Bowling Transportation, Inc. v. National Labor Relations Board

*The Honorable D avid D . Dowd, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0431P (6th Cir.)
File Name: 03a0431p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BOWLING TRANSPORTATION,
INC.,
Petitioner/
Cross-Respondent,
v.
NATIONAL LABOR RELATIONS
BOARD,
Respondent/
Cross-Petitioner.
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Nos. 01-2386/2588
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board.
No. 25-CA-26896.
Argued: June 20, 2003
Decided and Filed: December 8, 2003
Before: BOGGS, Chief Judge; GILMAN, Circuit Judge;
DOWD, District Judge.*
2 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
_________________
COUNSEL
ARGUED: Konrad Kuczak, Dayton, Ohio, for Petitioner.
Christopher W. Young, NATIONAL LABOR RELATIONS
BOARD, APPELLATE COURT BRANCH, Washington,
D.C., for Respondent. ON BRIEF: Konrad Kuczak, Dayton,
Ohio, for Petitioner. Christopher W. Young, Aileen A.
Armstrong, Frederick C. Havard, NATIONAL LABOR
RELATIONS BOARD, APPELLATE COURT BRANCH,
Washington, D.C., for Respondent.
DOWD, D. J., delivered the opinion of the court, in which
GILMAN, J., joined. BOGGS, C. J. (pp. 21-22), delivered a
separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
DOWD, District Judge. The above-captioned appeal
revolves around Petitioner/Cross-Respondent’s statements to
and discharge of three of its employees in 1999. The
Administrative Law Judge ruled against the Petitioner/Cross-
Respondent. A three-member panel of the National Labor
Relations Board affirmed with only slight modifications to
the ALJ’s order. Petitioner/Cross-Respondent seeks an entry
from this Court vacating the Board’s decision;
Respondent/Cross-Petitioner seeks an entry from this Court
enforcing the Board’s decision.

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Nos. 01-2386/2588 Bowling Transportation
v. NLRB
3
1As to the Petitioner/Cross-R espo ndent’s app eal, jurisd iction is
premised upon 29 U.S.C. § 160(f), which states in relevant part: “Any
person aggrieved by a final order of the Board ... may obtain a review of
such order in any U nited States court of ap peals in the circuit wherein the
unfair labor practice in question was alleged to have been engaged in or
where in such person resides or transacts business.” As to the
Respondent/Cross-Petitioner’s application for enforcement of the National
Labor Relation Board’s final order, jurisdiction is based on 29 U.S.C.
§ 160(e), which states in relevant part: “T he B oard shall have power to
petition any court of ap peals of the United States ... within any circuit ...
where in the unfair labor practice in question occurred or wherein such
person resides or transacts business, for the enforcement of such order and
for appropriate temporary relief or re straining o rder.”
2“Protected concerted activity” is a term (or phrase) of art that
appears often in the record and this opinion. A protected concerted
activity is one of those activities protected by section 7 of the National
Labor Relations Act, 29 U.S.C. § 1 57 (199 8). See NLRB v. Main Street
Terrace Care C tr., 218 F.3d 53 1, 540 (6th Cir. 2000).
This Court has jurisdiction pursuant to 29 U.S.C. § 160(e),
(f) (1984).1 For the reasons stated herein, we AFFIRM.
I. BACKGROUND
This case presents an unusual set of facts in that the three
employees for whom the Respondent/Cross-Petitioner
General Counsel of the National Labor Relations Board
(“General Counsel”) brought this action did not actually
intend to form a union. Nevertheless, the General Counsel
brought this action against the Petitioner/Cross-Respondent
Bowling Transportation, Inc. (“Bowling”), for violating
Bowling’s employees’ right to engage in protected concerted
activity2. On the surface, it appears that two of Bowling’s
employees, Richard Ashby and Kenneth Hanks, were merely
complaining about a safety incentive program. Jeffrey
Horton, the third employee at issue, was simply bringing to
the attention of Bowling management what may be
considered no more than a simple grievance about work rules.
4 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
3Bo wling’s presid ent’s testimo ny revealed that its subsequent
customers included Bethlehem, USX, Inland, and LTV. (Admin. Hr’g Tr.
at 14 (J.A. at 158 -59).)
