United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2016 Decided June 30, 2017

No. 15-1113

ARC BRIDGES, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 15-1143

On Petition for Review and Cross-Application

for Enforcement of an Order of 

the National Labor Relations Board

Raymond C. Haley III argued the cause for petitioner. 

With him on the briefs was Andrew M. Swafford.

Amy H. Ginn, Attorney, National Labor Relations Board, 

argued the cause for respondent. With her on the brief were 

Richard F. Griffin, Jr., General Counsel, John H. Ferguson, 

Associate General Counsel, Linda Dreeben, Deputy Associate 

General Counsel, and Usha Dheenan, Supervisory Attorney.

Before: TATEL and KAVANAUGH, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.
2

Opinion for the Court filed by Senior Circuit Judge 

GINSBURG.

Dissenting opinion filed by Circuit Judge TATEL.

GINSBURG, Senior Circuit Judge: The National Labor 

Relations Board held that Arc Bridges, Inc. violated §§ 8(a)(3) 

and (1) of the National Labor Relations Act by failing to give

a wage increase to represented employees, with whom it was 

then bargaining, when it increased the wages of its nonunion 

employees. The Employer petitioned this court for review. 

Because we hold that substantial evidence did not support the 

Board’s findings, we grant the Employer’s petition for review, 

vacate the Board’s decision and order, and deny the Board’s 

cross-application for enforcement.

I. Background

The Employer is a nonprofit corporation that provides 

“assisted living programs, employment counseling, and related

support services for individuals with developmental 

disabilities.” Arc Bridges, Inc. v. NLRB, 662 F.3d 1235, 1236 

(D.C. Cir. 2011). In November 2006 and February 2007, the 

Board certified the American Federation of Professionals (the 

Union) to represent Arc Bridges’ employees in two separate 

bargaining units, consisting respectively of a Day Services 

employee unit and Residential and Supported Living employee 

unit. Arc Bridges, Inc., 355 NLRB 1222, 1222 (2010). 

The Board found the sequence of relevant eventsthereafter

was as follows. In May 2007, supervisor Raymond Teso told 

a future employee, Teresa Pendleton, during her interview that 

“the Union would be gone in November.” Although he did not 

say so, November was the end of the one-year period following 

the Union’s certification, during which the Employer could 
3

“not withdraw recognition from the union and the Board 

[would] not entertain a petition contesting the union’s majority 

status,” Arc Bridges, Inc., 362 NLRB No. 56, slip op. at 2 &

n.9 (Mar. 31, 2015), https://www.nlrb.gov/case/13-CA044627.

In June, the Employer’s board of directors authorized 

management to give a three percent increase in wages to all 

employees. 355 NLRB at 1228 (ALJ Op.). In July, however, 

before any raise had been announced, the Union demanded

changes in health insurance and retirement benefits and a 50% 

increase in wages over three years. Id. at 1227. Shortly 

thereafter the Employer provided the Union with its financial 

data indicating it had only $53,497 available to meet the 

Union’s demands. Id. at 1227-28.

In July or August, area manager Bonnie Gronendyke told 

an employee, Shirley Bullock, that Executive Director Kris 

Prohl “was going to give us a raise until we voted the Union 

in.” Id. at 1230. In August, Teso told Pendleton that the 

$56,000 the Employer had available to increase the employees’

wages was instead being used to pay (presumably labor)

lawyers. Id. Also in August, the employees in both units

“voted to authorize the Union to call a strike.” Id. at 1228.

In September, the Employer offered the Union a one-time 

bonus for all represented employees to be paid from “certain 

grant money” to come from an outside source. Id. The Union 

did not accept that offer and the grant eventually expired. Id. 

In October, the Employer gave a three percent wage increase 

to its nonunion employees, retroactive to July. Id. In the course 

of their bargaining at some time thereafter, the Employer 

offered the Union a one and half percent and later a two percent 

wage increase for represented employees. Id. at 1229.
4

In March 2008, no collective bargaining agreement having 

been reached, 

[t]he union filed a charge with the Board claiming that Arc 

Bridges had violated § 8(a)(1), (3), and (5) of the Act by 

granting the [retroactive] wage increase only to non-union 

employees. The Regional Director issued a ... complaint 

focusing exclusively on the theory that Arc Bridges had 

violated § 8(a)(3).

662 F.3d at 1237. 

The Administrative Law Judge dismissed the complaint 

after analyzing, under the burden-shifting framework of Wright 

Line & Lamoureux, 251 NLRB 1083 (1980), the Employer’s 

failure unilaterally to increase the wages of the represented 

employees at the same time it gave the others a raise. 355 

NLRB at 1231-32 (ALJ Op.). The ALJ first concluded “the 

General Counsel has not sustained her burden of proof under 

Wright Line by proving by a preponderance of the evidence that 

the employees’ protected activity was a motivating factor for 

[the Employer’s] withholding of the wage increase.” Id. at 

1232. Second, the ALJ held that, even if the General Counsel

had carried her burden, “the [Employer] has met its Wright 

Line burden of proof by demonstrating it would have taken the 

identical action for legitimate, nondiscriminatory reasons.” Id. 

