# Unit ed State s Co urt of Appeals

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Arg ued Apr il 23, 2018 Dec ided J une 19, 2018

No. 17-1158

C E L L C O P A R

TN E R S H I P , D / B / A V E R I Z O N W I R

E L E S S , P E TI TI O N E R

v.

N A TI O N A L L A B O R R E L

A TI O N S B O A R

D , R E S P O N D E

N T

C O M M U N I C A TI O N S W O R K E R S O F A M E R

I C A , I N TE R V E N O R

Consolidated with 17-1165

On Petition for Review a

nd Cross-Application for Enf orce ment of an O rder

of the National L abor Rela tions Boar d

Arthur G. Telegen argued the cause for petitioner. W ith him on the br iefs were R o b er t A

. Fisher and N. Skelly Harper.

Barbara A. Sheehy

, Attorney, Na tional Labor Relations Board, argued the cause f o r r es p ondent. On the brief were Peter B. Robb, Gene ral Counsel, Linda Dree ben, Deputy Associate Gene ral Counsel, Usha Dhee nan, Supervisory Attorney, and Jare d D. Cantor, Attorney.2

Be fore : G A R

L A N D , Chief Judge
, P I L L A R D , C i rcuit Judge
, and S I L B E R

M A N , Senior Circuit Judge

. Opinion for the Court filed by S en i o r Circuit Judge S I L B E R M A N

.

S IL B E R M A N , Senior Circuit Judge: I t is rar e that we reje ct

a L abor Boa

rd finding based simply on a lack of substa n t i al evidenc e. This is such a case

. Her e the Boa rd accep t ed an AL J ’s finding that Petitioner Veri z on’s discharg e of an employ ee for ly ing during an i n v es t i gation was a prete x t to rid the company of a prominent union supporter. We conclude that there is insufficient probative evidenc e to support the finding

. We also reje ct the AL J and Boa rd’s alterna tive finding that even if she did lie, it wa s within the context of an inquiry into protec ted ac tivity , and ther efor e immune.

I.

Bia nca Cunningha m was a long- time employ ee of Ver izon who was active in a succe ssful union campa ign for the Communi cation Workers of Americ a at six Ver izon Wireless
stores in Br ookly

n. She worke d at the Be nsonhurst store, and

serve d on the union’s barg aining committee. Victory E s h are turi,

on the other hand, worke d at the Ba y Ridge sto re under supervisor Gra ves. On t h e d ay in question, May 21, 2015, Eshare turi and Gra ves had a falling ou t, leading a fea rful Eshare turi to seek advice from Cunningha m during her lunch brea k. (C unningha

m had previously advised Eshare turi.) She first called Cunningha m, then text ed her asking wh et her she should ask District Manag er Br oomes, Gra ves’ supervisor, fo r permission to leave

. Cunningha m agreed, but said, “I ’m speaking to HR rig ht now s o that will s p ee d i t up.” Eshare turi called Br oomes, who diverted th e conversation into whether3

Eshare turi would pref

er working in a differ ent store. She ended the call by say ing she had “to clock back i n to work.” Meanw hile, Cunningha m text ed, “Don’ t worry about Ry an [Broom es].” But Eshare turi responde d that Br oomes had not g iven her perm ission to leave

. Cunningha m replied, “You can leave
, just make sure y ou e-ma il me.” Eshare turi then clocked out without permission from any one in manag ement.

Gra ves then aler

ted Br oomes that Eshare turi had left without informing any one else. Br oomes tr i ed t o rea ch Eshare turi, leaving a voicemail direc ting her to call him back, but she didn’t – althoug h she did text Cunningha m about Br oomes’ call and sent Cunningha m an e-ma il acc ount o f t h e day ’s events. Finally
, the next evening
, May 22, Eshare turi

answe red another Br oomes ca l l, explaining that the situation with Gra ves had made her uncomforta ble and that Cunningha

m had told h er t h at HR had g iven her permission to leave

. Br oomes wa s surprised, but Eshare turi reiter ated her understanding

.

That day
, Ver izon’s Direc tor of L abor Relations Ulrich and O’Ne il, the union’s repr esenta tive, discussed the matter. O’Ne il

was told that Eshare turi would be place d on paid leave until the issue could be resolved. Ver izon started an investiga tion to deter mine why Eshare turi had left wo rk without authorization and what should be done about it. The parties ag ree that such an investiga tion is normal.

