HILO, Hawaii: On Friday, a federal Court of Appeals upheld a National Labor Relations Board decision that two reporters for the Hawaii Tribune-Herald newspaper – owned by Stephen’s Media, LLC – were illegally fired.

Hunter Bishop, who is now employed by the County of Hawaii as the deputy director of the Department of Environmental Management, was terminated in 2005, while Dave Smith, who writes for the Big Island Now internet news website, got the ax in 2006.

Smith provided this statement after hearing the news today:

It is difficult to describe how I felt this morning when I heard the news of the favorable court ruling.

The past six years since I was illegally terminated – the only time I have ever been fired from a job in my life – have been difficult, both from a financial standpoint and from the uncertainty of having my journalism career unjustly jerked out from under me.

However, I never doubted that justice would eventually be served. Hopefully the Hawaii Tribune-Herald now realizes that it cannot ride roughshod over its employees.

Both Hunter and I are grateful to the National Labor Relations Board and the Newspaper Guild for their efforts to protect the rights of workers. We also want to thank our many supporters through this long and arduous process.

The 25 page court decision from the United States Court of Appeals:

Argued January 10, 2012
Decided April 20, 2012

No. 11-1054

STEPHENS MEDIA, LLC, DOING BUSINESS AS HAWAII
TRIBUNE-HERALD,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
HAWAII NEWSPAPER GUILD, LOCAL 39117,
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
INTERVENOR

Consolidated with 11-1088

On Petition for Review and Cross-Application for
Enforcement of an Order of the National Labor Relations
Board

L. Michael Zinser argued the cause for petitioner. With him
on the briefs was Glenn E. Plosa.

Daniel A. Blitz, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
John H. Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Julie B. Broido,
Supervisory Attorney.

Matthew J. Ginsburg argued the cause for intervenor
Hawaii Newspaper Guild, Local 39117, Communications
Workers of America, AFL-CIO. With him on the brief were
James B. Coppess and Barbara Lynn Camens.
Before: ROGERS and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge
EDWARDS

Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

EDWARDS, Senior Circuit Judge: Hawaii Newspaper Guild,
Local 39117, Communications Workers of America, AFL-CIO
(“the Union”) filed charges against Stephens Media, LLC, doing
business as the Hawaii Tribune-Herald (“the Company”),
alleging that the Company had committed multiple unfair labor
practices in violation of the National Labor Relations Act (“the
NLRA” or “the Act”). The National Labor Relations Board
(“the NLRB” or “the Board”) found merit to virtually all of the
charges and ordered the Company to undertake certain remedial
actions. See Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at
3–5 (Feb. 14, 2011). The Company seeks review of the Board’s
Decision and Order; the Board seeks enforcement.

We hereby grant the Board’s cross-application for
enforcement. Substantial evidence and controlling precedent
support the Board’s findings, and the Board’s well-reasoned
decision amply explains its judgment. Only two points merit
our amplification.

First, with respect to employee Hunter Bishop, the Board
found that the Company violated section 8(a)(3) and (1) of the
Act, 29 U.S.C. § 158(a)(3), (1) (2006), by suspending and
discharging Bishop for engaging in protected “concerted
activities,” id. § 157. The Company’s objections to that finding
and its two justifications for Bishop’s termination are
unavailing. The Company asserts that, after discharging Bishop,
it discovered that he had been deficient in his work productivity.
The Board found, and we agree, that the Company’s claim is
pretextual. The Company also contends that Bishop engaged in
disloyal conduct after he was fired. The Board held, however,
that Bishop’s conduct did not render him “unfit for further
service, or a threat to ‘efficiency in the plant.’” O’Daniel
Oldsmobile, Inc., 179 N.L.R.B. 398, 405 (1969) (citations
omitted). We can find no basis to overturn the Board’s
judgment on this point. Therefore, as the Board held, Bishop is
entitled to reinstatement and backpay. We are jurisdictionally
barred from considering the Company’s arguments that the
NLRB committed either legal error in adopting O’Daniel
Oldsmobile as the governing standard or factual error in
applying that standard. See 29 U.S.C. § 160(e).

Second, with respect to employees Dave Smith, Peter Sur,
Christine Loos, and William Ing, the Board found that the
Company violated section 8(a)(3) and/or (1) of the Act by
interrogating them, suspending Smith and Sur, and discharging
Smith for engaging in protected concerted activity. The
Company says that the cited employees engaged in unprotected
activity when they participated in making a surreptitious audio
recording of a conversation between Smith and a member of
management. Therefore, according to the Company, the actions
taken against the employees did not constitute unfair labor
practices. The Board’s decision rejecting the Company’s claim
rests on three grounds: under established Board precedent, there
is no per se rule that the making of surreptitious recordings is
unprotected activity; the Company had no policy in effect
prohibiting audio recordings; and it is undisputed that the
recording was not unlawful under state or local law. We defer
to the Board’s judgment, because it is based on reasoned
decisionmaking, supported by substantial evidence, and
consistent with controlling precedent.

I. Background

A. The Facts

The Company publishes a newspaper in Hilo, Hawaii. The
editor of the newspaper is David Bock, and the publisher is Ted
Dixon. The Company’s news staff employees are represented
by the Union. Employees Koryn Nako, Hunter Bishop, and
Dave Smith have served as Union shop stewards.
The circumstances leading to this petition for review and
cross-application for enforcement are largely undisputed. We
focus on the facts that are relevant to the portions of the Board’s
Decision and Order that merit amplification. We first address
the events relevant to the Company’s suspension and discharge
of Bishop. We then turn to the events surrounding Smith’s
making of a secret recording of a conversation with Bock. The
facts that are recited below are drawn directly from the Decision
and Order of the Board, see Hawaii Tribune-Herald, 356
N.L.R.B. No. 63 (Feb. 14, 2011), and from documents in the
record before the court.