In doing so, the ALJ determined that both the General 

Counsel’s and the Employer’s asserted rationales for the 

discriminatory wage increase were plausible: The employer 

could have “withheld the wage increase in order to punish and 

retaliate against the employees for bringing in the Union,” or it 

could have withheld the increase as a “legitimate bargaining 

strategy.” Id. The Board reversed the ALJ’s decision on the 

ground that annual wage increases, “if sufficient funds 

existed,” had become “an established condition of 
5

employment” for all employees, the denial of which was a 

violation of the Act. 662 F.3d at 1238 (quoting 355 NLRB at

1223).

The Employer sought review of the Board’s decision and 

this court reversed, finding the Board had ignored “evidence 

contradicting the practice” of yearly wage increases and 

holding the sporadic history of the increases had not made them 

a “condition of employment.” Id. at 1240. 

On remand, applying the Wright Line burden-shifting 

framework, a panel of the Board held the Employer’s decision 

not to increase the wages of the represented employees was a 

violation of §§ 8(a)(1) and (3) of the Act because it was 

motivated by antiunion animus. 362 NLRB at 1. Member 

Miscimarra dissented. Id. at 6. The Employer again petitioned

for review and the Board cross-applied for enforcement.

II. Analysis

This court “must uphold an order of the Board unless it 

rests upon a finding not supported by ‘substantial evidence’” 

on the record taken as a whole. S & F Mkt. St. Healthcare LLC 

v. NLRB, 570 F.3d 354, 358 (D.C. Cir. 2009). We give 

substantial deference to the Board’s factual inferences 

from the record before it, and [w]hen the Board concludes 

that a violation of the Act has occurred, [the Court] must 

uphold that finding unless it has no rational basis or is 

unsupported by substantial evidence. It is not necessary 

that we agree that the Board reached the best outcome in 

order to sustain its decisions.
6

HealthBridge Mgmt., LLC v. NLRB, 798 F.3d 1059, 1067 (D.C. 

Cir. 2015) (citations and internal quotation marks omitted) 

(alterations in original).

We do not defer, however, when the Board fails 

adequately to explain why it has rejected the arguments for a 

different understanding of the evidence. See Universal 

Camera Corp. v. NLRB, 340 U.S. 474, 496-97 (1951); 

Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 

378-379 (1998) (“When the Board purports to be engaged in 

simple factfinding, ... it is not free to prescribe what inferences 

from the evidence it will accept and reject, but must draw all 

those inferences that the evidence fairly demands”).

Here, the Board held the Employer’s decision to raise the 

wages of the nonunion employees violated § 8(a)(3) and hence 

§ 8(a)(1) of the Act.

1

 362 NLRB at 1. Under § 8(a)(3), it is 

“an unfair labor practice for an employer ... 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.” 29 U.S.C. § 158(a)(3).

For a violation of § 8(a)(3) under the circumstances presented 

here, the Board must find the Employer’s discriminatory action

was motivated by antiunion animus, an “intent[] to prejudice 

the employees’ position because of their membership in the 

union.” NLRB v. Brown, 380 U.S. 278, 286 (1965).

The Board has long held:

 1 “[A] violation of § 8(a)(3) constitutes a derivative violation of 

§ 8(a)(1),” Fort Dearborn Co. v. NLRB, 827 F.3d 1067, 1072 (D.C. 

Cir. 2016) (quoting Metro. Edison Co. v. NLRB, 460 U.S. 693, 698 

n.4 (1983)). Because the Board did not indicate the Employer 

committed an independent violation of § 8(a)(1), we address only 

§ 8(a)(3).
7

Absent an unlawful motive, an employer is privileged to 

give wage increases to his unorganized employees, at a 

time when his other employees are seeking to bargain 

collectively through a statutory representative. Likewise, 

an employer is under no obligation under the Act to make 

such wage increases applicable to union members, in the 

face of collective bargaining negotiations on their behalf 

involving much higher stakes.

Shell Oil Co. (San Francisco, Cal.), 77 NLRB 1306, 1310 

(1948). To assess whether there is an unlawful motive, the 

Board applies the Wright Line framework. First, the General 

Counsel of the Board “must make a prima facie showing 

sufficient to support the inference that protected [i.e., unionrelated] conduct was a motivating factor behind the 

[discrimination].” Fort Dearborn, 827 F.3d at 1072 (first 

alteration in original) (citations and internal quotation marks 

omitted). If the General Counsel meets her burden, the 

employer can prevail by showing “it would have taken the 

same action in the absence of the unlawful motive.” Id. 

Here we are called upon to determine whether substantial 

evidence supports the Board’s conclusion that the Employer

was unlawfully motivated in October 2007 when, while 

engaged in collective bargaining with the Union, it gave a wage 

increase to its nonunion employees. The Board relied for its 

conclusion upon four findings; these findings do not, however, 

even in the aggregate, provide substantial evidence in support 

of the Board’s conclusion. 

