NLRB v. AutoNation, Inc. , 801 F.3d 767 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-2991 & 14-3361
AUTONATION, INC., and VILLAGE MOTORS, LLC,
Petitioners/Cross-Respondents,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Petitioner.
____________________
Petition for Review and Cross-Application
for Enforcement of a Decision and Order of
the National Labor Relations Board.
No. 13-CA-063676
____________________
ARGUED MAY 21, 2015 — DECIDED SEPTEMBER 4, 2015
____________________
Before WOOD, Chief Judge, and ROVNER and WILLIAMS,
Circuit Judges.
WOOD, Chief Judge. Union activity was afoot at Liber-
tyville Toyota late in the summer of 2011. When rumors to
this effect reached it, Libertyville’s owner, a company called
AutoNation, held a series of meetings with the affected staff.
An employee surreptitiously recorded the last of these meet-
ings, a lengthy affair conducted largely by two AutoNation
2 Nos. 14-2991, 14-3361
executives. Around the same time, Libertyville suspended
one of its employees, an automotive painter named Jose
Huerta. The dealership’s manager had received an anony-
mous voicemail accusing Huerta of promoting the union
cause and of receiving a charge of driving under the influ-
ence. Once suspended, Huerta did not return to Libertyville.
It ultimately fired him, but the parties disagree on when that
happened and for what reasons. Both sides concur, however,
that Huerta received a computer-generated letter from a
third party vendor to AutoNation indicating that Huerta’s
employment would not be continued.
A local chapter of the International Association of Ma-
chinists and Aerospace Workers (the Union) filed charges
against AutoNation and Village Motors, LLC (which did
business as Libertyville Toyota—we refer to them in the sin-
gular as AutoNation) with the National Labor Relations
Board in 2011. An administrative law judge (ALJ) concluded
that certain comments by the AutoNation executives at the
recorded meeting violated the National Labor Relations Act
(the Act) in multiple ways. He did not, however, uphold the
accusation that AutoNation had unlawfully suspended and
discharged Huerta because of his union activity. A three-
member panel of the Board, with one member dissenting on
two points, affirmed the judge’s conclusions about the meet-
ing but reversed as to Huerta’s discharge. AutoNation has
filed a petition for review of the Board’s rulings, and the
Board has cross-applied for enforcement. Although we do
not endorse all of the Board’s language in its opinion, we
conclude that substantial evidence supports its findings and
that its decision is entitled to enforcement.
Nos. 14-2991, 14-3361 3
I
Libertyville Toyota is a 140-employee car dealership in
the Village of Libertyville, Illinois. Its service department has
80 employees engaged in tasks such as fixing vehicles, paint-
ing them, and performing shipping and receiving. In August
2011, dealership management learned of discussions among
technicians about unionizing. Not long afterward, Liber-
tyville’s general manager, Taso Theodorou, held a few brief
meetings with workers in the service department to discuss
the topic of unionization. On August 23, two members of
AutoNation’s corporate team joined Theodorou for another
such meeting. We know what was said at this last meeting
because a dealership employee secretly recorded it; the tape
was subsequently transcribed; and the ALJ relied on it.
Theodorou opened the August 23 meeting and then
turned it over to AutoNation vice president and associate
general counsel Brian Davis. Davis was joined by Jonathan
Andrews, one of the company’s regional human resources
directors. The transcript of the discussion among these men
and the dealership’s workers runs 111 pages; we focus here
on those excerpts that concerned the Board and that are per-
tinent to the petitions before us.
On the same day as the meeting among Davis, Andrews,
Theodorou, and the Libertyville employees, Theodorou re-
ceived a voicemail at the dealership. The caller stated that
she was “calling on behalf of the spouse of one of your em-
ployees,” but she refused to identify herself because her
husband was “afraid that if they find out that we’re the ones
who said anything, that they will retaliate.” The caller ac-
cused two employees, Jose Huerta and Hermenegildo Tellez,
of “trying to stir up this whole union and create issues.”
4 Nos. 14-2991, 14-3361
Tellez and Huerta were having arguments with other em-
ployees, she said, and worse, they had “questionable” moral
standards. In particular, she noted that Huerta “doesn’t even
have a license” and “had a DUI.” The caller finished by
opining that the situation with Huerta and Tellez was “defi-
nitely something that needs to be addressed.”
