Acumen Capital Partners, LLC v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 19, 2024 Decided December 13, 2024
No. 23-1237
ACUMEN CAPITAL PARTNERS, LLC,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 23-1265
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Lawrence Peikes argued the cause for petitioner. With
him on the briefs was Jeffrey R. Babbin.
Jared H. Odessky, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the brief
were Jennifer A. Abruzzo, General Counsel, Ruth E. Burdick,
Deputy Associate General Counsel, David S. Habenstreit,

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Assistant General Counsel, and Milakshmi V. Rajapakse,
Supervisory Attorney.
Before: MILLETT and WILKINS, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge ROGERS.
ROGERS, Senior Circuit Judge: Acumen Capital Partners,
LLC, a commercial property management company, petitions
for review of the decision of the National Labor Relations
Board that it discharged engineer Gregory Zapata because of
his protected union activity in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1)
and (3). Acumen challenges the Board’s findings that it had
knowledge of Zapata’s union activity and was motivated by
anti-union animus in discharging him. Because the Board’s
findings on the timing and the pretextual nature of Acumen’s
explanation for Zapata’s discharge are supported by substantial
evidence, the court denies the petition and grants the Board’s
cross-application for enforcement of its decision and order.
I.
Acumen is a real estate management agent for a privately
owned office building in Brooklyn, New York. The building
houses commercial, non-profit, and government tenants.
Acumen employs engineers to maintain the building’s boilers
and chillers and to complete other maintenance and
construction projects.
Jeffrey Rosenblum, co-managing member and owner of
Acumen, hired Salvatore Coppola as chief engineer in March
2021. Coppola “wanted to be union, because [he had] been
union for the last 25 years.” Hr’g. Tr. 202 (Aug. 30, 2022).

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When he took the job at Acumen, Coppola told Rosenblum that
“[e]verybody’s going [u]nion.” Id. In response, Rosenblum
told Coppola “this is a nonunion building.” Id. Coppola
understood from this statement that remaining non-union was
one of the conditions of accepting the job. See id. at 202-03.
In April 2021, Acumen hired Gregory Zapata to work as
one of the building engineers. Previously Zapata had been a
member of the International Union of Operating Engineers,
Local 30, AFL-CIO (“the Union”) for about five years. Early
in his employment at Acumen, Zapata asked Coppola why
Acumen was not union, and Coppola told him that Rosenblum
“didn’t want the Union in the building.” Hr’g. Tr. 28.
Rosenblum had little contact with the engineers and Coppola
often served as the conduit between Rosenblum and the
engineers, meeting almost daily with Rosenblum and providing
the engineers with daily assignments.
Meanwhile in December 2021, during the COVID-19
pandemic, New York City issued a Vaccination Order
requiring vaccinations for public and private sector employees
within its jurisdiction. On December 6, Rosenblum learned
from an announcement by the Mayor’s Office that employers
would be required to exclude employees from the workplace if
they had not received a COVID-19 vaccine by December 27.
A Vaccination Order of December 13 instructed employers to
exclude unvaccinated employees from the workplace (with
exceptions), maintain a record of proofs of vaccination, affirm
compliance on a separate form, and conspicuously post that
form. On December 27, the day enforcement of the
Vaccination Order was to begin, and three weeks after he
learned of it, Rosenblum notified Acumen employes of the
vaccination mandate by email, attaching the Vaccination Order
and noting that those who failed to comply by the December 27
deadline “must be denied entry to their place of work and may