A. Gronendyke’s Remark to Bullock

First, the Board found Ms. Prohl “intended to give 

employees a 3-percent wage increase until they voted for the

Union,” based upon a statement by area manager Gronendyke 
8

that Prohl “was going to give us a raise until we voted the 

Union in.” 362 NLRB at 2, 3. The Board failed, however, to 

explain why this remark is anything more than an accurate 

statement of the same bargaining strategy the Board held in 

Shell Oil was lawful. See Orval Kent Food Co., 278 NLRB 

402, 403 (1986) (declining to infer an unlawful motivation 

from a manager’s remark attributing a decision not to give 

wage increases to represented employees for having brought in 

the union because such “remarks were merely a realistic 

statement of the effects of the bargaining obligation which the 

[Employer] incurred when the Union was certified to represent 

the ... employees”). The Board in its opinion and on appeal

attempts to distinguish Orval Kent on the ground that the 

employer there also offered wage increases to the union during 

negotiations. 362 NLRB at 3 n.14. This factual difference is 

irrelevant, however, because the Board did not, in 

characterizing the manager’s remark as “merely a realistic

statement,” rely at all upon the employer’s having offered a 

wage increase to the represented employees.

B. Gronendyke’s Remark to Bullock and Teso’s Remark to 

Pendleton

Second, the Board found the “[Employer]’s managers 

essentially encouraged employees to blame the Union ... for 

Prohl’s decision to withhold the increase from them,” citing 

both Gronendyke’s innocuous remark above and a statement

made in August 2007 by supervisor Teso that the $56,000 

previously budgeted for a raise was instead being used to pay 

the Company’s lawyers. Id. at 3. The Employer contends that 

Teso’s statement merely describes the financial constraints it

faced because it had to expend resources on collective 

bargaining. We agree.
9

The Board cites our opinion in Acme Die Casting, a Div. 

of Lovejoy Indus., Inc. v. NLRB, 26 F.3d 162 (D.C. Cir. 1994), 

to support its argument that statements blaming the union for 

the lack of a raise show antiunion animus. That case, however, 

does not suggest that a realistic statement of the employer’s 

financial situation, such as Teso’s, shows antiunion animus. In 

Acme, the employer entirely refused to bargain with the union 

and, after not providing the usual semi-annual wage increase, 

the president of the company told a group of prounion 

employees: “I told you guys not to bother with the Union 

because that was going to happen, no raise.” 26 F.3d at 163, 

164. In contrast, Teso’s statement was made during ongoing

bargaining and faults not the employees’ decision to unionize 

but the Employer’s increased costs, an unavoidable reality

affecting its resources. Perhaps the Board thinks employees do 

not understand that collective bargaining has costs in addition 

to benefits, but pointing that out is not an appeal to desert the 

Union. Cf. B.F. Goodrich Co., 195 NLRB 914, 915 n.4 (1972) 

(“Had the grant been accompanied by statements encouraging 

the employees to abandon collective representation in order to 

secure the benefit [given to nonunion employees] ... we would 

have clear evidence of unlawful 8(a)(3) motivation”). 

The other cases the Board cites are similarly unhelpful.

See Aluminum Casting & Eng’g Co., 328 NLRB 8, 9 (1999), 

aff’d in relevant part, 230 F.3d 286, 290 (7th Cir. 2000) 

(affirming § 8(a)(3) violation where employer discontinued its 

“established practice of granting annual across-the-board wage 

increases at the time the Union began its organizing 

campaign”); Structural Finishing, Inc., 284 NLRB 981, 989, 

1003 (1987) (holding employer violated § 8(a)(1), which does 

not require antiunion animus, by telling employees “the Union 

would not allow” raises); American Girl Place, 355 NLRB 

479, 479, 487 (2010) (holding § 8(a)(1) violated where 

employer told employees it “suspended the process of
10

considering a wage increase” because of the union). We note, 

further, that neither Gronendyke nor Teso suggested the

represented employees could capture the wage increase if they 

abandoned the Union.

C. Prohl’s Stated Business Justifications

Neither does the Board’s finding that two of the

Employer’s business justifications for the discrimination were 

pretextual discharge the General Counsel’s burden of 

establishing antiunion animus. First, Prohl testified that 

unilaterally giving the represented employees, like the 

nonunion employees, a three percent wage increase in October 

2007, when the Union was demanding a 20% raise immediately 

and 50% over three years, would have likely provoked a strike, 

which the union members had then recently authorized. 362 

NLRB at 3. The Board found this justification was 

“undermined” by Prohl’s having several months later offered 

the Union a wage increase of less than three percent. Id. 

Second, the Board discounted Prohl’s claim that she gave a 

three percent wage increase to the nonunion employees in 

October, retroactive to July, in order to stem the high quit rate 

among unrepresented supervisors and managers. Id. at 3-4. 

The Board did not credit this justification because the wage 

increase was given to all nonunion employees, not just 

managers and supervisors. Id. 

