1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0188p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

C ATERPILLAR L OGISTICS , I NC ., Petitioner/Cross-Respondent ,

v

.

N ATIONAL L ABOR R ELATIONS B OARD , Respondent/Cross-Petitioner ,

I NTERNATIONAL U NION , U NITED A UTOMOBILE , A EROSPACE AND A GRICULTURAL I MPLEMENT W ORKERS OF A MERICA , Intervening Respondent

. ┐ │ │ │ │ │ │ │ │ │ │ │ │ │ ┘ Nos. 15-1433/1611

On Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board. Nos. 09-CA-110687; 09-CA- 114560; 09-CA-120356; 09-RC-111362. Argued: March 10, 2016 Decided and Filed: July 19, 2016 *
Before: COLE, Chief Judge; MERRI TT and GRIFFIN, Circuit Judges.

_________________ COUNSEL

ARGUED: Joseph J. Torres, WINSTON & ST RAWN LLP, Chicago, Illinois, for Petitioner/Cross-Respondent. Valerie L. Collins, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Responde nt/Cross-Petitioner. Kris tin Seifert Watson, CLOPPERT, LATANICK, SAUTER & WASHBURN, Columbus , Ohio, for Intervening Respondent. ON BRIEF: Joseph J. Torres, Derek G. Barella, Heather S. Lehman, WINSTON & STRAWN LLP, Chicago, Illinois, Mary M. Lenahan, WINS TON & STRAWN LLP, Washington, D.C., for Petitioner/Cross-Respondent. Valerie L. Coll ins, Julie B. Broido, Linda Dreeben, NATIONAL

* This decision was originally issued as an unpublished opinion filed on July 19, 2016. The court has now designated the opinion as one recommended for full-text publication. 

### >Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 2

LABOR RELATIONS BOARD, Wash ington, D.C., for Respondent/Cross-Petitioner. Kristin Seifert Watson, CLOPPERT, LA TANICK, SAUTER & WASHBURN, Columbus, Ohio, for Intervening Respondent.

_________________ OPINION

_________________ MERRITT, Circuit Judge. In this labor relations case, Caterpillar Logistics, Inc. (“Caterpillar”) petitions for review of an or der of the National Labor Relations Board (“the Board”) finding that Caterpillar committed unfa ir labor practices in connection with a 2013 representation election and also unlawfully discharged an employ ee. The Board cross-applies for full enforcement of its order. Reviewing th e administrative record for substantial evidence,
we affirm the Board’s order in full. Ca terpillar’s petition fo r review is thus DENIED , and the Board’s application for enforcement is GRANTED

. I. Factual and Procedural History 1

On September 27, 2013, employees at Caterp illar’s Clayton, Ohio facility voted on whether they would be represented as a union by the United Automobile Workers (“UAW”). The representation election failed; 188 employ ees voted for representation, and 229 voted against. In October 2013, the UAW filed objections to conduct that allegedly violated the National Labor Relations Act (“the Act”) and impacted the election results. Particularly relevant here, the UAW objected to two instances of in terrogation, the creation of the impression of improper surveillance, and the improper announ cements of an employee bonus and new smoking shelters shortly before the vote.
The first alleged instance of interrogation a nd the alleged instance of the creation of an impression of surveillance occurr ed during a workday in late A ugust 2013. The night before, the UAW held its first organizing meeting, with no supervisor s or management personnel in attendance. The following day at work, Caterpill ar supervisor Nick Ew ry approached employee

1 Because we hold that the admini strative fact-finding was suppor ted by substantial evidence, see infra Part II, we primarily rely on those facts in this summary. While we document some major factual disputes here, we ultimately accept the administrative adjudi cators’ resolution of those disputes. Id.Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 3