After receiving the voicemail, Theodorou contacted An-
drews to acquire a motor vehicle report on Huerta. When it
arrived, the report showed that Huerta had a suspended
driver’s license. This was a problem, because Huerta was
classified as a driving employee at Libertyville. He had
signed copies of a dealership policy that required employees
both to possess a valid license and to inform superiors of
changes to their driving privileges. Davis admitted that The-
odorou consulted him on how to proceed with Huerta. The
ALJ found that Davis “advised Theodorou how to proceed,
with a view toward protecting both Huerta and the Compa-
ny.” Theodorou told Huerta’s immediate supervisor, service
department director David Borre, to suspend Huerta. On
August 26, 2011, Borre called Huerta in for a meeting during
which Huerta admitted that he had received the DUI charge
and that his driver’s license was suspended. Borre told Huer-
ta he was suspended until September 14 and asked him “to
try to get his driver’s license situation corrected.” (Huerta’s
court hearing on his DUI charge was scheduled for Septem-
ber 13.)
One day after meeting with Borre, Huerta received a let-
ter signed “2280-Libertyville Toyota.” The letter informed
Huerta “that information contained in a consumer report, if
accurate, would prevent 2280-Libertyville Toyota from ex-
tending an employment offer, continuing your current em-
Nos. 14-2991, 14-3361 5
ployment or granting a promotion to you at this time” (em-
phasis added). The letter, dated August 25, 2011, invited
Huerta to “contact Sterling within 5 business days” if he
thought the attached background screening report was inac-
curate. Although the letter itself gave no indication of who
“Sterling” was, the attached report indicated that it had been
prepared by a company called Sterling Infosystems. Auto-
Nation contracted with Sterling to furnish motor vehicle re-
ports on its employees, and Sterling automatically sent a let-
ter when it found an adverse notation in an employee’s driv-
ing record. On September 3, Huerta received another letter
(dated September 1), also signed by “2280-Libertyville Toyo-
ta” but prepared by Sterling. This letter told Huerta “that an
offer of employment, a continuation of current employment or
the granting of a promotion will not be made at this time” (em-
phasis added). Not long after receiving this letter, Huerta
applied for unemployment benefits with the State of Illinois.
The Illinois Department of Employment Security promptly
informed AutoNation about Huerta’s filing, and Theodorou
responded that Huerta had been suspended and not termi-
nated. (There is no indication that he ever passed this news
along to Huerta.) Huerta did not return to work, and The-
odorou sacked him on September 21 for “job abandonment.”
At the end of August 2011, the Union filed an unfair la-
bor charge against AutoNation with the Board alleging that
Libertyville had suspended Huerta because of his union ac-
tivity. Three months later, the Union amended this charge to
add a claim about Huerta’s firing and to raise several new
unfair labor claims against AutoNation. In December 2011,
the Board’s general counsel filed a complaint against Village
Motors (later adding AutoNation) raising claims about Au-
toNation employees’ statements at the August 23, 2011,
6 Nos. 14-2991, 14-3361
meeting and about Huerta’s suspension and firing. An ALJ
agreed that comments by Davis and Andrews violated the
Act in multiple ways: (1) threatening that unionizing would
be futile; (2) threatening demotion of unionizing employees;
(3) threatening blacklisting of union supporters; and (4) im-
pliedly promising salary increases if dealership employees
did not vote in the union. The judge decided, however, that
AutoNation had not committed an unfair labor practice in
either firing or suspending Huerta.
After both the Board’s general counsel and AutoNation
filed exceptions to the judge’s ruling, a three-member panel
of the Board issued its decision. The Board affirmed the
ALJ’s findings that the AutoNation employees’ comments at
the August 23 meeting were unfair labor practices and that
Huerta’s suspension was not; it reversed the judge’s finding
on Huerta’s discharge. One member of the panel dissented
because he did not agree that AutoNation had made an im-
plied promise of wage increases or that it had violated the
Act by discharging Huerta.
AutoNation filed a petition for review of the Board’s de-
cision in September 2014. One month later, the Board filed a
cross-application for enforcement of the panel’s order. We
have jurisdiction under 29 U.S.C. § 160(f).
