United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 18, 2016 Decided August 19, 2016

No. 14-1253

OZBURN-HESSEY LOGISTICS, LLC,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

UNITED STEEL, PAPER AND FORESTRY, RUBBER,

MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE 

WORKERS INTERNATIONAL UNION,

INTERVENOR

Consolidated with 14-1289, 15-1184, 15-1242

On Petitions for Review and Cross-Applications

for Enforcement of Orders

of the National Labor Relations Board

Benjamin H. Bodzy argued the cause for petitioner. With 

him on the briefs was Stephen D. Goodwin.

David A. Seid, Attorney, National Labor Relations Board, 

argued the cause for respondent. With him on the briefs were
2

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

Associate General Counsel, Linda Dreeben, Deputy Associate 

General Counsel, and Robert J. Englehart, Supervisory 

Attorney.

Katharine J. Shaw argued the cause and filed the briefs

for intervenor. With her on the briefs was Amanda M. Fisher.

Before: PILLARD and WILKINS, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: This appeal is the latest chapter

in an ongoing labor dispute between Ozburn-Hessey 

Logistics, LLC (OHL or the Company) and the United Steel, 

Paper and Forestry, Rubber, Manufacturing, Energy, Allied 

Industrial and Service Workers International Union (the 

Union). In 2009, the Union began a campaign to organize 

workers at the OHL’s warehouse facilities in Memphis, 

Tennessee. That campaign culminated in a July 27, 2011, 

representation election, which the Union won by a one-vote

margin. The National Labor Relations Board (the Board) 

found that the Company committed multiple unfair labor 

practices during the months leading up to the representation 

election. OHL violated the National Labor Relations Act, the 

Board determined, by threatening, interrogating, and 

surveilling employees; creating the impression of such 

surveillance; confiscating union-related materials; urging 

union supporters to resign; and disciplining two employees 

because of their pro-union views. In that same decision, the 

Board resolved pending ballot challenges and objections 

arising from the July 27, 2011, representation election and 

directed the Board’s Regional Director to count six of the 

remaining challenged ballots, resulting in a wider margin of 
3

victory for the Union. Pursuant to that revised election tally, 

the Board’s Regional Director certified the Union as the 

exclusive bargaining representative for the Company’s 

Memphis employees. The Company nonetheless refused to 

bargain with the Union, prompting a separate Board decision 

determining that OHL violated the Act.

The Company petitions for review, raising multiple 

objections to the Board’s underlying decisions. We have 

accorded the Company’s arguments full consideration after 

careful examination of the record, but address in detail only 

those arguments that warrant further discussion. Having 

found no basis to disturb the Board’s well-reasoned decisions,

we deny the petitions for review and grant the Board’s crossapplications for enforcement of its orders. 

I. Background

A. Facts

OHL is a third-party logistics company that provides

transportation, warehousing, and supply-chain management

services for other companies. It operates warehouses 

throughout the country, including five in Memphis, 

Tennessee. In May 2009, the Union began organizing

employees at OHL’s Memphis warehouses and, later that 

year, filed an election petition with the Board to represent 

those workers. See Hooks ex rel. NLRB v. Ozburn-Hessey 

Logistics, LLC, 775 F. Supp. 2d 1029, 1035-36 (W.D. Tenn. 

2011). The Union lost the ensuing representation election in 

March 2010 and filed charges against OHL, alleging that the 

Company committed multiple unfair labor practices during 

the unionization campaign. Id. at 1035-39. The Board found 

merit to those allegations and concluded in two separate 

decisions that, between June 2009 and March 2010, OHL 
4

violated the Act by threatening employees, confiscating union 

materials, and disciplining union supporters. See OzburnHessey Logistics, LLC, 357 NLRB 1632 (2011) (Ozburn I)

(finding that OHL committed unfair labor practices between 

June and October 2009), enforced mem., 609 F. App’x 656

(D.C. Cir. 2015) (per curiam judgment); Ozburn-Hessey 

Logistics, LLC, 357 NLRB 1456 (2011) (Ozburn II) (finding 

that Company committed unfair labor practices between

November 2009 and March 2010), enforced mem., 605 F. 

App’x 1 (D.C. Cir. 2015) (per curiam judgment).1

The Company’s challenged misconduct did not end there, 

however. Just a few months after the election, OHL 

disciplined employees Jennifer Smith and Carolyn Jones, on 

the basis of their union-related conduct. On June 9, 2011, the 

Company issued a final warning to Smith, a known union 

leader who distributed union literature and handbills, solicited 

coworkers to support the Union, and openly wore union hats 

and shirts to work. The final warning accused Smith of

violating OHL’s anti-harassment and non-discrimination 

policy by calling Stacey Williams, a fellow AfricanAmerican, a racial slur on June 8 during a heated argument 

about certain office supplies. Final Employee Warning 

Notice, 14 J.A. 717. Smith denied having made the 

derogatory remark and refused to sign the final warning. 

A few days later, on June 14, the Company fired Jones, a 

known union leader who distributed union handbills and 

organizing materials, solicited coworkers to support the 

Union, and routinely attended union meetings. The 

 1 While these cases were awaiting Board review, the Union 

sought, and a federal district court granted, a temporary injunction 

prohibiting OHL from committing further unfair labor practices and 

ordering the Company to make whole several unlawfully 

disciplined employees. See Hooks, 775 F. Supp. 2d at 1034, 1053.
5

Company’s termination letter gave two reasons for Jones’s 

discharge. First, the Company accused Jones of violating the 

Company’s “guidelines regarding failure to cooperate with an 

internal investigation” by fabricating a witness statement 

about a heated verbal exchange that occurred on May 26, 

2011. See Jones Termination Letter, 14 J.A. 558. On that 

day, Jones had attended a meeting during which OHL 

management disseminated information to employees about 

union dues. Afterward, Jones went to a break room and told 

her coworkers that the President supported their right to 

unionize and that it was “stupid” for employees not to want a 

union. ALJ Decision of May 15, 2012, 14 J.A. 740-41.

