United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 2013 Decided April 26, 2013 

No. 11-1326 

FLAGSTAFF MEDICAL CENTER, INC., 

PETITIONER

v. 

NATIONAL LABOR RELATIONS BOARD, 

RESPONDENT

Consolidated with 11-1398 

On Petition for Review and Cross-Application for 

Enforcement of an Order 

of the National Labor Relations Board 

Steven D. Wheeless argued the cause for petitioner. With 

him on the briefs was Alan M. Bayless Feldman. 

Elizabeth A. Heaney, Attorney, National Labor Relations 

Board, argued the cause for respondent. With her on the brief 

were John H. Ferguson, Associate General Counsel, Linda 

Dreeben, Deputy Associate General Counsel, and Jill A. 

Griffin, Supervisory Attorney. 

Before: HENDERSON, BROWN and GRIFFITH, Circuit 

Judges. 
2 

Opinion for the Court filed by Circuit Judge BROWN. 

 BROWN, Circuit Judge: Flagstaff Medical Center is an 

acute-care hospital in Arizona that has witnessed a flurry of 

union activity in recent years. This particular case finds its 

roots in October 2006, when the Communications Workers of 

America, Local Union 7019, AFL-CIO began organizing 

among Flagstaff’s housekeeping and food services 

employees. The organizing campaign strained relationships 

with hospital management, and by January 2008, the union 

had charged Flagstaff with dozens of unfair labor practices 

under section 8(a)(1) and (3) of the National Labor Relations 

Act (“NLRA”). See 29 U.S.C. § 158(a)(1), (3). The ALJ 

hearing the case dismissed most of the allegations, concluding 

only eight had merit, and when the Board reviewed the ALJ’s 

decision, it largely agreed. In short, a divided Board affirmed 

the eight § 8(a)(1) violations, reinstated four § 8(a)(1) and (3) 

charges the ALJ had dismissed, and affirmed the dismissal of 

everything else. See Flagstaff Med. Ctr., Inc. & Commc’ns 

Workers of America, Local Union 7019 (“Flagstaff”), 357 

NLRB No. 65, at 1–2 & n.1 (2011). Flagstaff now asks us to 

review three of the reinstated charges. 

Rejecting the ALJ’s findings, the Board concluded that 

Flagstaff violated § 8(a)(1) when its president, Bill Bradel, 

threatened employees that unionization would be futile; and 

that Flagstaff violated § 8(a)(1) and (3) by modifying 

employee Laverne Gorney’s schedule in retaliation for her 

union activity and by firing employee Michael Conant 

because of his union activity. We agree the Board failed to 

muster substantial evidence for its conclusions about Bradel 

and Conant, so we grant Flagstaff’s petition in part. We deny 

the petition in all other respects. 
3 

I 

Section 8(a)(1) of the NLRA prohibits an employer’s 

interference with, or restraint or coercion of, the rights of 

employees to organize and join unions, bargain collectively, 

and engage in certain other “concerted activities.” 29 U.S.C. 

§§ 157, 158(a)(1). The Board concluded Flagstaff ran afoul of 

this provision when, in a June 2007 meeting with vice 

president of ancillary services Roger Schuler and food 

services department employees, Flagstaff president Bill 

Bradel said something to the effect that if there was a union, 

“I would not be negotiating with the union,” or, “you won’t 

be negotiating with me.” According to the Board, this violated 

NLRA § 8(a)(1) because “employees could have reasonably 

construed Bradel’s statement as indicating that [Flagstaff] 

would not bargain with the Union.” Flagstaff, 357 NLRB No. 

65, at 7. We disagree. 

“An employer’s statement violates the NLRA if, 

considering the totality of the circumstances, the statement 

has a reasonable tendency to coerce or interfere with those 

rights,” Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C. 