II
We begin with the heart of the case: the Board’s finding
that AutoNation and Village Motors violated Section 8(a)(1)
of the Act, 29 U.S.C. § 158(a)(1), in four ways. The Act makes
it an unfair labor practice for an employer “to interfere with,
restrain, or coerce employees in the exercise of” their guar-
anteed rights to organize and bargain collectively. We apply
Nos. 14-2991, 14-3361 7
a deferential standard of review to the Board’s findings,
looking only to see whether they are supported by substan-
tial evidence. See 29 U.S.C. § 160(e). This means “such rele-
vant evidence that a reasonable mind might accept as ade-
quate to support the conclusions of the Board.” NLRB v.
Teamsters Gen. Local Union No. 200, 723 F.3d 778, 783 (7th Cir.
2013) (internal quotation marks omitted). Our “task is not to
reweigh the evidence; it is only to determine whether there
is evidence in the record supporting the Board’s outcome
that could satisfy a reasonable fact finder.” NLRB v. KSM In-
dus., Inc., 682 F.3d 537, 543–44 (7th Cir. 2012). We review the
Board’s applications of the law to the facts and its interpreta-
tions of the Act deferentially as well, taking care to ensure
that “its legal conclusions have a reasonable basis in law.”
Roundy’s Inc. v. NLRB, 674 F.3d 638, 645 (7th Cir. 2012) (quo-
tations omitted).
The Board first determined that Davis through his com-
ments at the August 23 meeting implicitly conveyed the
message that it would be futile for the Libertyville employ-
ees to unionize. It supported that conclusion with substantial
evidence. At one point shortly after the start of the meeting,
an employee asked whether every technician at the dealer-
ship would get to vote on unionization. This prompted Da-
vis to launch into a lengthy monologue about unionizing in
general, in which he warned the employees to be “very care-
ful” when listening to the union’s “sales pitch.” Davis con-
tinued: “[I]n many cases, when you enter these negotiations,
if you ever get there, employees tend to lose things. Okay?”
He went on to describe potential negotiations as “a wide
open game of uncertainty” in which “nothing is guaranteed
even if you win the election. All right?” Later in the meeting,
an employee asked if the wage for the dealership’s workers
8 Nos. 14-2991, 14-3361
would be less than $10.50 per hour if they unionized. Davis’s
response: “It’s possible. … [W]hen I say that we sit down
and we start from scratch, we start from scratch. We don’t
start with what you guys are making today. Everything goes
to zero.” Later still, Davis told the employees about “your
brothers and sisters from other dealerships who deal with
[union issues] on a daily basis,” describing in particular a
unionized workplace at an Orlando AutoNation dealership.
There, Davis said, the unionized employees “have been liv-
ing that nightmare for almost three years now with not one
bargaining session, not one contract negotiation.”
It was reasonable for the Board to conclude that Davis’s
message was that unionizing would cut off hope of negotiat-
ing for better working conditions, or, put otherwise, that it
would be futile. As AutoNation points out, Davis said later
in the meeting that if the workers were to unionize, “eventu-
ally the bargaining process will begin.” But he promptly
threw cold water on that thought by telling the employees
that “[t]he bargaining process is—is never automatic” and
that the workers “may never see … in your lifetime at the
dealership” benefits that they think they “may be entitled
to.” Davis drove this point home with his allusion to the
hardships that befell AutoNation workers in Orlando. Au-
toNation concedes that it held no negotiations with a union-
ized group of its employees in Orlando. But it attempts to
turn this fact to its advantage by arguing that “truthful” ex-
amples of activity elsewhere simply illustrate the advantages
and disadvantages of collective bargaining. That may be one
reading, but another is that Davis’s “truthful” example—
indeed, the only example he offered—was an implied threat.
The workers in Davis’s example were AutoNation employ-
ees, not characters from a morality play about the pitfalls of
Nos. 14-2991, 14-3361 9
unionizing. And the Orlando example must be read in con-
nection with the other two comments. Together, they sup-
ported a reasonable inference that Davis was telling the Lib-
ertyville employees that unionizing would likely not pro-
duce the benefits they were seeking.