On May 27, Eshare turi told Ver izon Human Resource s employ ees that Cunningha m said it was okay for her t o leave work. Whil e Eshare turi did not know from whom Cunningha m had g otten that permission, she rec alled that Cunningha m “said she wa s g oing to rea ch out to people to g et advice on whether I could g o or not,” and that Cunningha m h ad m enti oned HR. Eshare turi also said numerous times that she had text ed with4

Cunningha m that day
, but that she couldn’t reme mber if the two had talked ove r the phone

.

Ver izon then soug ht to v er i fy this acc ount with C u n ningha

m. Cunningha m, howeve r, said that they had only
sp o k en by phone and had not exchang ed any substantive text messag es. Fur

ther, she flatly denied telling Eshare turi she could leave work:

Verizon: Did y ou ever

tell her . . . to g o home? Cunningham: No. Verizon: Or that somebody else told y ou to tell her to g o home? Cunningham: No.

. . . Verizon: To o u r understanding

. . . from the conver sation that was told to Ry an [Broomes], he mentioned that he was told from Victory [Eshareturi] that y ou said that y ou g ot ap p roval from HR, so I was just wonder ing did y ou kn o w wh ere that would come f

rom? Cunningham: That wa s probably a misunderstanding

.

. . . Verizon: Ok, so never at one time during that conver sation did y ou mention that she should go home or? Cunningham: She asked me my persona l opinion

. . . . That

was my persona l opinion, that wasn’t like a direc tion. I was just
say ing definitely if I felt threa tened or unsafe in m y environment, I

would g o home. Verizon: But y our direc tion was to rea ch out to Ry an? Cunningham: Correc t.

This interview troubled Ver i z o n officia ls, as it direc tly
contra dicted Eshare turi’s acc ount of the events that day

. Five day s afte r this first interview, they called Eshare turi back and
q uestioned her at leng th about her story

. Ver izon repeat ed l y5

asked E s h are turi to voluntarily share the text messag es, which

wer e on her persona l phone, in order to validate her story

. Eshare turi dec lined. Howeve r, when Cunningha m was i n terview ed afte r Eshare turi, she ag ain denied that an y substantive conver sation had occur red over te x t, stating that “[i] t wasn’t conver sations, it was quick stuff like – I ’ll call y ou back

or g ive me a few minutes.” Cunningha m also declined to share the text m essag es with Ver izon.

Ver izon believed Cunningha m. Du ri ng the ten day s afte r this second interview, the company came to the conclusion that Eshare turi had been dishonest during t h e investiga tion about whether she had rec eived permission to leave a nd the nature of her communications. Since she had been clea rly reminded at the
outset of eac h interview of the provision in its Code of Conduct requiring honesty d uring investiga tions, Ver izon decide d, in mid-J une, to t er minate Eshare turi. The company waited until the next barg aining session, in J uly , to inform the union of this decision, so that it could complete an unrela ted investiga tion and deal with both matters in a single meeting

. And then, to comply with an ag ree ment that Ver izon had rea ched with the union establishing a p rotocol for all potential terminations (a process they called an “

Alan Ritchey ” meeting ), the two parties arr ang ed
to meet two wee ks later, on Aug ust 6.

Throug h her union involvement, Cunningha m found out that Eshare turi was fac ing termination for dishonesty about their interac tion. She then decide d to reve al the text messag es to the
company at the Alan Ritchey meeting , and did so afte r Ve rizon stated that it would be firing E s hare turi for her dishonesty

. When they saw the messag es, the Ver izon employ ees wer e taken abac k. Ulrich, for example, testified that the reve lation took him completely

by surprise:6

I was shocke d. I t had been s ever al wee ks that we ha d

seen one story from Victory [Esharetu ri ] and a story from Bia nca [C unningha

m] and I had cre dited the story that Bia nca w as telling . I n fac t, the company cre dited that story and it wasn’t until this conver sation and this sharing of the text m essag es that that story had chang ed. And I had no anticipation that there would be
text messag es share d, that the perc eption that the
company held g oing into that barg aining session would chang e in such a

way

.

After seeing the text s , it beca me clea r that the primary
aspec ts of Eshare turi’s acc ount that had ca u s ed conce rn for Ver izon – t he stateme nts tha t Cunning ham had mentioned HR, that she had g iven Eshare turi permission to leave
, and that the

ex chang e had taken place via text messag e – wer e al l t ru e. Fur ther, they contra dicted Cun n i ng ham’s previously believed

acc ount. And Cunningha m had not only rec eived the same Code

o f Conduct integ rity reminder s at the beg inning of h er interviews that Eshare turi had rec eived, but also had jeopar dized Eshare turi’s empl oy

ment. Ver izon thus turned its inquiry toward Cunning ham’s truthfulness.

