Stern Produce Company , Inc . v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2023 Decided March 26, 2024
No. 23-1100
STERN PRODUCE COMPANY , I NC .,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD ,
RESPONDENT
Consolidated with 23-1122
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board
Patrick R. Scully argued the cause for petitioner. With him
on the briefs were John Alan Doran and John T. Melcon.
Eric Weitz, 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 Habenstreit, Assistant
General Counsel, and Kira Dellinger Vol, Supervisory Attorney.

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Before: HENDERSON and KATSAS , Circuit Judges, and
RANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH .
RANDOLPH , Senior Circuit Judge: Precedents of the
National Labor Relations Board hold that an unfair labor
practice occurs if the employer creates the impression that it is
monitoring an employee or employees in their pro-union
activity. Board precedent also holds that an employer who
disciplines an employee because of the employer’s “anti-union
animus” commits an unfair labor practice. The Board in this
case, after examining two brief workplace incidents, found the
employer guilty of two unfair labor practices, one of each type.
We must decide whether the evidence supports the Board’s
judgment.
What follows discloses, among other things, that the
Board’s majority and its General Counsel, at least at the time of
these proceedings, should have brushed up on the ancient and
wise legal doctrine de minimis non curat lex—that is, the law
does not concern itself with trifles. Or should not.
I.
Stern Produce Co., an Arizona-based company, operates a
wholesale produce distribution center in Phoenix. Since at least
2015, United Food and Commercial Workers, Local 99, has
been trying to unionize Stern Produce’s warehouse employees
and truck drivers. In 2015 and 2016, this union filed unfair
labor practice charges against Stern Produce, alleging that the
company interfered with a scheduled representation election.
See Stern Produce Co. (“Stern Produce I”), 368 N.L.R.B. No.
31, 2019 WL 3530188, at *1–2 (July 31, 2019). After the

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Board’s Regional Director filed a complaint based on the
charges, an Administrative Law Judge held an eight-day trial
featuring, as relevant here, testimony from truck drivers Uvaldo
Ponce and Jose Ruiz. Id. at *13.
The Board in 2019 found that Stern Produce committed
several violations of the National Labor Relations Act in
connection with the representation election. Id. at *2. The
Board ordered the company to cease and desist from its unlawful
practices.1 Id. at *7–9.
In 2020, the union again lodged charges against the
company. Stern Produce had laid off all its hourly workers at
the start of the COVID-19 pandemic and then brought back
some drivers when business resumed. The union claimed that
Stern Produce had selectively failed to recall pro-union
employees and had done so in order to dilute union support in its
workforce. The Board’s General Counsel filed a complaint
reflecting the union’s claims.
Before the matter went to a hearing, the union and the
company agreed in May 2021 to settle the dispute. See Stern
Produce Co. (“Stern Produce II”), No. 28-CA-258619, 2021
WL 2347342 (N.L.R.B. June 7, 2021), enforced, No. 21-71140
(9th Cir. June 25, 2021). The company promised to recall (with
backpay) the employees it had been accused of unlawfully
failing to recall, including Ponce and Ruiz. In the next month
the Board approved the settlement, and Stern Produce reinstated
the employees. The Board’s order approving the settlement,
which the Ninth Circuit enforced, did not state that Stern
Produce had engaged in any unlawful conduct.
1 It is undisputed that Stern Produce fully complied with its
remedial obligations. No representation election, however, has yet
taken place.

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In the case now before us, one of the charges against Stern
Produce involves a text message a supervisor sent to delivery
truck driver Jose Ruiz. The other charge relates to a written
warning a supervisor issued to another driver, Uvaldo Ponce.
The evidence with respect to each charge was as follows.
While driving a truck for the company in July 2021, Ruiz
parked to take a lunch break and covered the truck’s inward-
facing camera. Ruiz’s truck, like virtually all Stern Produce
trucks, was equipped with a system transmitting real-time data
to the company about the vehicle’s location and operation. The
truck was also fitted with one camera with a street view and
another with a view of the driver and the truck’s cab.
At some point later, Ruiz’s supervisor, transportation
manager Nick Barr, sent Ruiz a text message: “Got the uniform
guy for sizing bud, and you cant cover the camera it’s against
company rules.” When Ruiz saw the message several hours
later he replied: “OK Bud muy [sic] lunchtime.” The evidence
showed that manager Barr did not know that Ruiz was on a
lunch break. There was no set time for drivers to stop for lunch.
Ruiz testified that after this solitary incident, manager Barr
“never once touched the subject ever again.”
In August 2021, Ponce was at the Stern Produce facility
when he heard two fellow drivers, Joe Metzgar and Mohamed
Chayko, jokingly call each other “baby.” Ponce told Chayko,
“you know they kill people like that in your country.” When
Chayko asked Ponce to clarify, Ponce replied, “gays.” Chayko
then asked Ponce where he thought Chayko was from. Ponce
guessed Afghanistan and then Iraq; Chayko told Ponce he was
wrong and left the room.
The next day a supervisor who had been in the room during

