NLRB v. White Oak Manor, No. 10-2122 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2122 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITE OAK MANOR, Respondent. On Application for Enforcement of an Order of the National Labor Relations Board. (11 CA 21786) Argued: September 22, 2011 Decided: October 28, 2011 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Application for enforcement granted by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Duncan and Judge Davis joined. ARGUED: Thomas Howard Keim, Jr., FORD & HARRISON, LLP, Spartanburg, South Carolina, for Respondent. Nicole Lancia, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. ON BRIEF: Kristin Starnes Gray, FORD & HARRISON, LLP, Spartanburg, South Carolina, for Respondent. Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Acting Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Usha Dheenan, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. Unpublished opinions are not binding precedent in this circuit. 2 DIAZ, Circuit Judge: Petitioner National Labor Relations Board seeks enforcement of an order that it entered in this case. The Board s order adopted the findings of the administrative law judge ( ALJ ), concluding that respondent violated the National Labor Relations Act ( NLRA ) by terminating protected concerted activity. application for enforcement, Because substantial adopted by the evidence Board, we an employee for engaging in Respondent contests petitioner s challenging supports grant the the Board s ALJ s petitioner s ruling. findings application as for enforcement. I. A. Respondent White Oak Manor ( White Oak ) operates a longterm care facility in Shelby, North Carolina. Nichole Wright- Gore worked as a central supply clerk at White Oak until her termination on November 16, 2007. After receiving a terrible haircut and unable to do anything with [her] hair, Wright-Gore wore a hat to work on October 23, 2007. J.A. 66. She continued donning the hat while at work for the next week, and no supervisors commented on her dress. That changed on October 30, when Peggy Panther, White Oak s personnel director, explained to Wright-Gore that wearing 3 a hat violated the company s dress code. Whisnant, White Wright-Gore reported to Oak s remove Wright-Gore s director of nursing. assistant the hat, Later that day, Tammy director but she insubordination of nursing, refused. to Terry told Whisnant Fowler, the Fowler called Wright-Gore to her office, where Whisnant and Panther were waiting. Fowler told Wright- Gore that White Oak s dress code forbade employees to wear hats and that Wright-Gore should go home if she refused to remove her hat. Wright-Gore protested that other employees were allowed to wear hats and singling her out was unfair. She declined to remove her hat and left the facility for the day. Wright-Gore returned to White Oak for work the next day, when she and other employees wore costumes in celebration of Halloween. She included a hat. dressed as a race-car fan, and her costume Andy Nelson, the administrator of White Oak, suggested that Wright-Gore remove the hat, and she complied. Still concerned about Wright-Gore s refusal to follow Fowler s orders the day before, Nelson met with both employees later that day. Wright-Gore explained to Nelson that she felt that White Oak was enforcing the dress code unevenly, but Nelson told her to worry only about herself. As the meeting concluded, Nelson handed Wright-Gore a written warning for insubordination. In the days following her meeting with Nelson, Wright-Gore paid particular attention to the 4 clothing worn by fellow employees. She noticed that several of her coworkers were wearing hats and displaying their tattoos, in violation of White Oak s dress code. Management, however, failed to address these obvious transgressions. Upset at the disparate enforcement of the dress code, Wright-Gore began talking to female employees to enlist their support. she spoke with implementation From around November 5 until November 12, roughly of the ten employees dress code. about the inequitable Wright-Gore s coworkers shared their own experiences with unequal enforcement of the policy and expressed support for her grievance. To bolster her complaint, Wright-Gore decided to document dress-code violations. On November 12 and 13, she used her cell phone to take pictures of employees dressed contrary to company policy. Wright-Gore took pictures of four employees--Larry Shea Roberts, David Although Roberts Layell, and Harold Hopper, Mitchell gave and Deborah Wright-Gore Mitchell. permission to photograph them, Hopper and Layell were unaware of Wright-Gore s actions. Wright-Gore enlisted the help of coworker Angela Hawkins when she took a picture of Roberts. Wright-Gore employees. shared her pictures with several White Oak While showing the photographs to coworkers, Wright- Gore explained that she had documented disparate enforcement of the dress code. The employees generally expressed agreement with Wright-Gore s grievance. Again, Hawkins assisted Wright5 Gore, sharing a picture with declaring look what we got. coworker Crystal Henson and Id. 289. On November 15, Kathy Gunter, White