The Board concluded next that Davis and Andrews made
implied promises of wage increases to deter workers from
supporting the Union. During the meeting, Theodorou had
read aloud a question a worker had submitted previously on
the topic of worker pay. The worker wanted to know if it was
“possible without voting the union into the dealership that
the dealers’ [sic] current pay plan can be evaluated or updat-
ed more for progressing technicians whose current pay plan
has a low pay ceiling.” Andrews responded that such a thing
was “absolutely possible,” then added, “it’s something we
try to do every year,” and that “the first thing we need to
do” is to “look at that.” Later, Davis said that “if we’re not
being fair or we’re not being competitive to what you guys
could get on the open marketplace on your own, I think
there would be a definite willingness to consider making ad-
justments for those of you who are negatively impacted by
that,” adding, “we want a chance to address them [your con-
cerns] before you pay somebody else to address them.”
Although not everyone would understand these com-
ments as implicitly interfering with the unionization effort
or coercing employees, that is one interpretation, and the
Board was authorized to adopt it. AutoNation contends that
the statements were merely conditional, and that the Board’s
view leaves employers in the bind of not even being able to
answer “maybe” when employees ask whether they will get
a raise without a union. Yet AutoNation fails to acknowledge
10 Nos. 14-2991, 14-3361
the context that convinced the Board that these comments
were implied promises. As we have noted, Davis said else-
where in the meeting that the dealership’s employees would
probably not get to negotiate for better pay if they chose to
bargain collectively. Yet when an employee asked whether
better pay was possible without unionizing, Andrews’s re-
sponse was overwhelmingly positive. The Board reasonably
saw Davis’s subsequent comment (that he and Andrews
wanted to address the employees’ concerns about pay “be-
fore you pay somebody else”—the “somebody else” clearly
referring to the Union) as a direct link between helping the
employees and their rejection of the Union. The contrast, the
Board thought, was sharp enough to imply to dealership
workers that unionizing or not unionizing could mean the
difference in positive consideration of a pay increase. As we
said long ago, such implied promises “have a tendency to
discourage employees from joining a union or engaging in
union activities.” NLRB v. Colonial Haven Nursing Home, Inc.,
542 F.2d 691, 700 (7th Cir. 1976); see also Beverly Enters., Inc.
v. NLRB, 139 F.3d 135, 143 (2d Cir. 1998) (“A finding of an ac-
tual or express promise is not necessary as an implied prom-
ise can suffice to establish the necessary element of an unfair
labor practice.”).
The Board’s third conclusion was that Davis threatened
the dealership’s workers with demotions if they chose to
pursue union activities. A worker asked whether the em-
ployees would “get demoted if we become a union shop.”
Davis first responded “I don’t know,” explaining that there
was no way to predict the result of theoretical future negoti-
ations with the union. An employee then surmised that un-
der union rules, those workers who are not “journeymen”
would be “dropped down or demoted” to “apprentice” sta-
Nos. 14-2991, 14-3361 11
tus. Davis responded, “That’s exactly how it would be nego-
tiated.” Andrews appeared to cut Davis off and attempt to
qualify this statement by telling the workers, “That’s how a
lot of them are.” Davis then said, “[Y]ou need that structure.
If not that identical structure, something similar to that
would be negotiated … .”
The Board’s finding that Davis threatened the workers
with demotions reflected a permissible view of this evi-
dence. His comments reasonably can be viewed as promis-
ing demotion for certain workers (those classified as jour-
neymen) if the employees voted for the union. AutoNation
argues that Davis and Andrews never guaranteed that an
apprentice/journeyman classification system would be part
of any eventual collective bargaining agreement between
AutoNation and the union. It also argues that the appren-
tice/journeyman distinction was suggested by an employee,
not by Davis or Andrews. Yet this is what the employee in
question asked: “[I]sn’t it also true that in the union, you
have basically apprentices and journeymen?” Davis re-
sponded, “Yeah, that’s basically how it works.” Thus Davis
more or less confirmed the employee’s assumption that the
union had exactly this system. The fact that Davis did so af-
ter Andrews injected some ambiguity into the discussion
provides further support for the Board’s conclusion.