4An ambiguity appears in the record, where ALJ Kocol indicates in
one place of his opinion that Rockport is in Indiana and just a few
paragraphs later that Rockport is in Kentucky (J .A. at 33). Also notable
These employees’ conduct may not immediately strike the
casual observer as unionizing or any other kind of protected
activity. Moreover, given the fact that Bowling faced losing
its only customer if it did not terminate the three employees,
it hardly appears illegal that Bowling did, in fact, terminate
the three employees. Despite these appearances, however, the
facts brought to light in this section, the standard of review in
the following section, infra Part II, and the analysis, infra Part
III, show that Bowling violated the National Labor Relations
Act (“NLRA”), requiring an affirmance of the decision by the
Board.
A. Facts
Bowling, whose office and place of business is in
Owensboro, Kentucky, provides transportation services for
steel producers. One such producer is AK Steel Company
(“AK Steel”), who was Bowling’s only customer in 1999.3
AK Steel maintained several plants in a number of states,
supplying steel to the “Big Three” automobile manufacturers.
AK Steel contracted out some of its operations to other firms.
Bowling provided transportation, or carrier, services, which
involved hauling steel coils within and between AK Steel’s
four or five facilities, and offsite to AK Steel’s customers.
Among Bowling’s key players in this litigation are: Bill
Bowling, president and chief executive officer; Paul Brewer,
safety and maintenance supervisor; and Lawrence Martin,
terminal manager for Bowling at AK Steel’s Rockport,
Kentucky4, facility. Bowling’s treatment of three former

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Nos. 01-2386/2588 Bowling Transportation
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5
is that the ALJ’s opinion attached to the NLRB’s affirmance is not an
accurate reproduction of the full-length opinion signed by ALJ Kocol
(J.A. 5-21) with respect to the identification of the state in which
Rockport is located. A q uick sea rch on the internet revealed that a
Rockpo rt town exists in both Indiana and Kentucky. In any event, the
ambiguity does not affect the decision we reach.
5Bowling used the po rtion it kep t to pay for the company Christmas
party that year and to purchase safety gear, includ ing bo ots and helmets.
employees, Richard Ashby, Kenneth Hanks, and Jeffrey
Horton, who all worked at the Rockport AK Steel site, is what
prompted the General Counsel to file this action. Ashby and
Hanks worked as “supertruck” drivers, operating heavy duty
and “tow motor” vehicles. Both Ashby and Hanks performed
their work on AK Steel property. Horton also operated tow
motor vehicles and drove trucks principally on AK Steel
property. Bowling discharged these three employees in
December 1999.
The events that the General Counsel alleges led to Ashby’s
and Hanks’s discharges occurred shortly before their
respective terminations, when AK Steel offered its
contractors, including Bowling, a per-employee bonus of up
to one dollar for each injury-free hour worked. The objective
of this bonus was to improve safety at AK Steel sites, thereby
(presumably) avoiding liability exposure. AK Steel “strongly
encouraged” its contractors to pass the bonus on to their
employees. (J.A. at 417.) Bowling instead paid only fifty
cents of each bonus dollar to its employees,5 some of whom
felt entitled to the full amount. Ashby was one such
employee. He discussed this matter with his co-workers at
the AK Steel plant, including Hanks, who shared his
discontent with Bowling keeping half of the bonus. Ashby
also voiced his concerns to Brewer.
On December 9, 1999, Ashby decided to take his concerns
to AK Steel. On his way to see Brian K. Rydberg, AK Steel’s
6 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
manager of transportation and materials in the Rockport,
Kentucky, facility, Ashby encountered Hanks and told him
that he was off to give Rydberg “some hell.” Hanks tagged
along. Upon their arrival at Rydberg’s office, they asked to
speak to him and Rydberg invited the two Bowling
employees into his office. There, Ashby expressed his
dissatisfaction with Bowling’s handling of the safety bonus.
After about a ten to fifteen minute discussion, Rydberg
indicated that Bowling’s handling of the bonus was not his
concern and referred them to Glen Easterling, another AK
Steel employee. Hanks and Ashby exited Rydberg’s office.
Subsequently, Rydberg contacted Martin to tell him about
his encounter with Ashby and Hanks. Rydberg explained that
AK Steel management should not be the one entertaining
complaints about such matters. Rydberg instructed Martin to
remove Ashby and Hanks from the premises. In response,
Bowling issued a notice to its employees, prohibiting them
from contacting any AK Steel employee without prior
permission and warning that failure to comply with the
prohibition would result in discipline or termination.
