National Labor Relations Board v.  Air Contact Transport Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v. No. 03-2513 
AIR CONTACT TRANSPORT
INCORPORATED,
Respondent. 
On Application for Enforcement of an Order of
the National Labor Relations Board.
(5-CA-29322)
Argued: March 7, 2005
Decided: April 11, 2005
Before WILKINS, Chief Judge, and WILLIAMS
and TRAXLER, Circuit Judges.
Application for enforcement granted by published opinion. Judge
Williams wrote the opinion, in which Chief Judge Wilkins and Judge
Traxler joined.
COUNSEL
ARGUED: Steven R. Weinstein, BECKER MEISEL, L.L.C., Living-
ston, New Jersey, for Respondent. David S. Habenstreit, NATIONAL
LABOR RELATIONS BOARD, Office of the General Counsel,
Washington, D.C., for Petitioner. ON BRIEF: Arthur F. Rosenfeld,
General Counsel, John E. Higgins, Jr., Deputy General Counsel, John

-- 1 of 13 --

H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Dep-
uty Associate General Counsel, Jeffrey M. Hirsch, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Petitioner.
OPINION
WILLIAMS, Circuit Judge:
The National Labor Relations Board (Board) seeks enforcement of
an order against Air Contact Transport, Inc. (Air Contact). The order
concluded that Gary Goode (Goode), a former Air Contact employee,
had engaged in protected concerted activities under § 7 of the
National Labor Relations Act (NLRA or Act), 29 U.S.C.A. § 157
(West 1998), by asking management questions on behalf of himself
and his coworkers, despite the fact that he asked the questions in a
"loud" and "boisterous" manner. It also concluded that Air Contact’s
letter to Goode, which informed him that his manner of speaking was
unacceptable to it, reasonably tended to coerce him from exercising
his § 7 rights in violation of § 8(a)(1) of the NLRA, 29 U.S.C.A.
§ 158(a)(1) (West 1998). Finally, it concluded that Goode’s termina-
tion for failing to acknowledge the letter also violated § 8(a)(1). For
the reasons that follow, we grant the application for enforcement.
I.
Air Contact, a freight transportation company, employed Goode as
a delivery truck driver at its Lorton, Virginia terminal. On August 10,
2000, Air Contact held a going-away party for one of its employees
at a local restaurant. Vince DeCarlo, Air Contact’s General Manager,
attended the party. As the party was winding down, DeCarlo, as he
customarily did at employee functions, asked the employees still pres-
ent if they had any questions on work-related matters. Goode raised
his hand and asked a number of questions pertaining to pay and bene-
fits "on behalf [of himself] and other co-workers." (J.A. at 18.) Goode
began talking in a "loud" and "boisterous" voice in the course of the
ensuing discussions, which lasted about an hour. (J.A. at 81, 217).
While DeCarlo was responding to one of Goode’s questions, Goode
muttered "baloney" to a fellow employee, (J.A. at 100), but there is
2 NLRB v. AIR CONTACT TRANSPORT INC.