Over the next two and a h alf wee ks, Ver izon conducte d

sever al interviews with Cunningha m and Eshare turi, along with i t s own i nterna l delibera tions, in an attempt to understand why C u nningha

m had not provided an acc urate acc ount. I n a meeting on Aug ust 11, Cunningha m asser ted ag ain that most of the substantive interac tion with Eshare turi had occur red over the phone – but she ref

used to provide phone rec ords to back up this

asser tion. Ultimately
, Ver izon Human Resources decide d on 1

Thoug h onl y one ca ll la st ing tw o m inute s had oc cur re d betw ee n 1 the tw o em

plo y ee s b ef

ore al l of the te xting
, Ver iz on d id not y et hav e pro of of this fa ct

.7

Aug ust 23 that Cunningha m had violated the Code of C onduct beca use she “lied multipl e times” during the interviews leading
to Es h areturi’s Alan Ritchey meeting and “made a knowing ly false statement” during the Aug ust 11 interview. Br oomes,

wo rk i n g wi t h Hu m an R e s o u r c e s , re co m m en d ed t h at Cunningha m be terminate d for this Code of Conduct violation,

an d his immediate superior, direc tor of reta il sales Wendy T ac ce tta, testified that this termination was approve d “[f]or ly ing during the investiga tion.” Cunningha m was informed the
next day – eig hteen cale ndar day s afte r she had reve aled the text messag es that narr owly aver ted Eshare turi’s firing – and was subsequently terminated following a proce dural Alan Ritchey meeting

. Eshare turi, on the other hand, rec eived a Final Writt en Warning from Br oomes admonis h i n g her for “lea ving in the middle of y our shift without permission or notificat i o n to manag ement (includi ng failing to call me back befor e leaving
y our shift)” and for “subseque ntly ignor ing my multipl e calls on 5/21 and ig noring my

reque st to call me bac k.”

On Aug ust 12, the day after Cunningha m’s interview, she
text ed to Gra ves, “Hi, Gra ves, i ts Bia nca – these people are on

a witch hunt.” He responde d, “I ’m sure they are – they definitely have a hit list and will use any one who’s down for it.”

On Aug ust 25, the Union filed a char g e with the Boa rd, and the Gene ral Counsel issued a complaint. Significa nt evidentiar

y disputes occur

red during the hear ing. Ultimately
, the AL J held that Ver iz o n h ad violated Section 8(a) (3) of the Act in firing Cunningha m. The Boa

rd aff irmed the AL J
, though it disclaimed8

relianc e on sever al of his fi n dings in a footnote. This petition 2 followed.

II.

Petitioner’s challeng e to the AL J ’s opinion, as adopted by the Boa rd, focuse s on i t s claim that the opinion’s finding that Cunn ingha

m’s discharg e was motivated by anti-union animus

was not supported by substantial evidenc e. To be sure, P eti tioner alterna tively arg ues following the W right Lin e 3
structure that, even i f t he Gene ral Counsel had produce d evidenc e that it had acte d with a discriminatory motive, it could
preva il any

way beca use it has shown that it would have fired Cunningha m i n any event. But it is unnece ssary for us to consider the alterna tive arg ument beca use we conclud e that there is simply a lac k of substantial evidenc e that the discharg e was motivated by

anti-union animus.

T h e evide ntia

ry dispute s ce nter ed on tw o exhibit s, GC- 33 and 2 GC- 49, w hich Ver iz on as se rt s w er e pro te ct ed by at to rne y

- cl ie nt priv il eg e but w er e inadvert en tl y pro duced during disc ov er y

. GC- 33 is a dra ft of th e ad m inis tr at iv e fo rm that w as ulti m at el y use d to te rm inate Cunningham

. GC- 49 is a cha in of em ai ls betw ee n Ulr ic h and Ver iz on’s law

y er s, in w hich the la

tt er pro vi de leg al adv ic e about the te rm inat io n pro ce ss

. The AL J adm it te d thes e to th e re cor d and

re lied upon them in his ana ly si s, and Ver iz on hot ly cha ll eng ed that dec is io n bef

or e us. The AL J not ed that his con clusi on w oul d obt ai n

ev en w it hout GC- 49, and the Boa

rd cho se not to re ly on this co ntes te d

ev idenc e. The Boa

rd al so disc la im ed re li an ce on one piec e of

ev idenc e – a handboo k that w as fo und in a se par ate case to co ntai n unrel at ed vi ol at io ns – that the AL J use d t o justif y a fi nding of anim

us in the fir st

st ep o f it s W

ri ght Line ana ly si s.