Cir. 2001),1

 but as long as it does not do so by threat or 

 1

 Flagstaff insists the Board may find an employer’s statement 

constitutes an unlawful threat of futility only if the employer “states 

or implies that it will ensure its non-union status by unlawful 

means,” a standard Flagstaff believes imposes a higher bar to 

NLRA liability, Pet’r Br. at 29–31, but we need not address this 

claim because Flagstaff effectively concedes a statement tending to 

coerce or interfere with employees’ rights violates the NLRA. See 

Reply Br. at 6 (“As a general proposition, the Board analyzes 

employer statements under Section 8(a)(1) by determining whether 

such statements reasonably tend to coerce employees in the 

exercise of their Section 7 rights.”). Nor does the distinction matter 
4 

promise of benefit, an employer may “explain the advantages 

and disadvantages of collective bargaining to its employees in 

an effort to convince them that they would be better off 

without a union,” Winkle Bus Co., 347 NLRB 1203, 1205 

(2006). We think that is what happened here. Bradel and 

Schuler established from the outset of the meeting that they 

wanted to learn about employees’ issues, concerns, and 

problems. Employees voiced concerns about wages, work 

hours, the retirement plan, and benefits, and at the end of the 

meeting, Bradel said that “we appreciate the direct activity 

and that if we had a union that it would be difficult to have 

that same direct communication and I didn’t think that, that 

would be necessary for [Flagstaff].” Flagstaff, 357 NLRB No. 

65, at 31 (ALJ Op.). This makes sense given that the issues 

discussed presumably would be governed by a collective 

bargaining agreement. See 29 U.S.C. §§ 158(a)(5), 159(a). 

Considering this context, we are baffled by the Board’s 

interpretation of Bradel’s subsequent first-person-singular 

statement about negotiations as a comment about Flagstaff’s 

threshold willingness to negotiate—rather than as a statement 

about his own attendance at whatever meetings occur.2

 The 

record does not support this interpretive leap. See Pac. Micr. 

Corp. v. NLRB, 219 F.3d 661, 665 (D.C. Cir. 2000) (“To meet 

 

here: we reject the Board’s conclusions even under the standard it 

applied. 

2

 Both Bradel, whose testimony the ALJ and Board credited, 

and employee Lydia Sandoval testified that Bradel’s statement 

responded to an employee’s claim that “you” will be dealing with 

“us.” The ambiguity in the employee’s statement—whether “you” 

meant Bradel individually or Flagstaff as a company—should be 

resolved in harmony with its context. The Board insists the meeting 

was infected by Flagstaff’s general union animus, but it is not every 

company where employees feel comfortable engaging the president 

so directly. 
5 

the requirement of ‘[s]ubstantial evidence,’ the Board must 

produce ‘more than a mere scintilla’ of evidence; it must 

present on the record ‘such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion,’ 

taking into consideration the ‘record in its entirety . . . 

including the body of evidence opposed to the Board’s view.” 

(internal citations omitted)). 

Indeed, the record evidence about what Bradel actually 

said suggests Bradel implicitly recognized there would be 

negotiations. For instance, almost every witness who 

recounted Bradel’s comment qualified it with the deictic 

phrase “like this,” suggesting the comments expressly referred 

to a particular type of meeting rather than the possibility of a 

meeting. In the respective words of “outspoken union 

advocates” Shawn White and Lydia Sandoval, Flagstaff, 357 

NLRB No. 65, at 31 (ALJ Op.), “He said he wanted us to 

think about our decision to unionize because, if we would 

unionize, we wouldn’t have any more meetings with him like 

this,” Hr’g Tr. at 360 (May 8, 2008) (J.A. 120), and “[H]e 

mentioned something about if bring the union in [sic], we 

won’t be able to have any meetings with him like this again,” 

Hr’g Tr. at 1197 (May 15, 2008) (J.A. 241). Similarly,

multiple witnesses testified that Bradel said they “did not 

need a third party brought in” in order to resolve issues, 

Flagstaff, 357 NLRB No. 65, at 31 (ALJ Op.), which raises 

the question of what Bradel thought the “third party” would 

be doing if not helping employees resolve issues with 

Flagstaff. See also Hr’g Tr. at 1232 (May 15, 2008) (J.A. 247) 

(Sandoval testifying that Bradel said “he didn’t feel like 

employees needed third party representation”). Hardly a 

statement that unionizing would be futile. 

The Board was troubled by the fact that Bradel—

Flagstaff’s “highest-ranking official”—did not make the 
6 

contested comment immediately after his statement about 

direct communication but did so “in direct response to an 

employee’s assertion that employees needed union 

representation.” Flagstaff, 357 NLRB No. 65, at 7. Yet this 

does not mean, as the Board thought, that deeming Bradel’s 

comment innocuous would render it a non sequitur; nor does 

Bradel’s status as president necessarily mean, as the Board 

also thought, that employees reasonably would think he was 

speaking for Flagstaff. Access to one of the company’s 

highest executives may very well be relevant to gauging the 

usefulness of union representation, and Bradel’s emphasis on 

his appreciation of “direct communication” with employees 

would make little sense if he did not in fact hold a high 

position in the company. 