-- 2 of 13 --

no evidence that DeCarlo either heard or later became aware of this
statement.1
On Friday, September 22, 2000, over a month after the going-away
party, DeCarlo sent a letter to Goode responding to the substance of
the pay-related questions Goode asked at the restaurant. The letter
also addressed what DeCarlo perceived as the disrespectful tone of
Goode’s voice. The letter stated Goode was "very public in [his] loud
voicing of [his] discontent" and that the "challenging, loud, animated
and insubordinate tone [was] embarrass[ing to DeCarlo]." (J.A. 351.)
The letter suggested Goode should "survey other companies" because
"[i]t is possible that somewhere there is something better or more
attractive." (J.A. 351.) The letter also stated, however, "[i]t is your
absolute right to talk to whomever you please regarding pay and ben-
efit related issues. . . .[W]e always appreciate well-intended and help-
ful input." (J.A. at 351.) DeCarlo instructed Mike Rish, Goode’s
immediate supervisor, to ensure that Goode signed the letter as an
acknowledgment of his receipt and understanding of it. Goode refused
to sign the letter, asserting that he did not agree with DeCarlo’s asser-
tions that he had been insubordinate at the party.
On Friday, September 29, 2000, Bradford Honingsberg, Air Con-
tact’s president, called Goode at home to discuss why Goode had not
signed the letter, which Honingsberg called a "reprimand". (J.A. at
37.) During this conversation, Goode again refused to sign the letter
and maintained that he did not agree with the assertions therein. Hon-
1While Goode testified that he spoke loudly only because the restau-
rant was noisy, there was testimony from one of Goode’s coworkers that
Goode was not simply speaking loudly because of the background noise
in the restaurant but rather that he also became "boisterous" in the course
of the discussion with DeCarlo. (J.A. at 217.) The ALJ failed to resolve
this factual dispute. While we do not approve of the ALJ’s failure to
make specific findings of fact on disputed issues relevant to resolution
of Goode’s claim, we do not believe that remand for such findings is
warranted here. Instead, we will assume that the ALJ resolved this dis-
pute by viewing the facts in the light most favorable to Air Contact, the
party against whom enforcement is sought, and do the same. See Sun
Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234, 239 (3d Cir.
1979) (viewing facts in the light most favorable to the claimants when
reversing ALJ’s decision awarding relief to claimants).
3 NLRB v. AIR CONTACT TRANSPORT INC.

-- 3 of 13 --

ingsberg informed Goode that if he did not sign the letter, Air Contact
would be "cutting ties" with him. (J.A. at 386.) Upon hearing this
statement, Goode hung up the phone. On Monday, October 2, Goode
reported to work, and Rish informed him that he had been fired.
Goode filed a charge with the Board, and a complaint issued
against Air Contact. An ALJ conducted a hearing on the matter, and,
on July 31, 2002, issued an order in Goode’s favor. First, the ALJ
concluded that Goode had engaged in protected activity under § 7 at
the restaurant. Second, the ALJ concluded that Goode did not lose the
protections of § 7 by his manner of speaking. Third, the ALJ con-
cluded that the September 22 letter was "disciplinary" and therefore
tended to coerce Goode from taking further protected activity in vio-
lation of § 8(a)(1). Fourth, the ALJ concluded that Air Contact also
had violated § 8(a)(1) by terminating Goode. With respect to this
fourth conclusion, the ALJ found that Air Contact had impermissibly
fired Goode under Wright Line, 251 N.L.R.B. 1083 (1980) (applying
a burden-shifting proof scheme to cases involving allegations of
unlawful motive), enforced 662 F.2d 899 (1st Cir. 1981), approved in
NLRB v. Transp. Mgm’t Corp., 462 U.S. 393 (1983), as modified in
Office Workers’ Comp. Programs v. Greenwich Collieries, 512 U.S.
267, 276-78 (1994), because Air Contact did not rebut the prima facie
§ 8(a)(1) case of unlawful termination. In addition, the ALJ found that
Air Contact’s termination of Goode was unlawful under Kolkka
Tables, 335 N.L.R.B. 844 (2001) (holding that a discharge is unlawful
if it resulted from a refusal to comply with an employer’s order that
itself interfered with the employee’s § 7 rights), because the Septem-
ber 22 letter was unlawful, thus making Goode’s failure to sign it an
improper basis for his discharge.
On September 30, 2003, the Board affirmed the ALJ’s findings in
whole and his conclusions as modified. With respect to the ALJ’s
fourth conclusion—that Air Contact’s termination of Goode violated
§ 8(a)(1)—all three members of the Board affirmed under Kolkka
Tables, while one member also would have affirmed on the ground
on which the ALJ relied, i.e., that Air Contact did not rebut the prima
facie case under Wright Line. The Board’s order required Air Contact
to reinstate and reimburse Goode.
On December 12, 2003, General Counsel to the Board filed an
application for enforcement, which Air Contact opposed.
4 NLRB v. AIR CONTACT TRANSPORT INC.