Bowling also decided to terminate Ashby and Hanks. On
December 19, 1999, Martin and a security guard escorted
Ashby, and later Hanks, off the AK Steel site. Martin
accused Ashby of attempting to unionize based on the earlier
discussion with Rydberg. Ashby denied the accusation, to
which Martin responded that an investigation would be
initiated. Thereafter, Martin advised Ashby to draft a letter
explaining why he was talking to Rydberg. Ashby followed
the advice and put together the following typewritten
statement:
Approximately one week ago[,] I went to Bryon [sic]
Rydberg[’]s office and Kenny Hanks followed me. Once
in [Brian’s] office[,] I ask[ed] him if he knew anthing
[sic] about the safty [sic] bonus[.] He said he did not[.]
I went on to tell him that I ... heard that we where [sic]

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Nos. 01-2386/2588 Bowling Transportation
v. NLRB
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getting one dollar an hour and that Bowling was taking
fifty cents of it for boots, hard hats, and glasses. I then
told him I was informed that our boots where [sic] to last
one year and showed him the soles of my boots and [sic]
told wim [sic] I had only been working for Bowling for
approximatly [sic] four and a half months. He then
informed me that he knew nothing about any of it. He
then said that these problems where [sic] between
Bowling and me, and that he or A.K.Steel [sic] had an
thing [sic] to do with it. At that time[,] me and Kenny
left [Brian’s] office.
Me and Kenny where [sic] in Byron’s office for
approximatly [sic] five to ten minutes. If I caused any
problems[,] I apologize but I was trying to get an answer,
but at no time was me or Kenny thinking about[,] let
alone trymng [sic][,] toform [sic] a union.
(Ashby Letter to Martin (J.A. at 409).)
Hanks also put together a statement:
On or around the 8th or 9th of December[,] I took a
load to door 722[.] [W]hen I got there[,] Richard [Ashby]
was walking towards Brian[’]s office. I asked what he
was doing, Richard said he was going to give Brian some
hell. Not knowing what he was going to ask, I went to
the office with him. Richard asked Brian if he had a
moment. Brian said yes come on in. Richard and I went
in and sat down.
Richard asked who was in charge of the safty [sic]
program.
Brian said Glenn Easterling and then asked[,]
[“]Why?[”] Richard then told him about our safty [sic]
[b]onus.
8 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
(Hanks Statement (J.A. at 414).)
Although some evidence in the record suggests that Martin
made some attempt to keep Ashby and Hanks on the payroll,
his efforts were fruitless. Apparently, AK Steel was adamant
about keeping the two employees off its premises, and
threatened to kick Bowling off the site if they remained.
Further, they were not otherwise employable by Bowling
because any other job would involve working at an AK Steel
site. As such, in late December 1999, Bowling fired both
Ashby and Hanks. Their termination notices indicated that
they were “[un]able to function on AK Steel property.”
(Bowling Termination Notices for Ashby and Hanks (J.A. at
412, 415).)
Horton, the third employee for whom this enforcement
action was brought, was dissatisfied with some of Bowling’s
work rules. Horton vocalized his dissatisfaction to co-
workers and put together a list of those rules that troubled
him. He showed the list to other employees and proposed to
show the list to Bill Bowling at the 1999 Christmas party.
Horton did as he said he would, presented the list to Bill
Bowling, and discussed the matter in Bill Bowling’s office.
The next day, Horton was suspended, which prompted him to
call Bill Bowling. Bill Bowling confirmed to Horton his
knowledge of the suspension and expressed a concern that the
employees were attempting to unionize under Horton.
Despite Horton’s denials, Bill Bowling told him that there
was not going to be a union because he was the union. A few
days later, on December 23, 1999, Martin terminated Horton
at the direction of Bill Bowling. His termination notice
indicated the reasons for his termination were failure to
follow instructions and “employee priorities to [sic]
inconsistent with company policy.” (Bowling Termination
Notice for Horton (J.A. at 407).)

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Nos. 01-2386/2588 Bowling Transportation
v. NLRB
9
6The Board made only non-substantive modifications. (NLRB
Decision and O rder at 1 n.3, 4 (J.A . at 29).)
B. Procedural Posture
Administrative Law Judge William G. Kocol began the
hearing in this matter on July 31, 2000, and concluded it the
next day. In his written decision (J.A. 5-23), ALJ Kocol
found that Bowling had violated § 8(a)(1) and (3) of the
National Labor Relations Act for, one, telling Ashby and
Hanks that they were being removed from AK Steel’s
property for their protected concerted activity and, two, by
discharging Ashby and Hanks for protected concerted activity
and for suspected union activity. ALJ Kocol also found that
Bowling violated section 8(a)(1) and (3) by threatening
Horton with reprisals for unionizing activity and suspected
unionizing activity, and for discharging him for both
activities. He dismissed as unsupported by the evidence,
however, the General Counsel’s allegations that Bowling
made statements either prohibiting employees from
discussing their wages or creating the impression that
unionizing activities were under surveillance.