W ri ght Line
, 251 NL RB 1083 (1980) es ta bli sh ed a tw o- st ep 3 fr am ew or k that is by now fa

m il ia r to us. S ee, e. g

. , Ozburn- Hes se y Logist ic s, LLC v. NLRB , 833 F.3d 210 , 218 (D.C. Cir . 201 6).9

T h e AL J relied on sever al piece s of evidenc e to support a finding of animus, only three of which were relied upon by the Boa rd

. First, he cited the month-long series of text s betwee n

4 Gra ves and Cunningha m – particula rly Gra ves’ mention that Cunningha m was on a “hit list.” This ref ere n ce t o a figurative “hit list” is not probative of anti-union animus, howeve r, as Gra ves expres s l y t estified that the list “wa sn’t union or nonu n i o n

. ” The AL J failed to identify any rec ord evidenc e – and

we are not awa

re of any – that rebuts this signific ant cave at. I n 5
any event, we hav e h el d that a stray comment by a junior

s u p er v isor who play s no part in a decision to discharg e an employ ee, without more, is of l i t t l e signific ance in measuring evidenc e of anti-union ani m u s

. MECO Corp. v. NLRB
, 986 6 F.2d 1434, 1437 ( D.C. Cir. 1993) . I t is undisput ed that Gr aves

was not involved in any way in the decision to discharg e Cunningha m.

The Boa rd ac ce pted the AL J' s re co mm ended fi nding w it hout 4
pas si ng on the q u est ion w hethe r the tw o exhibit s that Pet it io ner cl ai m ed w ere cov er ed by at to rne y

- cl ie nt priv il eg e w er e pro per ly intr oduc ed. (Mo re abo ut tha t la te r.)

I ndeed, w hen as ke d to suppor t the onl y as se rt io n w it

hin the te xt 5

co nve rs at io ns that did re fe r to th e union – that Ver iz on m ana ge m ent pac ke d Cunningham ' s st or e w it h out sp oken union suppor te rs – Gra ve s expla ined that his onl y so urc e fo r that vi ew w as “Mar k,” a union sho p st ew ar d. This so rt of hea rs ay fr om a union of

fi ci al ca nnot be the bas is fo r a

n anim us fi nding.

Of co urse , if Gra

ve s had te st if

ie d, bas ed on h is insi ght as a 6

m ana ge r, that Ver iz on h ad act uall y m ai ntai ned a hit li st of union
suppor te rs (w hethe r li te ra l or fi gur at iv e)
, that w oul d be ano ther m at te r. But that w oul d go w el l bey ond the ty pe of is ola ted re m ar

ks w e se e her e or in ot

her pre ce dents

. S

ee ME CO
, 986 F.2d at 1435
, 1437 ; Hudson, Inc. , 275 NL RB 874, 874

- 75, 8 78 (198 5).10

The next piece of evidenc e on which the AL J relied is quite
puzz ling. He ascr ibed a bad motive to the company beca use of th e “leng th and brea dth of the investiga tion into the events of May 21.” I t is true that the company proce eded car efully

. After all, it knew t h at C u n ningha m was active in the union, so her discharg e would be controve rsial. But the first delay was for the Alan Ritchey meeting in acc ordan ce with the company ’s
ag ree ment with the union to discuss potential discipline – and at t h at point, it was Eshare turi, not Cunningha m, who was th e subject. I t was not until Cunningha m reve aled the t ex t s at the Aug ust 6 meeting that the company ’s fo cus turned to her truthfulness during th e i nvestig ation. I n short, it was Cunningha m herse lf who was responsible for the extensive delay

. 7

There rema ins only the AL J ’s evalua tion of the company ’s
trea tment of o t h er employ ees in simil ar situations. The AL J deter mined that Ver izon’s trea tment of Cunningha m was out of line with its treatment of other employ ees the Gene ral Couns el

asser ted were dishonest i n circ umstances materially equivalent
to Cunningha m’s but wer e not fired, s ug g esting that Cunningha m was a specia l targ et. Un d er the W right Line fra mework, that sort of evidenc e can discharge the Gene ral Co unsel’s burden of showing anti-union animus. See Fort Dearborn Co. v. NLRB
, 827 F.3d 1067, 1075 (D.C. Cir. 2016). T h e company , for its part, produce d evidenc e that eight employ ees had been fired for dis honesty during investiga tions,