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be subject to discipline or termination.” Email Rosenblum to
Acumen employees (Dec. 27, 2021). Coppola posted the email
in the boiler room and by text asked the engineers whether they
were vaccinated, noting that Acumen was not enforcing the
Vaccination Order at this time. None of the engineers were
vaccinated, which Coppola reported to Rosenblum.
Between December 27, 2021, and February 15, 2022,
when Zapata was discharged, Rosenblum took no action to
exclude unvaccinated employees from the workplace. As of
early 2022, Acumen employed three engineers in addition to
Coppola: Zapata, Mariano Ramirez, and Gabriel Garcia.
Ramirez never provided proof of vaccination and resigned at
the end of January to take another job. Garcia, who worked
part-time, received a dose of the vaccine on January 13 to
comply with a January 15 deadline set by his full-time
employer. Coppola had told the engineers that he did not want
them to quit over the vaccination mandate, that Rosenblum was
not applying pressure, and that he would notify them when
Rosenblum was going to apply pressure. When Zapata asked
Coppola in early February what would happen if he remained
unvaccinated and Rosenblum started enforcing the vaccination
mandate, Coppola said he would have to go on furlough and
could be replaced. Zapata told Coppola he would decide
whether to get vaccinated when Rosenblum began enforcing
the mandate.
Around the same time, Acumen’s building engineers
began in January 2022 to discuss the possibility of unionizing.
Garcia called a Union representative on a speaker phone in the
boiler room and the representative outlined the process for
obtaining a representation election at the building. The Union
representative later met with the engineers in the boiler room,
explaining that the Union would file a petition for a Board-

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conducted election, and the engineers, including Zapata, signed
Union authorization cards.
Also in January, Zapata received a message from a job
search website about an engineering position at Acumen with
higher pay, and he emailed Rosenblum that he would reapply
to receive the higher wage rate. The next day Rosenblum
called Zapata to his office. Rosenblum told Zapata that the
message was generated in error and asked Zapata whether he
liked working at Acumen. Zapata told him he did like working
at Acumen but thought engineers did not stay because Acumen
did not provide full benefits or a retirement plan.
On February 3, 2022, the Union filed a petition with the
Board for a representation election. Coppola shared the
petition with Rosenblum and posted the petition notice in the
boiler room. A few days later, Coppola asked Zapata who had
initiated the petition and claimed, as they were then the only
two full-time engineers, “it had to either be you or me.” Hr’g.
Tr. 42. Zapata denied it was him. Within two weeks of the
filing of the petition for the Union election, Acumen discharged
Zapata.
Rosenblum emailed Zapata on February 14, requesting
proof of vaccination. He set no deadline. Zapata responded by
email about an hour later that he had been “told that we were
not at this time forced to get vaccinated.” Hr’g. Tr. 43.
Rosenblum responded by email that Acumen was “not forcing”
employees to get vaccinated but attempting to comply with the
City’s mandate. Email Rosenblum to Zapata (Feb. 14, 2022).
Rosenblum asked Zapata whether he intended to comply but
set no deadline for a response.
On February 15, Zapata told another employee that
because Rosenblum was “pressing the issue” he intended to get

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vaccinated despite his personal objections. Hr’g. Tr. 44.
Zapata made a vaccination appointment at a Walgreens
pharmacy for the following day and received an email
confirmation. Later that day Rosenblum called Zapata to his
office and asked if he had read his emails and received a
vaccine dose. When Zapata replied he had not yet been
vaccinated, Rosenblum asked if he was aware the City had just
discharged thousands of employees for their failure to obtain
the vaccine. Rosenblum then told Zapata that he was fired.
Zapata protested, but Rosenblum refused to look at Zapata’s
confirmation of his vaccine appointment for the next day and
refused to call Coppola to confirm that he had repeatedly said
Acumen was not enforcing the vaccination mandate.
Zapata asked if he could get his job back after receiving
the vaccine as scheduled. Rosenblum said he would assess the
issue at that time. On February 17, Zapata sent Rosenblum a
photo of his February 16 vaccination record and asked to return
to work. In later emails that day, Zapata denied he had been
the one who contacted the Union. Rosenblum responded on
February 18. He stated that he would “assess” the request to
return to work, that Coppola had not told Zapata that Acumen
was not going to comply with the Vaccination Order, and that
Zapata’s discharge was due solely to his failure to provide
proof of vaccination by the City’s December 27 deadline and
had nothing to do with the Union, stating to Zapata that he did
not “have any idea what your position is on the Union, or
whether you were involved with the petition.” Email
Rosenblum to Zapata (Feb. 18, 2022). Rosenblum never
responded to Zapata’s other February 18 emails stating he was
scheduled to receive his second dose on March 16 and
emphasizing Coppola had said Acumen was not enforcing the
Vaccination Order. Nor did Rosenblum respond to Zapata’s
February 23 emails stating that no one told him he would be
discharged if he did not get vaccinated and that he did not

