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


FRAZIER INDUST CO

v.

NLRB


99-1297a

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: Frazier Industrial Company ap- peals the
National Labor Relations Board's decision that the  company violated s
8(a)(1) and (3) of the National Labor  Relations Act. See 29 U.S.C. s
158(a)(1), (3) (1994). The  company contends that the Board's
conclusion that it violated  s 8(a)(1) and (3) by discharging John
Ramirez for engaging in  union activity was unsupported by substantial
evidence, and  that his reinstatement with backpay was an abuse of
discre- tion and inconsistent with the after-acquired evidence rule. 
We deny the petition and remand the case for enforcement of  the


I.


Frazier Industrial Company manufactures steel storage  systems for
warehouses. The company has manufacturing  facilities at locations
throughout the United States, and the  instant case involves its plant
in Pocatello, Idaho, which  began operating in March 1996. During the
plant's startup  phase, Dennis Haga, the plant manager, hired nine
welders  and nine other employees to perform fabrication, mainte-
nance, painting, and other duties.


One of the welders, John Ramirez, applied for the position  at the
request of the International Association of Sheet Metal  Workers
Association, Local 60 ("the union").1 Ramirez, a  member of the union,
was asked to assist in organizing the  company's work force. Ramirez
started working for the  company on March 7, 1996. Beginning in April,
he solicited  


__________

n 1 Previous to his employment at the Frazier Industrial Compa- ny, he
was an employee of G&L Metal but was discharged for  absenteeism and
for attempting to organize workers. When he  applied for employment at
the company, Ramirez failed to disclose  this information.


employees to attend organizational meetings and to sign  union
authorization cards. According to Ramirez, he spoke  with more than
half of the plant's work force about the union,  and spoke with at
least one person about unionization daily or  every other day before
his discharge. We review his activi- ties in light of the company's
contention that Ramirez was  harassing employees and, thus, his
activities were not protect- ed by the Act, and that even if Ramirez's
conduct were  protected, the company would have terminated Ramirez
even  in the absence of protected conduct.


In late May 1996, Ramirez approached Mike Jennings,  another welder,
and asked him to sign an authorization card  while on break. Jennings
did not sign the card but told  Ramirez that he would take the card
home and discuss it with  his wife. Ramirez followed up with Jennings
several times  during May 1996. Jennings never brought the card back
to  Ramirez, nor did he tell Ramirez that he was uninterested in 
joining a union. Jennings did speak with Clint Moosman, a  supervisor,
and asked him whether he "was aware of what  was going on" in regard
to Ramirez's attempts to interest  Jennings in the union. Moosman told
Jennings that "Ra- mirez could solicit ... before work, during breaks,
and after  work, but not on company time." At around the same time, 
an employee remarked to a group of other employees in the  plant
lunchroom during a break that they should start a  union. Moosman
overheard the remark, and angrily told the  employees, "Well if I hear
of anyone going union ... they'll  be down the road."


Marty Hrabik, another supervisor, received two complaints  from
employees about Ramirez's union activities in May and  June of 1996.
Hrabik and Moosman met with Haga, the  plant manager, in early June
1996. Haga told them to warn  their employees "that they could do
whatever they wanted to  on their own time, but on company time they
need not [ ] talk  about the union or bother[ ] anybody about it."
Following  that meeting, Moosman spoke with the welders at their work 
stations and explained that there had been complaints about  some
employees "harassing" others to join a union. Moos-


man warned each welder, including Ramirez, that what they  did on their
own time was their business, but that they could  not "harass"
employees about the union during "company  time."2 Moosman then
delivered the same message to a  group of employees, also including
Ramirez, in the lunchroom  during a break. During the meeting, Moosman
told the  employees that "he wanted to know about it if some one was 
talking to [them] about the union on company time."