The AL J a ls o poi nted fo r s upport to ev idenc e – in ano ther ca se 7

– inv ol vi ng the co m

pany ’s Code of Conduct

. See Cel lc o Partne rs hip d/b/a Ver iz on W

ir el es s , 365 NL RB No. 38 (2017). The Boa rd,

re al iz ing that

w as unrel at ed, exc is ed tha t fi nding.11

along with unr ebutted testimony that they would not ha ve been discharg ed if they

had not lied. 8

Her e, howeve r, the Gene ral Counsel’s evidenc e is woef ully inadequa te. I n one case , the AL J conclude d that a manag er who

was disciplined had lied during an investiga tion notwithstanding the company ’s conclusion – at the time – t h at s h e misremember ed rathe r than lied. But the issue is not how the AL J would have evalua

ted an individual’s truthfulness in a case he did n ’t h ear. The only question is whether the company excused someone it re asonably believed w as ly ing.

Simi larly
, t h e AL J deter

mined that an employ ee who had claimed to lose company prope rt y h ad actua lly lied. But the

rec ord reve als that the company believed him when he explained he had inadver

tently left it in a trade d-in car ; the employ ee was cited only for his misuse of company p roper ty , not for dishones t y

. And finally
, the AL J pointed to evidenc e that a g roup of employ ees who eng ag ed in misconduct and lied during a subsequent investiga tion were not fired, but the i nvestig ation

reve aled they wer e direc ted to eng ag e in the m i sconduct by
manag ers – a

nd the manag ers we re f

ired.

The AL J d i d n o t find that Petitioner inconsistently trea ted instan ce s o f employ ee dishonesty during investiga tions. He simply put himself in the hy pothetical position of manag ement to deter mine whether he thought he would have conclude d differ ently about whether the underly ing dishonesty exis ted. To be sure, if in the prior case s the company was obviously calling

a spade an ax to avoid apply ing a uniform policy
, that would be

one thing. But we do not see any th i n g l i k e that; the only

The AL J dism is sed th at co unter fa ct ual hy pot hes is as 8 “spec ulat iv e” and “sel f- se rv ing .”12

leg itimate question for the AL J was whether the company applied the policy

rea sonably

consistently

.

To make matters even worse, the AL J examined other dis ci p l i nary case s – not involving dishonesty during an investiga tion – and opined the targ ets should have been d ischarg ed beca

use the employ ees’ conduct was (in his view)

even worse than ly ing during an investiga tion. Her e the AL J is unabashe dly taking on the company ’s business judgme nt chair

– and that has been repe atedly held to be improper. See MECO Corp.
, 986 F.2d at 1438; Sutter East Bay Hospita l s v. NLRB
, 687 F.3d 424, 435- 36 (D.C. Cir. 2016).

I t is clea r that Ver izon has made a leg itimate b usiness judgme nt – a not unusual o n e – that an employ ee ly ing during

an investigat i o n i s a serious threa t to manag ement of the
enter prise. The Boa

rd has no war

rant to challeng e that decision. I ndeed, a nother e x ample of the company ’s policy can be found in the fac ts of this very case

. After all, Pet i t i o ner had deter mined to discharg e Eshare turi, an employ ee with no known particula r union s y

m p athi es, befor e Cunningha m reve aled the evidenc e that vindicated Eshare turi and turned the investiga tion toward he rself.

The Boa rd’s brief arg ues that its rea di n g o f the AL J ’s opi n i o n sug g ests that he didn’t believe Cunningha m actua lly lied, but only “misremembe red.” Ex amining the rele vant dialog ue, we think that conclusion is far fet ch ed

. But in any event, the rele vant question ag ain is not the validity of the AL J ’s business judgme nt but only whether the company ’s judgme nt

was rea sonably consistent. Her e, howeve r, just as in Sutter East Bay
, “[r]ather t han apply ing the W right L ine test by examining [Verizon] ' s rea sonable beliefs and how those beliefs might have13

informed [i ts] disciplinary decisions, the AL J si m p ly rea ched fac tual conclusions about wha t happene d.” 687 F .3d at 436. 9