1. Bishop’s Suspension and Termination

On October 18, 2005, Union representative Ken Nakakura
asked to meet with Nako. They initially met outside the
Company building, but Nako then brought Nakakura through the
employee entrance into the break room, where they were joined
by Bishop. Bock and the Company’s advertising director, Alice
Sledge, entered the break room shortly thereafter. Upon
identifying Nakakura as a Union representative, Bock asked who
had admitted Nakakura into the building. Nako volunteered that
she had done so. Bock stated that it was a violation of the
Company’s access policy for a Union representative to be in the
building without receiving prior management approval. Bock
then escorted Nakakura out of the building.

When Bock returned, he asked to speak with Nako. As they
were preparing to leave the break room, another employee,
Sharon Maeda, asked Bishop if someone should accompany
Nako. Nako signaled her approval by looking to Bishop and
saying “okay.” Hawaii Tribune-Herald, 356 N.L.R.B. No. 63,
at 7. Bishop followed Bock and Nako, prompting Bock to tell
Bishop that the discussion did not involve him. Bishop then
inquired whether the meeting could result in a disciplinary
action – apparently attempting to ascertain whether Nako was
entitled to bring a witness to the meeting under NLRB v. J.
Weingarten, Inc. See 420 U.S. 251 (1975) (holding that an
employer commits an unfair labor practice by compelling an
employee to attend an investigatory meeting that could lead to
discipline without allowing the employee to bring a union
witness). Bock replied that he would be having a discussion
with Nako. Bishop asked one or two more times whether the
meeting could lead to discipline, and Bock stated that the
meeting was none of Bishop’s business. Bishop eventually
withdrew, telling Nako from about twenty feet away that he
would be available, if she needed him.

The testimony before the Administrative Law Judge
(“ALJ”) indicates that, during this confrontation, Bishop spoke
in a “moderately loud,” “elevated,” or “strong projecting” voice.
Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 9. At no point,
however, did Bishop yell, threaten Bock, or use profanity. Id.
at 8–9, 20. Indeed, the ALJ and NLRB expressly discredited
witnesses who testified that Bishop shouted or became
excessively angry. See id. at 9; see also id. at 1 n.2.

Company officials questioned Nako several times about
admitting Nakakura into the building and about Bishop’s
confrontation with Bock. The Company also prepared a
statement documenting Nako’s version of the confrontation
between Bock and Bishop, which she signed on October 19. On
October 26, Nako received a warning for admitting Nakakura
into the building without receiving management’s prior
approval.

Meanwhile, on October 19, Bock summoned Bishop to
Bock’s office, where Bock suspended Bishop indefinitely,
without pay. Bock explained that Bishop’s conduct in trying to
prevent Bock from meeting with Nako had been unacceptable.
Bock also referenced Bishop’s disciplinary record. Bock sent
Bishop a termination letter several days later, which stated:
“[W]e are discharging you because of your misconduct on
October 18, 2005. You were disrespectful of supervisory
authority, insubordinate and disruptive of my efforts to have a
conversation with one of our employees.” Letter from David
Bock to Hunter Bishop (Oct. 27, 2005), reprinted in II Joint
App. (“J.A.”) 870. After the Company discharged Bishop,
employees wore buttons at work indicating their support for
him. In response, the Company circulated a memo prohibiting
employees from wearing these buttons during work hours. See
Letter from Ted E. Dixon (Nov. 1, 2005), II. J.A. 880.

The Union filed grievances to challenge the disciplinary
actions taken against Bishop and Nako. On several occasions in
October and November 2005, the Union requested information
and documents relevant to these grievances, including Bishop’s
personnel file, witness lists, Nako’s signed statement, and copies
of company policies. The Company failed to give the Union
Bishop’s personnel file until early 2006, and it consistently
refused to provide other requested documents.

In December 2005, Bishop attended a public event at the
Hilo campus of the University of Hawaii. There, he spoke
critically about the Company, claiming that it had failed
adequately to staff the newsroom and that he had considered
starting a rival newspaper.

In February 2006, Bock sent another letter to Bishop.
According to the Board,

[the] letter cited additional reasons for Bishop’s discharge
including poor productivity and participation in a forum at
the University of Hawaii-Hilo where Bishop allegedly made
disparaging, defamatory, disloyal remarks about the Hawaii
Tribune-Herald. In the letter, Bock claim[ed] he failed to
compile Bishop’s productivity numbers at the time of his
termination on October 27, 2005, and that a later review of
the number of stories Bishop produced shows he failed to
meet productivity standards. According to Bock, Bishop
was producing .81 stories per day and the standard was one
story per day. Bishop had previously been counseled about
his low productivity in May 2002 and September 2003, he
received a warning for low production in October 2003 and
was suspended for low production on May 6, 2004.

Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 10. Bishop
made additional critical statements about the Company on his
blog in April and September of 2007. See id. at 9–10.

2. Smith’s Recording

On March 3, 2006, employee Jason Armstrong asked Smith
to serve as a witness to a meeting during which Armstrong
expected to receive a warning from Bock. See id. at 10. Smith
tried to accompany Armstrong to the meeting, but Bock refused
to allow Smith to attend. Bock also told Smith that they needed
to meet privately later that day.