In early June 1996, the union sponsored several meetings.  The day
after one meeting, Moosman remarked to Robert  Rodriguez, an employee
who had attended the meeting, that  he had heard a rumor about a
"little bitch session" where  employees talked about "stuff" that they
did not like about  the shop. Moosman told Rodriguez that he "was
disappoint- ed" in him. Rodriguez told Moosman that he and others had 
discussed whether or not they wanted to continue working at  the shop
with Haga, Hrabik, and Moosman being "the way  they were." Following
that remark, Moosman took out his  knife, opened it, handed it to
Rodriguez handle first and said,  "[W]ell don't cut your own throat."
Later that day, Moosman  asked Rodriguez for the names of the
employees who were at  the union meeting. When Rodriguez did not
disclose the  names other than his own, Moosman told him, "If you




__________

n 2 The company distributed an employee handbook on its policies  and
rules at other locations, but did not give Pocatello employees  the
handbook until July 1996, subsequent to the events underlying 
Ramirez's discharge. The handbook stated the company's no- harassment
policy as follows: "[h]arassment of an employee ... is  unacceptable
and will not be tolerated" and "[m]anagers and super- visors are
responsible for promoting and maintaining a working  environment which
is free of such harassment for all employees."  The handbook further
stated that "[i]n the event such harassment  does occur, managers and
supervisors must take immediate correc- tive action, including, where
appropriate, dismissal of the offender."  Before the handbook was
distributed, company supervisors orally  informed the Pocatello
employees of the company's policies on an ad  hoc basis, and the plant
culture was one in which employees  engaged in diverse personal
conversations during working time,  with the knowledge of


ue to cut your own throat I'm not going to be able to do  anything for
you."


Hrabik discussed the union with some employees as well.  Employee Allen
Wilcox had promised Hrabik that he would  come to Hrabik's house one
evening to help build a fence, but  Wilcox missed his appointment for
personal reasons and to  attend a union meeting. The next day, Hrabik
asked Wilcox  how the meeting was. When Wilcox asked if Hrabik
referred  to his personal meeting, Hrabik replied, "[N]o you know what
 meeting." Hrabik had another discussion about unionizing  when Wilcox
was at his house with Rodriguez to work on the  fence as he had
promised. While working, Hrabik was asked  what he thought about the
union organizing, and Hrabik told  them that the company did not "have
any stock here in  Pocatello" and that "Frazier isn't going to allow
this, the  union to spread to the other companies, they'll just close
this  plant up and they'll move on." Hrabik added that if his job 
were threatened he would "start cutting throats," and that if  he were
fired, they were "going down" with him. Shortly  afterwards, Hrabik
asked Wilcox why certain employees  wanted a union, and upon hearing
that perhaps employees  wanted better pay or better benefits, Hrabik
said that before  the company "went union they would either hire
non-union or  shut the plant down."


Also in June 1996, employees Todd Chandler and James  Frasure
complained to Hrabik that Ramirez was "harassing"  them about
attending union meetings. Ramirez spoke to  Chandler five or six times
over several days about an upcom- ing union meeting, and Chandler
neither expressed an inter- est in attending a union nor told Ramirez
that he was not  interested. Similarly, Frasure was approached several
times  by Ramirez, including four or five approaches on company  time
on one particular day, each time to urge Frasure to  attend a union
meeting. Ramirez's remarks to Frasure were  brief and on each occasion
Frasure said that he would think  about it, never telling Ramirez that
he was uninterested.  However, when Frasure talked to Hrabik about
Ramirez, he  said that Ramirez's persistence about the union meetings
was  "really pissing [him] off." Hrabik told Moosman about these 


conversations, and both met with Haga, who said that "ha- rassing"
employees on company time "had to stop." Later  that day, Moosman told
the employees, including Ramirez,  that "there had been complaints
about people being harassed  on company time that needed to stop."


Around the same time, Ramirez followed up on his earlier  discussions
with Jennings about unionizing and invited him to  meet with a union
organizer. Jennings responded that he  would think about it. Later
that day, Ramirez talked to  Jennings, who at the time was working
with employee Tom  Neilsen.3 Ramirez testified that this conversation
lasted  about twenty minutes, while Jennings stated that they spoke 
for about forty-five minutes. Several days later, Ramirez,  after the
end of his workday, saw Jennings reporting for  work and spoke with
Jennings for about ninety seconds in an  effort to persuade Jennings
to meet with a union organizer.  Jennings agreed to make an
appointment, and then Ramirez,  noticing that Haga was watching them,
ended the conversa- tion. After Ramirez left, Haga asked Jennings if
Ramirez  was bothering him, and Jennings replied that "[Ramirez] was 
bothering [him] about the damn union stuff and won't leave  [him]
alone." Later that day, Haga asked Moosman to tell  Ramirez to report
to Haga's office the next morning.