A three-member panel of the Board then re-visited the
issues. With only slight modifications to ALJ Kocol’s
findings, the panel affirmed and adopted his order.6 Among
other things, the final order directed Bowling to cease and
desist from violating the NLRA, reinstate the three subject
employees, and provide the Board with certain documentation
for the purpose of calculating a back pay award. (J.A. at 20-
21, 32, 39.) The General Counsel did not take exception to
the two dismissals.
Now, Bowling seeks to vacate the NLRB’s decision.
Simultaneously, the General Counsel seeks to enforce the
NLRB’s final order. Again, the Court has jurisdiction to hear
this case pursuant to 29 U.S.C. § 160(e) and (f).
10 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
II. STANDARD OF REVIEW
The Board is empowered by Congress to prevent unfair
labor practices and to remedy violations of the NLRA.
Kentucky General v. NLRB, 177 F.3d 430, 435 (6th Cir.
1999). Our scope of review of the Board’s findings is
limited. Id. That is, we review findings of fact and
application of law to facts only to determine whether
substantial evidence supports them. Id. “Substantial
evidence” consists of evidence that adequately supports a
given conclusion in the mind of a reasonable person. NLRB
v. General Security Services Corp., 162 F.3d 437, 441 (6th
Cir. 1998). Conflicts in testimony give rise to fact and
credibility calls for the Board to resolve. NLRB v. Aquatech,
Inc., 926 F.2d 538, 544 (6th Cir. 1991). Given this sort of
process, we will not displace the Board’s reasonable
inferences, even if we may justifiably reach a different
conclusion. Kentucky General, 177 F.3d at 435. This same
level of deference is not required, however, when the Board
interprets judicial precedent. Legal conclusions other than
interpretations of the NLRA are subject to a de novo review.
Albertson’s, Inc. v. NLRB, 301 F.3d 441, 448 (6th Cir. 2002);
Uforma/Shelby Business Forms, Inc. v. NLRB, 111 F.3d 1284,
1289-90 (6th Cir. 1997).
III. ANALYSIS
Under the NLRA, “[e]mployees ... have the right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157 (1998). These activities are
commonly known as “protected concerted activities.” See
NLRB v. Main St. Terrace Care Ctr., 218 F.3d 531, 540 (6th
Cir. 2000). Employers may not “interfere with, restrain, or
coerce employees in the exercise of the rights protected” in
the above section. 29 U.S.C. § 158(a)(1) (1998). “For an

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Nos. 01-2386/2588 Bowling Transportation
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7Notable, howe ver, is that B owling argued in its exceptions to ALJ
Ko col’s decision that “AK Steel, a non[-]employer of Ashby and Hanks,
cannot violate ‘rights’ of no n-emp loyees.” (J.A. at 5.) W e view this
argument as plainly different from the argument that AK Steel was an
indispensable party rendering the NLRB’s decision unenforceable.
individual’s complaints to constitute concerted action, this
court requires that the complaints must not have been made
solely on behalf of an individual employee, but [they] must be
made on behalf of other employees or at least with the object
of inducing or preparing for group action.” Main St. Terrace
Care Ctr., 218 F.3d at 539 (internal quotations marks
omitted). “[I]t is not necessary that an employee be appointed
by his fellow employees in order to represent their interests.”
Id. Further, employers may not engage in “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.
§ 158(a)(3).
Bowling makes three challenges to the NLRB’s decision.
First, it argues for the first time that the NLRB’s decision is
unenforceable because AK Steel was an indispensable party,
yet absent from the entire proceeding.7 Second, it contends
that the NLRB improperly attributed the unlawful conduct of
AK Steel to it in order to arrive at its decision. Lastly, it
argues that reinstatement and an award of back pay for the
three employees require disinterested, corroborating
testimony. The General Counsel simply claims that the
NLRB’s order was proper and petitions the Court for
enforcement of it.