-- 4 of 13 --

II.
In contesting the Board’s application for enforcement, Air Contact
concedes that the content of Goode’s speech was protected but argues
that there was not substantial evidence in the record to support the
Board’s conclusions that (1) Goode did not lose the protections of the
NLRA by his manner of speaking at the party, (2) the September 22
letter was coercive, and (3) the termination of Goode for failing to
sign the letter was unlawful. The Board’s legal interpretations of the
NLRA are entitled to deference so long as they are "rational and con-
sistent" with the Act. Consol. Diesel Co. v. NLRB, 263 F.3d 345, 352
(4th Cir. 2001) (quoting NLRB v. Curtin Matheson Scientific, Inc.,
494 U.S. 775, 787 (1990)). We must affirm the Board’s factual find-
ings if they are "supported by substantial evidence on the record con-
sidered as a whole." 29 U.S.C.A. § 160(e) (West 1998); Consol.
Diesel, 263 F.3d at 351. Likewise, we review mixed questions for
substantial evidence where the Board’s legal interpretations are other-
wise valid. See Wal-Mart Stores, Inc. v. NLRB, 173 F.3d 233, 240
(4th Cir. 1999). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Alpo Petfoods, Inc. v. NLRB, 126 F.3d 246, 250 (4th Cir. 1997) (inter-
nal quotation marks omitted). "If such evidence exists, we must
uphold the Board’s decision ‘even though we might have reached a
different result had we heard the evidence in the first instance.’" Id.
(quoting NLRB v. Gen. Wood. Preserving Co., 905 F.2d 805, 810 (4th
Cir. 1990))
With these principles in mind, we turn to Air Contact’s arguments.
A.
Air Contact does not quarrel with the Board’s conclusion that the
content of Goode’s speech at the party was concerted, and therefore
protected, activity under § 7. Rather, it contends that the Board erred
in concluding that the manner in which Goode spoke was also pro-
tected. In particular, it argues that because Goode became loud and
boisterous while asking his otherwise-protected questions, his conduct
was so insubordinate as to remove the protection of § 7. We disagree.
Section 7 of the NLRA provides that employees "have the right to
self-organization . . . and to engage in other concerted activities for
5 NLRB v. AIR CONTACT TRANSPORT INC.

-- 5 of 13 --

the purpose of . . . mutual protection." 29 U.S.C.A. § 157. In NLRB
v. Washington Aluminum Co., 370 U.S. 9 (1962), the Supreme Court
examined whether an employee’s insubordinate conduct undertaken
in the course of other activity protected by § 7 can remove the protec-
tions of that section. In Washington Aluminum, the employer had
refused to provide adequate heating in its workplace. Id. at 10-11. On
a particularly cold day, a group of employees organized and walked
off the job, and the employer discharged them. Id. at 11-12. The
employer argued that it did not terminate the employees because of
their concerted activity, but rather because they had violated its
absentee policy by leaving work. Id. at 16. The Supreme Court
rejected this argument, noting:
It is of course true that § 7 does not protect all concerted
activities . . . . [But] the activities engaged in here do not fall
within the normal categories of unprotected concerted activ-
ities such as those that are unlawful, violent, or in breach of
contract. Nor can they be brought under this Court’s more
recent pronouncement which denied the protection of § 7 to
activities characterized as "indefensible" because they were
found to show a disloyalty to the worker’s employer which
this Court deemed unnecessary to carry on the workers’
legitimate concerted activities.
Id. at 17 (footnotes omitted).
In NLRB v. Waco Insulation, Inc., 567 F.2d 596 (4th Cir. 1977), we
had occasion to apply Washington Aluminum. In Waco Insulation, an
employee, speaking on behalf of his coworkers, requested a raise
from the employer. Id. at 598. The tenor of the conversation "esca-
lated and became heated," and the employee was later fired. Id. at
599. The employer asserted that the employee’s insubordination, as
evidenced by the heated conversation, made his request for a raise
unprotected under § 7. Id. We rejected this argument, concluding
instead that "while perhaps imprudent, [the employee’s] conduct was
not unlawful, violent, in breach of contract, or indefensible. . . .
Although the discussion became loud, this alone was not enough to
constitute insubordination." Id. at 599 (emphasis added). See also
Anheuser-Busch, Inc. v. NLRB, 338 F.3d 267, 280 (4th Cir. 2003)
(noting that "an employee . . . can lose [§ 7’s] protections if his con-
6 NLRB v. AIR CONTACT TRANSPORT INC.