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contact the Union. Upon receiving no response to his emails,
Zapata wrote Rosenblum in his last email, “I don’t even want
my job back.” Email Zapata to Rosenblum (Feb. 23, 2022).
The Union filed a charge against Acumen with the Board
on March 7, 2022, for Zapata’s unlawful discharge because of
his protected union activity in violation of Section 8(a)(1) and
(3) of the Act. On March 11, the Board conducted a
representation election for a unit of Acumen’s full-time and
regular part-time engineers, excluding supervisors. Three
votes were cast. Acumen challenged Zapata’s vote because he
was not employed by Acumen as of the election. The Union
challenged Coppola’s vote as a statutory supervisor who was
ineligible to vote. On June 24, the Acting Regional Director
consolidated the unlawful discharge and election ballot cases
and ordered a hearing.
An administrative law judge (“ALJ”) held a hearing
August 30-31, 2022, with testimony from Zapata, Garcia,
Coppola, and Rosenblum. In a decision of February 17, 2023,
the ALJ found that Coppola was a statutory supervisor
ineligible to vote and that Acumen unlawfully discharged
Zapata. The ALJ credited Zapata’s testimony and Garcia’s
testimony, found Coppola’s testimony “generally reliable”
except as to his description of his conversation with Zapata
about the Union petition as only “shop talk,” and discredited
Rosenblum’s testimony because it often contradicted other
more reliable evidence. Acumen Cap. Partners, LLC, 372
N.L.R.B. No. 129, at *10 (Aug. 24, 2023). The ALJ ordered
Zapata to be reinstated with backpay and to be made whole
financially, and remanded the ballot challenges for the
Regional Director to revise the tally omitting Coppola’s ballot
and counting Zapata’s ballot.

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Acumen filed exceptions to the ALJ’s decision and
requested oral argument. The Board denied a hearing and upon
rejecting Acumen’s challenge to the ALJ’s credibility
determinations, affirmed the ALJ’s decision in relevant
respects and adopted a standardized order. See generally id.
Acumen petitions for review. 29 U.S.C. § 160(f).
II.
Section 7 of the National Labor Relations Act guarantees
employees the right to “form, join, or assist labor
organizations.” 29 U.S.C. § 157. These rights are protected by
Section 8(a)(1) and (3) of the Act, which make it an unfair labor
practice for an employer “to interfere with, restrain, or coerce
employees in the exercise of the[se] rights” or “discriminat[e]
in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage
membership in any labor organization.” Id. § 158(a)(1), (3).
The Supreme Court has long “‘recognize[d] without
hesitation the primary function and responsibility of the
Board’ . . . ‘of applying the general provisions of the Act to the
complexities of industrial life . . . and of “[appraising] carefully
the interests of both sides of any labor-management
controversy in the diverse circumstances of particular cases”
from its special understanding of the “actualities of industrial
relations.”’” Ford Motor Co. v. NLRB, 441 U.S. 488, 496
(1979). The Court acknowledged that “[t]he function of
striking that balance to effectuate national labor policy is often
a difficult and delicate responsibility, which the Congress
committed primarily to the National Labor Relations Board,
subject to limited judicial review.” NLRB v. Ins. Agents’ Int’l