According to Jones, OHL Director of Operations Phil Smith 

suddenly appeared behind her and said, “[I] just had two . . . 

employees . . . sa[y] they were called stupid. . . . Well, you all 

are the ones that are stupid because you’re trying to get a 

union in here.” Hearing Transcript, 14 J.A. 25. Jones asked 

if Phil Smith was referring to her, to which he replied, “[i]f 

the shoe fits, then you wear it.” Id. When Jones explained to 

Phil Smith that she did not call anybody “stupid” and tried to 

end their conversation, id. at 26, Phil Smith warned her, “you 

better watch your back,” id. at 26-27.

Jones soon prepared a witness statement documenting her

encounter with Phil Smith and asked her coworkers to sign it. 

Four OHL employees signed the statement, which Jones then 

submitted to OHL’s Human Resources Department. After

investigating the incident, OHL determined that Phil Smith 

was innocent of any wrongdoing and that Jones had asked her 

coworkers to sign a blank sheet of paper before she filled in 

the witness statement about Phil Smith’s threatening 

comment—conduct the Company characterized as fraudulent.

Second, the Company claimed that Jones was fired 

because she violated the Company’s Anti-Harassment Policy 
6

by repeatedly calling fellow employee Lee Smith a racial 

epithet. Jones began calling Lee Smith that epithet in the 

spring of 2011, shortly after he had voiced his opposition to 

the Union. OHL conducted an internal investigation and 

concluded that, despite her repeated denials, Jones in fact had 

used the racial epithet on multiple occasions.

On June 14, 2011, the same day as Jones’s discharge, the 

Union petitioned the Board for a second election to represent 

workers at OHL’s Memphis warehouses. The Board held the

representation election on July 27, pursuant to a Stipulated 

Election Agreement between OHL and the Union. The 

parties agreed that “office clerical and professional 

employees” would be excluded from the voting unit and 

further stipulated that two administrative assistants would 

vote subject to challenge by the Union. The Union won the 

election by a vote of 165 to 164. The election tally reflected 

fourteen ballot challenges, including the Company’s 

challenge to Jones’s ballot and the Union’s challenge to 

ballots of the two administrative assistants. OHL and the 

Union thereafter each objected to the second election on 

several grounds.

B. Decisions Below

1. The Unfair Labor Practice Case

Between June and September 2011, the Union filed a 

series of unfair labor practice charges against OHL 

challenging the Company’s conduct during the months 

preceding the second representation election, including its 

punishment of Jennifer Smith and Carolyn Jones. Based on 

the Union’s charges, the Acting General Counsel issued a 

consolidated complaint alleging, among other things, that the 

Company disciplined Smith and Jones on account of their 
7

union-related conduct and support in violation of section 

8(a)(3) and (1) of the Act.

On May 15, 2012, the Administrative Law Judge 

determined that OHL had committed the charged unfair labor 

practices. As relevant here, the ALJ found that, based on 

hearing testimony and other evidence, the Company violated 

section 8(a)(3) of the Act by issuing a final warning to

Jennifer Smith and terminating Carolyn Jones because of their 

pro-union activities and views.

2

 Applying the Board’s twopart analysis from Wright Line, 251 NLRB 1083 (1980), the 

ALJ determined that anti-union animus motivated the 

Company’s punishment of Smith and Jones and that the 

Company’s putative justifications for meting out those 

disciplinary measures were pretextual. Because the 

Company’s proffered reasons for disciplining Smith and 

Jones were “mere pretext[s],” ALJ Decision of May 15, 2012, 

14 J.A. 746, the ALJ explained, it “fail[ed] by definition to 

show that it would have taken the same [disciplinary] action 

for those reasons, absent the protected conduct,” id. (quoting 

Rood Trucking Co., 342 NLRB 895, 898 (2004)). The ALJ 

therefore directed the Company to post an appropriate 

remedial notice regarding its violations of the Act and 

imposed three additional remedies. The ALJ ordered OHL

(1) to distribute electronically the remedial notice to all unit 

employees; (2) to have the notice read aloud to the Memphis 

employees by a Board representative in the presence of two 

designated OHL managers; and (3) to cease and desist from 

committing the charged unfair labor practices and from 

otherwise violating the Act.

 2 The ALJ also found that the Company violated section 

8(a)(1) by threatening and interrogating employees, surveilling 

employees, creating the impression of surveillance, confiscating 

union materials, and telling pro-union employees to resign.
8

In the same decision, the ALJ resolved the pending ballot 

challenges and objections arising from the second 

representation election. After ruling on the parties’ electoral

disputes largely in the Union’s favor, the ALJ issued a 

recommended order to count six of the remaining ten 

challenged ballots. The ALJ further recommended that, if the 

Union did not prevail after those six votes were counted, the

Regional Director should invalidate the second election so 

OHL employees could vote in a third, untainted election. 