At oral argument, the Board warned us against secondguessing its expertise where we know nothing about the tone 

of voice Bradel used when making the contested statement or 

the body language accompanying it. But of course, the person 

entrusted with evaluating witness credibility—the ALJ—

articulated his judgment about the factual record by finding 

no NLRA violation. See Local 702, Int’l Bhd. of Elec. 

Workers v. NLRB, 215 F.3d 11, 15 (D.C. Cir. 2000). The 

Board adopted the ALJ’s credibility findings, so we are just 

following its lead. 

II 

 “[A]n employer violates the NLRA by taking an adverse 

employment action in order to discourage union activity.” Ark 

Las Vegas Rest. Corp. v. NLRB, 334 F.3d 99, 104 (D.C. Cir. 

2003); see 29 U.S.C. § 158(a)(3). To determine whether an 

employer’s motive was unlawful, the Board applies a burdenshifting scheme known as the Wright Line test. Under it, 

General Counsel for the NLRB has the initial burden of 
7 

showing that the employee’s protected conduct was a 

“motivating factor” in the adverse employment decision; once 

it makes this showing, the employer may escape liability only 

if it shows by a preponderance of evidence that it would have 

taken the same action even had there been no protected 

conduct. See Ark Las Vegas Rest. Corp., 334 F.3d at 104. We 

evaluate the Board’s conclusions about Gorney and Conant 

within this framework. 

A 

Laverne Gorney has worked in the food services 

department for over ten years, most recently as a dishwasher. 

On May 26, 2007,3

 Gorney appeared in a pro-union 

advertisement in the local newspaper; in June, she was 

assigned to a “very unusual” number of weekend shifts. 

Flagstaff, 357 NLRB No. 65, at 48 (ALJ Op.). In concluding 

general counsel satisfied its Wright Line burden, the Board 

relied on Flagstaff’s other NLRA violations as evidence of 

general animus toward unions, as well as the suspicious 

timing of the schedule change. Flagstaff’s rebuttal attempts 

fell short, the Board explained, because they either pertained 

to Gorney’s July and August schedules without saying 

anything about her June schedule, or were unhelpfully vague. 

We will not disturb these findings. 

Motive is a question of fact, so the Board’s inferences 

about unlawful motive are entitled to substantial deference. 

See Laro Maint. Corp. v. NLRB, 56 F.3d 224, 229 (D.C. Cir. 

1995). The Board concluded Jeanine Drake, the director of 

 3

 No date appears on the advertisement in the record. One 

witness testified the advertisement was published “[s]omewhere in 

[the] range” of May 28, Hr’g Tr. at 647 (May 9, 2008), but since 

the parties seem to agree it came out May 26, we ignore this 

potential discrepancy. 
8 

the food services department who set Gorney’s schedule, 

interfered with the union campaign by telling employees not 

to discuss their wages, by coercively interrogating an 

employee about the usefulness of a union (and in the process, 

calling the nurses’ union “foolish”), and by implicitly 

suggesting a newly-hired employee would be laid off if the 

hospital unionized. The Board could reasonably find that in 

doing so, Drake demonstrated anti-union animus. See, e.g., 

Lee Builders, Inc., 345 NLRB 348, 349 (2005) (inferring antiunion animus when managers “threatened employees with job 

loss and plant closure if the Union were to succeed in the 

organizing campaign”); see also Federated Logistics & 

Operations v. NLRB, 400 F.3d 920, 923 (D.C. Cir. 2005). If 

so, and Drake assigned Gorney a very unusual shift schedule 

soon after Gorney began publicly supporting the union—

which Drake admitted seeing—then the Board could 

reasonably infer an unlawful motive for the schedule change. 

See Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946, 

955 (D.C. Cir. 1988) (“[T]he Board may consider such factors 

as the employer’s knowledge of the employees’ union 

activities, the employer’s hostility towards the union, and the 

timing of the employer’s action.” (internal citations omitted)). 