(and meeting attendee) John Sponsler, who was wo rking alone at the time, and asked Sponsler what he thought about the union. Sponsler explai ned that he favored uni onization but that he
feared retaliation if the union vot e failed. Prior to this encount er, he had never revealed his union support to a manager or supervisor a nd was “extremely nervous about anyone knowing
about” his involvement.
According to Sponsler, Ewry responded that he did “not think [Sponsle r] had anything to worry about,” that “he did not th ink there would be any retaliat ion whatsoever, and that upper management already knew everyone that . . . [w as] involved.” Afterwards, Sponsler spoke to multiple colleagues about his encounter with Ewr y, and told them that he “was afraid that someone had given the company information a nd surveilled [the union] meeting, because of [Ewry’s] comment about upper management knowing everyone . . . involved.”
The second alleged instance of interrogation occurred around the same time. Following a mandatory anti-union meeting organized for em ployees by the management, supervisor Cory Butcher approached employee Marquis Applin wh ile Applin was working alone and proceeded to ask Applin what he thought about the meeti ng and whether he had made a voting decision.
Butcher also said that if the uni on vote succeeded, he would no longe r be able to talk to Applin “one on one.” During the conversation, Applin was “nervous” and “kind of shocked,” and he
later testified that he tried not to indi cate that he was a union supporte r for fear of being fired. Applin would later relay his encounter with Butcher to other Caterpillar employees.
The first alleged instance of an imprope r announcement of an employee benefit came at an employee meeting on September 18, when Cate rpillar General Manager Brian Purcell and Safety Manager Kevin Rivera announced to plant employees a one-time $400 safety bonus, which was ultimately paid out in December 2013. Many employees claim they were first notified of the impending bonus at that meeti ng. Caterpillar argues that it explained to employees in both March and July 2013 that the award was forthcoming upon a successful submission for the company’s “Chairman’s Safety Award.”
The second alleged instance of an improper announcement of an employee benefit came at the same September 18 meeting, when Caterp illar announced to employees for the first timeNos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 4

that it would be constructing covered smoking shelters in the outdoor break areas used by employees that smoked. Since at least 2011, empl oyees had consistently complained about the designated smoking areas in use at the time, whic h were uncovered and diffi cult to reach in bad weather. The smoking shelters were ultimately constructed in March 2014.
The representation election was held on Se ptember 27, and a majority of employees voted against unionization. In October, the UAW filed its objections to the election, alleging interrogation, the impression of surveillance, and the improper announcement of benefits.
On November 14, while the UAW’s objecti ons were pending, Caterpillar held an employee meeting to announce the construction of a guard shack. At the meeting, employee
Michael Craft asked what the sh ack was for. General Manager Purcell responded that the shack was “for guards,” eliciting laughter from the ot her employees present. Purcell’s dismissive response upset Craft, who relayed the incident to two coworkers the next day at work. According to supervisor Jason Brown, who overheard the remarks, Craft told them:
You guys (union supporters) just gained another supporter, I’m sick of the way they treat us in here, He (Brian Purcell) thinks he can treat us like he treated the thugs he managed in Denver, I’m not putti ng up with it anymore, I’m sick of it, that motherfucker is going down now, the gloves are fucking off now . . . . Brown asked Craft why he was upset. According to Brown,
[Craft] stated that he felt embarrassed a nd made out to look f oolish [by Purcell]. [Craft] continued to say that he was for the union now due to the way Brian Purcell is treating the associat es like they were thugs. . . . Mike said that he never meant he wanted to do physical harm to Brian Purcell he just meant that he wanted Brian to be held accountable for his actions towa rds Mike Craft. Brown reported the incident to A ssistant Value Stream Manager John Gruet, who th en reported it to Purcell and Human Resources Manager Jason Mu rphy. Gruet also told them: “I don’t believe Mike is a violent person but he is upset. I don’t be lieve Mike intended phys ical harm . . . .” Nonetheless, Murphy decided to suspend Craft, a nd Purcell later reported the incident to police and terminated Craft’s employment. Craft filed an objection with the Board, arguing that he had
been terminated in violation of the Act. His complaint was consolidated with the UAW’s pending election objections.Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 5