On May 2, 2013, the Board affirmed the ALJ’s rulings, 

findings, and conclusions, rejected all of OHL’s exceptions to 

the ALJ’s decision, and adopted the ALJ’s remedial order,

with one modification.

3

 Ozburn-Hessey Logistics, LLC, 359 

NLRB No. 109, at *1-4 & n.2 (2013) (Ozburn III). The 

Board “agree[d]” with the ALJ’s findings that OHL 

“discharged employee Carolyn Jones for engaging in 

protected activity” and “unlawfully issued employee Jennifer 

Smith a written final warning in retaliation for her prounion 

activity.” Id. at *1-2. “[A]dditional circumstances,” the 

Board emphasized, supported the ALJ’s conclusion that 

Jennifer Smith’s discipline was unlawful. Id. at *2. The

Board found that, based on the credited evidence, OHL’s 

“purported belief that Smith used a racial slur was not 

reasonable.” Id. The Board also determined that OHL “was 

highly inconsistent in its response to racial slurs,” noting that 

the Company readily applied its Anti-Harassment Policy 

against pro-union employees Jones and Smith, while 

overlooking grossly offensive statements by OHL supervisor 

Phil Smith. Id. That uneven treatment, the Board concluded, 

 3 The Board’s amended remedy afforded OHL the option to 

have its own managers read the notice aloud to employees in the 

presence of a Board representative.
9

suggested that OHL “was using its antiharassment policy to 

target union supporters, further corroborating the [ALJ’s] 

finding of pretext.” Id. Finally, the Board adopted the ALJ’s 

resolution of the parties’ election objections and ballot

challenges and thus directed the Regional Director to count 

six of the challenged ballots. Id. at *3-5. OHL petitioned for 

review of the Board’s May 2013 Decision.

In compliance with the Board’s May 2013 Decision, the 

Regional Director issued a revised election tally of 169-166 in 

the Union’s favor and, on May 24, 2013, certified the Union

as the exclusive bargaining representative for the designated 

employee unit. In June 2013, OHL refused the Union’s 

request to bargain, prompting the Union to file charges under 

the Act. Pursuant to those charges, the Acting General 

Counsel filed a complaint alleging that OHL’s refusal to 

bargain with the Union violated section 8(a)(5) and (1) of the 

Act. 

The following year, the Supreme Court decided NLRB v. 

Noel Canning, 134 S. Ct. 2550 (2014), which invalidated the 

appointments of two Board members on the panel that had 

issued the Board’s May 2013 Decision on the unfair labor 

charges. On June 27, 2014, the Board set aside that decision

in light of Noel Canning and retained the case on its docket. 

On November 17, 2014, upon de novo review of the 

ALJ’s decision, a lawfully constituted panel of the Board 

affirmed the ALJ’s rulings, findings, and conclusions and 

adopted with modification the recommended remedial order 

“to the extent and for the reasons stated” in its May 2013 

Decision, which the Board expressly incorporated by 

reference. Ozburn-Hessey Logistics, LLC, 361 NLRB No. 

100, at *1 (2014) (Ozburn IV). Although the Board found 

that the Regional Director lawfully certified the Union based 
10

on an accurate, revised tally of the representation election, it 

nevertheless issued a new Certification of Representative “in 

an abundance of caution.” Id. at *1. Shortly thereafter, OHL 

petitioned for review of the Board’s November 2014 

Decision, and the Board cross-applied for enforcement of the 

same. The two unfair-labor-practice cases were consolidated, 

and the Union intervened.

 

2. The Refusal To Bargain Case

Meanwhile, in December 2014, the Union sent another 

letter to OHL requesting that the Company bargain, and OHL 

once more refused. The following month, with the Board’s 

permission, the General Counsel amended its complaint to 

allege that the Company in 2014 had again refused to bargain 

in violation of section 8(a)(5) and (1) of the Act. OHL 

admitted that it had refused to bargain with the Union, but 

asserted that it was not obligated to do so because the Board 

had erred in resolving the ballot challenges, overruling the 

Company’s election objections, and certifying the Union. 

OHL also sought dismissal of the General Counsel’s 

complaint on the ground that the Union never filed a new 

charge following the Board’s 2014 Certification of 

Representative.

On June 15, 2015, the Board issued a Decision and Order 

finding that OHL’s refusal to bargain with the Union was 

unlawful under section 8(a)(5) and (1) of the Act. See 

Ozburn-Hessey Logistics, LLC, 362 NLRB No. 118, at *1-5

(2015) (Ozburn V). The Board rejected the Company’s 

efforts to relitigate the ballot challenges and election 

objections previously adjudicated in the Board’s November 

2014 Decision and found no merit to the Company’s 

contention that the General Counsel’s amended complaint 

was procedurally infirm for want of a separately filed charge 
11

after the Board certified the Union in 2014. See id. at *2.

OHL petitioned for review of the Board’s 2015 Decision, and 

the Board cross-applied for enforcement. The two refusal-tobargain cases were consolidated, and the Union intervened.

After briefing was completed, we granted the Company’s 

request to consolidate the refusal-to-bargain cases with the 

unfair-labor-practice cases. We have jurisdiction over the 

consolidated appeals under 29 U.S.C. § 160(e) and (f). 

II. Analysis

A. Standard of Review

We “accord[] a very high degree of deference to 

administrative adjudications by the [Board]” and reverse its

findings “only when the record is so compelling that no 

reasonable factfinder could fail to find to the contrary.”

Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935 (D.C. 