Smith expected that he too would receive a warning from
Bock and that Bock would not allow him to bring a union
witness to their meeting. Smith believed that, under the
Supreme Court’s Weingarten decision, he was entitled to have
a witness attend the meeting with him. Smith called the Union
administrator, Wayne Cahill, who advised Smith to take notes
during the meeting. After talking with Cahill, however, Smith
discussed the situation with three other bargaining unit
employees: Peter Sur, Christine Loos, and William Ing. They
concluded that, rather than take notes, Smith should
surreptitiously record his conversation with Bock using Sur’s
voice recorder. The Company did not have any policy at the
time regarding the making of secret audio recordings, see id. at
15, nor was there any local or state law prohibiting the making
of such recordings, see HAW. REV. STAT. § 803-42(b)(4) (1993
& Supp. 2011). Sur offered to lend his recorder to Smith, and
Loos and Ing also encouraged Smith to record the conversation.
Their planning was overheard by another employee, Karen
Welsh.

When Smith met with Bock later that day, he concealed the
recorder within his shirt. At the outset of the conversation,
Smith requested that Bock allow a witness to attend the meeting,
but Bock refused. Bock then issued an oral warning to Smith,
citing Smith’s inadequate productivity. When Smith asked for
more details as to how his productivity had been measured,
Bock provided some additional information and then told Smith
to check the numbers himself.

On March 6, Welsh informed Bock that Smith had recorded
the March 3 meeting with a concealed voice recorder. This
disclosure prompted Bock to investigate the matter further. He
first interrogated Sur, who admitted to providing the recorder to
Smith. When asked to explain why Smith had recorded the
conversation, Sur answered that they had believed that Smith,
like Armstrong, would be denied access to a witness during a
meeting that could lead to discipline. And when asked about the
whereabouts of the recorder, Sur said that it was still in Smith’s
possession. Bock suspended Sur indefinitely and without pay.

Bock then met with Smith, who admitted to recording the
March 3 meeting. Bock asked why Smith had made the
recording, and Smith explained that he had wanted to preserve
an accurate record, since he had known that Bock would not
allow a witness to observe the meeting. Bock also asked why
Smith had not obtained permission to record the meeting; Smith
answered that he had not needed permission, since there was no
law or company policy prohibiting the making of secret audio
recordings. At the end of the meeting, Bock suspended Smith
indefinitely and without pay. Ing and Loos were also
interrogated regarding the incident but never disciplined.

On March 10, Bock called Sur to ask for permission to
recover the recorder from Smith. Sur agreed, and Bock told Sur
to return to work on March 11. Bock then requested that Smith
turn over the recorder as well as any recording to the Company,
but Smith replied that he had already given the recorder to the
Union. On March 13, employees in the advertising department
wore red armbands to a meeting to show support for Smith.
Later that day, they received a letter from the Company
prohibiting the wearing of such armbands during working hours.
See Letter from Ted E. Dixon (Mar. 13, 2006), II J.A. 881.

On March 15, Dixon sent a letter to every employee and
member of management, announcing an official policy
prohibiting the making of secret audio recordings. See Hawaii
Tribune-Herald, 356 N.L.R.B. No. 63, at 19; see also Letter
from Ted E. Dixon to Peter Sur (Mar. 15, 2006) (“Recording
Policy”), II. J.A. 887. The letter stated in relevant part:

[T]wo employees were suspended without pay involving an
incident in which a conversation with a supervisor was
secretly audio-taped. This is egregious misconduct. . . .
Making secret audio recordings is not
permitted. It is wrong, we have taken action, and we will
do again in the future with respect to any secret
recording/taping in the work place.

Recording Policy, II J.A. 887.

On March 17, Smith received a written directive from Bock
to retrieve the recorder and recording from the Union and turn
them over to the Company. Cahill responded on Smith’s behalf
by notifying Bock that the Union was filing a grievance over
Smith’s suspension. Bock sent Smith another letter on March
22, stating that Smith’s failure to produce the recorder and
recording was an act of insubordination. Bock met with Smith
and Cahill on March 27 to discuss the recording. Then, in April,
Bock met privately with Smith and presented Smith with a letter
to sign, admitting that making the surreptitious recording had
been serious misconduct and accepting that future recordings
would result in discharge. See Letter from David Bock to Dave
Smith (Apr. 11, 2006), II J.A. 871–74. Smith refused to sign the
letter, and, several weeks later, the Company fired him. See
Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 12.

B. Decision Below

After the Union filed unfair labor practices charges, the
Board’s Regional Director issued a consolidated complaint
against the Company on March 30, 2007. See id. at 6. The
complaint alleged that the Company had committed multiple
violations of sections 8(a)(1), (3), and (5) of the Act, 29 U.S.C.
§ 158(a)(1), (3), (5). As the ALJ summarized:

The consolidated complaint . . . alleges that [the
Company] violated Section 8(a)(1) of the [Act] by
interrogating employees regarding their and other
employees’ union and concerted activities; selectively and
disparately enforcing a security policy by requiring union
representatives to obtain [the Company’s] permission to
enter [its] facility; creating the impression that employees’
union and concerted activities were under surveillance;
prohibiting the wearing of union paraphernalia; and issuing
and maintaining an overly broad rule prohibiting the
making of secret audio recordings.