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Union, AFL-CIO, 361 U.S. 477, 499 (1960) (internal quotation
marks omitted).
This court’s review is limited to whether the Board’s
decision is “supported by substantial evidence,” 29 U.S.C.
§ 160(e), that is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion,” Universal
Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). The court
accepts the Board’s credibility determinations unless they are
“patently insupportable,” and it is “more deferential” to
findings of discriminatory motive “because most evidence of
motive is circumstantial.” Inova Health Sys. v. NLRB, 795
F.3d 68, 80 (D.C. Cir. 2015) (internal quotation marks
omitted).
Where an employer purports to have discharged an
employee for reasons unrelated to protected activity, the court
applies the test articulated in Wright Line, 251 N.L.R.B. 1083
(1980), enforced, 662 F.2d 899 (1st Cir. 1981). See Stern
Produce Co. v. NLRB, 97 F.4th 1, 12 (D.C. Cir. 2024). Under
Wright Line, the General Counsel first bears “the burden of
persuading the Board that an antiunion animus contributed to
the employer’s decision to discharge an employee.” NLRB v.
Transp. Mgmt. Corp., 462 U.S. 393, 395 (1983). This burden
is met by establishing that: (1) the employee engaged in
protected activity; (2) the employer had knowledge of the
employee’s protected union activity; and (3) the employer
harbored anti-union animus. Stern Produce Co., 97 F.4th at 12.
Once established, at the second step “the burden shifts to the
company to show that it would have taken the same action in
the absence of the unlawful motive.” Tasty Baking Co. v.
NLRB, 254 F.3d 114, 126 (D.C. Cir. 2001).
Neither party disputes that Zapata engaged in protected
union activity. Acumen contends that the Board erred in

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finding that the General Counsel established Acumen’s
knowledge of Zapata’s union activity and that Acumen acted
with animus in discharging Zapata. For the following reasons,
the court concludes there is substantial evidence that Acumen
had knowledge of Zapata’s union activities and harbored anti-
union animus in discharging him.
A.
The Board properly found that Acumen had knowledge of
Zapata’s union activities. First, there was direct evidence that
Coppola had knowledge of Zapata’s union activity and, as a
statutory supervisor during all relevant times, Coppola’s
knowledge may be imputed to Acumen. In Clark & Wilkins
Industries, Inc. v. NLRB, 887 F.2d 308, 311-12 (D.C. Cir.
1989), the court enforced the Board’s decision and order based
on evidence imputed to the company where an employee was
“a supervisor within the meaning of § 2(11) of the Act” and
had knowledge of union activity. The Board found, and
Acumen does not challenge, that Coppola was a statutory
supervisor. There was evidence that Coppola and Zapata
discussed the Union on at least two occasions, including when
Zapata inquired about the Union shortly after beginning work
at Acumen, Hr’g. Tr. 104, and later when Coppola accused
Zapata of initiating the Union petition, id. at 41-42. Further,
“Rosenblum’s claim that he and Coppola never discussed
Zapata’s [U]nion support or possible involvement” was
discredited by the ALJ, Acumen, 372 N.L.R.B. No. 129, at *16-
17, and Acumen provides no basis for the court to conclude that
the Board acted contrary to its precedent in rejecting Acumen’s
challenge to the assessment of Rosenblum’s testimony, id. at
*1 n.2.
In addition, during one of Rosenblum and Zapata’s few
interactions, Zapata expressed dissatisfaction with the wages

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and benefits provided by Acumen. Specifically, Zapata stated
that the lack of full benefits and a retirement plan was why
engineers left the company. This interaction provided evidence
from which the Board could reasonably conclude that
Rosenblum knew Zapata was dissatisfied with some terms of
his employment and willing to express dissatisfaction on behalf
of other engineers. That evidence, combined with the imputed
knowledge arising from Coppola’s status as a supervisor and
his role as a conduit between Rosenblum and the engineers,
provide substantial evidence for the Board’s finding of
knowledge of protected activity here.
The Board also relied on the “small plant doctrine” as “one
factor tending to establish Acumen’s suspicion.” Acumen, 372
N.L.R.B. No. 129, at *17. The ALJ applied a four-factor test:
“the facility is small and open, the work force is small, the
employees make no great effort to conceal their union
activities, and management personnel are located in the
immediate vicinity of the protected activity.” Id. (quoting
Roemer Indus., 367 N.L.R.B. No. 133, at *15 (May 23, 2019),
enforced, 824 F. App’x 396 (6th Cir. 2020)). Acumen
maintains, however, assuming the Acumen workforce is small
and Coppola and the engineers discussed the Union on multiple
occasions, id., that the Board made no finding Acumen’s
575,000 square foot “facility is small and open,” Pet’r’s Br. 28-
32. Even so, the court need not address the applicability of the
small plant doctrine because the court has “no substantial
doubt” that were the court to remand this case the Board would
reach the same result regarding Acumen’s knowledge. Tasty
Baking Co., 254 F.3d at 129 (internal quotation marks omitted).
Application of the “small plant doctrine” disturbs neither the
“small firm” context—with only three engineers initially
identified as eligible to vote in the Union election—nor the
Board’s appraisal of Coppola’s statutory supervisory position