Oak s business office manager, informed Nelson that Wright-Gore had been showing coworkers pictures of employees violating the dress code. same day, picture Roberts without afternoon with Wright-Gore complained that permission. Wright-Gore about the Wright-Gore Nelson and convened Whisnant, photographs. had a where Wright-Gore That taken meeting his he that confronted explained to Nelson that she had a problem with what she perceived as uneven enforcement of the dress code. She told Nelson, when asked, that she had received permission to take the pictures. called her a liar. In response to Wright-Gore s Nelson broader grievance, Nelson wondered aloud whether she was going to let a hat come in between the food on [her] kids table. Id. 114. Following the meeting, Nelson initiated an investigation. He was particularly concerned that Wright-Gore had violated White Oak s policy proscribing the taking of pictures inside the facility without employee T.C. photographed. prior Brooks, written whom authorization. Gunter claimed He approached Wright-Gore had Brooks was unaware that Wright-Gore had taken a picture of him, but he agreed to fill out a complaint form. Nelson spoke with other employees, discharge Wright-Gore. 6 ultimately deciding to The next day, November 16, Nelson called Wright-Gore to his office and informed her that her employment had been terminated. Nelson explained that his investigation had confirmed that she had taken pictures of employees without their permission. According to the termination report prepared by Nelson, WrightGore had violated White Oak s policy barring [s]tealing or misappropriating (misusing) property belonging to the facility, residents, or other employees. Id. 515. Elaborating on the charge, Nelson wrote that Wright-Gore took a picture of another employee without his/her permission and in turn, showed it to other employees. Nelson explained that he was discharging Id. Wright-Gore for taking a picture of Brooks. White Oak had not established a precedent for disciplining employees permission. time that for photographing Indeed, White fellow Wright-Gore s Oak had employees termination enforced the absent was policy. the their first Employees routinely took pictures of each other--at facility events or while goofing off at work--and never asked for or received permission. them The staff freely shared these pictures, posting on facility bulletin boards or passing them around the office. Testifying at the administrative hearing, Wright-Gore reflected on her efforts to document disparate enforcement of the dress code. She explained 7 that she spoke with other employees [t]o get their support so I could go to management and say, you know, there s [sic] other people that are agreeing with me that, you know, the dress code is not being enforced fairly. Id. 131. Wright-Gore denied that she had taken action solely for her own benefit, maintaining instead that she took pictures to demonstrate to supervisors that their dress code wasn t being enforced fairly for the entire facility. Id. 170. At bottom, she wanted the dress code to be enforced equally and fairly with everyone. Id. 161. B. Wright-Gore responded to her termination by submitting a charge to the Board, in which she claimed that White Oak had violated the NLRA. The Board s General Counsel, in turn, filed a complaint with the Board, alleging that White Oak violated section 8(a)(1) interrogating, of the NLRA, threatening, and 29 U.S.C. § discharging result of her protected concerted activity. 158(a)(1), Wright-Gore by as a White Oak contested the allegations, and the parties proceeded to an administrative hearing. The ALJ concluded that White Oak had violated section 8(a)(1) of the NLRA by discharging Wright-Gore for her protected concerted found activity. that what Viewing had the evidence globally, initially started as 8 an the ALJ individual complaint by [Wright-Gore], that she was being treated unfairly by being required to remove her hat, evolved into a campaign by [Wright-Gore] to have the dress code enforced in a fair and equitable manner. J.A. 634. According to the ALJ, Wright-Gore engaged in protected concerted activity by speaking with other employees about disparate enforcement of the dress code and documenting the problem through photography: It is clear that [Wright-Gore] was addressing the perceived unfair enforcement of the dress code and was seeking to obtain the support of the female employees to come together and make their positions known to Respondent s management and particularly Nelson, that these employees wanted the Respondent to remedy the unfair enforcement of the dress code. This constituted a joining together of the employees for their mutual aid and protection as the wearing of hats and other items outlined in the dress code would affect terms and conditions of employment. Id. 636. The ALJ reasoned that Hawkins s assistance and Wright- Gore s conversations with other employees satisfied the NLRA s requirement that an employee be engaged in concerted activity. The concerted activity was also protected under the NLRA, stated the ALJ, because Wright-Gore was engaged in a joint discussion of the unfairness