When Ramirez met with Haga in his office the next day,  Haga asked
Ramirez, "[W]hat am I going to do with you,  John?" Haga told him that
people were complaining about  him "bothering them all the time" and
that it was "affecting  ... productivity." Ramirez denied that he was
bothering  anyone. When Haga repeated, "[W]hat am I going to do with 
you," Ramirez replied, "[W]ell you're the plant manager you  do
whatever you have to do." Haga, who testified that  Ramirez had "a
really bad attitude about it," offered him the  opportunity to quit,
but Ramirez refused and Haga dis- charged him. Later that morning,
Hrabik spoke to Rodri-




__________

n 3 This meeting took place after Ramirez had already approached 
Neilsen on a previous occasion. Ramirez asked him at their initial 
meeting for his opinions on unionizing, and Neilsen responded then 
that he "wasn't really for the union."


guez about Ramirez's discharge and told him that Rodriguez  should now
understand why he should not talk about the  union on company time.


Following his discharge Ramirez applied for unemployment  insurance,
and stated on the application that although he was  discharged for
organizing on company time, he never did  organize on company time.
The Idaho Department of Labor  denied his application.


Based on the foregoing evidence, the Board adopted the  Administrative
Law Judge's findings that the company violat- ed s 8(a)(1) by
threatening to discharge employees who en- gage in union activities,
coercively interrogating employees  about their union activities and
sympathies,4 threatening em- ployees that it would close the plant if
employees chose union  representation, and maintaining and enforcing a
rule prohibit- ing union talk while permitting other nonwork
discussions.  See Frazier Indus. Co., 328 N.L.R.B. No. 89, 3, 14-15
(June  14, 1999). The Board, by a two to one vote, also adopted the 
judge's findings that the company violated s 8(a)(1) and (a)(3)  by
discharging Ramirez because of his union activity. See id.  at 3, 15.
The Board ordered the company to cease and desist  from engaging in
these unfair labor practices and ordered the  company to offer Ramirez
full reinstatement and backpay for  any lost earnings and benefits.


II.


Section 8(a)(1) and (3) of the Act makes it an unfair labor  practice
for an employer "to interfere with, restrain or coerce  employees in
the exercise of the rights guaranteed" by the 




__________

n 4 Although the Board unanimously found that the company  unlawfully
interrogated employees about their union activities on  various
occasions, the finding that Haga's inquiry of Jennings as to  whether
Ramirez was bothering him the day before Ramirez was  discharged
constituted an unlawful interrogation was made by a two  to one vote.
The dissenting member thought that Haga's question- ing was "lawful in
view of the repeated complaints by employees,  including Jennings, of
harassment by Ramirez." Frazier, 328  N.L.R.B. No. 89, at 6 n.12.


Act, 29 U.S.C. s 158(a)(1), and "by discrimination in regard to  hire
or tenure of employment or any term or condition of  employment to
encourage or discourage membership in any  labor organization." Id. s
158(a)(3). To establish a causal  nexus between adverse employment
decisions and an employ- ee's union affiliation, the complaining party
must first show  that protected activity "was a 'motivating factor' "
in the  adverse employment decision, and then the employer may  show
that it would have made the adverse decision even had  the employee
not engaged in protected activity. Wright  Line, Inc., 251 N.L.R.B.
1083, 1089 (1980); see also NLRB v.  Transportation Management Corp.,
462 U.S. 393, 403 (1983)  (approving of the Wright Line approach). To
establish an  employer's discriminatory motive, the Board may
"consider[ ]  such factors as the employer's knowledge of the
employee's  union activities, the employer's hostility toward the
union, and  the timing of the employer's action." Power, Inc. v. NLRB,
 40 F.3d 409, 418 (D.C. Cir. 1994). In addition, evidence that  an
employer has violated s 8(a)(1) of the Act can support an  inference
of anti-union animus. See Parsippany Hotel Man- agement Co. v. NLRB,
99 F.3d 413, 423-24 (D.C. Cir. 1996).