On August 4, 2014, an Administrative Law Judge (“the Judge”) issued a decision finding that Ewry and Butcher had viol ated the Act by inte rrogating employees about union sympathies “during the critical period between the filing of the representation petitio n and the election,” and
that Purcell had violated the Act by announcing the safety bonus and smoking shelters during the critical period. The Judge also found that Michael Craft was discharged in violation of the Act
because his outburst had amounted to protected activity and was not su fficient to forfeit the Act’s protection. The Judge ordered Caterpillar to: reinst ate Craft with back pay; cease and desist from unfair labor practices; and post and distribute a notice advising employees of their rights, acknowledging its violations, and li sting the remedial measures it was taking. The Judge also
ordered that the election results be set aside and a new election held.
On appeal, the Board affirmed the order of the Judge, except to the extent that it also found that Ewry violated the Act by creating th e impression of surveillance and modified the
ordered remedies to reflect th e finding of surveillance.
Caterpillar now petitions for review of the Board’s decision and orde r, arguing that the Board’s order should not be enforced because Caterpillar did not violate the Act through interrogation, the creati on of the impression of surveillan ce, the improper announcement of benefits, or the dismissal of Craft. 2 The Board cross-applies for full enforcement of its order.

II. Discussion

“Our review of the Board’s decision is quite limited.” Torbitt & Castleman, Inc. v.
NLRB , 123 F.3d 899, 905 (6th Cir. 1997). We defer to the Board’s factual determinations if they are supported by substantial evid ence on the record as a whole. 29 U.S.C. §§ 160(e), (f); Universal Camera Corp. v. NLRB , 340 U.S. 474, 477, 488 (1951). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

2 Among its positions, Caterpillar argues that we should review and overturn the Bo ard’s order setting aside the representation election and ordering a new one. It is a well-settled rule, however, that such an order is not “final” and thus is not subjec t to our appellate review. U.S. Elec. Motors v. NLRB , 722 F.2d 315, 320 (6th Cir. 1983) (per curiam) (citing Am. Fed’n of Labor v. NLRB , 308 U.S. 401 (1940); NLRB v. Int’l Bhd. of Elec. Workers , 308 U.S. 413 (1940)) (additional citations omitted). Moreove r, Caterpillar conceded the mootness of this claim in a letter to our Court announcing that the second election had been conducted and a majority of employees again voted against representation. See Bingham v. Nat’l Credit Union Admin. Bd. , 927 F.2d 282, 285 (6th Cir. 1991) (affirming dismissal of claims that petitioners’ concede were moot).Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 6

Dupont Dow Elastomers, L.L.C. v. NLRB , 296 F.3d 495, 500 (6th Ci r. 2002) (citation and internal quotation marks omitted). Our review of fact-finding is even more deferential for credibility determinations: “We will overturn thos e determinations only if they overstep the bounds of reason,” Kusan Mfg. Co. v. NLRB , 749 F.2d 362, 366 (6th Cir. 1984) (citation andinternal quotation marks omitted), or “unless they are inherently unreasonable or selfcontradictory,” Tel Data Corp. v. NLRB , 90 F.3d 1195, 1199 (6th Cir. 1996) (citation and internal quotation marks omitted). The Board’s app lication of law to the facts is also reviewed for substantial evidence, NLRB v. Mead Corp. , 73 F.3d 74, 78 (6th Cir. 1996), and its “[c]onclusions of law are subject to a de novo review, although [we] will uphold the Board’s reasonable interpretation of the [National Labor Relations Act] where Congress has not spoken to the contrary on the same issue.” Dupont Dow Elastomers , 296 F.3d at 500 (citation omitted).

A. Unfair Labor Practices
The National Labor Relations Act guarantees to employees “the right to selforganization, to form, join, or assist labo r organizations, to bargain collectively through representatives of their own choos ing, and to engage in other concerted activ ities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. “It shall be an unfair labor practice for an employe r . . . to interfere with, restra in, or coerce employees in the exercise of [these] rights . . . .” Id. §§ 158(a), (a)(1). An unfair labor practice “occurs when substantial evidence demonstrates that the employ er’s [actions], considered from the employees’ point of view, had a reasonable tendency to coerce.” Dayton Newspapers, Inc. v. NLRB , 402 F.3d 651, 659 (6th Cir. 2005) (citation omitted) . A finding of “actual coercion” is not required. Id. (citation omitted). “In making [an unfair labor practices] determination, the Board
considers the total context in wh ich the challenged conduct occurs a nd is justified in viewing the issue from the standpoint of its impact upon the employees.” NLRB v. Okun Bros. Shoe Store , 825 F.2d 102, 105 (6th Cir. 1987).
1. Interrogation
Coercive interrogation of employees about uni on activities constitu tes an unfair labor practice in violation of 29 U.S.C. § 158(a)(1). NLRB v. E.I. DuPont De Nemours , 750 F.2d 524,Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 7

