United States Court of Appeals

For the Eighth Circuit

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No. 18-2256

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St. Paul Park Refining Co., LLC, doing business as Western Refining

lllllllllllllllllllllPetitioner

v.

National Labor Relations Board

lllllllllllllllllllllRespondent

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No. 18-2520

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St. Paul Park Refining Co., LLC, doing business as Western Refining

lllllllllllllllllllllRespondent

v.

National Labor Relations Board

lllllllllllllllllllllPetitioner

____________

National Labor Relations Board

____________

Submitted: March 13, 2019

Filed: July 8, 2019

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Before SHEPHERD, ARNOLD, and ERICKSON, Circuit Judges.

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SHEPHERD, Circuit Judge.

St. Paul ParkRefiningCompany (SPPRC) petitionsfor review and the National

Labor Relations Board applies for enforcement of the Board’s order determining

SPPRC unlawfully suspended an employee for engaging in protected concerted

activity in violation of the National Labor Relations Act, 29 U.S.C. § 151 et seq. 

Having jurisdiction pursuant to 29 U.S.C. § 160(e) and (f), we deny SPPRC’s petition

and enforce the order.

I.

SPPRC operates an oil refinery with 450 employees in St. Paul Park,

Minnesota. The refinery maintains constant operations, processing crude oil into

products like gasoline. The International Brotherhood of Teamsters, Local No. 120

(the Union) represents some of the refinery employees, including vacancy relief

operator Richard Topor, who had served as a Union steward for several years. 

Topor’s supervisors at the refinery were Gary Regenscheid and Dale Caswell. 

Due to the hazards of refinery work, both SPPRC’s collective-bargaining

agreement and its employee handbook emphasize that employees must notify

supervisors if they believe work conditions are unsafe and assist in remedying the

dangerous conditions. SPPRC employees follow written procedures to perform

various tasks, and any change in a procedure must be documented using a

step-change form. SPPRC also maintains a “safety stop” policy giving all employees

the authority to stop a job due to safety concerns and discuss any appropriate

mitigation measures with supervisors. SPPRC’s employment documents state that

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workers may raise safety concerns withoutfear of retaliation and specificallymention

new or nonstandard procedures as situations that might warrant a safety stop. 

On November 4, 2016, Caswell assigned Michael Rennert, one of Topor’s

coworkers, the task of restarting a machine known as the Penex. Doing so required

injecting hydrochloric acid from pressurized cylinders into the Penex to clear out

water and rust. Only a few weeks prior, SPPRC implemented a new technique for

injecting the acid that involved heating the cylinders with steam. However, no one

had updated the written procedure to reflect the new method. Never having restarted

the Penex before, Rennert asked Topor about the safety of the procedure. Topor

questioned the safety of the new steam-heating method.

Rennert and Topor discussed their concerns with Eric Rowe, a unit-process

engineer, and requested a written procedure. Rowe prepared a step-change form for

the new Penex cleaning procedure, which supervisors, including operations

superintendent Briana Jung, signed. The form included an instruction stating that

other hydrochloric acid cylinders should not be in the same area as the one that will

be heated. 

In the afternoon, Regenscheid and Jung reassigned the task to Topor, giving

himthe step-change form. Topor noted that, contrary to the form’sinstructions, other

cylinders were near the cylinder to be heated. Regenscheid instructed Topor to

mitigate the hazard by placing insulation blankets over the cylinders that were not in

use, but Topor insisted the procedure called for removing the additional cylinders

from the area, fearing Regenscheid’s suggestion was unsafe and risked explosion. 

Topor wanted to initiate a safety stop, but Regenscheid again said to use insulation. 

In response, Topor repeated his safety stop request, asking that the safety department

review Regenscheid’s suggestion. Topor began filling out a safety-stop form.