Cir. 2011) (internal quotation marks omitted). Under that 

very deferential standard, we “must uphold the judgment of 

the Board unless, upon reviewing the record as a whole, we 

conclude that the Board’s findings are not supported by 

substantial evidence, or that the Board acted arbitrarily or 

otherwise erred in applying established law to the facts of the 

case.” Tenneco Auto., Inc. v. NLRB, 716 F.3d 640, 646-47 

(D.C. Cir. 2013) (quoting Wayneview Care Ctr. v. NLRB, 664 

F.3d 341, 348 (D.C. Cir. 2011)). We also “owe substantial 

deference to inferences drawn by the Board from the factual 

record,” Tenneco, 716 F.3d at 647 (internal quotation marks 

omitted), and “[o]ur review of the Board’s conclusion as to 

discriminatory motive is even more deferential, because most 

evidence of motive is circumstantial,” Fort Dearborn Co. v. 

NLRB, --- F.3d ---, 2016 WL 3361476, at *3 (D.C. Cir. Apr. 

12, 2016) (reissued June 17, 2016) (internal quotation marks 
12

omitted); see also Citizens Inv. Servs. Corp. v. NLRB, 430 

F.3d 1195, 1198 (D.C. Cir. 2005). Furthermore, we “will 

uphold the Board’s adoption of an ALJ’s credibility 

determinations unless those determinations are hopelessly 

incredible, self-contradictory, or patently unsupportable.”

United Servs. Auto. Ass’n v. NLRB, 387 F.3d 908, 913 (D.C. 

Cir. 2004) (internal quotation marks omitted). 

B. Section 8(a)(3) Violations

OHL first challenges the Board’s determination that it

violated section 8(a)(3) and (1) of the Act by issuing a final 

warning to Jennifer Smith and terminating Carolyn Jones on 

account of their union-related activity.

Under section 8(a)(3), it is “an unfair labor practice for an 

employer . . . to encourage or discourage membership in any 

labor organization” by “discriminati[ng] in regard to hire or 

tenure of employment or any term or condition of 

employment.” 29 U.S.C. § 158(a)(3). An employer violates 

section 8(a)(3) “by taking an adverse employment action, 

such as issuing a disciplinary warning, in order to discourage 

union activity.” Tasty Baking Co. v. NLRB, 254 F.3d 114, 

125 (D.C. Cir. 2001); see Fort Dearborn, 2016 WL 3361476,

at *3. And an employer that violates section 8(a)(3) 

derivatively violates section 8(a)(1)’s prohibition on 

“interfer[ing] with, restrain[ing], or coerc[ing] employees in 

the exercise of the rights guaranteed in section [7 of the Act],”

29 U.S.C. § 158(a)(1). See Metro. Edison Co. v. NLRB, 460 

U.S. 693, 698 n.4 (1983).

Where, as here, an employer purports to have disciplined 

or discharged an employee for reasons unrelated to protected 

union activity, the Board applies the so-called Wright Line

test. Fort Dearborn, 2016 WL 3361476, at *3; Shamrock 
13

Foods Co. v. NLRB, 346 F.3d 1130, 1135 (D.C. Cir. 2003). 

Under that test, the General Counsel “must first make a prima 

facie showing sufficient to support the inference that 

protected [i.e., union-related] conduct was a motivating factor 

in the . . . adverse action.” Tasty Baking, 254 F.3d at 125

(alteration and omission in original) (internal quotation marks 

omitted). “Relevant factors” in determining an employer’s 

motive “include ‘the employer’s knowledge of the 

employee’s union activities, the employer’s hostility toward

the union, and the timing of the employer’s action.’” Fort 

Dearborn, 2016 WL 3361476, at *3 (quoting Vincent Indus. 

Plastics, Inc. v. NLRB, 209 F.3d 727, 735 (D.C. Cir. 2000)); 

see Fortuna Enters., LP v. NLRB, 665 F.3d 1295, 1303 (D.C. 

Cir. 2011). “Once a prima facie case has been established, the 

burden shifts to the company to show that it would have taken 

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

Baking, 254 F.3d at 126. 

OHL does not seriously dispute the Board’s conclusion 

that the General Counsel met his initial burden, at the first 

step of the Wright Line analysis, to show that union animus 

motivated the Company’s decisions to issue a warning to 

Jennifer Smith and discharge Carolyn Jones. Nor could it. 

Substantial evidence in the record supports the Board’s 

findings that Smith and Jones were active supporters of the 

Union, that OHL had knowledge of their union-related 

conduct, and that OHL harbored animus toward the Union 

and its supporters. See Fort Dearborn, 2016 WL 3361476, at 

*3; Power Inc. v. NLRB, 40 F.3d 409, 418 (D.C. Cir. 1994).

OHL instead contends that the Board misapplied the

Wright Line test by denying the Company a meaningful

opportunity to show, at the second step of the Wright Line 

analysis, that it would have issued a final warning to Smith 

and discharged Jones even in the absence of the allegedly
14

unlawful motive. The Board further erred, OHL claims, by

concluding arbitrarily and without any basis in the record that 

the Company’s proffered justifications for disciplining Smith 

and discharging Jones were pretextual.