Flagstaff, for its part, disputes the factual premises 

propelling this analysis. First, Flagstaff challenges the 

“majority’s finding that the June shift was ‘very unusual,’”4

Pet’r Br. at 51 n.10, and second, it argues that “the schedule 

for each upcoming month comes out on the 25th of the prior 

month” so “Drake would have already made and posted the 

June schedule before Gorney’s appearance in the newspaper 

on May 26, 2007.” Pet’r Br. at 49. Presumably, the Board’s 

 4

 This is perhaps Flagstaff’s artful way of avoiding the 

consequences of its failure to raise the issue below: it was not the 

Board that found the June shift to be very unusual, but the ALJ. 
9 

reasoning would fall apart without these factual linchpins. If, 

for instance, Gorney’s June schedule had nothing to do with 

her union activity, then it is not clear how her subsequent 

schedules could be the product of her union activity: her July 

schedule was hardly unusual if she had a comparable schedule 

the previous month. Flagstaff’s failure to address Gorney’s 

June schedule in its rebuttal arguments would no longer 

matter, and we might be more inclined to question the 

Board’s invocation of Flagstaff’s general union animus to 

prove Drake’s specific motivation. See Chevron Mining, Inc. 

v. NLRB, 684 F.3d 1318, 1327–28 (D.C. Cir. 2012);

Warshawsky & Co. v. NLRB, 182 F.3d 948, 956 (D.C. Cir. 

1999). 

But no matter: Flagstaff raised neither argument before 

the Board, so we have no jurisdiction to consider them. See 29 

U.S.C. § 160(e). The Board deemed the June schedule very 

unusual precisely because Flagstaff never contested the ALJ’s 

finding to that effect, see 29 C.F.R. § 102.48(a), and Flagstaff, 

though pointing to a few arguments in the record it thinks 

sufficient to meet its jurisdictional burden, identifies nothing 

that would have put the Board on notice about the timing of 

Drake’s June scheduling decision. See Local 900, Int’l Union 

of Elec., Radio & Mach. Workers v. NLRB, 727 F.2d 1184, 

1191–92 (D.C. Cir. 1984). 

We may consider arguments not raised before the Board 

in “extraordinary circumstances,” 29 U.S.C. § 160(e), but 

Flagstaff gives us no reason to think these circumstances are 

anything but ordinary. Perhaps Flagstaff might be excused 

from raising these arguments before the Board rendered its 

decision. Compare Detroit Edison Co. v. NLRB, 440 U.S. 

301, 311 n.10 (1979) (rejecting argument that a party need not 

object to ALJ recommendation where it has “no practical 

reason” to do so, explaining that accepting this as 
10 

“extraordinary circumstance” would undermine the statutory 

exception and that party in fact had a reason to challenge the 

recommendation when the opposing party excepted to it), 

with NLRB v. Good Foods Mfg. & Processing Corp., 492 

F.2d 1302, 1305 (7th Cir. 1974) (noting that courts sometimes 

excuse a party’s failure to file exceptions to the ALJ’s 

findings where the findings “were favorable to the petitioner, 

were subsequently reversed by the Board, and petitioner had 

no reason to file exceptions to a decision in its favor”). But 

we will not excuse its failure to raise them afterwards in a 

motion for reconsideration. See Woelke & Romero Framing, 

Inc. v. NLRB, 456 U.S. 645, 665–66 (1982); Stephens Media, 

LLC v. NLRB, 677 F.3d 1241, 1255 (D.C. Cir. 2012); 

Epilepsy Found. of Ne. Ohio v. NLRB, 268 F.3d 1095, 1101–

02 (D.C. Cir. 2001). 

B 

 Michael Conant, a Flagstaff housekeeper, began wearing 

a union button in July 2007; he was fired in August. Though 

Conant had a record of poor attendance during his two years 

at Flagstaff, the Board found that Flagstaff had general antiunion animus, that the timing of Conant’s discharge was 

suspicious, and that Flagstaff’s enforcement of the company 

attendance policy was highly—and therefore suspiciously—

inconsistent. We think the Board failed to justify these 

findings with substantial evidence. 