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Telling Topor to fill the form out later, Regenscheid and Jung met with him at

the Penex, where Topor again repeated his safety concerns. Topor explained that if

the restart process had changed to allow insulation blankets, the step-change form

needed to be updated accordingly. He added that he felt he was being pressured to

perform the task despite hissafety concerns. Topor and Regenscheid began speaking

in loud voices. Eventually, Regenscheid and Jung sent Topor home. As Topor was

leaving, Regenscheid asked him to return the step-change form, but Topor did not

hear him and did not comply. Eventually, Regenscheid gave Topor a ride to a

different building to change out of his work clothes and leave; they did not speak.

SPPRC’s human resource employees told Jung and Regenscheid to document

the events of the day for an investigation. Regenscheid wrote that Topor had refused

to do assigned work and behaved insubordinately. Jung wrote that Topor had refused

to discuss mitigation, which she also viewed as insubordination. She named several

witnesses to the encounter, including Rennert. Three days later, Jung modified her

statement, adding that Topor was loud and had pointed his finger at Regenscheid. 

During its investigation, SPPRC interviewed only some of the witnesses Jung had

named, relying almost entirely on supervisors’ accounts while declining to interview

fellow unit employees like Rennert. During his interview, Topor denied raising his

voice or pointing his finger at Regenscheid. 

Eventually, SPPRC issued Topor a 10-day unpaid suspension and a final

written warning, citing inappropriate behavior and insubordination. A few months

later, he was denied his quarterly bonus.

Topor initiated two unfair labor practice cases before the Board against

SPPRC, both alleging SPPRC had retaliated against him by disciplining him and

denying his bonus to discourage his union activities. The Board’s Office of the

General Counsel pursued his claims, bringing a consolidated complaint before an

administrative law judge. After a hearing, the ALJ held in Topor’s favor. In doing

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so, he relied heavily on witness credibility, explaining that he found Topor’s

consistent and confident testimony believable but noticed that Regenscheid’s

testimony was hesitant and inconsistent with Jung’s account and that Regenscheid

could not recall everything that occurred. Based on a conversation in which

Regenscheid told Rennert to expect reprisal from SPPRC due to ongoing union

negotiations, the ALJ ordered SPPRC to cease threatening employees for their union

activity. As to the incident with Topor, it ordered SPPRC to restore any loss of

earnings or benefits and remove any evidence of his discipline from his file. The

Board adopted the ALJ’s decision in full. It denied a motion from SPPRC to reopen

the record to admit an arbitration award, finding SPPRC had not demonstrated that

the evidence was newly discovered or previously unavailable as required by the

Board’s rules and regulations. SPPRC appeals.

II.

We “afford[] great deference to the Board’s affirmation of the ALJ’s findings,”

enforcing “the Board’s order if the Board has correctly applied the law and itsfactual

findings are supported by substantial evidence on the record as a whole, even if we

might have reached a different decision had the matter been before us de novo.” 

Town & Country Elec., Inc. v. NLRB, 106 F.3d 816, 819 (8th Cir. 1997). 

“Substantial evidence is such evidence that a reasonable mind would find adequate

to support the Board’s conclusion.” NLRB v. Rockline Indus., Inc., 412 F.3d 962,

966 (8th Cir. 2005). Though “an ALJ’s credibility determinations are considered

with the rest of the NLRB’s factual findings under the general substantial evidence

test,” Town & Country, 106 F.3d at 819, we reverse credibility findings “only in

extraordinary circumstances.” Chemvet Labs., Inc. v. NLRB, 497 F.2d 445, 449 (8th

Cir. 1974). The Board’s reasonable construction of the scope of protected concerted

activity under the NLRA “is entitled to considerable deference.” NLRB v. City

Disposal Sys., Inc., 465 U.S. 822, 829 (1984).

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“While normally an employer is free to discharge an at will employee for any

or no reason, the National Labor Relations Act, 29 U.S.C. § 151 et seq., provides

protections to workers who seek to form a union or otherwise engage in concerted

labor activities.” NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 780 (8th Cir.