1. The Board’s Application of the Wright Line Test

We first consider OHL’s argument that the Board erred 

by affirming what OHL characterized as the ALJ’s 

misapplication of the Wright Line test. According to OHL,

the ALJ sidestepped the full Wright Line analysis by 

concluding that, “[i]f the employer’s proffered defenses are 

found to be a pretext, i.e., the reasons given for its actions are 

either false or not, in fact, relied on, the employer fails by 

definition to show that it would have taken the same action 

for those reasons,” rendering it unnecessary “to perform the 

second part of the Wright Line analysis.” ALJ Decision of 

May 15, 2012, 14 J.A. 746. OHL argues that the ALJ’s 

approach, which the Board subsequently affirmed and 

adopted, impermissibly skipped over the second step of 

Wright Line and thus abridged the Company’s opportunity to 

rebut the General Counsel’s prima facie showing that it 

disciplined Smith and Jones for unlawful reasons. 

Neither the ALJ nor the Board deviated from the 

analytical approach set forth in Wright Line. Applying that 

test, the ALJ determined that the Company’s decisions to 

punish Smith and Jones were motivated by anti-union animus 

and rejected each of the reasons the Company claimed to have 

relied on in taking those disciplinary actions. In doing so, the 

ALJ did not, as OHL contends, deny it the opportunity to 

present its affirmative defenses: the ALJ allowed the 

Company to advance its defenses but, after considering them 

in light of the record, concluded that they were “mere 

pretext[s].” ALJ Decision of May 15, 2012, 14 J.A. 746.
15

Nothing in Wright Line forecloses that approach and, 

indeed, the Board’s precedent interpreting and applying 

Wright Line expressly authorizes it. In Rood Trucking, for 

example, the Board clarified that:

[a] finding of pretext defeats any attempt by the 

[company] to show that it would have discharged the 

discriminate[e]s absent their union activities . . .

because where “the evidence establishes that the 

reasons given for the [company’s] action are 

pretextual—that is, either false or not in fact relied 

upon—the [company] fails by definition to show that 

it would have taken the same action for those reasons, 

absent the protected conduct, and thus there is no 

need to perform the second part of the Wright Line

analysis.

342 NLRB at 898 (quoting Golden State Foods Corp., 340 

NLRB 382, 385 (2003)); see also Limestone Apparel Corp., 

255 NLRB 722 (1981) (“[W]here an administrative law judge 

has evaluated the employer’s explanation for its action and 

concluded that the reasons advanced by the employer were 

pretextual, that determination constitutes a finding that the 

reasons advanced by the employer either did not exist or were 

not in fact relied upon.”). Accordingly, the ALJ’s articulation 

of the legal standard comported with the Board’s guidance in 

Rood Trucking.

The Company insists that even if Rood Trucking 

countenances the ALJ’s approach here, that decision 

“contravenes Wright Line” by “preclud[ing] the burden from 

ever shifting” to the Company, resulting in the Board

“mak[ing] a premature declaration of pretext without ever 

considering the employer’s justification for the disciplinary 
16

decision.” 14 Petitioner’s Reply Br. 15-16. To the extent that 

OHL asserts that the ALJ failed to consider the Company’s 

defenses, it has mischaracterized the ALJ’s decision, which 

considered OHL’s proffered reasons and found them to be 

pretextual. To the extent that OHL claims legal error, we 

decline its invitation to overturn Rood Trucking. To begin, 

that decision constitutes the Board’s well-reasoned 

“interpretation of its own precedent” in Wright Line and 

therefore “is entitled to deference.” Ceridian Corp. v. NLRB, 

435 F.3d 352, 355 (D.C. Cir. 2006) (internal quotation marks

omitted). Even absent such deference, however, we perceive 

no conflict between Rood Trucking and the Wright Line test. 

To be sure, Wright Line dictates that an employer may 

rebut the General Counsel’s initial showing of union animus 

by establishing that it “would have taken the same [adverse] 

action [against the employee] in the absence of” the unlawful 

motive. 251 NLRB at 1091. Rood Trucking’s logic is not to 

the contrary. If the Board concludes, as it did here, that the

employer’s purported justifications for adverse action against 

an employee are pretextual, then the employer fails as a 

matter of law to carry its burden at the second prong of 

Wright Line. See Rood Trucking, 342 NLRB at 898. Indeed, 

the Board has articulated the Wright Line framework in 

similar, if not identical, terms in numerous decisions both 

before and since Rood Trucking. See, e.g., Ozburn II, 357 

NLRB at 1456 n.3 (“We agree with the judge that the 

[Company’s] proffered reason for terminating [the employee] 

was shown to be pretextual, and that the [Company] therefore 

failed to rebut the Acting General Counsel’s initial case by 

showing it would have terminated [the employee] in the 

absence of her union support.”); U-Haul of Cal., 347 NLRB 

375, 388-89 (2006), enforced mem., 255 F. App’x 527 (D.C. 

Cir. 2007) (judgment); Golden State Foods, 340 NLRB at 

385; In re Sanderson Farms, Inc., 340 NLRB 402, 402 
17

(2003). Courts, too, have formulated the Wright Line burdenshifting test consistently with both Rood Trucking and the 

ALJ’s decision here. See, e.g., USF Red Star, Inc. v. NLRB, 

230 F.3d 102, 106 (4th Cir. 2000) (“If the Board believes the 

employer’s stated lawful reasons are non-existent or 

pretextual, the [employer’s affirmative] defense fails.”); cf. 

NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 398 (1983), 

abrogated on other grounds by Dir., Office of Workers’ 

Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 

512 U.S. 267 (1994). Because the ALJ correctly adhered to 

the Board’s decisions in Wright Line and Rood Trucking, the 

Board did not err in affirming and adopting the ALJ’s 

articulation of the controlling legal standard. 