The court will affirm the findings of the Board unless they  are
"unsupported by substantial evidence in the record con- sidered as a
whole," General Elec. Co. v. NLRB, 117 F.3d  627, 630 (D.C. Cir.
1997), or unless the Board "acted arbitrari- ly or otherwise erred in
applying established law to the facts."  Allegheny Ludlum Corp. v.
NLRB, 104 F.3d 1354, 1358 (D.C.  Cir. 1997) (quotation and citation
omitted). Even if the court  might have reached a different conclusion
had the court  considered the issue de novo, the court will uphold the
 Board's decision if it is supported by substantial evidence in  the
record. See Synergy Gas Corp. v. NLRB, 19 F.3d 649,  651 (D.C. Cir.
1994). The court gives even greater deference  to the Board's
determination of questions of motive, see Laro  Maintenance Corp. v.
NLRB, 56 F.3d 224, 229 (D.C. Cir.  1995), and "accept[s] the ALJ's
credibility determinations that  are adopted by the Board 'unless they
are patently unsup- portable.' " Schaeff Inc. v. NLRB, 113 F.3d 264,
266 (D.C.  Cir. 1997) (quoting NLRB v. Creative Food Design Ltd., 852


F.2d 1295, 1297 (D.C. Cir. 1988)); see also Capital Cleaning 
Contractors, Inc. v. NLRB, 147 F.3d 999, 1004 (D.C. Cir.  1998).


The company contends that Ramirez "harassed" co-workers  regarding the
union during working time, and on the compa- ny premises, and that
such solicitations were not protected by  the Act. The company
maintains further that, even if Ra- mirez's actions constituted
protected activities, its termination  of Ramirez's employment was
lawful because it would have  discharged him in the absence of
protected conduct for his  insubordination and dishonesty. We hold
that there is sub- stantial evidence in the record to support the
Board's conclu- sions that Ramirez's conduct was protected union
activity  under the Act, that the company violated the Act by
discharg- ing Ramirez for engaging in such protected union activity, 
and that the company's other proffered reasons for termi- nation of
Ramirez's employment--insubordination and dis- honesty--are


In support of its contention that Ramirez's conduct was not  protected
by the Act because he was engaged in repeated  harassment of fellow
employees during work time resulting in  frequent interruptions of
work, the company relies on NLRB  v. General Indicator Corp., 707 F.2d
279 (7th Cir. 1983),  which held that "an employee who disrupts other
employees  during working hours is not engaged in a protected activity
 even though he is discussing union business." Id. at 282.  Similarly,
Board precedent states that "activity that would  otherwise be
protected may lose that protection if the means  by which that
activity is conducted are sufficiently abusive or  threatening."
Patrick Indus., Inc., 318 N.L.R.B. 245, 248  (1995). Under such
precedent, the company contends, the  fact that Ramirez was attempting
to organize the company's  work force is immaterial because he had no
legitimate pro- tected interest in repeatedly approaching and
harassing his  co-workers while they were trying to work. Although
this  interpretation of evidence may be reasonable, the Board's 
finding to the contrary was supported by substantial evidence  in the


The Board found that Ramirez's activities were protected  because "it
is clear that ... all of Ramirez' worktime solicita- tions were brief
and did not involve any obvious disruption in  production." Frazier,
328 N.L.R.B. No. 89, at 2. Adding  that "there is no evidence that
employees whom Ramirez  solicited more than once ever even told him
that he was  interfering with their work or that further solicitations
would  have that effect," id., the Board found that although Ramirez 
tenaciously solicited employees to sign cards, attend the  union's
meetings, or meet individually with a union organizer,  he did not
pursue such matters with employees over their  expressed objections.
On the contrary, the Board found that  "his persistence, in the main,
resulted in those instances  where he received tepid or inconclusive
responses from the  employees with whom he spoke." Id. at 13.5 The
Board thus  concluded that Ramirez's conduct, while persistent, did
not  rise "to the level of unprotected harassment." Id. at 2.  There
is substantial evidence in the record to support the  Board's