A. AK Steel is not an Indispensable Party
Bowling indicates that AK Steel was never joined as a party
and that the General Counsel never alleged, nor did ALJ
Kocol find, that Bowling and AK Steel were “joint
12 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
8Two or more employers are deemed “jo int employers” if they exert
significant control over the same employee(s) with respect to key terms
and conditions of employment. Painting Co. v. NLRB, 298 F.3d 492, 500
(6th Cir. 2002). Joint-employer status allows the conduct of one
emp loyer to be attributed to its jo int emp loyer. See, e.g., Carrier Corp.
v. NLRB, 768 F.2d 77 8, 781 (6th Cir. 1985).
employers.”8 Bowling says that AK Steel, not Bowling,
decided to banish Ashby and Hanks from the site with the
threat that all of Bowling‘s operations would be removed if its
directive was ignored. It cites to ALJ Kocol’s finding that
Bowling could not employ the three in any other aspect of its
business because AK Steel was its sole client. Bowling
concludes that reinstating the three employees, which would
inevitably involve work on AK Steel’s property against AK
Steel’s wishes, was outside of the NLRB’s authority. To
support this argument, Bowling relies exclusively on NLRB
v. Doug Neal Management Co., 620 F.2d 1133 (6th Cir.
1980).
In response, the General Counsel argues that Bowling’s
failure to raise this argument below operates as a waiver of
the issue. He cites a provision of the NLRA, that provides:
“No objection that has not been urged before the Board, its
member, agent, or agency, shall be considered by the court,
unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances.” 29 U.S.C.
§ 160(e). The General Counsel indicates that Bowling failed
to identify any “extraordinary circumstances” in either its
appellate brief or reply brief warranting relief.
In reply, Bowling again calls the Court’s attention to Doug
Neal Management for the proposition that the failure to raise
this issue below did not constitute a waiver. Bowling insists
that the argument is still viable and that the NLRB’s decision
is unenforceable. Therefore, it asks this Court to vacate the
NLRB’s decision.

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Nos. 01-2386/2588 Bowling Transportation
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9Other authority cited by the panel in Doug Neal Management
includes Moore’s Federal Practice, which the Court used for the
proposition that “[t]he p resence of an indisp ensab le party ‘is required in
order that the court may make an adjudication equitable to all persons
involved.” Do ug N eal M gm t., 620 F.2d at 1139 (quoting 3A M oore’s
Federal Practice ¶ 19.05(2)) (emphasis added). Even if the Federal Rules
of Civil Procedure do not apply, no rationale exists to distinguish the
indispensable party rule in administrative proceedings because the same
concerns that serve as the basis for Rule 19 in district court proceedings
apply to pro ceedings b efore adm inistrative agencies.
Indeed, this Court plainly stated that the issue of an
indispensable party may be addressed even if not raised in the
administrative proceedings, and even if the appellate court
raises the issue sua sponte. Doug Neal Mgmt., 620 F.2d at
1139. This holding was based, at least in part, on Federal
Rule of Civil Procedure 19, which provides for indispensable
parties. Id. While we acknowledge that at least one circuit
court has held that the Federal Rules of Civil Procedure do
not apply to administrative proceedings, Kelly v. U.S. Envtl.
Prot. Agency, 203 F.3d 519, 523 (7th Cir. 2000), we also
acknowledge that the decision of one panel of this Court is
binding on any subsequent panel, Dupont Dow Elastomers v.
NLRB, 296 F.3d 495, 506 (6th Cir. 2002); Salmi v. Sec’y of
Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).9
Thus, although the argument was certainly available for
Bowling to make earlier, its failure to do so does not preclude
this Court from deciding the issue of whether AK Steel was
an indispensable party to the proceedings. Accordingly, we
turn to examine it now, but, for the reasons that follow,
conclude that AK Steel was not an indispensable party.
A party is deemed indispensable under Rule 19 “‘only if, in
his absence, (1) the absentee is likely to be harmed, (2) one of
the parties may be subject to multiple or otherwise
inconsistent obligations, or (3) complete relief cannot be
accorded to the parties.’” Doug Neal Mgmt., 620 F.2d at 1138
(quoting Nationwide Auto Transporters v. Morgan Driveway,
14 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
10Perhaps Bowling could have employed the three plaintiffs within
its office operations or placed them on paid leave pending litigation
against AK Steel for brea ch of contract, see infra Part III.B., or until
Bowling expa nded its client b ase. As indicated, supra note 3, Bo wling’s
later customers included Bethlehem, USX , Inland, and LTV. In any
event, we intentionally omit any definitive discussion of what the phrase
“substantially equivalent positions” entails in the context of this case
because it is largely irrelevant--the potential hard ships faced by a
defendant-employer that unlawfully interferes with its employees’
protected concerted activity should not dictate whether relief is warranted,
whether it be re instatement or some other fo rm of relief.