of the dress code, and . . . it was implicit, therein, that she was seeking a change in the enforcement of the dress code. Id. Because Wright-Gore s picture taking was protected concerted activity and White Oak discharged her for 9 that activity, the ALJ determined that White Oak had violated the NLRA. Wright-Gore did not lose protection of the NLRA by violating a White Oak rule prohibiting the taking of pictures of other employees without permission, concluded the ALJ. He found that employees freely took pictures of each other, without first receiving permission, and throughout the facility. often displayed these pictures Thus Wright-Gore s purported violation of White Oak policy was not so egregious as to strip her of the NLRA s safeguards. The ALJ declined to carry out a dual-motive analysis under Wright Line, 251 N.L.R.B. 1083 (1980). termination discharged was not at Wright-Gore issue--all for Because the reason for agreed photographing that an White employee Oak had without permission--the ALJ concluded that Wright Line was inapposite. The ALJ ordered White Oak to comply with the NLRA s provisions, post appropriate notice, offer Wright-Gore immediate reinstatement, and give her back pay with interest. The Board affirmed recommended order. 1 the ALJ s findings and adopted his The Board resisted White Oak s challenges to 1 The Board initially affirmed the ALJ in a January 30, 2009 decision. White Oak responded by filing a petition for review in the U.S. Court of Appeals for the D.C. Circuit. Before the D.C. Circuit ruled on the petition, the Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (Continued) 10 the ALJ s credibility determinations, discerning no basis for upsetting these findings. It also endorsed the ALJ s conclusion that Wright-Gore s picture taking was not sufficiently egregious to remove her from the NLRA s protection. It found that White Oak did not enforce its rule prohibiting photographing absent permission, as employees routinely took and posted photographs of each other. Moreover, the Board noted that the ALJ determined that White Oak s basis for terminating Wright-Gore s employment--that she photographed Brooks without his permission-was groundless, because Wright-Gore never took a picture of Brooks. The General Counsel s application for enforcement of the Board s order is now before us. II. The thrust of White Oak s argument against enforcement is that Wright-Gore s motives sounded purely in self interest, precluding a finding that she engaged in protected concerted (2010), which invalidated the Board s two-member decisions. Id. at 2644. Because only two Board members had participated in the 2009 decision, the D.C. Circuit vacated the decision and remanded the case for further proceedings. White Oak Manor v. NLRB, Nos. 09-1068, 09-1098, 2010 WL 4227419, at *1 (D.C. Cir. Sept. 20, 2010). A three-member panel of the Board then decided the case on September 30, 2010, reaffirming its 2009 conclusions. White Oak Manor, 355 N.L.R.B. No. 211 (Sept. 30, 2010). 11 activity. According to White Oak, the record establishes that Wright-Gore complained about the dress code and documented its uneven enforcement for her sole benefit, never intending to act on behalf of a broader group of employees. Because the evidence does not support a determination that Wright-Gore engaged in protected concerted activity, White Oak insists that her discharge did not violate the NLRA. We disagree. Layers of deference inhering in the review of Board decisions counsel hesitation before disturbing the ALJ s factual determinations. Substantial evidence in the record before us supports the ALJ s findings that Wright-Gore joined with other employees to challenge White Oak s uneven enforcement of its dress code. Accordingly, White Oak violated the NLRA by discharging Wright-Gore for engaging in this protected concerted activity. A. Contrary to White Oak s suggestion at oral argument, our review of Board decisions is carefully circumscribed. [W]e are obliged to uphold the Board s legal interpretations if they are rational and consistent with the [NLRA]. Anheuser-Busch, Inc. v. NLRB, 338 F.3d 267, 273 (4th Cir. 2003) (quoting Sam s Club v. NLRB, 173 F.3d 233, 239 (4th Cir. 1999)). The substantial-evidence standard governs our review of the factual 12 findings made by the ALJ and affirmed by the Board. 74. Id. at 273 If findings of fact are supported by substantial evidence, looking to the record as a whole, we must uphold the Board s decision even though we might have reached a different result had we heard the evidence in the first instance. Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 742 (4th Cir. 1998) (quoting Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir. 1997)). Substantial reasonable evidence mind conclusion. might means such accept as relevant evidence adequate to as support a a Anheuser-Busch, 338 F.3d at 274 (quoting NLRB v. Peninsula Gen. Hosp. Med. Ctr., 36 F.3d 1262, 1269 (4th Cir. 1994)). Critically here, the determination of whether an employee was engaged in protected concerted activity is also reviewed under the substantial-evidence standard. Alton H. Piester, LLC v. NLRB, 591 F.3d 332, 337 (4th Cir. 2010). B. The NLRA confers on employees the right . . . to engage in . . . concerted activities for the purpose bargaining or other mutual aid or protection. of collective 29 U.S.C. § 157. Section 8(a)(1) of the Act forbids an employer to interfere with, rights restrain, or guaranteed coerce in employees section 157 13 in of the this exercise title. of Id. the § 158(a)(1). Disciplinary measures are the very archetype of coercion under the NLRA, and an employee may not be discharged for engaging in protected concerted activity. See NLRB v. Air Contact Transp. Inc., 403 F.3d 206, 213 (4th Cir. 2005). By its plain terms, the NLRA protects employees in the exercise of conduct engaged in for the purpose of . . . mutual aid or protection. 29 U.S.C. § 157. The mutual aid or protection clause . . . protects employees who seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels employee-employer relationship. outside the immediate New River Indus., Inc. v. NLRB, 945 F.2d 1290, 1294 (4th Cir. 1991) (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). An employer s dress code is one such condition[] of employment which employees may seek to improve, and such efforts qualify as protected activity under the NLRA. Id. Not only must the activity be protected, but it must be the product of concerted action. affirmed that the term See 29 U.S.C. § 157. concerted activity, as We have used in the NLRA, clearly enough embraces the activities of employees who have joined together in order to achieve common goals. Piester, 591 F.3d at 337 (quoting NLRB v. City Disposal Sys. Inc., 465 U.S. 822, 830 (1984)). The inquiry is flexible, and employees need not combine with one another in any particular 14 way to support a finding of concerted activity. City Disposal, 465 U.S. at 835). Id. (quoting Indeed, the lone act of a single employee is concerted if it stems from or logically grew out of prior concerted activity. Id. (quoting NLRB v. Mike Yurosek & Son, Inc., 53 F.3d 261, 265 (9th Cir. 1995)). conversation involving only a speaker and a Even a listener may constitute concerted activity, so long as the conversation was engaged in with the object of initiating or inducing or preparing for group action or . . . had some relation to group action in the interest of the employees. Kreme Doughnut Corp. v. NLRB, 635 Id. (quoting Krispy F.2d 304, 307 (4th Cir. 1989)). To qualify as concerted activity, an need not spring from a formalized plan. employee s actions For instance, a single employee s conversations with management about a condition of employment may constitute concerted activity even if a broader group of employees never appointed her spokesperson. Id. [I]ndividual protests of a management decision may properly be characterized as concerted action so long as those disagreeing with the decided, decision among management. considered themselves, that that they they had would a grievance take it up and with Id. (quoting NLRB v. Guernsey-Muskingum Elec. Coop., Inc., 285 F.2d 8, 12 (6th Cir. 1960)). 15 That an employee s self-interest catalyzed her decision to complain about determination working that conditions her actions does were not inexorably protected and bar a concerted. Id. at 341 (construing Joanna Cotton Mills Co. v. NLRB, 176 F.2d 749, 753 (4th Cir. 1949), as explaining that [an] individual s personal motivation for attempting to further group action does not prevent the conduct from being protected ). Motives are often not monolithic, and an employee may seek both to mitigate a problematic policy affecting her and to improve the lot of her coworkers. Though a speaker may articulate a grievance with reference only to herself, such an activity is protected under the NLRA so long as the sought-after remedy would necessarily benefit other employees. Id. ( As for the fact that Chapman stated his objections in terms of the effect that it was having on his paycheck, that would at most show only that it was his concern for his own finances rather than those of the group that motivated his support for the drivers collective position. There was no testimony that Chapman sought a personal exemption from the surcharge change that would not have applied to the other drivers as well. (citation omitted)). C. With the foregoing principles in mind, we hold that substantial evidence supports the findings of the ALJ that White 16 Oak discharged Wright-Gore for engaging in protected concerted activity. of As a preliminary matter, we note that the termination Wright-Gore s employment most assuredly qualifies as coercion proscribed by section 8(a)(1) of the NLRA, see Air Contact, 403 F.3d at 213, a point neither party contests. do the parties dispute the grounds for Nor Wright-Gore s termination--her taking and distributing a photograph of Brooks. Thus our inquiry is limited to determining whether Wright-Gore s photographing of fellow employees--as part and parcel of her larger grievance over dress-code enforcement--constitutes protected concerted activity under the NLRA. We conclude that it does. Wright-Gore s complaints about White Oak s disparate enforcement of its dress code are protected under the NLRA. See New River, 945 F.2d at 1294 (holding that dress codes are a condition[] of employment which employees may seek to improve while receiving the safeguards of the NLRA). As part of the res gestae about of enforcement, photography her overarching Wright-Gore s is similarly grievance documenting protected of the conduct. dress-code problem See through Media Gen. Operations, Inc. v. NLRB, 394 F.3d 207, 213 (4th Cir. 2005) (endorsing determination that conduct that is part of the res gestae of protected concerted NLRA s safeguards). 