It is alleged that [the Company] violated Section
8(a)(3) of the Act by disciplining employees Koryn Nako
(Nako) and Peter Sur (Sur) and by terminating employees
Hunter Bishop (Bishop) and Dave Smith (Smith).

Finally, the General Counsel alleges [the Company]
violated Section 8(a)(5) of the Act by failing to provide
information to the Union.

Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 6 (footnote
omitted).

On March 6, 2008, the ALJ issued a decision finding merit
to virtually all of the allegations against the Company – save the
charge alleging that the Company had created an impression of
surveillance. See id. at 1, 13–27. The Company filed
exceptions, and the General Counsel filed limited exceptions.
See id. at 1. The NLRB “affirm[ed] the judge’s rulings,
findings, and conclusions,” with certain minor modifications.
Id. (footnote omitted). We discuss the specifics of the Board’s
Decision and Order, as necessary, at greater length below. The
Company filed a petition for review with this Court; the Board
filed a cross-application for enforcement.

II. Analysis

A. Finality

There is no jurisdictional impediment to this court’s review
of the Board’s Order and Decision. There is, however, a
question whether the Board’s action is “final.” To be final and,
hence, reviewable, an agency action “must mark the
consummation of the agency’s decisionmaking process – it must
not be of a merely tentative or interlocutory nature.” Nat’l Ass’n
of Home Builders v. Norton, 415 F.3d 8, 13 (D.C. Cir. 2005)
(quoting Bennett v. Spear, 520 U.S. 154, 177–78 (1997))
(internal quotation marks omitted). The action also “must be
one by which rights or obligations have been determined, or
from which legal consequences will flow.” Id. (quoting Bennett,
520 U.S. at 178) (internal quotation marks omitted). As we
explain below, the challenged Decision and Order satisfies both
conditions.

We address the matter of finality, because, in rendering its
Decision and Order in this case, the Board reserved judgment on
one issue. Having found that the Company had violated section
8(a)(5) and (1) “by failing and refusing to furnish, and delaying
in furnishing, the Union relevant and necessary information that
it ha[d] requested,” the Board ordered the Company “to furnish
the Union with the requested information, excluding Koryn
Nako’s October 19, 2005 witness statement and any other
witness statements that the [Company] obtained in the course of
its investigation of Bishop’s alleged misconduct.” Hawaii
Tribune-Herald, 356 N.L.R.B. No. 63, at 4. The Board noted
that “precedent establishes that the duty to furnish information
‘does not encompass the duty to furnish witness statements
themselves.’” Id. at 3 (citations omitted). But the Board also
found that “precedent does not clearly define the scope of the
category of ‘witness statements.’” Id. The Board therefore
decided to “sever this allegation from the case and to solicit
briefs on the issues it raises.” Id. It appears that the severed
issue remains pending before the Board. After the petition for
review and cross-application for enforcement were filed with
this court, we directed the parties to address whether this matter
is properly before the court, “in light of the severed matter.”

We conclude that the matter before the court is final and fit
for review. The Decision and Order establishes the rights and
obligations of the Company and its employees with respect to
recently established policies, the suspension and discharge of
Bishop and Smith, the disciplinary actions taken against Nako
and Sur, the interrogation of those and other employees, and the
Company’s obligations to provide other materials to the Union.
The severed issue was removed by the Board from the realm of
this case. Neither party suggests that the case sans the severed
issue is unripe for review. And the severed issue is not
intertwined with the findings that we review here, so our review
will not “disrupt the orderly process of adjudication” over the
Union’s request for Nako’s witness statement. E.g., Exportal
Ltda. v. United States, 902 F.2d 45, 48 (D.C. Cir. 1990)
(citations omitted) (internal quotation marks omitted). We
therefore proceed to consider the merits of the parties’ positions.

B. Standard of Review

“As we have noted many times before, our role in reviewing
an NLRB decision is limited. ‘We must uphold the judgment of
the Board unless, upon reviewing the record as a whole, we
conclude that the Board’s findings are not supported by
substantial evidence, or that the Board acted arbitrarily or
otherwise erred in applying established law to the facts of the
case.’” Wayneview Care Ctr. v. NLRB, 664 F.3d 341, 348 (D.C.
Cir. 2011) (citation omitted). We give “substantial deference”
to inferences the Board draws from the facts. Halle Enters., Inc.
v. NLRB, 247 F.3d 268, 271 (D.C. Cir. 2001) (citation omitted)
(internal quotation marks omitted). An ALJ’s determinations
regarding the credibility of witnesses will not be reversed
“unless those determinations are hopelessly incredible,
self-contradictory, or patently unsupportable.” Federated
Logistics & Operations v. NLRB, 400 F.3d 920, 924 (D.C. Cir.
2005) (citation omitted) (internal quotation marks omitted).
Finally, we also must accord considerable deference to the
NLRB’s policy judgments and other determinations that are
based on its expertise. See, e.g., NLRB v. Curtin Matheson
Scientific, Inc., 494 U.S. 775, 786–87 (1990). “Determining
whether activity is concerted and protected within the meaning
of [the NLRA] is a task that ‘implicates [the Board’s] expertise
in labor relations.’ The Board’s determination that an employee
has engaged in protected concerted activity is entitled to
considerable deference if it is reasonable.” Citizens Inv. Servs.
Corp. v. NLRB, 430 F.3d 1195, 1198 (D.C. Cir. 2005) (second
alteration in original) (citation omitted).