Inc., 411 F. Supp. 755, 757 (S.D.N.Y. 1977)). AK Steel does
not satisfy these criteria. First, AK Steel is not likely to be
harmed by enforcement of the NLRB’s order. Nowhere in the
final order does the NLRB direct AK Steel to install the three
employees in any of its facilities. Rather, the order directs
Bowling to offer the three employees “reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed.”10 (Kocol’s
Decision & Order at 16 (J.A. at 20) (emphasis added).) None
of the parties, or AK Steel for that matter, would be subject to
multiple or otherwise inconsistent obligations if the order
were enforced. Moreover, full relief plainly can be accorded
to the parties without AK Steel’s involvement. We note that
a NLRB proceeding does not serve to adjudicate private
rights, but operates as an enforcement of the NLRA to prevent
unfair labor practices. National Licorice Co. v. NLRB, 309
U.S. 350, 362 (1940); NLRB v. Hiney Printing Co., 733 F.2d
1170, 1171 (6th Cir. 1984). Therefore, the NLRB’s order is
not unenforceable simply because AK Steel has not, at any
time, been part of the proceedings.

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Nos. 01-2386/2588 Bowling Transportation
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11That the independent basis must be lawful was not directly at issue
in Wright Line or Transportation Management and its progeny, but is a
logical and necessary extension of their holdings. To allow an employer
to escape liability by asserting one unlaw ful motive in place of another
unlawful motive would produce absurd results. As pointed out by the
Board (NLRB Decision and Order at 3 n.12 (J.A. at 31)), other circuits
have indicated the other, independent basis for a termination must be
lawful, see, e.g., Cad bury Beverages, Inc. v. NLRB, 160 F.3d 24, 2 9 n.4
(D.C. Cir. 19 98); NLRB v. Joy Recovery Tech. Corp., 134 F.3d 1307,
1314 (7 th Cir. 1998).
B. The NLRB Properly Determined that Bowling could
not Establish the Wright Line Defense
Wright Line, 251 NLRB 1083 (1980), as adopted by the
Supreme Court, allows an employer to establish as an
affirmative defense that the subject employee(s) would have
been fired regardless of any protected concerted activity.
NLRB v. Transp. Mgmt. Corp., 462 U.S. 393, 404 (1983),
modified, Director, Office of Workers’ Comp. Programs,
Dept. of Labor, v. Greenwich Collieries, 512 U.S. 267, 278
(1994); see also Kamtech, Inc. v. NLRB, 314 F.3d 800, 811
(6th Cir. 2002); FiveCAP, Inc. v. NLRB, 294 F.3d 768, 778
(6th Cir. 2002). In other words, to successfully use the
Wright Line defense, a company must show some
independent and lawful11 basis for a subject employee’s
termination. Thus, our inquiry is whether the employees still
would have been lawfully terminated if the employees never
engaged in protected concerted activity.
Bowling argues that it would have fired Ashby, Hanks, and
Horton regardless of whether they engaged in protected
concerted activity. AK Steel wanted Ashby and Hanks off its
premises. As for Horton, Bowling says he would not follow
AK Steel’s rules regardless of where he was performing his
duties. With no other job in which to install any of the three
employees, Bowling argues that its only option was to
terminate them.
16 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
The General Counsel responds that Bowling cannot escape
liability for its own, independently unlawful actions against
its employees by pointing to AK Steel’s “equally unlawfully
motivated” decision to bar them from the premises. To accept
AK Steel’s conduct as a shield for Bowling’s wrongdoing
would distort the authority for affirmative defenses under
Wright Line.
We are reluctant to declare that AK Steel’s conduct was
“unlawfully motivated” because (1) AK Steel was not a party
to these proceedings and, as such, could not defend against
such an allegation; and (2) the General Counsel never alleged,
and neither ALJ Kocol nor the Board found, that Bowling and
AK Steel were joint employers. We still find, however, that
Bowling could not avail itself of a Wright Line defense
because its argument for the application of that defense is
fatally flawed.
AK Steel’s prohibition of Ashby and Hanks from its
premises is not an independent basis for their termination. In
fact, it is not properly characterized as a “cause” of anything
relevant to the General Counsel’s enforcement action.
Rather, the prohibition of Ashby and Hanks from the
premises is properly and best characterized as an additional
effect of the employees’ protected concerted activity. This
becomes immediately apparent when we consider that, if
Ashby and Hanks had not spoken to Rydberg (i.e., engaged in
protected activity), AK Steel likely would not have forbade
Ashby and Hanks from entering its property. In other words,
AK Steel’s prohibition of Ashby and Hanks does not exist but
for the protected concerted activity and, therefore, cannot
suffice as an independent basis for the employees’
termination.