 Flagstaff’s attendance policy provides that “[e]xcessive 

absenteeism and tardiness . . . may result in disciplinary 

action to include termination.” J.A. 373. It also lists the 

sanctions to be imposed for specified numbers of absences in 

any rolling six- or twelve-month period. Four absences in any 

rolling six-month period, or seven in any twelve-month 

period, results in a verbal warning; five absences in any six-
11 

month period, or eight in any twelve-month period, results in 

a written warning; six absences in any six-month period, or 

nine in any twelve-month period, results in a final warning 

and possible suspension; and seven absences in any six-month 

period, or ten in any twelve-month period, results in 

termination. See Flagstaff, 357 NLRB No. 65, at 8. 

 By the summer of 2007, Conant had already received 

verbal and written warnings and a three-day suspension. The 

suspension apparently did not faze him. He missed work four 

more times before he was fired: once in May, once in June, 

and twice in July—making a total of twelve unscheduled 

absences in twelve months. No one denies this entitled 

Flagstaff under the attendance policy to fire Conant. 

The Board makes much of the fact that Flagstaff did not 

do so until after Conant began wearing a union button, but the 

record easily explains this apparent oddity: in mid-June, the 

director of the housekeeping department stepped down and an 

interim director, Joe Brown, took over. Conant was absent 

only twice after that, and Brown did not know about either 

absence until the department secretary brought the second one 

to his attention. At that point, Brown reviewed Conant’s file, 

confirmed with the director of human resources that firing 

Conant would comport with Flagstaff policies,5

 and got the 

go-ahead from Schuler. He fired Conant on August 1. (Both 

the ALJ and the Board credited Brown’s testimony about the 

matter.) 

Only Brown and Schuler were involved in the decision to 

fire Conant, and there is no substantial evidence either had an 

 5

 The record is ambiguous about who spoke to the director of 

human resources—Brown, Schuler, or both of them—but like the 

parties and the ALJ, we ascribe no significance to that fact. 
12 

unlawful motivation. See Parsippany Hotel Mgmt. Co. v. 

NLRB, 99 F.3d 413, 422 (D.C. Cir. 1996) (explaining that 

general counsel must prove “that the employer knew of the 

employee’s pro-union activities,” “that the timing of the 

alleged reprisal was proximate to the protected activities,” and 

that “there was anti-union animus to link the factors of timing 

and knowledge to the improper motivation” (internal 

quotation marks omitted)). First, there is little reason to think 

Schuler knew anything about Conant’s unionizing. The 

Board—which in its decision below referenced Schuler only 

to note that he “reviewed and approved [Brown’s] 

recommendation,” Flagstaff, 357 NLRB No. 65, at 9—now 

points to an affidavit in which Schuler stated that “[a]t the 

time of his termination, I could guess that Conant supported 

the union.” Hr’g Tr. at 106 (May 6, 2008) (J.A. 68). The 

Board considers this a damning admission. Not so. Schuler 

clearly testified that his admittedly ambiguous statement did 

not mean what the Board now asserts but rather meant only 

that “at the time I was giving the affidavit, in retrospect” he 

could have guessed Conant supported the union. Hr’g Tr. at 

104 (May 6, 2008) (J.A. 66). Indeed, when signing the 

affidavit, Schuler handwrote a qualifier next to the 

controverted statement: “Based on conversations I had with 

him in which he often expressed his dissatisfaction with 

management and other work related issues. I never saw him 

wear a union shirt or button, nor did he ever overtly express 

his union support to me.” Hr’g Tr. at 106 (May 6, 2008) (J.A. 

68). 

The Board argues in the alternative that even assuming 

Schuler “was personally unaware of Conant’s union support, 

his lack of personal knowledge is not determinative” because 

the Board could reasonably impute such knowledge to him. 

Resp’t’s Br. at 48–49. This makes no sense. If general counsel 

relies on circumstantial evidence and legal fictions about 
13 

constructive knowledge, it does so to carry its burden of 

showing the decisionmaker knew about the employee’s union 

activity. See, e.g., Avecor, Inc. v. NLRB, 931 F.2d 924, 928–

29 (D.C. Cir. 1991); Wolf Trap Foundation, 287 NLRB 1040, 

1041 (1988); Kimball Tire Co., Inc., 240 NLRB 343, 344 

(1979). Permitting circumstantial evidence and legal fictions 

to trump direct proof to the contrary is absurd. See Chevron 

Mining, Inc., 684 F.3d at 1327–28; see also Vulcan Basement 

Waterproofing of Il. v. NLRB, 219 F.3d 677, 685 (7th Cir. 