2. Final Warning of Jennifer Smith

We next turn to OHL’s contention that the Board 

arbitrarily found that the Company’s asserted justification for 

issuing a final warning to Jennifer Smith—namely, that she 

violated OHL’s Anti-Harassment Policy by calling her 

coworker Stacey Williams a racial slur—“was a mere 

pretext.” ALJ Decision of May 15, 2012, 14 J.A. 746. That 

challenge misses the mark. 

The ALJ determined, and the Board agreed, that Smith 

never used that racial epithet. In reaching that determination, 

the ALJ credited Smith’s testimony that she never called 

Williams any such name because he “found her to be an 

honest [and cooperative] witness.” Id. at 741. Smith’s 

account, the ALJ emphasized, was consistent with the 

accounts of other credible witnesses who observed the 

altercation. Jennifer Smith’s co-worker, Jerry Smith, testified 

that he would have heard the racial slur if Smith had actually 

said it because he was “focused enough on what was going 

on,” but that he did not hear it. Testimony of Jerry Smith, 14 
18

J.A. 266-67. Likewise, Sheila Childress, a co-worker who 

witnessed the altercation from about thirty feet away, stated 

that she did not hear Smith utter the epithet. The ALJ 

expressly discredited Stacey Williams’s testimony that 

Jennifer Smith addressed him with a racial slur because he 

“was a confusing, hostile, and argumentative witness,” whose 

testimony was “disjointed.” ALJ Decision of May 15, 2012, 

14 J.A. 741. The ALJ also found that OHL employee Shirley 

Milan, who corroborated Williams’s account of events, was 

“a biased witness, who previously made an unsubstantiated 

claim that Smith threatened her with a knife, and who also 

conceded that she dislikes Smith.” Id. We decline to disturb 

the Board’s adoption of those credibility findings, which rest 

on substantial record support and are certainly not reversible 

as “hopelessly incredible, self-contradictory, or patently 

unsupportable.” United Servs. Auto. Ass’n, 387 F.3d at 913 

(internal quotation marks omitted); see Monmouth Care Ctr. 

v. NLRB, 672 F.3d 1085, 1091-92 (D.C. Cir. 2012) (declining 

to overturn administrative law judge’s credibility 

determination “based on a combination of testimonial 

demeanor and a lack of specificity and internal 

corroboration”).

OHL nevertheless maintains that, even accepting the 

Board’s factual finding that Jennifer Smith did not use a racial 

slur against Stacey Williams, OHL reasonably believed that 

she did based on the evidence at its disposal, and punished her 

accordingly. Its reasonable belief, OHL claims, was 

sufficient to rebut the General Counsel’s prima facie case of 

anti-union motive at the second prong of the Wright Line 

analysis. In support of that contention, OHL invokes our 

decision in Sutter East Bay Hospitals v. NLRB, 687 F.3d 424 

(D.C. Cir. 2012), where we held that “[i]f [a company’s] 

management reasonably believed [the employee’s] actions 

occurred, and the disciplinary actions taken were consistent 
19

with the company’s policies and practice, then [a company] 

could meet its burden under Wright Line regardless of what 

actually happened.” Id. at 435-36; see also Fort Dearborn, 

2016 WL 3361476, at *6. 

Sutter East Bay is of little aid to OHL because, as the 

Board concluded, “the record establishes that [OHL’s] 

purported belief that Smith used a racial slur was not 

reasonable.” Ozburn III, 359 NLRB No. 109 at *2 (emphasis 

added), incorporated by reference in Ozburn IV, 361 NLRB 

No. 100. The Board found that the credited testimony of 

Jennifer Smith, Childress, and Jerry Smith, outlined above, 

severely undercut the reasonableness of the Company’s belief, 

which was based on the accounts of biased and incredible 

witnesses. Id. In fact, the day before the Company issued 

Jennifer Smith the final warning, Childress furnished to the 

Company a signed statement explaining that she did not hear 

Smith use any racial epithet during the verbal altercation with 

Williams, giving the Company a significant reason to doubt 

Williams’s allegation.

The Board also determined that “credited evidence in the 

record” established “that [OHL] did not believe that the use of 

racial slurs merited discipline.” Id. Most tellingly, that

record evidence showed that OHL supervisor Phil Smith was 

not disciplined at all after hurling highly offensive racial and 

homophobic slurs at employees in front of other managers 

and employees. And several other witnesses testified that use 

of racial slurs was commonplace among the workers at 

OHL’s Memphis warehouses. Based on that and other 

credited record evidence, the Board reasonably inferred that 

OHL acted “inconsistent[ly] in its response to racial slurs”

and “was using its antiharassment policy to target union 

supporters.” Ozburn III, 359 NLRB No. 109 at *2; see also 

infra 23-25. Consequently, the Company cannot avail itself 
20

of Sutter East Bay’s safe harbor, because, as the Board found,

it has not shown that it reasonably believed Jennifer Smith 

used a racial epithet or that “it parceled out discipline as it 

normally would when confronted with the same kind of 

employee misconduct that its managers reasonably believed 

had occurred.” See Fort Dearborn, 2016 WL 3361476, at *6. 

The Board reasonably concluded, consistent with the 

evidence, that, “even assuming [OHL] reasonably believed 

that Smith had used a racial epithet,” the Company “could not 

and did not establish that it would have disciplined her in the 

absence of the union activity.” Ozburn III, 359 NLRB No. 

109 at *2. We owe heightened deference to that wellreasoned assessment of the Company’s discriminatory motive 

and find no basis in the law or record to question the Board’s 

determination that OHL’s proffered reason for disciplining 

Smith was mere pretext. See Fort Dearborn, 2016 WL 

3361476, at *3. 