The Board failed adequately to explain why these two 

justifications, which are respectively a facially reasonable 

bargaining strategy and a rational business decision, are 

indicative of antiunion animus. First, that the Employer later 

offered the Union a wage increase of one-and-a-half percent 

does nothing to support the inference that its October 2007 

decision not to give the represented employees a three percent 

raise was motivated by antiunion animus; the Board offered 
11

nothing to the contrary except its conclusory statement that the 

later offer “undermined” Prohl’s assertion that at the earlier 

time she feared provoking a strike. This is a non sequitur. Why 

Prohl offered a raise of one-and-a-half percent in collective 

bargaining several months later, with no strike having been 

called, is not a matter of record. Board counsel simply failed 

to ask Prohl what circumstances, if any, had changed by the 

later offer. Therefore, there is no basis for the Board’s 

conclusion that her later raise “undermined” her explanation 

for not offering a raise several months earlier. See Universal 

Camera, 340 U.S. at 488 (“The substantiality of evidence must 

take into account whatever in the record fairly detracts from its 

weight”); see also 355 NLRB at 1232 (ALJ Op.) (concluding 

“it has not been shown that the [Employer’s] rationale for 

withholding the wage increase ... was advanced merely as a 

pretext to mask discriminatory behavior”).

Second, the decision to extend a wage increase to all 

nonunion employees as a way of addressing the high turnover 

among managers and supervisors does not support the Board’s 

inference that antiunion animus motivated the Employer’s not 

increasing the wages of the represented employees, about 

whose wages it was then bargaining with the Union. The 

implication of the Board’s reasoning is that the Employer 

would have been on solid ground if it had given the raise only 

to managers and supervisors – who comprised about 40% of 

the nonunion employees.2 But the raise given to all nonunion 

employees was consistent with the Company’s history of 

raising wages, if at all, for rank and file employees, whenever 

it raised wages of managers and supervisors. The Board’s 

 2 See 355 NLRB at 1227 (ALJ Op.) (“Approximately 121 individuals 

... are not represented by the Union; of this number approximately 

70 [58%] to 80 [66%] individuals are not managers or supervisors”). 
12

attempt to spin these innocuous facts into an unlawful attempt 

to discourage union membership is simply unreasonable. 

An additional problem with the Board’s decision is its 

cursory treatment of the other justifications given by Prohl. See

362 NLRB at 4-5. She testified that if the Employer had 

offered a three percent wage increase in October, then it would 

have had nothing further to offer the Union. Id. at 8 n.7 

(Dissenting Op.). The Board entirely failed to address why 

granting a three percent increase to represented employees 

would not have severely impaired the Employer’s bargaining 

position. See 362 NLRB at 4-5. On appeal, the Board still does 

not address the substance of this justification for the 

Employer’s conduct, although the Employer continues to press

it. 

Prohl offered a further explanation for her decision, as 

recounted by the ALJ: “Asked why she did not also grant the 

wage increase to the unit employees, Prohl testified that she 

was attempting to avoid a charge for ‘not good faith 

bargaining.’” 355 NLRB at 1228 (ALJ Op.); see NLRB v. Katz, 

369 U.S. 736, 745 (1962) (holding unilateral wage increase to 

represented employees violated § 8(a)(5) duty to bargain in 

good faith). The Board cannot dismiss these points without at 

least some cogent discussion of their merits. Here, however, 

the Board summarily dismissed Prohl’s concerns, stating that

the Employer could have permissibly discriminated if only it 

had not harbored an unlawful motive or if it had sought the 

Union’s approval before giving represented employees a raise. 

362 NLRB at 5 & n.18. The first possibility is now beside the 

point for, as we have seen, the Board’s reasons for saying the 

Employer’s motive was antiunion do not withstand scrutiny.

As to the second possibility, the Board did not even address 

Prohl’s concerns regarding the ex ante uncertainty of asking for 

the Union’s approval. As Member Miscimarra put it: “if the 
13

Union rejected the offer, she feared it would ... provoke a strike, 

and if the Union accepted the offer, the [Employer] would lose 

bargaining leverage.” Id. at 8 n.7 (Dissenting Op.). Therefore, 

the Employer had no reason unilaterally to forgo its Shell Oil

privilege by asking for the Union’s permission.3

 3 This court’s recent opinion in Care One at Madison Ave., LLC 

v. NLRB, 832 F.3d 351 (D.C. Cir. 2016), does not support a 

different conclusion. In that case, we held the timing of a 

discriminatory increase in health benefits three weeks before a 

scheduled union election was probative of antiunion animus.

Id. at 359. The employer was not, we said, in a no-win position 

when deciding whether to “make benefits changes during the 

pendency of a representation election,” id. at 359, because “a 

brief delay until after the election is a simple way to guard 

against a finding that the employer timed the announcement of 

the benefit in an effort to influence employees’ voting 

behavior,” id. at 360. Here, the represented employees were in 

the midst of bargaining and there is no hint in the record of 

another election in the offing. Therefore, the employer did not 

have the option of simply waiting “until after the election.” Id.

 Care One does not apply here for an additional reason. 