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and Rosenblum’s direct discussion of working conditions and
employee complaints with Zapata.
B.
There also was substantial evidence from which the Board
could find that anti-union animus was a motivating factor for
Acumen’s decision to discharge Zapata. The ALJ relied on
Rosenblum’s statement to Coppola about the facility being a
“non-union building,” Hr’g. Tr. 202, Coppola relaying to
Zapata that Rosenblum “didn’t want [a] union,” id. at 104,
Coppola questioning Zapata shortly after the Union’s election
petition was filed, as well as the timing and nature of Acumen’s
action in discharging Zapata. Acumen, 372 N.L.R.B. No. 129,
at *17-18. Acumen challenges any reliance on statements by
Rosenblum and Coppola on the grounds that Rosenblum’s
statement was statutorily protected and there was no evidence
Coppola played any role in the decision to discharge Zapata.
Acumen further maintains its lack of a coordinated campaign
against the Union undercuts evidence of anti-union animus.
Section 8(c) provides that “[t]he expressing of any views,
argument, or opinion . . . shall not constitute or be evidence of
an unfair labor practice . . . if such expression contains no
threat of reprisal or force or promise of benefit.” 29 U.S.C.
§ 158(c). Consequently, “[a]n employer’s statement violates
the [Act] if, considering the totality of the circumstances, the
statement has a reasonable tendency to coerce or to interfere
with those rights.” Tasty Baking Co., 254 F.3d at 124. And
“the content and context of [the employer’s] comment must be
read in light of ‘the economic dependence of the employees on
their employers.’” Cadillac of Naperville, Inc. v. NLRB, 14

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F.4th 703, 716 (D.C. Cir. 2021) (quoting NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969)).
Acumen views Rosenblum’s statement that Acumen was a
“non-union building” to be protected because there was no
evidence that it threatened employees. Pet’r’s Br. 33-34. True,
the court has held that a statement is not protected where there
was evidence of “threat of reprisal.” Cadillac of Naperville,
Inc., 14 F.4th at 714; see Tasty Baking Co., 254 F.3d at 124.
Section 8(c), however, also excludes protection of a statement
containing a “promise of benefit.” 29 U.S.C. § 158(c). The
ALJ found that Rosenblum made his statement at the start of
Coppola’s employment as a term of employment in response to
Coppola’s interest in “be[ing] union, because [he had] been
union for the past 25 years.” Acumen, 372 N.L.R.B. No. 129,
at *17-18 (quoting Hr’g. Tr. 202). Evidence indicated that
Coppola understood Rosenblum’s statement to mean “that he
had to forego any support for or involvement with the union
during his employment at Acumen.” Id. at *18; see Hr’g. Tr.
202-03.
The court need not decide whether Rosenblum’s statement
was protected under Section 8(c). This is so even if the Board
erred in imputing Coppola’s animus to Acumen in the absence
of evidence that Coppola played a role in the decision to
discharge Zapata. See MECO Corp. v. NLRB, 986 F.2d 1434,
1437 (D.C. Cir. 1993). Under this court’s precedent there was
substantial evidence without Rosenblum’s and Coppola’s
statements for the Board to conclude that anti-union animus
was a motivating factor for Acumen’s decision to discharge
Zapata. That evidence, in turn, leaves the court with “no
substantial doubt” that were the case remanded the Board
would reach the same result. See Tasty Baking Co., 254 F.3d
at 129; cf. SEC v. Chenery Corp., 318 U.S. 80, 95 (1943);