In sum, substantial evidence supports the Board’s 

findings that Smith never used the alleged racial slur and that 

it was unreasonable for the Company to believe that she did. 

We therefore deny OHL’s petition for review, and grant the 

Board’s cross-application for enforcement, of the Board’s 

decision that OHL’s discipline of Smith violated section 

8(a)(3) and (1) of the Act. 

3. Discharge of Jones

OHL also challenges the Board’s determination that the 

Company’s two putative justifications for terminating Jones 

were pretextual. OHL maintains that it fired Carolyn Jones 

for two legitimate reasons unrelated to her union support and 

activity: (1) she violated the Company’s conduct guidelines 

by fabricating a witness statement that supervisor Phil Smith 

threatened her with the warning, “watch your back”; and (2) 
21

she violated the Company’s Anti-Harassment Policy by 

repeatedly using a racial slur against co-worker Lee Smith. 

The Board found those reasons to be pretextual. We affirm 

that finding. 

a. Discharge Reason # 1: OHL Claims Jones

Fabricated Her Witness Statement

Substantial evidence supports the Board’s conclusion that 

Carolyn Jones did not fabricate her witness statement

regarding Phil Smith’s alleged threat. All four witnesses who 

signed the statement—Annie Ingram, Troy Hughlett, James 

Bailey, and Kedric Smith—confirmed that they heard Phil 

Smith tell Jones that she had better watch her back. And at 

least two of those witnesses, Ingram and Hughlett, credibly 

testified that the witness statement prepared by Jones had 

some text on it before they had signed it, undercutting the 

Company’s suggestion that Jones prepared the witness 

statement only after obtaining the signatures. Kedric Smith 

testified that Jones handed him a blank page to sign, but the 

Board discounted that testimony because it found he had poor 

recall of the pertinent issues. We decline to overturn the 

Board’s well-reasoned credibility findings, which rested on a 

comparison of “testimonial demeanor,” “specificity,” and 

“internal corroboration.” Monmouth Care Ctr., 672 F.3d at 

1091-92. The Board thus reasonably concluded, based on the 

credible evidence, that Jones did not fraudulently manufacture 

her witness statement.

Relying once more on our precedent in Sutter East Bay,

687 F.3d at 435-36, OHL insists that it reasonably believed 

that Jones falsified her statement because all four witnesses 

who signed her statement had given written statements 

confirming that Jones handed them a blank page to sign. But

the Board concluded, based on the credible testimony of 
22

Ingram, Hughlett, and Bailey, that OHL pressured or deceived 

at least the three of them into signing false written statements

to that effect. Ingram testified that that Human Resources 

Manager Evangelia Young interviewed her, gave her a blank 

piece of paper to sign, and subsequently added false text 

about Jones—notably, the very actions of which OHL accuses 

Jones. Bailey testified that Young asked him to sign a 

prepared statement confirming that Jones had given Bailey a 

blank witness statement to sign. Although Bailey admits to 

signing Young’s prepared statement, he testified that he did 

not closely inspect the document because he assumed Young 

was accurately writing “down what [he] said,” and that he 

simply signed it because management’s “constant[]” 

questioning about the incident “stressed [him] out.” 

Testimony of James Bailey, 14 J.A. 139-41. Hughlett 

testified that he signed a statement, prepared by Young, 

declaring that Jones’s witness statement was blank when he 

signed it, but he testified that he did so only because he did 

not want to be questioned any more about the incident and felt 

“pressure[d]” by management to sign the statement. 

Testimony of Troy Hughlett, 14 J.A. 98. Given the ample

testimony suggesting that OHL itself manufactured evidence 

to justify Jones’s termination, the Board had a sound basis for 

concluding that OHL could not reasonably have believed that 

Jones fabricated her witness statement. See Fort Dearborn, 

2016 WL 3361476, at *6 (noting that, to rebut prima facie 

case of anti-union motive, employer must show that it 

“reasonably believed” that misconduct “had occurred”). 

Substantial evidence in the record supports the Board’s 

determination that OHL’s first reason for firing Carolyn Jones 

was pretextual. 
23

b. Discharge Reason # 2: OHL Claims Jones

Repeatedly Used a Racial Slur

We reach the same result with respect to the Company’s 

second putative reason for Jones’s termination—her 

ostensible use of a racial slur against her coworker Lee Smith. 

Although the Board determined that Carolyn Jones did in fact 

use that epithet, it rejected as pretextual OHL’s assertion that 

Jones was fired for that reason. The Board found that OHL 

punished Jones’s infraction far more severely than prior, 

similar infractions by other employees. It pointed in 

particular to the Company’s willingness to overlook racist and 

other offensive statements made by supervisor Phil Smith, 

which the Board found inconsistent with OHL’s decision to 

fire Jones. The Board further concluded that OHL’s 

termination of Jones deviated from the Company’s 

progressive disciplinary policy, which sets forth lesser initial 

penalties for violations like hers. Based on those findings, the 

Board concluded that the Company would not have 

discharged Jones based on her use of a racial slur absent her 

union-related activity. Substantial evidence supports that 

conclusion.