Ramirez followed up with Jennings about signing an autho- rization card
only after Jennings stated that he would take  the card home, think
about it, and discuss it with his wife.6  Ramirez similarly followed
up with employees Chandler and  Frasure only after they had given
Ramirez the impression 




__________

n 5 The Board also rejected the company's contention that, al- though
no employees had directly asked Ramirez not to approach  them in the
future, its warnings that employees were not to  "harass" coworkers
about the union on working time put Ramirez  on notice that future
entreaties to the complaining employees about  the union would be
considered harassment. See Frazier, 328  N.L.R.B. No. 89, at 13-14.
The Board's conclusion was reasonable;  those warnings, themselves
unlawful, did not identify for Ramirez  the employees who did not wish
to be solicited, nor did they provide  any guidance as to what
constituted harassment, other than that  union organizing on company


6 The company claims that Jennings repeatedly told Ramirez  that he was
not interested, and Jennings testified to that effect;  however, the
Administrative Law Judge did not credit this asser- tion. See id. at
13.


that they were at least feeling ambivalent about unionizing.  By
contrast, Ramirez never spoke to Neilsen about the union  again after
Neilsen informed Ramirez in their initial conver- sation he "wasn't
really for the union." Neilsen was present  as a bystander to a
conversation Ramirez had with Jennings  one evening, and this
conversation was the only conversation  that was more than momentary,
lasting twenty minutes ac- cording to Ramirez and forty-five minutes
according to Jen- nings. However, as the Board explained, there is "no
evi- dence that anyone told the [company] about this incident  before
Ramirez's discharge." Id. at 2 n.5. Therefore, how  long this
particular conversation lasted and what Jennings  told Ramirez in the
conversation are immaterial. In addition,  there is no evidence that
Ramirez's solicitations were other  than courteous or produced


Taking another tack, the company contends that the  Board's finding
that Ramirez's activities were protected was  based on erroneous legal
standards, requiring the company to  demonstrate Ramirez's
interruptions were lengthy and result- ed in a loss of production and
requiring Ramirez's co-workers  to confront Ramirez directly instead
of complaining to super- visors. This contention mischaracterizes the
Board's find- ings. The Board did not apply a general standard that
work  time interruptions must be lengthy and result in a loss of 
production in order for them to be harassment. The question  that the
Board was addressing was whether Ramirez's activi-




__________

n 7 The company maintains that Ramirez's solicitations were dis-
ruptive and cites the instance in which employee Clair Monson  started
screaming at him when Ramirez approached him. (Presum- ably, our
dissenting colleague's description, "almost to the point of a 
physical fight," refers to this incident.) However, the Board has 
ruled that mere hostile reactions to protected union solicitation do 
not render that conduct unprotected. In Patrick Industries, the  Board
stated that "the test for determining whether a given union  card
solicitation was protected is not the perhaps idiosyncratic  reaction
of the particular employee who happened to be on the  receiving end of
that activity," and that "it is for the Board to  decide whether or
not the Act's protections apply." Patrick Indus.,  318 N.L.R.B. at


ties rose to the level of harassment, and, in order to make  that
determination, the Board considered various factors,  such as how long
each interruption lasted, how disruptive it  was, how courteous or
abusive Ramirez was in each instance,  and whether he respected
co-workers' requests not to be  bothered. The Board noted that
Ramirez's conduct was  neither lengthy nor disruptive only because
they were, quite  reasonably, considered to be relevant to the Board's
determi- nation that his conduct was protected by the Act, and not 
because it determined that only lengthy interruptions rose to  the