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the conversation recounted the incident to manager Barr, who in
turn informed Stern Produce owner Bill Stern. Stern and Barr
decided to investigate further, so Barr collected statements from
the supervisor, from Ponce, from Chayko, and from Metzgar,
who all told the same story.
After concluding their investigation, owner Stern and
manager Barr consulted with human resources and concluded
that because Ponce had insulted Chayko based on his perceived
race, ethnicity, and sexual orientation, Ponce’s conduct
warranted a written warning. (A written warning constituted the
second tier on the company’s disciplinary scale—more serious
than verbal counseling, but less serious than a final written
warning or termination.)
The written warning stated that Ponce’s comments violated
“company policy around the use of disparaging or abusive
words, phrases, slurs, and negative stereotyping.” The warning
also informed Ponce that further misconduct could result in
more serious punishment, “up to and including” suspension or
termination.
The union filed unfair-labor-practice charges based on these
two incidents. The Board’s General Counsel issued a complaint,
alleging that Stern Produce had created an impression of
surveillance of organizing activities by making Ruiz aware that
he was being watched, and that Ponce’s union support motivated
Stern Produce’s decision to give him a written warning for a
first-time offense.
In its defense, Stern Produce claimed that it had treated
Ruiz and Ponce consistently with its policies. Manager Barr’s
message to Ruiz, the company asserted, merely reminded Ruiz
of longstanding company policy. In its employee handbook,
Stern Produce reserved the right to “monitor, intercept, and/or

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review” any data in its systems and to inspect company property
at any time without notice. The handbook further instructed
drivers that they “should have no expectation of privacy” in any
information stored or recorded on company systems, including
“[c]losed-circuit television” systems, or in any company
property, including vehicles. And directly on point, the driver
manual instructed drivers that “[a]ll vehicle safety systems,
telematics, and dash-cams must remain on at all times unless
specifically authorized to turn them off or disconnect.” Making
sure that the cameras remained operational was important given
their functions, which included preventing unsafe driving and
protecting drivers from liability for accidents for which they are
not at fault.
Stern Produce also relied on company policies to explain
the warning it had issued to Ponce. It cited its equal
employment opportunity policy prohibiting workplace
harassment “based upon” race, color, national origin, ancestry,
sex, or sexual orientation. Company policy also banned conduct
that “insults or shows hostility or aversion” toward an individual
based on a protected status, including the use of “disparaging or
abusive” language and “negative stereotyping.”
The Administrative Law Judge sided with Stern Produce.
The ALJ found that the message to Ruiz did not create an
impression of surveillance, since manager Barr had engaged in
“mere observation” in line with “longstanding company
policies” about truck cameras. As for the warning to Ponce, the
ALJ determined that it had not been motivated by Ponce’s pro-
union activities. The ALJ found that Stern Produce had issued
the warning without knowing if Ponce was still involved with
the union, and that the company had acted based on Ponce’s
offensive and discriminatory comments, rather than any anti-
union animus.

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The Board reversed on both issues. Stern Produce Co., 372
N.L.R.B. No. 74, 2023 WL 2913118 (Apr. 11, 2023). It held
that Barr’s surveillance of Ruiz was “out of the ordinary” in
light of Ruiz’s history of union-related conflicts with the
company and Barr’s lack of justification for needing to view
Ruiz’s camera. Id. at *3–4. Barr did not usually look at a
camera’s video feed unless there was a driver or vehicle safety
concern, and he had never previously texted drivers about their
cameras. Id. at *4. His “sudden and unusual interest” in
viewing Ruiz’s camera, the Board found, created an impression
of surveillance. Id.
As for Ponce, the Board determined that Stern Produce was
motivated by anti-union animus in issuing him a written warning
rather than verbal counseling. Id. at *5–8. The Board found
that Stern Produce knew of Ponce’s involvement in the
organizing drive. Id. at *6. It also found that the company had
a discriminatory motivation for disciplining Ponce, based on its
history of labor-law violations (some of which had impacted
Ponce directly), the short period of time between Ponce’s
reinstatement and the warning, and the disparity in treatment
between Ponce and other employees who had engaged in
supposedly similar misconduct. Id. at *7. The disparate
treatment finding also led the Board to reject Stern Produce’s
defense that Ponce would have faced discipline even if he had
not engaged in pro-union efforts. Id. at *8.
II.
Stern Produce’s petition for judicial review presents the
question whether the Board’s conclusions are “supported by
substantial evidence on the record as a whole. Put differently,
we must decide whether on this record it would have been
possible for a reasonable jury to reach the Board’s conclusion.”
Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,