527 (6th Cir. 1984) (citations omitted). “[T]he basic test for evaluating the legality of an interrogation is ‘whe ther under all of the circ umstances the interrogati on reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act.’” Dayton Typographic Serv., Inc.
v. NLRB , 778 F.2d 1188, 1194 (6th Cir. 1985) (quoting Rossmore House , 269 N.L.R.B. 1176, 1177 (1984)). “When assessing the coercive tendency of an inte rrogation, the [Board] looks at, among other things, the background, the nature of the information sought, the questioner’s identity, and the place and method of interrogation.” Id. (citation omitted).
a. The Interrogation of John Sponsler
The Judge concluded that Ewry’s questioni ng of Sponsler was an attempt to assess Sponsler’s position on unionization in order to repor t it to Caterpillar corporate labor relations official Ron Hassinger, and that such questioning was coercive because it closely followed a management-organized anti-union meeting for employees. The Board agreed with this
conclusion.
Substantial evidence supports the Board’s co nclusion that Sponsler’s questioning of Ewry amounted to coercive interrogation in violation of the Act. This conclusion is supported by: the background of the exchange, in that an anti-uni on meeting had been held the day before and Sponsler’s union support was private; the nature of the informati on sought, in that Ewry clearly sought Sponsler’s position on the un ion; the questioner’s identity, in that Ewry was Sponsler’s supervisor; and the place and method of interroga tion, in that Ewry approached Sponsler on the work floor while Sponsler was alone, a situatio n in which he might have felt more vulnerable than if he had been surrounded by his peers. The Board reasonably concluded that this encounter had a reasonable tendency to coerce. See Allegheny Ludlum Corp. v. NLRB , 104 F.3d 1354, 1359 (D.C. Cir. 1997) (quoting Struksnes Constr. Co. , 165 N.L.R.B. 1062, 1062 (1967)) (“[A]ny attempt by an employer to ascertain employ ee views and sympathies regarding unionism generally tends to cause fear of reprisal in th e mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his [National Labor Rela tions Act] rights.”) (internal quotation marks omitted).Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 8

b. The Interrogation of Marquis Applin
The Judge also concluded that Butcher’s quest ioning of Applin was an attempt to assess Applin’s position on unionization in order to repor t it to Hassinger, and that such questioning was coercive because it closely followed the ma ndatory anti-union meeting for employees. The Board agreed with this conclusion.
Substantial evidence supports the Board’s co nclusion that Butcher’s questioning of Applin amounted to coercive in terrogation in violation of the Act. This conclusion is supported by evidence similar to the evidence supporting the conclusion that Sponsler was coercively interrogated: an anti-union meeting had been held the day before; Butcher clearly sought Applin’s position on the union; Butcher was Applin’s supervis or; and Butcher approached Applin on the work floor while Applin was alone, a potent ially vulnerable setting. See Allegheny Ludlum Corp. , 104 F.3d at 1359; supra Part II.A.1.a.

2. Surveillance
Creating the impression that employees ’ union activities are under surveillance
constitutes an unfair labor practice in violation of 29 U.S.C. § 158(a)(1), see NLRB v. Homemaker Shops, Inc. , 724 F.2d 535, 538, 550 (6th Cir. 19 84), because “employees should be free to participate in union organizing campaigns without the fear that members of management are peering over their shoulders, ta king note of who is involved in union activities, and in what particular ways.” Flexsteel Indus. , 311 N.L.R.B. 257, 257 (1993) . A finding of actual surveillance is not required; “the test for de termining whether an employer has created an impression of surveillance is whether the employ ee would reasonably assume from the statement
that their union activit ies had been placed under surveillance.” Id.
The Board found that Erwy created the im pression of surveillance when, during his discussion of union activities with Sponsler, he said “that upper management already knew everyone that . . . [was] involved.” This finding is supported by substantial evidence. Sponsler
testified that he had a ttended an off-site union meeting the da y before, that he had not publicly indicated support for the union, and that Ewry did not disclose his source of information. The Judge credited Sponsler’s testimony, and Caterpill ar makes no argument th at that credibilityNos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 9