Contrary to the company's contention, this approach is  consistent with
Patrick Industries and General Indicator. In  Patrick Industries, the
Board ruled that an employee's re- peated solicitations of a coworker
to sign an authorization  card were protected under the Act, and
explained that in the  absence of evidence that the employee ever
"threatened or  abused" the coworker or even "raised his voice," a
conclusion  that the activity was unprotected could "significantly
limit the  ability and willingness of employees to solicit their
fellow  employees' support for, opposition to, a union, activity that
is  central to the purposes of the Act." Patrick Indus., 318  N.L.R.B.
at 248. Also, unlike the instant case, in General  Indicator, where
the Seventh Circuit held that an employer  lawfully discharged an
employee who engaged in union activi- ties on company time, the
discharged employee "had a history  of disrupting the work schedule of
co-employees, and even  after he had been disciplined for this pattern
of disruption  and had received a 'final warning,' he continued to
approach  other employees and prevent them from completing their 
assigned tasks in a timely manner." General Indicator, 707  F.2d at
283. The court concluded that the discharged em- ployee's tenure with
the company was "a continual pattern of  disruptive and insubordinate
behavior and activities as well as  ... interfer[ence] with
productivity." Id. By contrast, the  Board found that Ramirez's
behavior was neither disruptive  nor threatening and that he
voluntarily discontinued the  solicitation of any employee who failed


Similarly, the company's contention that the Board "fault- ed"
Ramirez's co-workers "for complaining to their supervi- sors rather
than directly confronting Ramirez" is groundless.  Contrary to our
dissenting colleague's criticism, the Board  did not assume that
Ramirez's co-workers had a "duty ... to  inform Ramirez he was
disturbing their work." Again, the  Board considered various relevant
factors in order to deter- mine whether Ramirez's conduct was
protected by the Act.  One of the factors the Board considered
relevant was that  Ramirez was persistent only with those who gave
"tepid or  inconclusive responses." Frazier, 328 N.L.R.B. No. 89, at
13.  Therefore, when the Board stated that "there is no evidence  that
employees whom Ramirez solicited more than once ever  told him that he
was interfering with their work or that  further solicitations would
have that effect," the Board was  not applying a general requirement
that a behavior does not  constitute harassment until there is a
direct confrontation.  Instead, the Board was merely emphasizing that
Ramirez,  while persistent as a union organizer, did not bother anyone
 who expressly indicated that he was not interested or that he  did
not want to be bothered. Therefore, the company's claim  that the
Board inappropriately required employees to rebuke  Ramirez first
before complaining to the management is a  wholly inaccurate account


Given that Ramirez's union activities are protected under  the Act, the
remaining question is whether the company's  discharge of Ramirez was
lawful. The Board found that  Ramirez's discharge was unlawful because
"the chain of  events leading to the discharge was a direct result of
the  [company's] enforcement of its unlawful rule prohibiting talk 
about the Union during worktime." Frazier, 328 N.L.R.B.  No. 89, at 2.
There is substantial evidence in the record to  support this finding.
Here, context is everything. The com- pany promulgated an invalid rule
prohibiting employees from  talking about the union during working
time. See Industrial  Wire Prods., 317 N.L.R.B. 190, 190 (1995). That
rule was  implemented in direct response to rumors of Ramirez's union 
organizing efforts, and the employees who subsequently in- formed the
company of Ramirez's work time solicitations 


were acting in accordance with the company's directive that  they
report union "talk" to management. In addition, the  company's
activities in violation of s 8(a)(1), violations the  company does not
challenge, included threatening to dis- charge employees who engaged
in union activities, coercively  interrogating employees about their
union activities and sym- pathies, expressing disappointment in
employees who attend- ed union meetings, threatening to close the
plant if employees  chose union representation, threatening to
retaliate against  employees for their union activities, and remarking
to an  employee after Ramirez's discharge that the employee should 
now understand why he should not talk about the union on  company
time. Such factual findings by the Board constitute  substantial
evidence to support its finding that Ramirez's  discharge by the
company violated s 8(a)(3) and (1) of the  Act.