2013) (citing 29 U.S.C. § 158(a)). Protected concerted activity “need not take place

in a union setting[;]” rather, “[i]t is sufficient that the employee intends or

contemplates, as an end result, group activity which will also benefit some other

employees.” Koch Supplies, Inc. v. NLRB, 646 F.2d 1257, 1259 (8th Cir. 1981) (per

curiam). “[W]hen an employer articulates a facially legitimate reason” for

terminating or disciplining an employee “but that motive is disputed,” we analyze

“whether the employee’s termination [or discipline] was motivated by the protected

activity” using the burden-shifting analysis articulated in Wright Line, 251 N.L.R.B.

1083 (Aug. 27, 1980), enforced 662 F.2d 899 (1st Cir. 1981). RELCO, 734 F.3d at

780. Under Wright Line, the general counsel must “establish that the employee’s

protected activity was a motivating factor in his or her eventual” discipline by

demonstrating: “(1) the employee was engaged in protected activity; (2) the employer

knew of the employee’s protected activity; and (3) the employer acted asit did on the

basis of anti-union animus.” Id. (alterations and citation omitted). Then the burden

shifts to the employer to prove “it would have taken the same action absent the

protected activity.” Id. at 780.

First, Topor must have been engaged in protected concerted activity. Action

done individually may be concerted “if it represents either a continuation of earlier

concerted activities or a logical outgrowth of concerted activities.” Id. at 785

(internal quotation marks omitted). Furthermore, the NLRA protects the rights of

employees to engage in work stoppages “over what the employees believe to be

unsafe or unhealthy working conditions.” NLRB v. Tamara Foods, Inc., 692 F.2d

1171, 1176 (8th Cir. 1982). The ALJ credited Topor’s statement that, following

morning conversations with Rennert where they both expressed concerns about the

safety of the restart procedure, Topor repeatedly called for a safety stop. The Board

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held that Topor’s continued refusal to work in the afternoon was a “logical

outgrowth” of his morning discussions with Rennert about the same assignment and

safety concerns and therefore was protected concerted activity. See RELCO, 734

F.3d at 785; see also NLRB v. Thor Power Tool Co., 351 F.2d 584, 586 (7th Cir.

1965) (noting employee behavior cannot be considered in a vacuum without

consideration of what led up to it). Especially given the “considerable deference” we

give to the Board to determine the scope of protected activity, City Disposal Sys., 465

U.S. at 829, we agree that Topor’s afternoon behavior was a “logical outgrowth” of

his conversation with Rennert and find substantial evidence in the record that Topor

was engaged in protected activity.

Because SPPRC concedesthat it knew of Topor’s conduct, the general counsel

next needed to show that anti-union animus motivated SPPRC’s action. Thisrequired

demonstrating that Topor’s insistence on a safety stop was a “motivating factor” in

SPPRC’s decision to discipline him. See Concepts & Designs, Inc. v. NLRB, 101

F.3d 1243, 1244 (8th Cir. 1996). “Motivation is a question of fact that may be

inferred fromboth direct and circumstantial evidence.” Id. “Circumstantial evidence

which supports a determination of animus and unlawful motivation includes

‘suspicious timing, false reasons given in defense, failure [to] adequately . . .

investigate alleged misconduct, departures from past practice, tolerance of behavior

for which the employee was allegedly fired, and disparate treatment of the discharged

employees.’” RELCO, 734 F.3d at 787 (quoting Medic One, Inc., 331 N.L.R.B. 464,

475 (June 26, 2000)).

There were multiple indications of discriminatory motive here. SPPRC

abruptly indicated its hostility to Topor’s behavior by sending him home after his

repeated refusal to work. Crediting the ALJ’s finding that Topor did not engage in

insubordinate behavior, SPPRC’s use of that reasoning was pretextual. This

conclusion is supported by SPPRC’s internal investigation, which relied almost

entirely on supervisors’ accounts of the interaction. Furthermore, SPPRC’s asserted

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reasons for disciplining Topor did not remain consistent. At times, the reason for

Topor’s discipline was described as his refusal to work, then his refusal to discuss

mitigation, and finally his belligerent behavior. As to the alleged belligerent

behavior, Jung did not include the fingerpointing allegation in her original account

of the incident. See Rockline, 412 F.3d at 968 (“an employer changing the

justificationsfor its disciplinary actions” is an indication of a discriminatorymotive). 