-- 6 of 13 --

duct is so egregious as to take it outside the protection of the Act, or
of such a character as to render the employee unfit for further service"
(internal quotation marks omitted)). Cf. Media Gen. Operations, Inc.
v. NLRB, 394 F.3d 207, 211-13 (4th Cir. 2005) (holding that an
employee who called his employer a "racist," "b_____d," and "red-
neck son-of-a-b___h" fell outside of § 7 because he committed acts
"of such a serious character as to render [him] unfit for further ser-
vice" (internal quotation marks omitted)).
The Board concluded that Goode’s conduct was not so egregious
as to remove him from § 7. There is substantial evidence in the record
to support this conclusion. In the course of his undisputedly protected
activity, Goode simply became loud and boisterous. Such actions
alone are not enough to make § 7 inapplicable. See Waco Insulation,
567 at 599. Goode did not curse at DeCarlo, cf. Media General, 394
F.3d at 213, and the record supports the Board’s conclusion that his
behavior, while perhaps imprudent, was neither "indefensible," Wash-
ington Aluminum, 370 U.S. at 17, nor "egregious," Anheuser-Busch,
338 F.3d at 281. We therefore affirm the Board’s conclusion that
Goode’s conduct was protected by § 7.
B.
Air Contact’s second argument is that even if Goode’s actions at
the restaurant were protected under § 7, its September 22 letter did
not violate § 8(a)(1) because it was not a "disciplinary" letter. Instead,
it argues, the letter was a friendly "counseling" letter because it did
not take or threaten adverse employment action against Goode, and
therefore was not coercive. We again disagree with Air Contact.
Section 8(a)(1) of the NLRA makes it unlawful for an employer "to
interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in [§ 7]." 29 U.S.C.A. § 158(a)(1). Our test for
determining whether an employer violates § 8(a)(1) is "whether,
‘under all of the circumstances, the employer’s conduct may reason-
ably tend to coerce or intimidate employees’" from exercising their
§ 7 rights. Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 745 (4th
Cir. 1998) (quoting NLRB v. Grand Canyon Mining Co., 116 F.3d
1039, 1044 (4th Cir. 1997). "[T]he test is not whether the employer’s
7 NLRB v. AIR CONTACT TRANSPORT INC.