determination overstepped the bounds of reas on or was inherently unreasonable or selfcontradictory.
Thus, Ewry indicated to Sponsler that management was aware of protected labor activities without revealing his source, thereby cr eating an impression that protected activity had been improperly surveilled. See Sam’s Club , 342 N.L.R.B. 620, 620-21 (2004) (“[Manager] Roberts’ telling [employee] Peto that he ‘hea rd Peto was circulating a petition about wages’ leads reasonably to the conclusion that the [employer] had been monitoring Peto’s activities. Peto did not circulate the pe tition openly, and Roberts never revealed how he came by the information.”).
3. Impermissible Promising of Benefits
The promise or conferral of a benefit to em ployees in the run-up to a union election will typically amount to coercion, and thereby an unfair labor practi ce in violation of the Act. See NLRB v. Bailey Co. , 180 F.2d 278, 279 (6th Cir. 1950) (“[T]hrough the promises of . . . economic benefits . . . , the respondent was demons trating to its employees that resort to selforganization was plainly unnecessary. This constituted interference with the exercise by the employees of their right of self-organization and collective bargaining through representatives of their own choosing.”). “[ T]he critical inquiry is whether the benefits were granted for the purpose of influencing the employees’ vote in the election and were of a type reasonably
calculated to have that effect.” United Airlines Servs. Corp. , 290 N.L.R.B. 954, 954 (1988) (citing NLRB v. Exchange Parts Co. , 375 U.S. 405 (1964)). “[U]nless the company can present a legitimate business reason for the timing of its guarantee,” such “a promise [of benefits] will be presumed impermissibly influential.” DynCorp, Inc. v. NLRB , 233 F. App’x 419, 430 (6th Cir. 2007) (citing Bailey Co. , 180 F.2d at 279).
a. The $400 Safety Bonus
The Judge found that there “was no reason fo r Brian Purcell to announce [in September] the fact that employees would be receiving the bonus in December other than to influence them in voting in the representation election” and that “the announcement was motivated by [Caterpillar’s] desire to di scourage unit employees from vo ting for union representation,”Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 10

because there was “no credible evidence that a fi rm decision had been made to pay employees the $400 bonus prior to the filing of the represen tation petition on August 16.” Thus, the Judge found that the announcement of the safety bonus wa s an impermissible benefit amounting to an unfair labor practice in violation of 29 U.S.C. § 158(a)(1). The Board agreed with these findings.
Caterpillar continues to argue that the bonus was first announced in March or July of 2013, when it would not have influenced an im pending representation election. But the Judge credited the testimony of twelve employees w ho recalled no such announcements, and found that even if Caterpillar’s witnesses were credited, th eir testimony would indi cate at most that Caterpillar announced in March or July that it might apply for the bonus, without conclusively
indicated if or when an application would be made. The Board agreed with these findings.
The Board’s findings are supported by substantia l evidence. We agree that “a reasonable mind might accept as adequate [the evidence] su pport[ing]” the Board’s conclusion that even if Caterpillar’s witnesses are cr edited regarding the purported March and July announcements,
these announcements indicated at most that Caterpillar might apply for the safety bonus. Dupont
Dow Elastomers , 296 F.3d at 500 (citation and internal quotation marks omitted). For instance, Value Stream Manager Sara Pahlas testified that then-General Manager Jeff Slocum presented to employees at the March meeting the proposal fo r the safety bonus, reading from a PowerPoint presentation. The PowerPoint presentation that was purportedly displaye d to employees at the meeting says conditionally that a bonus will be paid out to employees “IF AND ONLY IF we are positioned to submit a viable safety program for consideration in the annual ‘Chairman’s Safety Award’ Process.” Likewise, Safety Manager Rive ra testified that, at the July meeting, he “covered the two projects that [he] thought we would be submitting, or we thought we would be submitting for that award.” Assuming these an nouncements were in fact made — which the testimony of the twelve employ ees draws into doubt — adequate evidence suggests they were
conditional at best.
Thus, the Board and the Judge reasonably dete rmined that employees were told for the first time, nine days before the election, that they would be receiving a bonus of $400. The Board and the Judge could have reasonably c oncluded that the bonus was “granted for theNos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 11