C. Insubstantial Challenges Raised by the Company

The Company has contested all of the Board’s findings;
consequently, none may be summarily affirmed. See, e.g.,
Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 181 (D.C. Cir.
2006) (explaining that charges may be summarily enforced
when a party “does not contest them” (citation omitted)). But
we need address only two aspects of the Board’s Decision and
Order, “because the company’s other challenges are met by
sufficient evidence in the record to support the Board’s
findings.” W.C. McQuaide, Inc. v. NLRB, 133 F.3d 47, 49 (D.C.
Cir. 1998). Accordingly, we grant without amplification the
Board’s cross-application for enforcement as to the following
findings:

[T]he [Company] violated Section 8(a)(1) of the Act by:
interrogating employees; disparately and discriminatorily
enforcing its security access policy against the Union; [and]
discriminatorily prohibiting employees from wearing
buttons and armbands in support of discharged or
suspended employees; and promulgating and maintaining
a rule prohibiting employees from making secret audio
recordings of conversations in response to protected
activity . . . . [T]he [Company] violated Section 8(a)(3) and
(1) by: issuing a written warning to employee Koryn Nako
. . . . [T]he [Company] violated Section 8(a)(5) and (1) by
refusing to provide or delaying the provision of relevant
information requested by the Union.

Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 1, 3.

D. Bishop’s Confrontation with Bock Was Protected and
the Company’s Post-discharge Justifications for His
Termination Are Unavailing

The Board found that the Company violated section 8(a)(3)
and (1) of the Act by “suspending . . . Hunter Bishop” and later
“discharging” him. Id. at 1. The Board therefore ordered the
Company to offer to reinstate Bishop, to compensate him for
lost earnings, and to remove any references to the suspension or
termination from his file. See id. at 3–4.

“It is well settled that an employer violates the NLRA by
taking an adverse employment action in order to discourage
union activity.” Ark Las Vegas Rest. Corp. v. NLRB, 334 F.3d
99, 104 (D.C. Cir. 2003) (citations omitted). Section 8(a)(3)
makes it an unfair labor practice for an employer, “by
discrimination in regard to . . . tenure of employment
. . . to . . . discourage membership in any labor organization.”
29 U.S.C. § 158(a)(3). Section 7 guarantees employees the right
to engage in “concerted activities for the purpose of . . . mutual
aid or protection.” Id. § 157. That right, in turn, is “protected
by Section 8(a)(1) of the Act, which makes it an unfair labor
practice for an employer ‘to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in [S]ection
7.” Citizens Inv. Servs. Corp., 430 F.3d at 1197 (alteration in
original) (citation omitted). Courts are to construe section 7
broadly when considering whether activities qualify as
protected. See Eastex, Inc. v. NLRB, 437 U.S. 556, 563–70
(1978).

The Board found that the Company illegally suspended and
discharged Bishop for engaging in protected concerted activities.
The Company initially based its suspension and discharge of
Bishop on his confrontation with Bock on October 18, 2005.
See Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 9. Bishop
initiated that confrontation, because he reasonably believed that
Bock was about to conduct an investigatory, disciplinary
interview with Nako, without allowing her to bring a witness,
see id. at 20–21, in violation of her rights under the NLRA, see
Weingarten, 420 U.S. at 260–64. Furthermore, Nako had
signaled to Bishop that she wanted him present during that
meeting. See Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at
20. The Board thus concluded that Bishop was acting in his
capacity as shop steward when he attempted to intervene on
Nako’s behalf and that, consequently, his conduct was protected.
That determination is eminently reasonable and, therefore, it is
entitled to our deference.

The Company avers that Bishop was not engaged in
protected activity when he confronted Bock. The Company
argues that Nako may have assented to Bishop’s presence, but
she did not request it. See id. at 7, 8, 20. The Company points
to Board decisions holding that, to be entitled to a union witness
in a meeting, an employee must “initiate the request for
representation.” See Appalachian Power Co., 253 N.L.R.B.
931, 933–34 (1980), enforced 660 F.2d 488 (4th Cir. 1981)
(unpublished). The Company additionally argues that Bishop
confronted Bock based on his subjective belief that Nako was
about to be disciplined. Under Weingarten, an employee is
entitled to a witness only if she or he reasonably believes that
the investigation will result in discipline. See Weingarten, 420
U.S. at 257 & n.5. The Company thus contends that Bishop’s
subjective views could not have satisfied Weingarten’s objective
test.

The entire premise of the Company’s argument is flawed.
The argument rests on the unstated and erroneous assumption
that the question of whether Bishop was engaged in protected
activity is coterminous with the question of whether Nako
actually had the right to bring a witness to her meeting with
Bock. These two questions are analytically distinct. See Briar
Crest Nursing Home, 333 N.L.R.B. 935, 947–48 (2001) (finding
that an employee engaged in protected concerted activity by
accompanying a colleague to a post-strike disciplinary meeting,
without expressly finding that the colleague was entitled to have
a witness at that meeting). Bishop was engaged in protected
activity when he confronted Bock, because he was acting on his
reasonable belief that the Company was about to impermissibly
discipline a bargaining unit employee. Cf. Hi-Tech Cable Corp.,
309 N.L.R.B. 3, 12 (1992) (finding that an employee was
engaged in protected activity “when he . . . honestly and
reasonably protested that [a] work assignment contravened an
agreement reached in the preliminary stages of grievance
resolution” (emphasis added)), enforced 25 F.3d 1044 (5th Cir.
1994) (unpublished). It does not matter whether Bishop was
correct in what he reasonably assumed. See Crown Zellerbach
Corp., 284 N.L.R.B. 111, 112 (1987) (finding that an employee
was engaged in “protected concerted activity when he filed [a]
grievance . . . even though as a temporary employee he probably
was ineligible to file a grievance”). The point here is that when
Bishop made repeated demands to represent Nako, he was
merely acting as a “union steward” and a “forceful advocate for
Nako.” Hawaii Tribune-Herald, 356 N.L.R.B. No. 63, at 9.
This was protected activity.

