stoppag- es of one form or another.
Although Mohave contends that  the phrase we have italicized above,
"or interference of any  kind," gives the prohibition a wider scope,
the canon of  ejusdem generis ("of the same kind or class") counsels
against  our reading that general phrase to include conduct wholly 
unlike that specified in the immediately preceding list of  prohibited
acts. In any event, given the Supreme Court's  admonition that we
should not infer waivers of statutory  rights unless they are "clear
and unmistakable," we see  nothing in this CBA to justify inferring a
waiver of the  proportions claimed by Mohave.12


C


Having rejected Mohave's arguments that Michaels' con- duct was
unprotected, we turn now to its alternative argu- ment: that evidence
acquired after Michaels' termination  should limit his remedy. The
NLRB awarded Michaels full  reinstatement and backpay from the time of
his discharge.  See Mojave Elec., 1998 WL 777462, at *1. Mohave




__________

n 12 This case is therefore completely different from Emporium  Capwell
Co. v. Western Addition Community Org., 420 U.S. 50  (1975), urged
upon us by petitioner. There, the Court held that  conduct was
unprotected by the NLRA where a group of employees  attempted "to
bypass the grievance procedure" set forth in their  CBA, "in favor of
attempting to bargain with their employer"  separately and without
their union. Id. at 67. Michaels endeav- ored neither to bypass the
CBA's grievance procedure, nor to  bargain separately with Mohave.


that award, contending that one week after it fired Michaels,  it came
upon evidence that would have resulted in his termi- nation
irrespective of the injunction petitions. That evidence  was a
statement by Guard Force employee Tammy Bauguess  that, on a single
occasion nine to ten months before his  discharge, Michaels paid her
five dollars to take part of his  meter route. Mohave's operations
manager, Tom Longtin,  "testified unequivocally that he would have
discharged Mi- chaels for this action" as soon as he discovered it.


To preclude reinstatement and limit backpay on the basis  of
after-acquired evidence, the employer has the burden of  proving that
the evidence reveals misconduct for which it  "would have discharged
any employee," not simply for which  it could have done so. Marshall
Durbin Poultry Co., 310  N.L.R.B. 68, 70 (1993) (emphasis added),
aff'd in relevant  part, 39 F.3d 1312 (5th Cir. 1995); see also John
Cuneo, Inc.,  298 N.L.R.B. 856, 856-57 (1990).13 The NLRB affirmed the
 ALJ's determination that Mohave had not met that burden.  See Mojave
Elec., 1998 WL 777462, at *1. Because the Board  has "broad
discretion" in fashioning remedial orders, ABF  Freight Sys., Inc. v.
NLRB, 510 U.S. 317, 325 (1994), we will  uphold its decision as long
as there is substantial evidence in  the record to support it.


There is such substantial evidence here. The ALJ conclud- ed that "even
if [he] had found the events to have occurred as  testified to by
Bauguess,"14 he could not credit Longtin's 




__________

n 13 Cf. McKennon v. Nashville Banner Publ'g Co., 513 U.S. 352,  362-63
(1995) (holding in age discrimination suit that "[w]here an  employer
seeks to rely upon after-acquired evidence of wrongdoing,  it must
first establish that the wrongdoing was of such severity that  the
employee in fact would have been terminated on those grounds  alone if
the employer had known of it at the time of the discharge").


14 The ALJ also concluded that the alleged payment to Bau- guess had
not been made, stating that Michaels denied he had ever  paid anyone
to take his meter route. See Mojave Elec., 1998 WL  777462, at *14. We
have been unable to find that denial in the  record before us.


testimony that this kind of misconduct would alone have  resulted in
Michaels' discharge. Mojave Elec., 1998 WL  777462, at *14. The
"claimed seriousness" of the single  alleged five-dollar bribe, the
ALJ said, was substantially  undercut by "Longtin's benign attitude"
toward Bauguess,  who purportedly had taken the bribe. Id. at *15. As
Long- tin admitted, he had "made no request or demand that  [Bauguess]
be disciplined by Guard Force." Id.; see Tr. at  385 (testimony of
Longtin) (agreeing that it was "against the  rules for [Bauguess] to
accept the money," but conceding that  he had not recommended that she
be disciplined). "The fact  that Longtin has taken absolutely no
action against" her, the  ALJ concluded, spoke "volumes" as to whether
the five dollar  bribe was an offense for which Michaels really would
have  been fired, Mojave Elec., 1998 WL 777462, at *15, and  "belied"
Longtin's testimony that it was, id. at *12.


The inference drawn by the ALJ is a reasonable one. See  John Cuneo,
Inc., 298 N.L.R.B. at 861 n.10 (noting that  treatment of similarly
situated employees carries great  weight in evaluating whether
employer would have terminat- ed employee for act of misconduct);
Axelson, Inc., 285  N.L.R.B. 862, 866 (1987) (holding that, to
terminate backpay  on basis of after-acquired evidence, employer must
demon- strate that discovered misconduct "is not conduct of a sort 
that it has tolerated in the past").15 Against it Mohave offers 
nothing more than Longtin's testimony, which the ALJ was  entitled to
reject as self-serving. See Import Body Shop,  Inc., 262 N.L.R.B.
1188, 1188 (1982) (viewing "with skepti- cism" rationale for discharge
based on post-discharge evi- dence, since employer "already had
manifested its intention to  discharge [employee] for unlawful
reasons"). Indeed, Mo- have does not even attempt to explain why
Bauguess escaped  discipline for engaging in the same transaction for
which the  company claims it would have fired Michaels. Accordingly,




__________

n 15 Although Bauguess was technically an employee of Guard  Force
rather than Mohave, Mohave exercised ultimate supervision  over all
meter readers. See Tr. at 269-70. Longtin specifically  testified that
he could demand the discharge of a Guard Force  employee for
misconduct. See id. at 365-66.


we have no warrant for rejecting the Board's conclusion that  Michaels
should be awarded full reinstatement and backpay.


III


For the foregoing reasons, Mohave's petition for review is  denied, and
the Board's cross-petition for enforcement is  granted.


So ordered.