-- 7 of 13 --

action was coercive in fact, but whether it reasonably tends to coerce
or deter the exercise [of protected rights]." Id.
We note that the case law draws a distinction between "counseling"
and "disciplinary" measures taken by employers against employees in
some situations. See, e.g., Davis v. Town of Lake Park, Florida, 245
F.3d 1232, 1240 (11th Cir. 2001); Whirlpool Corp., 337 N.L.R.B.
726, 739 (2002). A counseling measure expresses "concern and criti-
cism," without having any "tangible consequences" on the "terms and
conditions" of employment, Davis, 245 F.3d at 1240, while a disci-
plinary measure is a "reprimand" that can either have, or be the foun-
dation for future, tangible effects on the terms and conditions of
employment. Id.; Whirlpool Corp., 337 N.L.R.B. at 739. The cases
turning on this distinction, however, apply it while interpreting either
42 U.S.C.A. § 2000e-2 (West 2003) or § 8(a)(3) of the NLRA, 29
U.S.C.A. § 158(a)(3) (West 1998). Davis, 245 F.3d at 1240 (Section
2000e-2); Whirlpool Corp., 337 N.L.R.B. at 739 (Section 8(a)(3)).
Section 2000e-2 makes it unlawful "to discriminate against any indi-
vidual with respect to his compensation, terms, conditions, or privi-
leges of employment" on the basis of membership in a protected
class. 42 U.S.C.A. § 2000e-2(a)(1) (emphasis added). Likewise,
§ 8(a)(3) prohibits "discrimination in regard to hire or tenure of
employment or any term or condition of employment to encourage or
discourage membership in any labor organization." 29 U.S.C.A.
§ 158(a)(3) (emphasis added). As the court in Davis and the Board in
Whirlpool Corp. concluded, it is reasonable to interpret these sections
to provide that an adverse employment action that merely counsels
the employee is not in violation of law, even if the employer has
unseemly motives, where the adverse action does not actually affect
the terms or conditions of employment. Davis, 245 F.3d at 1240;
Whirlpool Corp., 337 N.L.R.B. at 739.
The reasoning underlying the distinction between counseling and
disciplinary measures in cases interpreting §§ 2000e-2 and 8(a)(3),
however, does not apply under § 8(a)(1), which does not address
employer interference with the terms or conditions of employment,
but rather provides redress for any employment action that tends to
coerce an employee not to engage in § 7 activities. See 29 U.S.C.A
§ 158(a)(1) (making it unlawful "to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in [§ 7]"). Under
8 NLRB v. AIR CONTACT TRANSPORT INC.

-- 8 of 13 --

our legal standard interpreting § 8(a)(1), a so-called "counseling"
measure, while not affecting the terms or conditions of an employee’s
job, could nevertheless coerce an employee from exercising his § 7
rights. Whether an employment action is labeled as "counseling" or
"disciplinary" is therefore not dispositive. Rather, in analyzing claims
under § 8(a)(1), the issue is not the label placed on the employer’s
action, but whether the action tends to coerce vel non. See e.g., Fair-
field Community Hosp., 311 N.L.R.B. 401, 405 (1993) (holding that
a report from the employer to the employee that did not create or
threaten discipline was coercive in violation of §8(a)(1), but did not
violate § 8(a)(3) because it did not affect the terms or conditions of
employment).
While these labels are therefore not outcome determinative, they
may nevertheless be useful in § 8(a)(1) cases. As discussed, the Board
need not find that the employer took a disciplinary measure against
the employee on the basis of the employee’s protected activity to con-
clude that the employer violated § 8(a)(1). A finding that the
employer did take such action, however, requires a finding that the
employer coerced in violation of § 8(a)(1). When an employer takes
a disciplinary measure against an employee on the basis of his partici-
pation in protected activity—a measure that affects the terms and con-
ditions of the employment—that measure necessarily coerces the
employee from engaging in protected activities. See Medeco Sec, 142
F.3d at 747 n. 4 ("a Ԥ 8(a)(3) violation necessarily involves a deriva-
tive violation of § 8(a)(1)’" (quoting Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 698 n. 4 (1983))). By definition, then, a disci-
plinary measure targeting protected activity coerces in violation of
8(a)(1). Id.
Here, the Board concluded that the September 22 letter was a disci-
plinary, and not a counseling, measure, and that it therefore violated
§ 8(a)(1). While we believe that this is a close case, we hold that the
conclusion that the letter was disciplinary is supported by substantial
evidence. The letter sharply criticized Goode’s actions at the restau-
rant and informed him that he should "survey other companies"
because "[i]t is possible that there is something better or more attrac-
tive." (J.A. at 351.) The Board concluded that this language "clearly
indicated that Goode’s conduct was incompatible with continued
employment [at Air Contact]" and, therefore, could have served as the
9 NLRB v. AIR CONTACT TRANSPORT INC.