Together, these facts provide substantial evidence that SPPRC had a discriminatory

motive.

Thus, the burden shifted to SPPRC to prove that it would have taken the same

action absent the protected activity. To do so, SPPRC must have demonstrated a

reasonable belief that Topor committed misconduct and that it acted on that belief in

disciplining him. See Midnight Rose Hotel & Casino, Inc., 343 N.L.R.B. 1003, 1005

(Dec. 16, 2004). “[I]t is not enough that an employer put forth a nondiscriminatory

justification for discipline. It must be the justification.” Rockline, 412 F.3d at 970. 

The ALJ did not credit SPPRC’s allegation that Topor misbehaved and therefore did

not credit its defense that it acted based on that belief. Considering SPPRC’s

evolving stories and inadequate investigation, this case does not involve

“extraordinary circumstances” justifying the reversal of the ALJ’s credibilityfindings. 

Chemvet Labs., 497 F.2d at 449. Therefore, we agree that there was substantial

evidence that SPPRC committed a labor violation.

III.

SPPRC also alleges the ALJ and Board erred by denying its two motions to

reopen the record. We review such claims for abuse of discretion. NLRB v. Miller

Waste Mills, 315 F.3d 951, 955 (8th Cir. 2003).

First, SPPRC argues the Board should have reopened the record after final

briefing on its exceptionsto the ALJ decision and admitted evidence of an arbitration

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award from a parallel proceeding that denied Topor’s grievance but was issued after

the Board’s hearing closed. Under 29 C.F.R. § 102.48(c)(1), the Board may reopen

the record in “extraordinary circumstances.” The evidencemust be newly discovered,

only available since the close of the hearing, or believed by the Board to have been

taken at the hearing, and if credited, the evidence must require a different result. 29

C.F.R. § 102.48(c)(1). The Board requires all such evidence to be in existence at the

time of the hearing, even if it is only available later, because “any other approach

would . . . encourag[e] employers to delay compliance in the hope that new and

favorable circumstances develop.” NLRB v. Cutter Dodge, Inc., 825 F.2d 1375, 1381

(9th Cir. 1987) (citing NLRB v. L.B. Foster Co., 418 F.2d 1, 4-5 (9th Cir. 1969)); see

also Sec. Walls, Inc. & Int’l Union, Sec. Police & Fire Professionals of Am., 365

NLRB No. 99 (June 15, 2017) (“evidence of events that occurred after” the incident

at issue is neither “newly discovered” nor “previously unavailable”). Because the

arbitration award was not issued until after the hearing, the Board did not abuse its

discretion in declining to reopen the record to admit the evidence.

Second, SPPRC alleges the ALJ and Board erred by denying its motion to

reopen the record to admit correspondence fromthe Minnesota OSHA. When a party

files exceptions to an ALJ finding, it must do more than merely specify the issue it

contests to avoid waiving its argument; each exception must identify the portion of

the opinion at issue, provide relevant citations to the record, and “concisely state the

grounds for the exception.” 29 C.F.R. § 102.46. Here, SPPRC filed only “bare

exceptions to the judge’s dismissal of its motion to reopen the record[.]” St. Paul

Park Ref. Co., 366 N.L.R.B. No. 83 (May 8, 2018). Thus, the Board could not

address the issues, and we do not have jurisdiction over the claims on appeal. See 29

U.S.C. § 160(e) (noting we cannot consider an “objection that has not been urged

before the Board”). 

Finally, the Board asks that we grant summary enforcement as to its finding

that SPPRC unlawfully threatened employees with retaliation for their union activity. 

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Because SPPRC made the same “bare exception” to thisfinding asit did to the denial

of its motion to reopen the record, we similarly lack jurisdiction to hear its arguments. 

See 29 U.S.C. § 160(e).

Therefore, we deny SPPRC’s petition and enforce the Board’s order.

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