The Employer’s discrimination occurred during the course of 

negotiations over wages. This difference is significant because 

the legal standards that apply to discrimination before and after 

an election are different. The Shell Oil privilege to grant 

benefits to nonunion employees absent antiunion animus does 

not apply pre-election; on the contrary, the Board “presumes” 

“the granting of benefits during an organizational campaign to 

be ... objectionable ‘unless the Employer establishes that the 

timing of the action was governed by factors other than the 

pendency of the election.’” Noah’s N.Y. Bagels, Inc., 324 

NLRB 266, 272 (1997). 
14

D. Second Statement by Teso to Pendleton

Fourth, the Board found that, because the Employer 

generally gave wage increases, if at all, in July, its decision to 

give a raise to the nonunion employees in October, one month 

before the end of the certification year for the Union, indicated 

an unlawful motive for the delay. 362 NLRB at 4. For this, 

the Board relied upon Teso’s statement, when interviewing a 

prospective employee the previous May, that “the Union would 

be gone in November.” Id. Teso’s May statement, however, 

was made before the Employer’s board of directors authorized 

a three percent wage increase (June) and before the Union 

presented its wage demands (July). The Board’s proffered 

connection between Teso’s May expectation that the Union 

would be gone after its first year and a finding of antiunion 

animus when the Employer five months later exercised its Shell 

Oil right is untenable, particularly in light of the ALJ’s finding

that Teso’s statement “simply indicates that he believed no 

contract would be negotiated.” 355 NLRB at 1232 n.14 (ALJ 

Op.). 

Of course “[t]he Board is free to disagree with the ALJ,” 

but under our case law it must “explain the basis of its 

disagreement.” Fort Dearborn, 827 F.3d at 1073. Here the 

Board did not give a rational explanation for rejecting the 

ALJ’s conclusion. As Member Miscimarra pointed out and the 

Employer here emphasizes, for Teso’s statement to reflect the 

Company’s antiunion animus when it later withheld the wage 

increase from represented employees, the Board would have to 

find that Teso knew or foresaw in May that the Employer 

would refuse to increase the wages of represented employees 

in October. See 362 NLRB at 11 (Dissenting Op.). The Board 

did not so find and the record would not support it.
15

III. Conclusion

Viewing the Board’s four findings against the background 

of ongoing bargaining between the Employer and the Union, 

we hold substantial evidence does not support the Board’s 

inference that antiunion animus motivated the Employer’s 

decision not to give a unilateral wage increase to the 

represented employees in October 2007. Therefore, we grant 

the Employer’s petition for review, vacate the Board’s decision 

and order, and deny the Board’s cross-application for 

enforcement.

So ordered.
TATEL, Circuit Judge, dissenting: Over eighty years ago, 

Congress passed the National Labor Relations Act (NLRA), 29 

U.S.C. §§ 151–69, to level an uneven playing field for 

American workers by “allowing [them] to band together in 

confronting an employer regarding the terms and conditions of 

their employment,” NLRB v. City Disposal Systems Inc., 465 

U.S. 822, 835 (1984). Intending to “do more than simply . . . 

alter the then-prevailing substantive law,” Congress

“restructure[d] fundamentally the processes for effectuating 

[labor] policy, deliberately placing the responsibility for 

applying and developing this comprehensive legal system in 

the hands of an expert administrative body rather than the 

federalized judicial system.” Amalgamated Association of 

Street, Electric Railway & Motor Coach Employees of America 

v. Lockridge, 403 U.S. 274, 288 (1971). Thus, the National 

Labor Relations Board was born.

Now, as at the Board’s inception, its members are 

nominated by the President and confirmed by the Senate 

because of their expertise in labor policy. And now, as then, 

these members possess accumulated wisdom about the nuances 

of labor disputes due to their workaday experience enforcing 

the Act. Cf. Humphrey’s Executor v. United States, 295 U.S. 

602, 625 (1935) (characterizing independent agencies as 

“bod[ies] of experts who shall gain experience by length of 

service”). In short, Congress continues to “entrust[] the 

administration of the labor policy for the Nation to a centralized 

administrative agency, armed with its own procedures, and 

equipped with its specialized knowledge and cumulative 

experience.” San Diego Building Trades Council, Millmen’s 

Union, Local 2020 v. Garmon, 359 U.S. 236, 242 (1959).

In stark contrast to the Board, the federal courts, composed

of generalist judges, have no comparable expertise, experience, 

or accountability when it comes to labor matters. For this 

reason, once a reviewing court concludes that the Board is 

operating within its delegated authority, it affords the Board 
2

great leeway. Waterbury Hotel Management, LLC v. NLRB, 

314 F.3d 645, 650 (D.C. Cir. 2003) (“As we often observe, our 

role in reviewing decisions of the [Board] is limited.”). Courts 

may set aside Board findings “only when the record is so 

compelling that no reasonable factfinder could fail to find to 

the contrary,” Ozburn-Hessey Logistics, LLC v. NLRB, 833 

F.3d 210, 217 (D.C. Cir. 2016) (quoting Bally’s Park Place, 

Inc. v. NLRB, 646 F.3d 929, 935 (D.C. Cir. 2011)), and “owe 

‘substantial deference’ to inferences drawn by the Board from 

the factual record,” Tenneco Automotive, Inc. v. NLRB, 716 

F.3d 640, 647 (D.C. Cir. 2013) (quoting Halle Enterprises, Inc. 

v. NLRB, 247 F.3d 268, 271 (D.C. Cir. 2001)). Further—and 

central to this case—“[o]ur review of the Board’s conclusions 

as to discriminatory motive is even more deferential, ‘because 

most evidence of motive is circumstantial.’” Fort Dearborn 

Co. v. NLRB, 827 F.3d 1067, 1072 (D.C. Cir. 2016) (quoting 

Inova Health System v. NLRB, 795 F.3d 68, 80 (D.C. Cir. 