purpose of influencing the employees’ vote in th e election and [was] reasonably calculated to
have that effect.” United Airlines Servs. Corp. , 290 N.L.R.B. at 954. And even if the bonus was warranted for business reasons ( like safety), Caterpil lar cannot provide a “l egitimate business
reason for the timing of its guarantee” in order to rebut th e presumption that the announcement of the bonus was impermissibly coervice. DynCorp , 233 F. App’x at 430 (emphasis added). Indeed, the timing of the announcement reinforces the presumption that it was intended to coerce. Although the bonus was to be awarded on the basis of warehouse safety through the end on September 2013, the application was prepared in August, submitted on September 13, and announced of September 18 — just nine days before the electi on. Thus, substantial evidence supports the conclusion that the bonus was impermi ssibly secured “right before an election and sprung on the employees in a manner calcula ted to influence the employees’ choice.” NLRB v. Arrow Elastic Corp. , 573 F.2d 702, 706 (1st Cir. 1978); see also St. Francis Fed’n of Nurses & Health Profs. v. NLRB , 729 F.2d 844, 850 (D.C. Cir. 1984) (“Thus the timing of the announcement of a [benefit] may violate section [158(a)(1)], even though the employer’s initial decision to [provide the benefit] was perfectly legitimate.”)
b. The Smoking Shelters
The Judge found that the promised smoking she lters amounted to a benefit, and that the timing of their announcement was “designed to convince the employees that their demands would be met through direct dealing with [Caterp illar] and that union repres entation could in no way be advantageous to them.” The Judge thus found that the announcement of smoking
shelters amounted to an unfair labo r practice in violation of the Ac t. The Board agreed with the Judge’s conclusions.
Substantial evidence supports the Board’s conclusion that the a nnouncement of smoking
shelters amounted to an unfair labo r practice in violation of 29 U.S. C. § 158(a)(1). The shelters were a solution to a problem that Caterpillar em ployees had complained of for a long time, and the shelters were announced for the first time shortly before the election. That the shelters were purportedly a response to safety concerns a bout uncovered smoking area s does not necessarily mean that there was a “legitimate business r eason for the timing” of their announcement.Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 12

DynCorp. , 233 F. App’x at 430; see St. Francis Fed’n of Nurses & Health Profs. , 729 F.2d at
850.
The timing here indicates that neither safe ty nor any other legitimate purpose was the primary reason for the announcement that shelters would be constructed, a nd that in fact the announcement was “for the purpose of influencing the employees’ vote in the election and [was] of a type reasonably calculated to have that effect.” United Airlines Servs. Corp. , 290 N.L.R.B. at 954. Specifically, employees had complained for years about the exposed outdoor smoking areas, but no action was taken to address the issue until the shelters were announced nine days
before the election. Further unde rcutting the purported safety ratio nale is the f act that the
shelters were not in fact constructed until Ma rch of 2014, forcing empl oyees to endure another winter in the exposed smoking areas. The Bo ard’s conclusion that the announcement of the
shelters amounted to an unfair labor practice is ther efore supported by subs tantial evidence.
B. The Discharge of Michael Craft
The Act prohibits “discrimination in regard to hire or tenure of em ployment or any term or condition of employment to encourage or discourage membership in any labor organization . . . .” 29 U.S.C. §§ 158(a), (a)(3). But an em ployee who engages in “opprobrious conduct” can forfeit these protections. Atlantic Steel Co. , 245 N.L.R.B. 814, 816 (1979). “It is well established that ‘although employees are permitte d some leeway for impulsive behavior when engaged in concerted [organizing] activity, this leeway is balanced against an employer’s right to maintain order and respect.’” DaimlerChrysler Corp. , 344 N.L.R.B. 1324, 1329 (2005) (quoting Piper Realty , 313 N.L.R.B. 1289, 1290 (1994)). “Where an employee engages in indefensible or abusive misconduct during otherwise protected activity, the employee forfeits the Act’s protection. Whether the Act’s prot ection is lost depends on a balanc ing of four f actors: (1) the place of the discussion between the employee and the employer; (2) the subject matter of the discussion; (3) the nature of the employee’s out burst; and (4) whether th e outburst was, in any way, provoked by an employer’ s unfair labor practice.” Id. (citing Atlantic Steel Co. , 245 N.L.R.B. at 814). Although the Board’s findings of fact and a pplication of law to fact are
otherwise reviewed for substantial evidence, see Universal Camera , 340 U.S. at 477, 488; Mead Corp. , 73 F.3d at 78, the Board’s determination of whether an employee has forfeited theNos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 13