Nor, as the company contends, did the Board's conclusion  contradict
Patrick Industries and BJ's Wholesale. In Patrick  Industries, the
Board found that the company's discipline,  while unlawful under s
8(a)(1), did not independently violate  s 8(a)(3) because "the
discipline was not discriminatory and  was not done in order to
encourage or discourage member- ship in any labor organization."
Patrick Indus., 318 N.L.R.B.  at 248. As noted, the Board's finding in
the instant case was  based on numerous indications of the company's
discriminato- ry prohibition on union talk, its repeated solicitation
of com- plaints regarding union solicitation, and numerous other in-
stances reflecting the company's anti-union animus. The  company's
reliance on BJ's Wholesale fares no better. As the  Board explained,
in BJ's Wholesale, the employee had previ- ously been counseled under
the employer's anti-harassment  policy for conduct unrelated to the
union, and, unlike the  instant case, the employer had not promulgated
an unlawful  rule prohibiting all working-time union speech. See BJ's 
Wholesale, 318 N.L.R.B. at 684. Moreover, in finding the  discipline
in BJ's Wholesale to be lawful, the Board empha- sized that the
employer had not solicited complaints from  employees about union
activity. See id. The record here  shows that the company repeatedly


union "harassment," and that Moosman told the employees  that he
"wanted to know about it if some one was talking to  [them] about the
union on company time." Moreover, the  purported "complaint" from
Jennings that immediately pre- cipitated Ramirez's discharge was
directly solicited by Haga's  inquiry as to whether Ramirez was
harassing him. There- fore, the Board's findings are consistent with
BJ's Wholesale  and Patrick Industries.


The Board reasonably rejected the company's Wright Line  defense that
Ramirez would have been terminated even in the  absence of the
protected activity because of his insubordina- tion and dishonesty
when questioned by Haga. Substantial  evidence supports the Board's
finding that Haga decided to  terminate Ramirez for the union
activities, and not for insub- ordination and dishonesty. As the Board
emphasized, Haga  initially testified that Ramirez was discharged
solely for  "harassing" company employees. In addition, none of the 
company's filings with regard to Ramirez's application for 
unemployment benefits mentioned any grounds for termi- nation other
than alleged harassment. Therefore, the compa- ny has failed to
provide sufficient evidence to overcome the  Board's finding that it
would have terminated Ramirez even  in the absence of the protected
activity for his insubordination  and dishonesty. In the end, the
company offers no reason for  the court to disturb the Board's finding


III.


The company also challenges the Board's remedy, contend- ing that the
Board abused its discretion by awarding Ramirez  reinstatement. The
company takes the position that Ra- mirez's failure to disclose fully
his employment history at the  time he applied for employment as a
welder and his false  statements regarding his union activities on his
unemploy- ment benefit application warranted immediate termination 
and preclude reinstatement. The company relies on the  after-acquired
evidence rule of McKennon v. Nashville Ban- ner Publishing Company,
513 U.S. 352 (1995), which held  that "neither reinstatement nor front
pay is an appropriate 


remedy" for an unlawful termination "where there is after- acquired
evidence of wrongdoing that would have led to  termination on
legitimate grounds had the employer known  about it." Id. at 361-62.
Following McKennon, the Board  has limited reinstatement and backpay
based on after- acquired evidence that an employee who was unlawfully
dis- charged had engaged in misconduct that would have led to  the
employee's termination. See, e.g., Marshall Durbin Poul- try Co., 310
N.L.R.B. 68, 70 (1993), enforced in pertinent  part, 39 F.3d 1312,
1317 (5th Cir. 1994); John Cuneo, Inc.,  298 N.L.R.B. 856, 857 (1990);
Axelson, Inc., 285 N.L.R.B.  862, 866 (1987). The difficulty for the
company stems from  the fact that it makes a bare assertion.