2015)). Together, these principles ensure that reviewing courts 

do not substitute their views of labor policy for those of the 

Board. Because the NLRB “has the primary responsibility for 

developing and applying national labor policy,” we and the 

Supreme Court have “accorded [the] Board . . . considerable 

deference.” NLRB v. Curtin Matheson Scientific, Inc., 494 U.S.

775, 786 (1990).

In the case before us, the Board had the difficult task of 

“applying the Act’s general prohibitory language” to a unique 

“combination[] of events” that allegedly violated the Act. Id. 

(quoting Beth Israel Hospital v. NLRB, 437 U.S. 483, 500–01 

(1978)). By contrast, this court has a far simpler assignment: 

determining whether the Board’s conclusions are supported by 

“substantial evidence.” See 29 U.S.C. § 160(e). In concluding 

that they were not, the court micromanages the Board, second 

guessing its factual findings and evidentiary inferences. 

Although the court sets forth one plausible interpretation of the 
3

record, the Board adopted another. I respectfully dissent, not 

because this decade-old labor dispute involving a small 

nonprofit in Indiana is especially important, but rather because 

it is important that reviewing courts refrain from resolving 

labor issues that Congress reserved for the Board. 

I.

Under the Shell Oil rule, an employer collectively 

bargaining with a union may give unrepresented employees a 

benefit while withholding that benefit from represented 

employees. Shell Oil Co., 77 NLRB 1306, 1310 (1948). The 

court accuses the Board of ignoring this rule in finding that Arc 

Bridges violated the Act by refusing to give represented 

employees a 3% raise. See Maj. Op. at 8. Quite to the contrary, 

the Board readily acknowledged the Shell Oil rule, Arc 

Bridges, Inc. & American Federation of Professionals, 362 

NLRB No. 56, at 3 (2015) (citing Shell Oil, 77 NLRB at 1310), 

but simply pointed out—in accordance with its and our 

caselaw—that the rule comes with an exception: under NLRA 

section 8(a)(3), an employer engaging in collective bargaining 

may not treat represented and unrepresented employees 

differently on the basis of antiunion animus. See id.; see also 

Acme Die Casting v. NLRB, 26 F.3d 162, 166 (D.C. Cir. 1994) 

(“[T]he failure to increase [represented employees’] wages . . . 

constituted a § 8(a)(3) violation if [the employer’s] decision 

was motivated by anti-union animus . . . .” (emphasis omitted)).

The question in this case, then, is whether Arc Bridges 

withheld a 3% raise from represented employees due to 

antiunion animus. To answer that question, the Board applied 

the two-part Wright Line test, and because that test boils down 

to finding facts and drawing inferences of animus, our 

deference to the Board is at its apex. See Vincent Industrial 

Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (D.C. Cir. 2000) 

(“We are even more deferential when reviewing the Board’s 
4

conclusions regarding discriminatory motive, because most 

evidence of motive is circumstantial.”). Arc Bridges challenges 

neither Wright Line’s applicability nor our highly deferential 

standard of review. Rather, it simply disputes the Board’s

interpretation of record evidence. 

In finding that the General Counsel had satisfied its Wright 

Line burden of showing animus, the Board relied on three 

pieces of evidence. 

First, the ALJ and Board both found that Area Manager 

Gronendyke told employee Bullock that “Prohl was going to 

give [represented employees] a raise until [they] voted the 

Union in,” and that Supervisor Teso told employee Pendleton 

“that $56,000 that had been budgeted for the represented 

employees now had to go pay for the lawyers.” Arc Bridges, 

362 NLRB No. 56, at 4 (internal quotation marks omitted). 

These statements, the Board determined, “essentially 

encouraged employees to blame the Union . . . for Prohl’s 

decision to withhold the increase from them.” Id. This 

conclusion is consistent with the Board’s longstanding view

that where a grant of benefits to unrepresented employees is 

“accompanied by statements encouraging the [represented] 

employees to abandon collective representation in order to 

secure the benefit, . . . [there is] clear evidence of unlawful [§] 

8(a)(3) motivation.” The B.F. Goodrich Co., 195 NLRB 914, 

915 n.4 (1972). Common sense underlies this expert judgment: 

if your supervisor told you that you would be getting a raise but 

for your union involvement, might you feel that your 

supervisor was tacitly encouraging you to abandon the union?