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Sundor Brands, Inc. v. NLRB, 168 F.3d 515, 519 (D.C. Cir.
1999).
“[T]iming is a telling consideration in determining whether
employer action is motivated by anti-union animus.” Reno
Hilton Resorts v. NLRB, 196 F.3d 1275, 1283 (D.C. Cir. 1999);
see Inova Health Sys., 795 F.3d at 82. In Citizens Investment
Services Corp., 430 F.3d at 1202, the court affirmed the
Board’s finding of animus where an employee was discharged
two weeks after participating in protected union activity. Here
too, the Board agreed with the ALJ that “[s]uch a sequence of
events supports a conclusion that Zapata’s discharge was
motivated by antiunion animus.” Acumen, 372 N.L.R.B. No.
129, at *18. The Union petition was filed on February 3, 2022,
and Zapata was discharged on February 15, 2022—within two
weeks of the Union’s filing for an election.
Evidence of pretext also may “support an inference of
unlawful motive.” Fort Dearborn Co. v. NLRB, 827 F.3d
1067, 1075 (D.C. Cir. 2016). In Fort Dearborn Co., the
company’s reasons for discharging an employee were found
pretextual and the employee’s discharge disproportionate
where the company had not previously enforced the policy, the
company maintained a progressive discipline policy, and other
employees received one-day suspensions for violating the same
policy. Id. The court found that this evidence supported a
finding of anti-union animus under Wright Line’s first step and
established the company’s failure to show that it would have
taken the same action regardless of anti-union animus under
Wright Line’s second step. Id.
Here, the Board similarly found that Acumen’s “proffered
explanation [on February 15] for Zapata’s discharge—seeking
to comply with New York City’s order requiring COVID-19
vaccination in the workplace [by December 27]—was

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pretextual.” Acumen, 372 N.L.R.B. No. 129, at *1 n.2.
Acumen did not implement the Vaccination Order “in any type
of coherent manner prior to Zapata’s discharge.” Id. at *18.
Acumen did not comply with the requirements to exclude
unvaccinated employees from the workplace, affirm
compliance on a separate City-provided form, or post this
affirmation in a conspicuous location all by December 27,
2021. Indeed, Acumen did not inform its employees of the
Vaccination Order until the December 27 enforcement
deadline. And Acumen did not exclude other engineers from
the workplace between December 27 and the day Zapata was
discharged, despite the fact that Ramirez and Garcia were
unvaccinated at times during this period. Moreover, Coppola
repeatedly told the engineers that Acumen was not yet
enforcing the Vaccination Order and that he would tell them
when Rosenblum started applying pressure. Acumen’s
reliance on Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469
(D.C. Cir. 2020), is misplaced for there, unlike here, the
employer maintained and consistently enforced a written
policy that refusal to submit to a physical examination may
result in termination of employment. Id. at 482.
Acumen’s disproportionate response to Zapata’s
unvaccinated status on February 15 also undermined Acumen’s
claim that it discharged Zapata for failure to obtain the COVID-
19 vaccination. After almost two months of non-enforcement
of the Vaccination Order, Acumen abruptly discharged Zapata
despite his stated intent and supporting evidence of his intent
to come into compliance with the Vaccination Order the next
day. To comply with the Vaccination Order, Acumen needed
only to exclude Zapata from the workplace for just one day, not
take the more extreme step of discharging him. Also telling
was Rosenblum’s refusal to reinstate Zapata the next day after
he obtained the scheduled vaccine, and Rosenblum’s insistence
instead on “assess[ing]” the issue, without ever offering an

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additional reason for discharge. Email Rosenblum to Zapata
(Feb. 18, 2022). Any force to Acumen’s reliance on the
absence of a coordinated anti-union effort by the company
collapses inasmuch as discharging Zapata accomplished the
same result in a three-ballot election.
The timing of Zapata’s discharge, the pretextual nature of
Acumen’s proffered non-discriminatory explanation, and the
unexplained disproportionality of the discharge even after the
vaccine was promptly obtained, taken together, provide
substantial evidence for the Board’s finding of animus. That
established anti-union animus under the first step of Wright
Line and that Acumen would not have discharged Zapata
regardless of anti-union animus under the second step of the
Wright Line test.
Accordingly, because the Board’s finding that Acumen
unlawfully discharged Zapata is supported by substantial
evidence on the record considered as a whole, the court denies
Acumen’s petition for review and grants the Board’s cross-
application for enforcement of its decision and order.

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