We also respectfully disagree with the dissent’s
characterization of Ashby’s and Hanks’s contact with
Rydberg as “obnoxious behavior.” They were in fact engaged
in concerted activity when they complained about Bowling’s

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Nos. 01-2386/2588 Bowling Transportation
v. NLRB
17
12Presumably, such an emp loyer facing this situation would have a
federal cause of action, too, under 42 U.S.C. § 1981 (1991), which
prohibits racial discrimina tion in the making and enforc ement of private
allocation of the safety bonus being paid by AK Steel.
Bowling’s acquiescence in AK Steel’s demand to remove
them from the latter’s premises for this behavior might or
might not have been unlawful, but Bowling’s action in
discharging them definitely was.
As for Horton, we note that ALJ Kocol and the Board
allowed, considered, and rejected Bowling’s Wright Line
defense pertaining to his termination (J.A. at 14, 31-32).
Thus, Bowling’s concerns about its ability to assert a Wright
Line defense do not apply to Horton. Further, Bowling does
not argue that the Board’s decision on the Wright Line
defense as applied to Horton was unsupported by “substantial
evidence.”
The fact that Bowling’s sole customer at the time was AK
Steel and that the ALJ found Ashby, Hanks, and Horton were
not employable elsewhere in the company should not operate
to render the NLRB’s order unenforceable, though these
factual aspects do present some practical concerns for
enforcement. This principle is reinforced by looking to a
more egregious example of discrimination. If instead AK
Steel had banished Ashby, Hanks, and Horton from its
facilities because they were African-American or because
they were women, it would hardly be an appropriate defense
for Bowling to follow AK Steel’s directive to remove them,
even if it were facing complete elimination from the site.
Instead, it would have been Bowling’s obligation under the
civil rights laws to resist AK Steel’s influence and perhaps
file suit against AK Steel for breach of its contract and/or join
its employees in a race discrimination suit against AK Steel,
as the employer did in Lewis v. Haskell Co., Inc., 108 F.
Supp. 2d 1288 (M.D. Ala. 2000).12
18 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
con tracts, Newman v. Fed. Express Corp., 266 F.3d 401 , 406 (6th C ir.
2001).
Likewise, in this case, Bowling had an obligation to stand
up to AK Steel when it threatened Bowling’s ejection if the
three employees were not removed. Had AK Steel eliminated
Bowling from the site, Bowling certainly could have pursued
a breach of contract action against AK Steel and/or filed suit
with its employees against AK Steel for violations of the
NLRA. To allow subcontractors to mindlessly approve
illegal directives is not the intent, purpose, or proper effect of
the NLRA, and sets a dangerous precedent for employers to
use the “just-following-orders” or “devil-made-me-do-it”
defense to unfair labor practices.
C. Corroborating Testimony was not Required
Bowling argues that, contrary to Sixth Circuit precedent,
back pay is inappropriate because the General Counsel failed
to offer evidence corroborating Ashby, Hanks, and Horton’s
version of events. The General Counsel argues that Bowling
misreads Sixth Circuit authority, suggesting that
corroborating testimony is not a strict requirement,
particularly when no contradictory evidence is offered.
Bowling’s blanket legal proposition is incorrect in view of
the relevant authority. “[U]ncorroborated and self-serving
statements of a party who stands to benefit from an award of
back pay may, standing alone, constitute substantial evidence
where such testimony is reasonably deemed to be credible and
trustworthy, and where it is not undermined by evidence to
the contrary.” Sam’s Club v. NLRB, 141 F.3d 653, 658 (6th
Cir. 1998) (emphasis added). Furthermore, whether an
administrative law judge explains his credibility
determinations, as opposed to simply declaring a witness
credible, is also a relevant factor in these circumstances.

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Nos. 01-2386/2588 Bowling Transportation
v. NLRB
19
Health Care & Ret. Corp. of Amer. v. NLRB, 255 F.3d 276,
282 (6th Cir. 2002).
ALJ Kocol did an impressive job in explaining his
credibility determinations. For example, ALJ Kocol observed
that “Rydberg’s demeanor as a witness left me with the sense
that he was more eager to build a case to support the
discharge of the employees than merely accurately recount the
facts,” and that he was “impressed with Ashby’s demeanor as
a witness.” (Kocol’s Decision & Order at 3 n.3, 4 n.6 (J.A. at
7-8).) Moreover, ALJ Kocol made a point to credit specific
witnesses for various factual recitations. (Kocol’s Decision
& Order at 3 n.3; 4 n.4-6; 6 n.7; 7 n.8, 10-11 (J.A. at 7-11).)