Unlike the Board, the court views Gronendyke’s and 

Teso’s statements as mere descriptions of Arc Bridges’ 

“bargaining strategy” and “financial constraints.” Maj. Op. at 

8. And without explanation, it asserts that Teso’s statement 
5

cannot be read as “an appeal to desert the Union.” Id. at 9; see 

also id. at 10 (claiming, without explanation, that neither 

Gronendyke’s nor Teso’s statement even “suggest[s]” that 

“represented employees could capture the wage increase if they 

abandoned the Union”). Although the court’s interpretation of 

the record is plausible, our job under the NLRA is not to 

determine, in the first instance, the most likely import of 

employer statements. Instead, and contrary to the court’s 

approach, we must determine only whether the record is “so 

compelling that no reasonable factfinder” could agree with the 

Board. Ozburn-Hessey, 833 F.3d at 217 (quoting Bally’s Park 

Place, 645 F.3d at 935). As discussed, Congress chose this 

allocation of authority because of the Board’s “specialized 

knowledge and cumulative experience” in discerning the 

subtext of employer statements, Garmon, 359 U.S. at 242—

attributes we judges lack. 

Next, the Board gleaned animus from two justifications 

that Prohl proffered for providing the 3% raise only to 

unrepresented employees, both of which the Board found 

pretextual. We have long held that “[a] finding of pretext may 

support an inference of unlawful motive,” Fort Dearborn, 827 

F.3d at 1075, and here both of the Board’s pretext findings 

were well founded.

To begin with, the Board deemed pretextual Prohl’s 

testimony that “she believed that granting the represented 

employees a 3-percent increase would have made the 

employees very unhappy and more likely to strike.” Arc 

Bridges, 362 NLRB No. 56, at 4 (internal quotation marks 

omitted). This pretext finding was reasonable given that, as the 

Board explained, Prohl later offered represented employees a 

1.5% raise—a raise even lower than the one she claimed was 

so low that it would have upset those same employees. Id. 
6

Quibbling with the Board’s analysis, the court suggests

that Prohl may have deemed a strike more likely in October, 

when she withheld the 3% raise, than in March, when she 

offered the 1.5% raise. See Maj. Op. at 11. This hypothesis is 

belied by the record. For one thing, the ALJ found that “in 

October, at the time the wage increase was granted to the 

nonunit individuals, Prohl was no longer concerned that the 

granting of the wage increase to the unit employees would 

precipitate a strike.” Arc Bridges & American Federation of 

Professionals, No. 13-CA-44627, 2008 WL 5521196 (2008). 

For another, no record evidence suggests that a strike risk—if 

one ever existed—was any different in March than in October. 

Indeed, in explaining why she later offered the 1.5% raise, 

Prohl never even mentioned a diminished strike risk. This court

is obligated to respect the Board’s reasonable pretext finding, 

rather than adopt an employer’s justification that the ALJ 

rejected or one altogether missing from the record.

The Board also found pretextual “Prohl’s additional claim 

that she provided the wage increase to unrepresented personnel 

in order to address the high turnover rate among managers and 

supervisors.” Arc Bridges, 362 NLRB No. 56, at 4. Substantial 

evidence supports this pretext determination because if one 

takes Prohl’s “high turnover” justification at face value, the 

scope of the raise would be both overinclusive and 

underinclusive. It would be overinclusive because Prohl 

granted the raise to all unrepresented personnel, even though 

the high turnover rate afflicted only managers and supervisors; 

it would be underinclusive because turnover among 

represented employees rivaled that of managers and 

supervisors (34% vs. 40%), and yet Arc Bridges gave 

represented employees no raise.

The court dismisses this analysis as “simply 

unreasonable.” Maj. Op. at 12. According to the court, giving 
7

a raise to all unrepresented employees, rather than just to 

managers and supervisors, tracked Arc Bridges’ “history of 

raising wages, if at all, for rank and file employees, whenever 

it raised wages of managers and supervisors.” Id. at 11. But that 

is not the explanation Prohl actually gave. Without mentioning 

past practice, Prohl pointed to “high turnover” among 

managers and supervisors. And given that this “high turnover” 

justification is riddled with holes, the Board reasonably 

inferred that it smacks of pretext. See, e.g., Pioneer Hotel, Inc. 

v. NLRB, 182 F.3d 939, 947 (D.C. Cir. 1999) (employer’s 

faulty justification was “pretextual and intended to conceal [its] 

true motive”).

Finally, the Board found that the suspicious timing of the 

raise to unrepresented employees evinced antiunion animus. 

Specifically, the Board reasoned, Prohl waited until October to 

give the raise, even though she got the green light from the 

Board of Directors in June and customarily granted raises in 

July. October falls just before November, which is when the 

day-services unit’s certification year was set to end. And once 

a union’s certification year ends, “an employer may withdraw 

recognition [from the union] based upon actual evidence [e.g., 

a petition] that a majority of [unit] employees no longer 

support[s] the union.” Chelsea Industries v. NLRB, 285 F.3d 

1073, 1075 (D.C. Cir. 2002). All of this allowed the Board to 

make a fairly obvious inference: by dangling a carrot in front 

of day-services unit employees just a month before a potential 

decertification petition, Arc Bridges sought to sway those 

employees to vote against the union when the time came. In 

essence, Prohl was saying to day-services unit employees, 

“look what you can have if you vote against the union.”