The Company next argues that even if Bishop was involved
in protected activity when he intervened on Nako’s behalf, he
forfeited the Act’s protections by confronting Bock in an
opprobrious manner. See, e.g., NLRB v. City Disposal Sys., Inc.,
465 U.S. 822, 837 (1984) (“An employee may engage in
concerted activity in such an abusive manner that he loses the
protection of § 7.” (citations omitted)); Kiewit Power
Constructors Co. v. NLRB, 652 F.3d 22, 26–29 (D.C. Cir. 2011)
(discussing when conduct that is otherwise protected falls
outside of the Act’s protections, because it is “opprobrious”).
We disagree. Whether an employee has “crossed that line
depends on several factors: (1) the place of the discussion; (2)
the subject matter of the discussion; (3) the nature of the
employee’s outburst; and (4) whether the outburst was, in any
way, provoked by an employer’s unfair labor practice.” Atl.
Steel Co., 245 N.L.R.B. 814, 816 (1979). The Board followed
this framework and found that Bishop’s conduct “was [not] so
egregious as to be considered indefensible.” Hawaii Tribune-
Herald, 356 N.L.R.B. No. 63, at 21. This finding is supported
by substantial evidence, and the Company’s claims to the
contrary, see Pet’r’s Br. at 34–37, are largely based on
statements by discredited witnesses, see Hawaii Tribune-Herald,
356 N.L.R.B. No. 63, at 9; see also id. at 1 n.2.

The Company also argues that, in finding Bishop’s
dismissal to be an unfair labor practice, the Board ignored the
fact that Bishop was a “recidivist” offender with a long
disciplinary history. This is a specious argument. As the
Company knew, Bishop was engaged in union activity on
October 18 when he attempted to assist Nako, by asking Bock
if he intended to discipline her during a meeting. Substantial
evidence in the record confirms that Nako had indicated that she
wanted Bishop to accompany her to the meeting. “As a union
steward, Bishop was fulfilling his union duties toward Nako in
seeking to be present during what turned out to be a Weingarten
investigative meeting.” Id. at 20. The Board found that
Bishop’s conduct was protected and not opprobrious. The
Company disciplined Bishop precisely because he was engaged
in protected activity, not because of his alleged past bad
behavior. We find no error in the Board’s reasoning.

The Company next offers two arguments to challenge the
Board’s decision ordering reinstatement and backpay for
Bishop. First, the Company seeks to avoid these remedies by
pointing to its postdischarge discovery of predischarge
misconduct that it claims would have justified Bishop’s
termination. Under Board precedent, “if an employer
establishes that an employee engaged in misconduct for which
the employer would have discharged any employee,
reinstatement is not ordered and backpay is terminated on the
date that the employer first acquired knowledge of the
misconduct.” Berkshire Farm Ctr., 333 N.L.R.B. 367, 367
(2001) (citations omitted). Here, the Company claims that
several months after Bishop was fired, Bock discovered that
Bishop had failed to satisfy the Company’s productivity
standard for reporters. See Hawaii Tribune-Herald, 356
N.L.R.B. No. 63, at 10.

The NLRB found that the Company’s “‘discovery’ of
Bishop’s low productivity after his termination is a belatedly
discovered pretext for Bishop’s discharge.” Id. at 21. This
conclusion is supported by substantial evidence. The Company
“closely monitored Bishop’s story count from May 2002 to May
2004, resulting in warnings and a suspension.” Id. Based on
Bishop’s disciplinary history, the NLRB reasonably rejected as
implausible the Company’s assertions that it was not monitoring
Bishop from “May 6, 2004, to October 27, 2005” and that it had
“no idea of Bishop’s productivity” during that window. Id. We
owe substantial deference to the NLRB’s factual inference that,
given the circumstances, the Company must have been aware of
Bishop’s productivity throughout 2004 and 2005. Yet, the
Company did not act to discipline Bishop for this alleged low
productivity until many months after he had been fired. The
Board reasonably concluded that the Company’s productivity
justification for firing Bishop was pretextual and unavailing.
See Citizens Inv. Servs. Corp., 430 F.3d at 1202 (rejecting an
employer’s proffered “affirmative defenses” for a disciplinary
decision, in part, because “there was substantial evidence” that
they were “pretextual”).

Second, the Company claims that Bishop engaged in
postdischarge disloyal conduct that precludes reinstatement and
limits his right to backpay. The Company relies heavily on the
Supreme Court’s decision in NLRB v. Local Union No. 1229,
IBEW (“Jefferson Standard”), 346 U.S. 464 (1953), in which the
Court enforced an NLRB decision denying reinstatement to
several discharged technicians, see id. at 465. As the Court
explained, the technicians in question

were discharged solely because, at a critical time in the
initiation of the company’s television service, they
sponsored or distributed 5,000 handbills making a sharp,
public, disparaging attack upon the quality of the
company’s product and its business policies, in a manner
reasonably calculated to harm the company’s reputation and
reduce its income.