Finally, the Board affirmed in a footnote the conclusion of
the ALJ that AutoNation threatened employees with black-
listing if they supported the union. Toward the end of the
meeting, Davis responded to an employee who asked if un-
ionization of the Libertyville dealership would be “some-
thing that’s going to follow you through your lifetime if you
transfer to another store.” Davis began inauspiciously by
12 Nos. 14-2991, 14-3361
telling the workers that “[t]he union will tell me that I’m
threatening you by bringing this up. The bottom line is,
that’s the reality.” He then said that other employers would
likely be suspicious of job applicants who had worked in un-
ion shops, and that such employers could “be inclined to
pass on you … because of that badge or that scarlet letter” of
prior union membership, or even having “gone through” a
campaign to enter a workplace that the union loses. The em-
ployee followed up by asking if “certain people’s careers
may be affected by this.” Davis responded, “Absolutely.”
The Board’s finding that these comments amounted to a
threat of blacklisting, far from being unreasonable, strikes us
as the most natural understanding. Davis’s statements were
fairly unequivocal. He also told the workers, for example,
that “[e]mployers don’t want unions in their shops. …
[T]hey’re going to think twice about hiring you, even if they
think you’re a superstar. … If you commit yourself to [union
representation], you’ve got to commit yourself to all of it, in-
cluding those consequences.” AutoNation’s argument to the
contrary turns on a distinction between threatening to black-
list employees for their union activity and warning of the
“possible negative outcome” that other companies may not
hire them for the same reason. That hair-splitting reading,
however, was far from the only reasonable one. The ALJ ad-
dressed this criticism in noting that although Davis did not
directly threaten anyone, he described the dim future career
problems for unionized AutoNation employees as a certain-
ty, not a possibility.
AutoNation’s fixation on what it depicts as the tentative
or merely factual nature of Davis’s comments fails to take
into account the applicable standard of review. The Act is
Nos. 14-2991, 14-3361 13
especially concerned with the economic power that an em-
ployer has over employees. The underlying message of Sec-
tion 8(a)(1) is that an employer such as AutoNation needs to
take care in the rhetoric it uses when discussing union issues
with its workers. The standard of review makes irrelevant
the question whether an employer’s comments might have
been viewed in a manner different from the way the Board
understood them. We have often remarked on our deference
to “the Board’s expertise in matters of labor relations.” See,
e.g., Lineback v. Spurlino Materials, LLC, 546 F.3d 491, 502 (7th
Cir. 2008) (internal quotation marks omitted). We need eval-
uate only whether substantial evidence supported the
Board’s finding—here, that Davis and Andrews’s comments
left the dealership’s employees with the impression that they
would experience a series of setbacks if they chose to vote
for the Union. It was reasonable to believe that manage-
ment’s comments produced this impression. We therefore
conclude that the Board’s decision that the comments of Da-
vis and Andrews at the August 23, 2011, meeting violated
Section 8(a)(1) of the Act must be enforced.
III
The remaining question is whether the Board’s decision
that AutoNation fired former dealership employee Jose
Huerta because of his union activity is also entitled to en-
forcement. The Board concluded that Huerta’s termination
violated Sections 8(a)(1) and 8(a)(3) of the Act. The latter
provision forbids “discrimination in regard to hire or tenure
of employment or any term or condition of employment to
encourage or discourage membership in any labor organiza-
tion.” 29 U.S.C. § 158(a)(3). AutoNation’s challenge to this
finding was the only point it addressed at oral argument. It
14 Nos. 14-2991, 14-3361
contends that the Board misconstrued its own test for de-
termining whether an employer’s action violated Section
8(a)(3). Although there are isolated bits of language in the
Board’s opinion that could be clearer, we conclude that taken
as a whole the Board applied the correct legal standard and
that substantial evidence supported its conclusion.
In order to assert a prima facie case of discrimination un-
der Section 8(a)(3), there must first be a “showing sufficient
to support the inference that protected conduct was a ‘moti-
vating factor’ in the employer's decision.” Wright Line,
251 N.L.R.B. 1083, 1089 (1980); see also Teamsters Gen. Local
Union No. 200, 723 F.3d at 786. There must be “a causal con-
nection between the animus and the implementation of the
adverse employment action.” See, e.g., Huck Store Fixture Co.
v. NLRB, 327 F.3d 528, 533 (7th Cir. 2003); Carry Cos. of Ill.,
Inc. v. NLRB, 30 F.3d 922, 927 (7th Cir. 1994). Once the Board
makes such a showing, the burden under Wright Line “shifts
to the employer to prove that it had a legitimate business
reason for making its decision.” Loparex, LLC v. NLRB,
591 F.3d 540, 546 (7th Cir. 2009). At each step, the Board may
rely upon circumstantial evidence. Id.