-- 9 of 13 --

grounds for future termination. (J.A. at 387 n. 8.) This conclusion is
buttressed by the fact that Air Contact went to great lengths—even
calling Goode at home—to ensure that Goode signed the letter, and
ultimately terminated him for failing to do so. Moreover, Honings-
berg himself informed Goode that the letter was a "reprimand," (J.A.
at 37), and DeCarlo testified before the ALJ that the memo was of the
"disciplinary-type," (J.A. at 251). This evidence is inconsistent with
a finding that the letter was simply a counseling measure. We there-
fore conclude that there was substantial evidence in the record to sup-
port the Board’s conclusion that the September 22 letter was
disciplinary, and therefore coercive in violation of § 8(a)(1).
Air Contact points out that the letter also stated that Goode had an
"absolute right to talk to whomever [he] please[d] regarding pay and
benefit related issues." (J.A. at 351.) It argues that this portion of the
letter clarifies that the purpose of the letter was not to coerce Goode
from engaging in protected speech, but rather to criticize the manner
in which he did so. But this is nothing more than a rephrasing of its
argument that Goode’s conduct was unprotected under § 7. A letter
that attempts to distinguish between an employee’s protected discus-
sion and his conduct, which we have held is also protected, is no less
coercive than one that fails to make such a distinction. As we have
noted in a parallel context, "[w]ere we to conclude otherwise, the stat-
utory guarantee [of § 7] would be eviscerated. There would be noth-
ing left of § 7 rights if every time employees exercised them in a way
that was somehow offensive to someone, they were subject to coer-
cive proceedings . . . ." Consol. Diesel, 263 F.3d at 354. We therefore
again reject Air Contact’s argument that its purported distinction
between protected and unprotected activity has any basis in law on
the facts of this case.2
2An employer whose actions are coercive does not necessarily violate
§ 8(a)(1). Rather, the employer may justify his coercion by offering a
"substantial and legitimate business reason [for the coercion] that out-
weighs the employee’s § 7 rights." Medeco Security Locks, Inc. v. NLRB,
142 F.3d 733, 745 (4th Cir. 1998). "It is only when the interference with
§ 7 rights outweighs business justification for the employer’s action that
§ 8(a)(1) is violated." Textile Workers Union of Am. v. Darlington Mfg.
Co., 380 U.S. 263, 269 (1965). Other than to suggest that its criticism of
Goode in the September 22 letter was warranted by his behavior, Air
10 NLRB v. AIR CONTACT TRANSPORT INC.

-- 10 of 13 --

C.
Air Contact’s final argument is that the Board erred in finding
Goode’s termination violated § 8(a)(1). In particular, it argues that the
Board’s legal analysis was erroneous because it applied Kolkka
Tables, not Wright Line, to the claim. Some background information
is useful to understand why we reject this argument.
In Kolkka Tables, an employer instructed its employee to remove
union stickers from his personal lunch box. 335 N.L.R.B. at 848. The
employee refused, and the employer suspended him. Id. The
employee refused to leave the premises, and the employer had the
police escort him off the property. Id. Before the Board, the employee
asserted that the employer violated § 8(a)(1) by suspending him. In
response, the employer argued that the employee was insubordinate
both in failing to remove the stickers and in failing to leave the prem-
ises. The Board rejected the employer’s response, finding first that
having the stickers on his lunch box was protected activity under § 7.
Id. at 849. Second, it found that the employer could not lawfully sus-
pend the employee for refusing to remove the stickers, because the
order to remove the stickers itself infringed on the employee’s rights
under § 7. Id. Third, it found that the employer could not lawfully sus-
pend the employee for refusing to leave the premises because he
would not have been ordered to leave the premises but for the
employer’s illegal order to remove the stickers. Id.
The rule that emerges from Kolkka Tables is that an employer may
not take coercive action against an employee either for refusing to
comply with a policy that either itself deters protected activity or for
refusing to comply with a neutral policy that was enforced because of
the employee’s protected response to the employer’s illegal coercive
action. While we have never had the occasion expressly to adopt
Kolkka Tables, we have approved of its holding in earlier cases. See
Contact does not argue that it had a "substantial and legitimate business
reason" for the letter. We reject this argument for a similar reason as that
noted in the text—Goode’s conduct, like his questioning, was protected
under § 7, and an employer does not have a "substantial and legitimate
business reason" in deterring protected activity.
11 NLRB v. AIR CONTACT TRANSPORT INC.