Given the logical force behind Board inferences of animus 

based on suspiciously timed, targeted grants of benefits, we

regularly decline to second guess them. For example, in Care 
8

One at Madison Avenue, LLC v. NLRB, 832 F.3d 351 (D.C. Cir. 

2016), we held that “[w]hen [an employer] timed the 

announcement of its discretionary, one-time, system-wide . . . 

benefit just three weeks before a scheduled representation 

election, withheld that benefit from only its union-eligible 

employees, and offered ‘the pendency of the representation 

election’ as its sole reason, it violated [§ 8(a)(3)].” Id. at 357. 

True, in that case a union election had already been scheduled 

when the employer granted the benefit to unrepresented 

employees. Maj. Op. at 13 n.3. But the Care One rule sweeps 

broadly, applying whether or not an election has been officially 

marked on the calendar. Without caveat, we said there that 

“[a]n employer must refrain from interfering with or 

discouraging the exercise of protected labor rights by either 

granting or withholding a benefit.” Care One at Madison 

Avenue, 832 F.3d at 357.

In sum, the Board reasonably found that the General 

Counsel carried its threshold burden of establishing that 

antiunion bias motivated Arc Bridges’ refusal to extend a 3% 

raise to represented employees. Two antiunion statements by 

supervisors, two pretextual justifications by the Executive 

Director, and a suspiciously timed raise to unrepresented 

employees amount to more than enough evidence under Wright 

Line. Given the deference we owe the Board, this court has no 

basis for reaching the opposite conclusion. 

II.

Under Wright Line, once the General Counsel has 

established its prima facie case, the burden, as Arc Bridges 

acknowledges, shifts to the employer to show that it would 

have taken the same action absent antiunion animus. Fort 

Dearborn, 827 F.3d at 1072. Here, the Board concluded that 

Arc Bridges failed to meet its rebuttal burden because two of 
9

the reasons Prohl offered for her decision were pretextual and 

the other two not credible. 

As detailed above, the Board reasonably found pretextual 

Prohl’s testimony that she sought to avoid making represented 

employees “very unhappy” and aimed to quell a “high turnover 

rate” among managers and supervisors. As for Prohl’s 

additional justifications, she allegedly refrained from granting 

represented employees a 3% raise in order to prevent a loss of 

bargaining leverage and avoid a section 8(a)(5) violation. But

as the Board noted, the ALJ never credited this portion of 

Prohl’s testimony and “at no point . . . [found] those facts to be 

true.” Arc Bridges, 362 NLRB No. 56, at 6. Given the absence 

of an ALJ credibility finding, the Board quite properly lent no 

credence to these justifications and thus found that Arc Bridges 

failed to demonstrate a nondiscriminatory reason for its action. 

Id. Because “[c]redibility of witnesses is a matter for Board 

determination, and not for this court,” Vico Products Co. v. 

NLRB, 333 F.3d 198, 209 (D.C. Cir. 2003) (quoting Joy Silk 

Mills v. NLRB, 185 F.2d 732, 741 (D.C. Cir. 1950)), the court 

was obligated to defer to the Board on this score.

My colleagues are troubled by the Board’s “fail[ure] to 

address why granting a three percent increase to represented 

employees would not have severely impaired the Employer’s 

bargaining position.” Maj. Op. at 12. Yet after finding—in line 

with the ALJ’s decision—that this justification lacked 

credibility, the Board had no reason to consider it. 

Echoing the dissenting Board member, the court believes 

that Prohl legitimately withheld the raise to avoid a section 

8(a)(5) violation. Id. at 12–13. This contention implies that Arc 

Bridges faced a no-win situation: violate section 8(a)(3) by 

withholding the raise or section 8(a)(5) by granting it. The 

Board considered and properly rejected this argument. Arc 
10

Bridges ran afoul of section 8(a)(3) not merely because it 

withheld the raise from represented employees, but because it 

did so due to antiunion animus. What is more, as the Board 

noted, Arc Bridges had a simple way to give represented 

employees a raise without flouting section 8(a)(5): seek the 

Union’s permission to do so. See Arc Bridges, 362 NLRB No. 

56, at 6 n.18; see also NLRB v. Katz, 369 U.S. 736, 743 (1962) 

(confining holding to “unilateral change[s] in conditions of 

employment under negotiation”); accord Honeywell 

International, Inc. v. NLRB, 253 F.3d 125, 131 (D.C. Cir. 

2001). The court says that asking for such permission may have 

provoked a strike, Maj. Op. at 13, but as the ALJ expressly 

found, there was no risk of a strike in October, see supra p. 6. 

The catch-22 the court envisions is thus illusory. Cf. Care One 

at Madison Avenue, 832 F.3d at 359–60 (rejecting similar 

purported catch-22).