Id. at 471. The Court went on to hold that “[t]here is no more
elemental cause for discharge of an employee than disloyalty to
his employer.” Id. at 472.
The Company argues that it had cause to fire Bishop,
because his postdischarge conduct was blatantly disloyal to the
Company. In support of this claim, the Company points out that
Bishop stated at a public event that the Company suffered from
organizational and management problems, see Hawaii Tribune-
Herald, 356 N.L.R.B. No. 63, at 9, and that he made other
disparaging statements about the Company on his blog, see id.
at 9–10.

The ALJ found that, even under Jefferson Standard, an
employee is entitled to reinstatement and backpay if his or her
statements are not “maliciously false, i.e., statements made with
knowledge of their falsity or with reckless disregard for their
truth or falsity.” Id. at 22 (citing TNT Logistics N. Am., Inc., 347
N.L.R.B. 568, 569 (2006)). According to the judge, Bishop’s
statements were not maliciously false. See id. The Board
offered a different rationale to support the judgment that Bishop
had not forfeited his reinstatement and backpay.

The NLRB held that Jefferson Standard is inapposite. See
id. at 2–3. The Board noted that the technicians in Jefferson
Standard verbally attacked the television company while they
were current employees of that company. See 346 U.S. at
466–68. Bishop, in contrast, verbally attacked the Company
after he was unlawfully discharged. See Hawaii Tribune-
Herald, 356 N.L.R.B. No. 63, at 9–10. The Board held that in
the latter set of circumstances – i.e., where an employer seeks to
avoid its obligations based on an employee’s postdischarge
misconduct – the employer “has the burden of proving
misconduct so flagrant as to render the employee unfit for
further service, or a threat to efficiency in the plant.” Id. at 2
(quoting O’Daniel Oldsmobile, Inc., 179 N.L.R.B. at 405). The
Board also overruled the “limited number of prior cases” in
which it had “applied principles drawn from Jefferson Standard
in evaluating whether postdischarge conduct disqualified
unlawfully discharged employees from reinstatement and cut off
their right to backpay.” Id. (citations omitted).

Before this court, the Company objects to the Board’s
analysis on two levels. First, the Company argues that the
Board committed a legal error by adopting O’Daniel Oldsmobile
as the governing standard when an employer challenges its
remedial obligations based on an employee’s postdischarge
misconduct. See Pet’r’s Br. at 65–69. In effect, the Company
argues that the Board impermissibly moved the goalpost by
jettisoning Jefferson Standard and resuscitating O’Daniel
Oldsmobile. Second, the Company argues that, as a factual
matter, the Board misapplied O’Daniel Oldsmobile. See Pet’r’s
Reply Br. at 19–20. The Company claims that even under
O’Daniel Oldsmobile, Bishop is not entitled to reinstatement or
backpay.

We lack jurisdiction to consider both arguments, however,
because the Company never raised them before the Board.
Section 10(e) of the NLRA states that “[n]o objection that has
not been urged before the Board . . . shall be considered by” an
appellate court absent “extraordinary circumstances.” 29 U.S.C.
§ 160(e). And pursuant to section 10(e), a party’s failure to
present a question to the Board – including by failing to file a
motion for reconsideration under the Board’s regulations, see 29
C.F.R. § 102.48(d)(1) (2011) – “prevents consideration of the
question by the courts.” Woelke & Romero Framing, Inc. v.
NLRB, 456 U.S. 645, 666 (1982) (citation omitted); see also
Spectrum Health—Kent Cmty. Campus v. NLRB, 647 F.3d 341,
348 (D.C. Cir. 2011). The only argument that the Company
advanced before the NLRB regarding Bishop’s disloyalty is that
Bishop does not qualify for reinstatement or full backpay under
Jefferson Standard. That is the only argument that the Company
preserved for appeal, and it does not encompass the Company’s
present objections to the Board’s adoption or application of
O’Daniel Oldsmobile.

The Company points to no extraordinary circumstances
justifying its failure to raise and preserve the O’Daniel
Oldsmobile arguments. To the contrary, the Company’s
arguments before this court – that the NLRB committed a legal
error in changing the governing standard and committed a
factual error in applying that new standard – are precisely the
types of claims that the Company was obligated to bring to the
Board’s attention by filing a motion for reconsideration. “Such
a motion would have given the Board notice of [the Company’s]
objection[s] and an opportunity to fix its supposed mistake[s].”
W & M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341, 1345
(D.C. Cir. 2008) (citations omitted). In the absence of such
motion, we are constrained to find that the Company waived
these arguments.

E. Smith’s Making of a Secret Recording Was Protected

The Board found that the Company violated section 8(a)(3)
and (1) by interrogating employees Sur, Smith, Loos, and Ing;
suspending Sur and Smith; and discharging Smith. See Hawaii
Tribune-Herald, 356 N.L.R.B. No. 63, at 1. It therefore ordered
the Company to offer to reinstate Smith, to compensate Smith
and Sur for their lost earnings, and to remove any references to
the challenged disciplinary actions in their respective files. See
id. at 4.