The McKennon Court explained, "Where 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." McKennon, 513 U.S. at 362-63.
The  Court added that "[t]he concern that employers might as a 
routine matter undertake extensive discovery into an employ- ee's
background or performance on the job to resist claims is  not an
insubstantial one." Id. at 363. Accordingly, the  Board has placed on
the employer the burden of showing that  it would have discharged the
employee because of the miscon- duct, not simply that it could have
done so. See, e.g.,  Marshall Durbin, 310 N.L.R.B. at 70; John Cuneo,
298  N.L.R.B. at 859. The Board has broad remedial discretion to 
devise remedies that effectuate the policies of the Act, see  ABF
Freight System, Inc. v. NLRB, 510 U.S. 317, 324 (1994),  and because
the company has not produced evidence to  overcome that deference and
to show that it would have  terminated Ramirez's employment for his
misconduct, we find  that the Board did not abuse its discretion in


It is undisputed that Ramirez falsified his employment  application by
omitting information about his previous em- ployment with G&L Metal;
however, the Board reasonably  concluded that the company failed to
show that he would have 


been discharged for his failure to disclose the information had  the
company learned about it before the discharge. As the  Board noted,
the employment application that Ramirez filled  out states merely that
false information, omissions, or misrep- resentations may result in a
discharge of the employee. See  Frazier, 328 N.L.R.B. No. 89, at 15.
In other words, the  language on the form warns of dismissal only as a
potential  option, and the company has provided no evidence that its 
practice has been to dismiss employees for similar omissions.  The
company's assertion that the company's policy manual,  which specifies
that "[f]alsifying or altering Company rec- ords" is a violation
"warranting immediate dismissal of an  employee," is sufficient
evidence that it would have dis- charged Ramirez for his omission
fails not only because the  manual was not distributed to him before
the termination of  his employment and there is no evidence otherwise
to indicate  that he was made aware of this falsification rule, but
because  the company offered no evidence that it has routinely dis-
missed employees for similar omissions.


Similarly, the company's reliance on the evidence of Ra- mirez's false
statement on his unemployment benefits applica- tion is misplaced. The
company has not provided sufficient  evidence to show that Ramirez's
misrepresentations amount- ed to "[f]alsifying or altering Company
records," given that it  is not obvious why unemployment insurance
applications filed  with a state agency would be considered company
records for  the purposes of the company policy at issue. Neither has
the  company proffered any other evidence to show that Ramirez's 
misconduct precludes his reinstatement. While we do not  understand
the Board to suggest that the company would  have to demonstrate that
other employees had been dis- charged on this ground, as there will
always be a first case, a  bare assertion merely referring to a
company policy that  seems remotely related is insufficient. Hence,
the Board  reasonably distinguished Vilter Mfg. Corp., 271 N.L.R.B.
1544  (1984), in which the Board found no unfair labor practice for 
failure to reinstate a discharged employee where the employ-


er demonstrated that an employee's post-termination dishon- esty would
have resulted in the employee's discharge under  the employer's
progressive discipline system. See Frazier,  328 N.L.R.B. No. 89, at
15; Vilter, 271 N.L.R.B. at 1546-47.


Accordingly, we deny the petition and remand the case for  enforcement
of the Board's order.


Karen LeCraft Henderson, Circuit Judge, dissenting:


I would grant the petition for review for the reasons  expressed so
convincingly by the dissenting member of the  National Labor Relations
Board. John Ramirez repeatedly  pestered the same employees while they
were trying to  perform their jobs, as many as four times in a single
day and  once almost to the point of a physical fight. This was not 
protected activity but harassment. His fellow employees  were under no
duty, as the majorities of this panel and of the  Board seem to think,
to inform Ramirez he was disturbing  their work. That should have
been, and surely was, as  obvious to him as it was to them. As the
dissenting Board  member noted, Ramirez's discharge did not violate
section  8(a)(1) or (3) of the National Labor Relations Act because
the  employer "was lawfully responding to multiple complaints  from
multiple employees regarding Ramirez' repeated harass- ment of them
during worktime about the Union." Frazier  Indus. Co., 328 N.L.R.B.
No. 89, slip op. at 59 (1999) (footnote  omitted). Further, "even
assuming that the General Counsel  has established a prima facie
showing that Ramirez' protected  conduct was a motivating factor in
his discharge, the Respon- dent has met its burden of showing that the
discharge would  have occurred even in the absence of protected
activity." Id.  (citing Wright Line, 251 N.L.R.B. 1083 (1980), enf'd.,
662 F.2d  899 (1st Cir. 1981), cert. denied, 455 U.S. 989 (1982)). Ac-