17 activities benefits from the Wright-Gore s concerted action. about uneven coworkers activities were the product of Wright-Gore spoke with roughly ten employees enforcement sympathized independent moreover of complaints with White her about Oak s concerns, dress-code dress code. raising Her their own implementation and expressing their hopes for more equitable enforcement. At least one employee, Hawkins, assisted Wright-Gore with her efforts to document the problem, encouraging Roberts to pose for a picture and sharing pictures with Henson. Indeed, Hawkins felt a sense of ownership in the enterprise, remarking to Henson look what we got when showing her a photograph. Because Wright-Gore s See J.A. 289. conversations were initiated to induce group action--she explained that she spoke with other employees [t]o get their support so I could go to management and say, you know, there s [sic] other people that are agreeing with me that, you know, the dress code is not being enforced fairly, id. 131--they constitute Piester, 591 F.3d at 337. concerted activity. See To be sure, Wright-Gore s fellow employees did not formally appoint her spokesperson regarding complaints over dress-code enforcement, but substantial evidence supports the conclusion that the employees determined that they had a collective grievance and resolved to take it up with management. See id. (quoting Guernsey-Muskingum, 285 F.2d at 12). 18 In an effort to resist the analysis outlined above, White Oak maintains that Wright-Gore s interest in benefiting herself ineluctably protected precludes concerted a finding that activity. she But was White engaged Oak s in rigid formulation--that an employee may not be motivated by both selfinterest common and sense collective nor well being--finds precedent. White support Oak s in neither position ignores Wright-Gore s consistent assertions that she wanted the dress code to be enforced equally and fairly with everyone, J.A. 161. Wright-Gore s grievance may have started as an individual gripe about being disciplined for wearing a hat, but substantial evidence supports the ALJ s determination that it evolved into a campaign . . . to have the dress code enforced in a fair and equitable manner, id. 634. 2 White Oak s position similarly overlooks our precedent, which does not find mutually exclusive an employee s acting in self-interest and her engaging in protected concerted activity. 2 White Oak repeatedly mentions Wright-Gore s purported admission that she was the only employee who wanted to wear a hat. This myopic focus on hat wearing misses the forest for the trees. Wright-Gore may indeed have been the only employee who bristled at the dress code s proscription on hat wearing, but this has no bearing on the overarching complaint about uneven enforcement of the dress code. Wright-Gore s grievance--and that of her coworkers--was not about the terms of the dress code, but rather the disparate enforcement of those terms. That no other employee wished to wear a hat to work does not in the least detract from the force of this broader complaint. 19 Even if an employee s grievance sounds entirely in self- interest, it still constitutes protected concerted activity so long as the remedy will benefit other employees. F.3d at 341. Equitable definitionally benefits all. enforcement of Piester, 591 a dress code As such, Wright-Gore s conduct was protected concerted activity under the NLRA, even if she was motivated by a sense that White Oak was both treating her unfairly and unevenly enforcing the dress code. 3 III. Even assuming that Wright-Gore concerted activity, White Oak engaged contends that in her protected decision to photograph other employees violated a valid company rule and thereby authorized her termination. Because Wright-Gore took pictures of employees without securing their permission, White Oak maintains that dictates of the NLRA. it discharged her consistent with the We disagree. 3 White Oak attacks the ALJ s credibility determinations in an effort to challenge the Board s conclusions. [W]hen factual findings rest upon credibility determinations, they should be accepted by the reviewing court absent exceptional NLRB v. CWI of Md., Inc., 127 F.3d 319, 326 circumstances. (4th Cir. 1997) (quoting Fieldcrest Cannon, Inc. v. NLRB, 97 F.3d 65, 69 (4th Cir. 1996)). Cognizant that [t]he balancing of witnesses testimony is at the heart of the fact-finding process, WXGI, Inc. v. NLRB, 243 F.3d 833, 842 (4th Cir. 2001) (quoting Fieldcrest Cannon, 97 F.3d at 71), we find no exceptional circumstances compelling us to disturb the ALJ s credibility determinations as adopted by the Board. 