According to the Board, these employees were engaged in
protected concerted activity when they planned for Smith to
record his meeting with Bock – and when Smith made the actual
recording. The Board’s finding is supported by substantial
evidence, and it is consistent with controlling precedent. These
employees reasonably believed that the Company was going to
violate Smith’s rights by refusing to allow him to bring a
witness to an interview that would result in disciplinary action.
And, as the Board found, it was reasonable for the employees to
assume that Bock would not allow a witness to attend the
meeting, because Bock had refused to allow Smith to serve as a
witness during a similar meeting earlier that day. Under these
circumstances, the employees’ decision “to document what they
perceived to be a potential violation of employee rights under
NLRB v. J. Weingarten” qualified as protected activity. Id. at 1.

The Company offers three arguments to the contrary. First,
the Company claims that the employees were not engaged in
protected activity, because Smith was not entitled to bring a
witness to his meeting with Bock. According to the Company,
Smith’s mere belief that he was entitled to the presence of a
witness was insufficient to trigger his rights under Weingarten,
see 420 U.S. at 257 & n.5, and there has been no finding that
Smith’s belief was objectively reasonable. In fact, it appears
that Smith may have been incorrect in assuming he was entitled
to a witness, insofar as Bock had already determined the form of
discipline to impose in that meeting. See Jackson Hosp. Corp.
v. NLRB, 647 F.3d 1137, 1142 (D.C. Cir. 2011) (explaining that
“[l]ong ago” the NLRB “clarified” that an employee has no right
to bring a witness to a meeting, the “sole purpose” of which is
to deliver a predetermined warning). The Company also points
out that the Union filed, but ultimately withdrew, charges
alleging that the Company had committed Weingarten violations
by denying Smith access to a witness during this meeting. See
Third Amended Answer 2 nn. 1, 4, Oct. 15, 2007 (documenting
withdrawal of charges), II J.A. 846. The Company thus
contends that the Board erred in finding that Smith, Sur, Loos,
and Ing were engaged in protected activity.

The Company’s argument, again (as with its argument
regarding Bishop), rests on an erroneous premise. These
employees – like Bishop – were proactively responding to what
they reasonably and honestly believed to be an imminent unfair
labor practice. They were therefore engaged in protected
activity. The Board correctly reached this finding without
holding that the Company had committed Weingarten violations.

Second, the Company claims that Smith and his colleagues
forfeited the Act’s protections by engaging in unprotected
activity. The NLRA “does not protect all concerted activities.”
NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 (1962).
Employees cannot claim the Act’s protections when they engage
in activities that are “unlawful, violent[,] . . . in breach of
contract,” id. (citations omitted), or otherwise “‘indefensible,’”
id. (citation omitted). The Company urged the NLRB – and now
urges this court – to conclude that the making of a secret audio
recording is unprotected under this line of authority.

The Company concedes, as it must, that there was no thenexisting
company policy prohibiting Smith, Sur, Loos, and Ing
from planning to make, or prohibiting Smith from making, a
secret audio recording. See Hawaii Tribune-Herald, 356
N.L.R.B. No. 63, at 15. The Company also concedes, as it must,
that there was no state or local law prohibiting their conduct.
See HAW. REV. STAT. § 803-42(b)(4). The Company thus
cannot and does not claim that making the recording was
unlawful, violent, or in breach of contract. Instead, the
Company argues that the making of a secret audio recording is
so fundamentally dishonest and deceitful that it should be
deemed categorically unprotected. The Company’s position is
a bit perplexing in light of Company counsel’s concession
during oral argument that Smith would have committed no
wrong had he memorized his conversation with Bock and then
written it down verbatim after their meeting. In any event, the
Company’s argument fails, because it is foreclosed by
established Board precedent.

In Opryland Hotel, 323 N.L.R.B. 723, 723 n.3 (1997), the
Board expressly refused to adopt a per se rule against the
making of secret audio recordings. Like the Company here, the
respondent company in Opryland Hotel had “no rule,
prohibition, or practice against employees using or possessing
tape recorders at work.” Id. (citations omitted). “And, in the
absence of such rule, practice, or prohibition,” the Board refused
to hold that “such possession or use constitutes . . . malum in
se.” Id. The Board considered the circumstances of the case
and ruled that the employee who had made the recordings was
entitled to reinstatement “notwithstanding his secret tape
recording of conversations at work.” Id. In light of this directly
controlling decision from the NLRB, it should be self-evident
why we find unpersuasive the Company’s nonbinding cases
holding that the making of secret audio recordings is not
protected in other employment contexts. See Pet’r’s Br. at
81–83.

The Board followed the appropriate, case-by-case approach
adopted in Opryland Hotel. It found that, given the
circumstances of this case, Sur, Smith, Loos, and Ing were
engaged in protected concerted activity. That determination is
reasonable, and, therefore, we must defer to it. An employer
may, in different circumstances, have defensible reasons for
barring secret recordings. We have no occasion to consider that
question in this case. The policy here is invalid because the
Company has conceded that it was promulgated solely in
response to the employees’ protected activity.

Third, the Company suggests that Smith and his colleagues
should have pursued a different approach to protecting their
asserted rights. The Company points out that even the Union
administrator, Cahill, did not recommend that Smith record the
meeting; he recommended that Smith take notes. See Hawaii
Tribune-Herald, 356 N.L.R.B. No. 63, at 10. This argument is
entirely unpersuasive. The fact that the employees failed to
pursue other options certainly does not make their otherwise
protected activity unprotected. As the Board found, the secret
audio recording was neither prohibited by company policy,
proscribed by state or local law, nor barred under the Board
precedent.

III. Conclusion

For the reasons given in the foregoing opinion, we deny the
Company’s petition for review and grant the Board’s cross application
for enforcement.