In this case, the Board said that the elements required to
support a showing that an employee’s union activity was a
“motivating factor” for an adverse employment action are
“[1] union or protected concerted activity, [2] employer
knowledge of that activity, and [3] union animus on the part
of the employer.” The confusion on which AutoNation has
seized comes from footnote 10 in the Board’s opinion, where
it said that Wright Line “does not require the General Coun-
sel to make some additional showing of particularized moti-
vating animus towards the employee’s own protected activi-
Nos. 14-2991, 14-3361 15
ty or to further demonstrate some additional, undefined
‘nexus’ between the employee’s protected activity and the
adverse action.” The Board then found “that Huerta’s union
activity was a motivating factor in his discharge,” citing two
reasons: first, that comments by Andrews and Davis at the
August 23 meeting established AutoNation’s anti-union an-
imus, and second that AutoNation’s proffered reason for fir-
ing Huerta was pretextual.
AutoNation contends that the Board misconstrued its
own Wright Line test in finding that anti-union animus moti-
vated the termination decision. This court has held, correctly
in AutoNation’s view, that there must be a showing of a
causal connection between the employer’s anti-union animus
and the specific adverse employment action on the part of
the decisionmaker. We have no quarrel with that abstract
proposition. See also Nichols Aluminum, LLC v. NLRB, Nos.
14-3001, 14-3202, 2015 WL 4760303, at *5 (8th Cir. Aug. 13,
2015). Where we part company with AutoNation is with its
insistence that the Board failed to find that precisely this
causal connection existed here, or that any such finding was
not supported by substantial evidence.
The rule that union activities must motivate a particular
adverse employment action in order to make out a Section
8(a)(3) violation is well established; an abstract dislike of un-
ions is insufficient. What the Board was saying in footnote 10
was that there was no need to prove additional animus be-
yond whatever animus lay behind the contested action.
Thus, for example, if the company took the position that it
would fire all union organizers, and then it fired Union Or-
ganizer A, there would be no need to show that it had an ex-
tra grudge against A related to union activity. In that exam-
16 Nos. 14-2991, 14-3361
ple, there is a clear nexus between the employer’s anti-union
animus and the particular action it took.
Even if one thought that evidence of additional particu-
larized animus is necessary in every case, the result here
would be the same. The Board pointed to circumstantial evi-
dence that AutoNation’s anti-union views played a central
role in its decision to fire Huerta. This evidence began with
the anonymous voicemail to Theodorou singling out Huerta
for his pro-union activity and then accusing him of bad mor-
al character because of his driving infraction. This call
prompted Theodorou to act against Huerta. AutoNation ar-
gues repeatedly that Theodorou himself betrayed no anti-
union animus, but that fails to take account of the whole sto-
ry. The Board analyzed in detail Davis’s comments at the
August 23 meeting; it was well within its rights to conclude
that Davis displayed his hostility toward union activity at
this particular dealership, activity of which Huerta was an
essential part. If Davis had not been involved, perhaps this
would be a different case. But as Theodorou’s consultation
with Davis on the Huerta matter shows, Davis was The-
odorou’s superior—a person Theodorou turned to before
taking adverse action against Huerta, whom Theodorou
knew from the voicemail to be involved in union activity.
The Board was not required to accept AutoNation’s position
that Theodorou’s action to terminate Huerta was untainted
by Davis’s anti-union bias. Davis’s involvement and the na-
ture of the initial accusation against Huerta were such that
we cannot disturb as unreasonable the Board’s finding that
Huerta’s “protected conduct was a ‘motivating factor’ in the
employer's decision.” Wright Line, 251 N.L.R.B. at 1089. The
Board also found that the pretextual nature of Theodorou’s
termination of Huerta established animus; we likewise de-
Nos. 14-2991, 14-3361 17
cline to disturb this conclusion, as we will discuss momen-
tarily. See Suburban Elec. Eng’rs/Contractors, Inc., 351 N.L.R.B. 1,
5 (2007) (“It is axiomatic that findings of antiunion animus
and discriminatory motive may be predicated on pretextual
reasons advanced for a personnel action.”).