Although the Boa

rd did not rely at all on the AL J ’s rea ding of company documents that wer e inadver tently turned over and which th e Petitioner claimed wer e cover ed by attorney -client pri v i l ege, if we thought they constituted “smoking g uns,” we might be inclined to rema nd for the Boa

rd to resolve the thorny question whether the company waived the privileg e by t u rn i ng them over to the Gene ral Counsel. But we don’t re gar d t hose documents of signific ance

. The AL J
, draw ing upon them, made much of the timing of the announce d dec i s i o n and who in

m an ageme nt was or was not involved. But to us that s i m p l y ref lects the car e and deliber at en ess that would normally

acc ompany

a contr oversial decision. I t is rea lly not rele vant to the core issue. The AL J also focuse d on the advice g iven by one lawy er t hat the company should be awa re that even afte r discharge, Cunningha

m could rema in on the barg aining committee as evidenc e of anti-union animus. But we think that is unwar rante d. After all, it is undi s p u t ed that the company knew Cunningha m was active in the union. I t is not u n lawful for Ver izon to consider the collater al conseq u ence s of its
p ersonne l decisions, and there is no evidenc e in this ex ch an ge that Cunningha m’s union ac tivity play ed a role in her termination. I t there fore does not, b y i t s elf, ref lect animus
ag ainst Cunningham.

* * *

Chai rm an Mi sci marra ope nly st at ed that his dec is io n not to 9

re ac h the AL J' s ar gum ent in the al te rna ti ve (w hich w e addre ss belo w )

re st ed on his ow

n as se ss m ent that Cunningham had not li ed

. This

re pea ts the s am e e rr or

.14

The AL J alterna tively conclude d that even if Cunningha m lied during the investiga tion, her discharg e violated 8(a) (3) beca use the company ’s questions wer e probing into Section 7 protec ted activity – her discussions with Eshare turi. There fore
, notwithstanding the company ’s policy
, she had no obliga tion to be honest. The implication of that proposition would undermine
any company ’s – not nece ssarily only a unioniz ed one – ability 1 0
t o instit ute a policy like Petitioner’s. I f an employ ee wer e suspected of misbehavior and was questioned, he or sh e could respond, “I spoke to another employ ee, perha ps a union officia l, and ther efor e I

have no oblig ation to answer any questions.”

Of course, em p l oy ees are not oblige d to answe r truthfully if an em p l o y er is rea lly seeking to probe into protec ted actions
as, for instance, in our rec ent case , United Servic es Automobile Ass’n v. NLRB
, 387 F.3d 908 (D.C. Cir. 2004)

. I n that case , an employ ee distributed literature criticizing the co m pany during non-working t ime – an activity protec ted under Republic Aviation Corp. v. NL RB, 324 U.S. 793 (1945). The company quest ioned the employ ee as to who was distributing the literature an d u nder what circ umstances. She resisted

answe ring truthfully and was subsequently fired. There
, the employ er’ s questi o n i n g was intended to enfor ce an illega l nodistribution pol icy . Her e, by contra st, it cannot be thought that the company was illega lly conce rned as to why an employ ee left work without authority

.

The key
, then, i s the employ er’ s motive. See United Servic es , 387 F.3d at 917. Her e there can be no question that the
company was entitled to inquire into the rea son an em p l oy ee walked off the job without manag ement permissio n and

Conc er te d ac ti vi ty , of co urse , ca n oc cur ev en out si de the 1 0

co ntext of a u n ion iz ed busine ss

. See

, e.g. , Inova Heal th Sys te m v. NLRB , 795 F.3d 68, 74 (D.C. Cir. 2015).15

disobey ed instructi o ns to contac t her manag er. There is no indication here that Petitioner was doing an y more than conducting a valid inquiry with no motive to pry into or interfe re with protec t ed activities. To the contra ry , Eshare turi was

re l y i n g on her conver sation with Cunningha m as a defe nse, rathe r than try ing to protec t it fr om disclosure to manag ement. I ndeed, if Cunningha m ha d admitted that she told Esha returi to leave
, there is no indication that Cunningha m w ould ha ve been punished, let alone discha rg ed.

We there fore reje ct the AL J ’s alterna tive holding t h at Ver izon’s questions unlawfully pried into protec ted activity

. Be cause , ag ain, we do not f ind e vidence to suppor

t a finding of anti-union animus, we g rant Ver izon’s Petition f or Review and deny enfor ceme nt of the B oard’ s order

.

So ordered.