-- 11 of 13 --

e.g., Medeco Sec., 142 F.3d at 748 ("Because we hold that [the
employer’s] ‘confidentiality [policy]’ violates § 8(a)(1), it is also clear
that [the employee’s] termination for his breach of this confidentiality
also violates § 8(a)(1)."); NLRB v. M & B Headwear Co., 349 F.2d
170, 174 (4th Cir. 1965) ("An employer cannot provoke an employee
to the point where she commits . . . an indiscretion . . . and then rely
on this [indiscretion] to terminate her employment.").
In Wright Line, the Board applied a burden-shifting test to deter-
mine whether an employer took unlawful employment action against
an employee in violation of the NLRA. Under that test, the General
Counsel must first "make a prima facie showing sufficient to support
the inference that protected conduct was a motivating factor in the
employer’s decision" to take action against the employee. 251
N.L.R.B. at 1089 (internal quotation marks omitted). If the General
Counsel does so, the employer may nevertheless escape liability if it
can "demonstrate that the same action would have taken place even
in the absence of the protected conduct. Id. "If the Board believes the
employer’s stated lawful reasons are non-existent or pretextual, the
[employer’s] defense fails." USF Red Star, Inc v. NLRB, 230 F.3d
102, 106 (4th Cir. 2000).
The Wright Line test was designed to account for the fact that
employers rarely admit that they took adverse action against employ-
ees with the unlawful intent to discriminate. 251 N.L.R.B. at 1083. It
therefore applies in situations where the employer’s motive is at issue,
such as cases where the employee claims that the employer took
action against him for engaging in protected activity and the employer
claims that it took action against the employee for some other reason.
See id. Where, however, the employer claims that it took action
against the employee for alleged misconduct associated with pro-
tected activity, there is no need to apply Wright Line. See Shamrock
Foods Co. v. NLRB, 346 F.3d 1130, 1136 (D.C. Cir. 2003) (holding
that "Wright Line is inapplicable to cases . . . in which the employer
has discharged the employee because of alleged misconduct in the
course of protected activity" (internal quotation marks omitted)). This
is so because the relevant inquiry in such a case is not whether the
employer had an impermissible motive, but whether the employee’s
misconduct removed the protection of § 7. See id. If it did not, and
the employer terminated the employee because of that misconduct,
12 NLRB v. AIR CONTACT TRANSPORT INC.

-- 12 of 13 --

the employer has violated § 8(a)(1): by arguing it terminated the
employee because of protected conduct, the employer has admitted it
had the motivation to deter the employee’s protected activity. See id.
As the above discussion makes clear, the Board’s decision to apply
Kolkka Tables, and not Wright Line, to the claim that Goode’s termi-
nation violated § 8(a)(1) was rational and consistent with the Act. Air
Contact argues that its reason for terminating Goode was not that he
was exercising his § 7 rights at the restaurant, but that he was insubor-
dinate for failing to sign the September 22 letter. On the surface, this
argument appears to present questions of intent. But under Kolkka
Tables, Air Contact’s admission that it terminated Goode for failing
to comply with its signature policy with respect to the unlawful letter
establishes that Air Contact had an improper motive, because an
employer who takes coercive action against an employee for failing
to comply with an unlawful policy violates § 8(a)(1). 335 N.L.R.B. at
849. See also M & B Headwear, 349 F.2d at 174. Because motive is
not in dispute, Wright Line is inapposite, and the Board therefore did
not err in refusing to apply it.
III.
For the foregoing reasons, we grant the Board’s application for
enforcement.
APPLICATION FOR ENFORCEMENT GRANTED
13 NLRB v. AIR CONTACT TRANSPORT INC.

-- 13 of 13 --