20 An employee, though otherwise engaging in protected concerted activity, can lose the [NLRA s] protections if his conduct is so egregious as to take it outside the protection of the Act, or of such a character as to render the employee unfit for further service. Anheuser-Busch, 338 F.3d at 280 (quoting Consumers Power Co., 282 N.L.R.B. 130, 132 (1986)); see also Stanford, employee N.Y., is LLC, 344 discharged N.L.R.B. for 558, conduct 558 that is (2005) part ( When of the an res gestae of protected concerted activities, the pertinent question is whether the conduct is sufficiently egregious to remove it from the protection of the [NLRA]. ). To be stripped of the safeguards of the NLRA, an employee s conduct must meet a high threshold of egregiousness. E.g., Media Gen. Operations, 394 F.3d at 213 (reaffirming that conduct occurring during the course of otherwise protected activity remain[s] likewise protected unless . . . so violent or of such serious character as to render the employee unfit for further service (quoting Sullair P.T.O., Inc. v. NLRB, 641 F.2d 500, 502 (7th Cir. 1981))). White showing of Oak has failed egregiousness. to The make the company s requisite utter threshold failure to enforce its picture-taking policy militates against a finding that Wright-Gore s conduct removed her from the aegis of the NLRA. Indeed, White Oak had 21 never before disciplined an employee for taking pictures of coworkers without first securing their permission. employees to Quite the opposite, the company had allowed freely take pictures of each other absent permission, and to share the photographs and even post them on facility bulletin boards. White Oak s claim that Wright-Gore s conduct is so egregious as to render [her] unfit for further service, Anheuser-Busch, 338 F.3d at 280 (quoting Consumers Power, 282 N.L.R.B. at 132), thus rings hollow. More fundamentally, the act terminated never even occurred. for which Wright-Gore was Nelson stated that the sole reason for Wright-Gore s discharge was her photographing Brooks. The ALJ and the Board concluded that Wright-Gore never took a picture of Brooks. Because White Oak discharged Wright-Gore for conduct in which she never engaged, it can find no refuge in the egregiousness safe harbor. IV. Moving beyond the substance of the Board s ruling, White Oak lodges two procedural challenges. First, it argues that the ALJ and Board were obligated to perform a Wright Line motive analysis. Second, White Oak maintains that we must revise the Board s proposed notice to reflect that Wright-Gore has waived reinstatement and settled her contentions are groundless. 22 claim for back pay. Both A. The Board in Wright Line crafted a test to employ in dual motive cases--disputes in which there is both a good and a bad reason for the employer s action [that] requires further inquiry into the role played by each motive. 1084. 251 N.L.R.B. at We have clarified that invocation of the Wright Line analysis is appropriate only in situations where the employer s motive is at issue, such as cases where the employee claims that the employer took action against him for engaging in protected activity and the employer claims that it took action against the employee for some other reason. Air Contact, 403 F.3d at 215; see also Allied Aviation Fueling of Dallas, LP, 347 N.L.R.B. 248, 248 n.2 (2006) (concluding that the Wright Line analysis should not be used where an employer admits that it discharged an employee for engaging in protected activity ). Because White Oak s motive is not in dispute, application of the Wright Line analysis is inappropriate. White Oak and the Board agree that Wright-Gore was terminated for photographing a coworker without his permission, in violation of a company rule. The crux of this appeal is whether that activity, viewed as part of Wright-Gore s grievance about enforcement of the dress code, constitutes protected concerted activity under the NLRA. This is manifestly not a case in which the employer s motive--i.e., its real reason for discharging the employee--is at issue, and 23 application of the Wright Line test is not warranted. See Air Contact, 403 F.3d at 215. B. Finally, without passing on the merits of White Oak s challenge to the Board s proposed notice, we simply conclude that this appeal is resolve the dispute. not the proper proceeding in which to The Supreme Court has long recognized that a compliance proceeding, taking place after the merits have been finally resolved, is the proper forum in which to adjudicate disagreements over the proposed notice and attendant remedies. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898 99 (1984). White Oak will have ample opportunity to press its arguments about the proper tailoring circumstances proceedings. of [of] [this] the remedy discharge to in suit the individual subsequent compliance See id. at 902. V. Substantial White Oak evidence discharged supports Wright-Gore the ALJ s for engaging concerted activity, in violation of the NLRA. conclusion in that protected Accordingly, we grant the Board s application for enforcement. APPLICATION FOR ENFORCEMENT GRANTED 24
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