The record evidence confirms that OHL’s punishment of 

Jones was far more severe than the discipline the Company 

imposed on other, similar offenders. As the Board explained, 

in ten prior disciplinary actions involving racial epithets or 

other profane language, OHL issued eight warnings, one 

suspension arising from recidivism, and one discharge arising 

from recidivism and a connected assault. The only other 

employee who was discharged, Ashley Burgess, was a repeat

offender who received a verbal warning for using profanity 

against a supervisor in January 2006 and was fired after 

hurling racial slurs at another employee during a heated 

physical confrontation in September 2010. Unlike Burgess, 
24

Jones was not a recidivist, did not assault, threaten, or 

otherwise physically confront anyone at work, and had never 

before been reported for using vulgar or offensive language. 

In addition, OHL’s willingness to turn a blind eye to the racial 

slurs and offensive remarks of OHL supervisor Phil Smith 

further underscores the unusual harshness of OHL’s discipline

of Jones. As explained above, Phil Smith called an African 

American worker a racial slur and another employee a 

homophobic epithet. Unlike Jones, who received OHL’s 

harshest punishment, however, OHL did not punish Phil 

Smith at all. 

OHL argues that the disciplinary cases evaluated by the 

Board involved employees who committed different offenses 

or were otherwise not comparably situated to Jones. But even 

if none of those cases involved the exact circumstances or the 

same racial epithets involved in Jones’s case, the Board 

deemed them materially similar and held that they 

demonstrated that no other employee who had engaged in 

only verbal misconduct received as severe a punishment for 

an initial infraction as she did. The evidence provides 

substantial support for the Board’s findings that OHL engaged 

in disparate treatment of Jones and that its stated justification 

was mere pretext. See, e.g., Southwire Co. v. NLRB, 820 F.2d 

453, 460 (D.C. Cir. 1987) (holding that absence of evidence 

that employer discharged any other employee for similar 

violation supported finding of pretext); La Gloria Oil & Gas 

Co., 337 NLRB 1120, 1124 (2002) (observing that disparate 

treatment of employees demonstrates pretext).

The record evidence likewise supports the Board’s 

determination that OHL’s termination of Jones deviated from 

the Company’s progressive disciplinary system. The 

Company’s Handbook identifies four forms of discipline, the 

most severe of which is termination. Under the Handbook, 
25

termination may be warranted “[i]n cases in which [less 

severe] disciplinary action has failed to correct unacceptable 

behavior or performance, or in which the performance issue is 

so severe as to make continued employment with OHL 

undesirable.” OHL Handbook, 14 J.A. 649. The Company 

emphasizes that OHL retains discretion under the Handbook 

to “apply any level of discipline . . . without resort to prior 

disciplinary steps.” Id. at 646. The Handbook makes equally 

clear, however, that discipline “will generally be administered 

at the lowest level of severity which will effect correction of 

the problem.” Id. at 649. Rather than adhere to its general

disciplinary norm of starting out with the least severe penalty 

that might accomplish the disciplinary objective, the

Company chose immediately to impose the harshest form of 

discipline on Jones for her remarks, even though she was not 

a recidivist and had not engaged in any violent conduct. 

Accordingly, substantial evidence supports the conclusion 

that the Company deviated from its progressive disciplinary 

procedure, thus bolstering the Board’s finding of pretext. See 

Fort Dearborn, 2016 WL 3361476, at *5 (concluding that 

failure to apply progressive disciplinary policy without 

explanation supports a finding of pretext).

Because substantial evidence supports the Board’s 

determination that OHL’s proffered reasons for firing Jones 

were pretextual, and because its decision is not otherwise 

arbitrary or unlawful, we deny the Company’s petition for 

review, and grant the Board’s cross-application for 

enforcement, of the Board’s decision that OHL’s termination 

of Jones violated section 8(a)(3) and (1) of the Act. 

C. The Company’s Remaining Challenges

OHL challenges the Board’s decisions on several 

additional grounds. It contends that the Board’s 
26

determinations that the Company committed numerous 

section 8(a)(1) violations were unsupported by substantial 

evidence or otherwise erroneous; that the Board abused its 

discretion by imposing three additional remedies;4 and that 

the Board denied OHL due process by affirming the decision 

of an ALJ whom OHL believes harbors pro-union bias. The 

Board then compounded those errors, OHL argues, by 

mistakenly counting Carolyn Jones’s vote in the second 

representation election, failing to count the votes of two 

administrative assistants, rejecting OHL’s election objections, 

and ruling on an amended complaint in the absence of an 

amended unfair labor practice charge. After carefully 

reviewing the Company’s remaining arguments in light of the 

record and applicable legal authority, we conclude that they

lack merit and warrant no further discussion. See United 

States v. McKeever, --- F.3d ---, 2016 WL 3213035, at *13 

(D.C. Cir. June 10, 2016). Accordingly, “we grant without 

amplification the Board’s cross-application for enforcement” 

as to the remaining findings challenged by the Company. 

Stephens Media, LLC v. NLRB, 677 F.3d 1241, 1251 (D.C. 

Cir. 2012); see also Tenneco, 716 F.3d at 647-48.

 4 We lack jurisdiction to consider OHL’s challenges to two of 

the Board’s remedies—the cease-and-desist order and the electronic 

distribution requirement—because the Company did not object to 

those remedies before the Board. See 29 U.S.C. § 160(e); Nova Se. 

Univ. v. NLRB, 807 F.3d 308, 313 (D.C. Cir. 2015); W&M Props. 

of Conn., Inc. v. NLRB, 514 F.3d 1341, 1345 (D.C. Cir. 2008). 
27

* * *

For the foregoing reasons, we deny the Company’s 

petitions for review and grant the Board’s cross-applications 

for enforcement. 

So ordered.