2000). 

Second, though Brown testified he knew about Conant’s 

union activity by July, the record does not support the 

inference that Conant’s union activity played any role in 

Brown’s decision or, put differently, that Brown would not 

have recommended discharge anyway. We reject the Board’s 

reliance on Bradel’s alleged unlawful threats to 

“demonstrate[] that union animus . . . pervaded [Flagstaff],” 

Resp’t’s Br. at 50; see Parsippany, 99 F.3d at 423–24, 

because we do not think Bradel’s statements were improper—

and the Board’s circumstantial case cannot survive that 

conclusion because Brown had nothing to do with any of 

Flagstaff’s NLRA violations. Nor can the Board impute 

animus to Brown directly because there is no such evidence in 

the record. 

Both the ALJ and the Board credited Brown’s testimony 

that he followed Flagstaff’s attendance policy and, “from the 

inception of his tenure with [Flagstaff], attempted to enforce 

[Flagstaff’s] policies with consistency.” Flagstaff, 357 NLRB 

No. 65, at 55 (ALJ Op.). As written, the policy is ambiguous: 

it is possible to have accumulated no more than four or five 

absences in any six-month period but nevertheless exceed 

nine absences in a twelve-month period, thereby requiring 

both warnings and discharge. The record shows Brown 
14 

understood the policy to mandate an incremental approach 

whereby, for example, it would be inappropriate to fire an 

employee who had not yet received a final warning.6 When 

Monika Coby-Thompson had her ninth and tenth unscheduled 

absences in six months, Brown suspended her for three days 

rather than firing her because she had hitherto received only 

verbal and written warnings. When Haskielena Begay had her 

sixth unscheduled absence in six months, Brown issued a 

written warning rather than a final warning because she had 

hitherto received only a verbal warning (though he 

subsequently suspended her as well for a separate policy 

violation). But even under Brown’s relatively lenient 

understanding of the policy, Conant’s excessive absences 

warranted discharge. See, e.g., MECO Corp. v. NLRB, 986 

F.2d 1434, 1438 (D.C. Cir. 1993) (“Absent a showing of antiunion motivation . . . an employer may discharge an employee 

for a good reason, a bad reason, or no reason at all without 

running afoul of the labor laws.” (internal quotation marks 

omitted)). 

There appear to be two instances where a supervisor 

ostensibly under Brown’s authority failed to escalate the 

sanction though the escalation would have been warranted 

and the employee had already received the same level of 

discipline, but we think this insignificant in light of the ALJ 

and Board’s conclusion that Brown tried to enforce 

Flagstaff’s policies consistently and the record evidence that 

Brown generally did so in fact. See MECO Corp., 986 F.2d at 

 6

 Brown recommended firing a probationary employee who 

had not received any warning, but the employee’s probationary 

status refutes any attempt to cite that recommendation as an 

example of inconsistent enforcement. See Rest. Corp. of Am. v. 

NLRB, 827 F.2d 799, 806 (D.C. Cir. 1987) (“Disparate enforcement 

inherently requires a finding that the employer treated similar

conduct differently.” (emphasis added)). 
15 

1437. Perhaps controversy over Flagstaff’s attendance policy 

might have been avoided if the housekeeping department had 

done a better job tracking employee absences so that an 

employee received, for example, the verbal warning 

immediately after a fourth unscheduled absence rather than 

after the fifth, but it is unreasonable to find animus merely 

because Brown’s reliance on the department secretary to track 

absences and the exigencies of day-to-day work led to a few 

false negatives. This of course assumes Brown was even at 

Flagstaff when both incidents occurred, which is not at all 

clear from the record. See Hr’g Tr. at 463 (May 8, 2008) (J.A. 

135) (Brown testifying, “I’ve been at five different hospitals 

in the last year.”).

III 

 Because there is no substantial evidence justifying the 

Board’s findings that Bradel’s comments violated NLRA 

§ 8(a)(1) or that Conant’s discharge violated § 8(a)(1) and (3), 

we grant Flagstaff’s petition in part. We grant the Board’s 

application for enforcement of its order in all other respects. 

So ordered.