Although Bowling complains that the three employees’
testimony was simply self-serving, the only evidence it cites
to contradict their testimony is the equally self-serving
testimony of Bill Bowling. (Bowling’s Appellate Br. at 27.)
Bill Bowling’s testimony is hardly sufficient to serve as
undermining evidence to the contrary. As the Board found,
ALJ Kocol cited to substantial evidence to support his
conclusions and carefully cited to that evidence throughout
his opinion.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the Board’s
decision and order. Further, since Bowling takes no other
20 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
13Bowling sets forth three narrow issues for determination in this
app eal. (Bowling’s Appellate Br. at 1-2.) In its reply brief, Bowling even
complains that “the Board has attempted to recast the instant Petition for
Review as a claim by [Bowling] that the Order of the Board is not
supported by substantial evidence.” (B owling’s Rep ly Br. at 1.) Further,
Bowling states, “[T]he resolution of the issues which [Bowling] has
assigned for review to this C ourt are exceptions which app ly despite
‘substantial evidence.’” (Bowling’s Reply Br. at 2.) Nevertheless, to the
extent that Bowling may be ad vancing, who lly inarticulately, a substantial
evidence challenge, it is important to understand how deferential is the
Court’s standard of review. “[I]t is only when a court ‘cannot
conscientiously find that the evidence supporting [the Board’s] decision
is substantial, when viewe d in the light the reco rd in its entirety furnishes,
including the body of evidence opposed to the Board’s view.’” Loral
Defen se Systems-Akron v. NLRB, 200 F.3d 436, 448 (6th Cir. 1999)
(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88
(1951)). Given the testimony, evidentiary materials, and thorough factual
findings and analysis of the ALJ in this case, the Court has no problem in
finding that the NLR B’s order is supported by substantial evidence and
that, therefore, the order should be enforced.
exceptions to the Board’s affirmance,13 we GRANT the
General Counsel’s petition for enforcement.

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Nos. 01-2386/2588 Bowling Transportation
v. NLRB
21
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
BOGGS, Chief Judge, concurring in part and dissenting in
part. I agree with the holding of the court with regard to
Bowling’s violation of Horton’s rights, and agree that we
should enforce the NLRB’s order with respect to him.
I generally agree with the tenor of the analysis with respect
to the other two workers, Ashby and Hanks, but I respectfully
dissent because I do not think that their activities were
“protected concerted activities” with respect to AK Steel.
In my view, what happened here was that the obnoxious
behavior of these employees with respect to a customer meant
that the same activities that would have been protected had
they been directed toward the employer or his officials were
not protected when directed at a customer.
By analogy, workers are fully protected in expressing their
view that “the boss is a fink.” However, if in the course of
making deliveries to a customer, they loudly opine to the
same effect with respect to the boss of the customer, or picket
the customer’s establishment during the lunch break, I see
nothing in the NLRA that protects those activities from
discipline, either in effect, by the customer declaring those
persons to be personae non gratae, or by the employer, for
the legitimate reason that they have made themselves
obnoxious to a customer.
The majority is quite correct that the employer may not
throw blame on a customer for actions that would otherwise
be unlawful (see pages 17-18), with respect to, for example,
such issues as illegal employment discrimination. Similarly,
if there were any evidence that the employer were using the
alleged customer complaint as a pretext for his own unlawful
22 Bowling Transportation
v. NLRB
Nos. 01-2386/2588
labor practices, I would have no objection to the majority’s
analysis. Thus, if the workers picketed their own plant with
signs “the boss (and Customer X) are finks,” and the boss
then solicited the ire of Customer X, the majority’s analysis
would be exactly correct.
However, as I read both the record and the NLRB decision,
there is no indication that Rydberg, the manager of AK Steel,
needed any encouragement to be legitimately incensed at a
supplier’s employees, who came to his office deliberately
bent on giving him “some hell” and complaining about the
actions of their own bosses. The record is clear that
Rydberg’s complaint to Bowling (and his edict that he would
no longer countenance any dealings with those employees)
was completely unsolicited.
Under these circumstances, I respectfully dissent from the
portion of the majority opinion requiring the reinstatement
and payment of back pay to Ashby and Hanks.

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