protections of the Act is conclusive “unl ess it is illogical, arbitrary, or unreasonable,” NLRB v. Honda of Am. Mfg., Inc. , 73 F. App’x 810, 813 (6 th Cir. 2003) (citing NLRB v. Hartmann Luggage Co. , 453 F.2d 178, 183-84 (6th Cir. 1971)).
Here, the Judge determined that Craft wa s involved in protecte d activity during his outburst by telling his cowo rkers that he was a uni on supporter because of wh at he interpreted as his employer’s disrespectful treatment of employees . The Board agreed with this conclusion. The Judge also assessed the outburst according to the Atlantic Steel factors, and determined that Craft had not forfeited the Act’s protectio ns. Specifically, he concluded that:
[T]he place of the discussion, on the warehouse floor cuts both ways. Craft disrupted work for a very brief period of time. On the other hand, the seriousness of his misconduct is somewhat lessened by the fact that Br ian Purcell was not present when he made his remarks. . . . Moreover, Craft’s statement was not accompanied by any threatening physical gestures . . . which also weighs in favor of a finding that he did not lose the Act’s protection. [T]he subject of the discussion: Craft’s newly discovered support for the Union cuts in favor of a finding that he did not lose the protection of the Act. [The nature of the outburst] is the most important. Without the first sentence, Craft’s statements are certainly a threat which would lose him the protection of the Act. However, the M-fer going down, the gloves are off has to be placed in context. The statement makes no sense if one interprets it as I am going to kill or a ssault Brian Purcell and then support the Union . . . . [Provocation:] Pu rcell certainly did not provoke Craft by committing any unfair labor practice. . . . Ho wever, I conclude that this is an insufficient reason to deny Craft the protec tion of the Act in view of the other factors. Thus, the Judge found that Craft had been “discrim inatorily discharged” for engaging in behavior protected by the Act, and ordered his reinstatemen t. The Board also agreed with the conclusion that Craft had not forfeited the Act’s protec tions and was entitled to reinstatement.
Because Craft’s outburst to his colleague s was an expression of union support and a complaint about perceived working conditions, the Board’s determination that it amounted to protected activity under the Act is s upported by substantial evidence. See 29 U.S.C. § 157 (“Employees shall have the right to self-organization, to form, joi n, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collect ive bargaining or other mutual aid or prot ection . . . .”).Nos. 15-1433/1611 Caterpillar Logistics, Inc. v. NLRB Page 14

Moreover, we find nothing “illogical, arbi trary, or unreasonabl e” about the Board’s application of the Atlantic Steel factors and determination that Craft did not forfeit the Act’s protections. Craft’s outburst wa s plainly an expression of uni on support and a complaint about perceived working conditions, and while it may we ll have been crudely stated, it can reasonably be viewed in context as metaphorical sp eech rather than th reatening speech. See Kiewit Power
Constructors Co. v. NLRB , 652 F.3d 22, 28 (D.C. Cir. 2011) (“Once we acknowledge that the employees were speaking in metaphor, the [Board’s ] interpretation is not unreasonable. It is not at all uncommon to speak of verbal sparring , knock-down arguments, shots below the belt, taking the gloves off, or to use other pugilistic argot without meaning actual fisticuffs. What these words stand for, of course , is a matter of context.”).
As such, we uphold the Board’s determinati on that Craft was improperly dismissed for engaging in expression protected by the Act, a nd that Caterpillar must reinstate him.

III. Conclusion
For the foregoing reasons, Caterpillar’s petition for review is DENIED , and the Board’s cross-application for full enforcement of its order is GRANTED

.