Despite its discourse on the Wright Line factors in foot-
note 10 of its decision, the Board referred repeatedly in the
text of its opinion to the correct “motivating factor” re-
quirement of Wright Line. It opened its analysis of AutoNa-
tion’s actions toward Huerta by stating that under Wright
Line “the General Counsel must prove that an employee’s
union or other protected activity was a motivating factor in the
employer’s action against the employee” (emphasis added). It
later found that “the General Counsel met his burden of
showing that Huerta’s union activity was a motivating factor
in his discharge” (emphasis again added). To the extent that
the footnote may have deviated from Wright Line or intro-
duced imprecision, that is regrettable but not fatal to the
outcome in this case. We have no need to wade into an in-
tramural dispute between Board members if it makes no dif-
ference to the outcome.
The next question that we must address is whether, ap-
plying Wright Line, substantial evidence supported the
Board’s finding that AutoNation’s proffered reason for dis-
charging Huerta was pretextual. AutoNation asserted that
Huerta was fired for “job abandonment” when it terminated
his employment on September 21, 2011. The Board thought
this was pretext given the events that led Huerta reasonably
to believe that he had been fired before that date. Huerta
understood that he had been fired no later than September 3,
when he received the second letter prepared by Sterling on
18 Nos. 14-2991, 14-3361
behalf of Libertyville Toyota (whose name appeared in the
signature block). The letter said that “a continuation of cur-
rent employment … will not be made at this time.” This is
not an exemplar of clear prose, but it is not surprising that
an auto technician understood it to mean that Libertyville
(the signer of the letter and the only entity for which he
worked) had fired him as of “this time.” The fact that Huerta
applied for unemployment benefits right after he received
that letter and stated in the application that he had been dis-
charged is also good evidence that Huerta thought he no
longer had his job. There was reason to believe that AutoNa-
tion, through Theodorou and Davis, knew of Huerta’s filing,
as the State of Illinois contacted it to inquire about that
claim. “Thus, before terminating Huerta on September 21
(effective September 15) purportedly for abandoning his
job,” the Board found, “the Respondent knew that Huerta
believed he had already been discharged, and the Respond-
ent should have known why.”
Substantial evidence supports this finding. AutoNation’s
argument to the contrary does not undermine the Board’s
reasoning. AutoNation insists that Theodorou could not
have known about Huerta’s belief that he was fired because
Theodorou was not aware of the Sterling letters. This ignores
the fact that Theodorou did know that Huerta had filed for
unemployment, a fairly obvious indicator of Huerta’s
thoughts on whether he still had a job. This fact was central
to the Board’s finding: it stated that even if Theodorou did
not know of the Sterling letters, he knew of Huerta’s unem-
ployment claim. It was therefore reasonable for the Board to
find that Theodorou’s subsequent firing of Huerta for “job
abandonment” was pretextual. One does not abandon a job
from which he already has been fired.
Nos. 14-2991, 14-3361 19
Finally, AutoNation challenges the remedy of reinstate-
ment and back pay that the Board awarded to Huerta. This is
because, AutoNation argues, “it is uncontested that [Huerta]
would have been discharged for legitimate reasons.” Noth-
ing in the record supports such a flat assertion. AutoNation’s
argument is based on the fact that Huerta’s failure to obtain
a valid driver’s license by the time he lost his job would inev-
itably have resulted in his firing. That is not so clear. If Huer-
ta had not thought he was already out of work, he may have
prevailed at his September 13 hearing to the extent of having
even a limited driver’s license for work purposes. The record
also does not show how consistently AutoNation fired peo-
ple who had a temporary problem with their license. Our
consideration of this point is hampered by the fact that the
parties did not develop the argument. It may, however, be
raised at the compliance stage, as recommended in a case on
which AutoNation is relying. See Berkshire Farm Ctr. & Servs.
for Youth, 333 N.L.R.B. 367, 367 (2001) (leaving issue of rein-
statement and back pay to compliance hearing, where re-
spondent “will have the burden of establishing that [an em-
ployee] engaged in misconduct for which it would have dis-
charged any employee”).
IV
We conclude that substantial evidence supports the find-
ings of the Board that AutoNation challenges here: that its
comments through Davis and Andrews at the August 23,
2011, meeting violated Section 8(a)(1) of the Act, and that
Huerta’s termination violated Sections 8(a)(3) and (1). We
therefore ENFORCE the decision of the Board.