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366–67 (1998) (internal citations and footnote omitted).
We consider first the Board’s finding that manager Barr’s
text message to Ruiz—“you cant cover the camera it’s against
company rules”—gave Ruiz the impression that the company
was conducting surveillance of him in his pro-union activities.
The Board decided that Stern Produce thereby violated Section
8(a)(1) of the National Labor Relations Act, 29 U.S.C.
§ 158(a)(1). This section prohibits employers from
“interfer[ing] with, restrain[ing], or coerc[ing] employees in the
exercise of the[ir] rights” guaranteed under the Act. Id.; see also
id. § 157. Under Board precedent, a practice is unlawful if it has
a “reasonable tendency” to coerce employees in the exercise of
their rights. Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C.
Cir. 2001).
The Board has held that an employer tends to coerce
employees if it creates an “impression” that it is conducting
surveillance of employees “concerning the exercise of rights
guaranteed by the Act.” CBS Recs. Div., 223 N.L.R.B. 709, 709
(1976). An unlawful impression of surveillance arises if an
employer’s conduct would lead a reasonable employee to
believe that his “union or other protected activities had been
placed under surveillance.” Frontier Tel. of Rochester, Inc., 344
N.L.R.B. 1270, 1276 (2005), enforced, 181 F. App’x 85 (2d Cir.
2006).
The Board found such an impression of surveillance here
based on Barr’s “interaction” with Ruiz—that is, a single phrase
in one text message on a subject the manager never mentioned
again. Considering the record “as a whole,” 29 U.S.C. § 160(e),
we cannot sustain that finding.
The undisputed facts—including the testimony of Ruiz—
establish that Stern Produce drivers are aware that supervisors

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may (or may not) be monitoring their conduct through the
cameras in their trucks at any time. In fact, the company puts
drivers on notice that cameras “must remain on at all times” and
informs them that they have no expectation of privacy in their
trucks, which can be inspected without notice. Yet the Board
determined that there was no evidence that Ruiz violated this
instruction when he prevented the camera from functioning
during his lunch break. To quote from the Supreme Court’s
leading substantial evidence case, the Board’s explanation is
“nonsense.” Allentown Mack, 522 U.S. at 376. There is nothing
ambiguous about “at all times.”
Under typical circumstances, a reasonable driver would
have no basis to think that he was being watched through his
truck camera for the purpose of determining if he was engaging
in any “union or other protected activities.” Frontier Tel., 344
N.L.R.B. at 1276. After all, a driver who knows he can be
monitored (1) at any time, (2) without warning, and (3) for any
reason, has every reason to expect to be watched while on the
job—and, without more, no reason to assume that any particular
instance of monitoring reflects an attempt by the company to
weed out or suppress union activities. That logic rings
especially true because there is no evidence that union activity
had ever “take[n] place in the small cab of a produce delivery
truck,” as Stern Produce puts it, while a driver was out on the
road alone.
Any assumption a driver in Ruiz’s circumstances could
have made about being monitored for union-related reasons
would have been based not on reasonable inferences, but on
“speculation.” Cannon Indus., 291 N.L.R.B. 632, 638 (1988).
That cannot sustain the Board’s finding. See Beverly Cal. Corp.
v. NLRB, 227 F.3d 817, 835 (7th Cir. 2000). The Board’s
guesswork is particularly unsound because it undermines the
leeway that Section 8(a)(1) affords employers to monitor

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employee conduct—including union activity—on company
premises. See Bellagio, LLC v. NLRB, 854 F.3d 703, 711 (D.C.
Cir. 2017).
The Board also asserted that Barr’s decision to text Ruiz
about the camera infraction—which had the effect of alerting
Ruiz to the surveillance—gave cause for suspicion because it
was inconsistent with Barr’s prior behavior. The Board’s
precedents, however, required it to focus squarely on what an
“employee would reasonably assume” under the circumstances.
Fred’k Wallace & Son, Inc., 331 N.L.R.B. 914, 914 (2000)
(quoting Flexsteel Indus., 311 N.L.R.B. 257, 257 (1993)). Ruiz
admitted that he had no insight into Barr’s surveillance habits.
So it is of no moment that Barr did not typically access truck
cameras in circumstances like these—and that he had not
previously texted employees about having their cameras hidden.
What Ruiz did know (or reasonably should have known,
based on clear and emphatic language in company manuals) was
that he could be monitored at any time. He also knew that,
because he could take a break whenever he chose, Barr was
unaware that Ruiz received the text message when he was
stopped for lunch. (In fact, Ruiz responded to Barr’s text hours
later with “muy [sic] lunchtime.”) And the only other driver
who had been caught with a covered camera had received a
verbal reprimand from Barr. Viewing the evidence from a
reasonable employee’s perspective—as the Board’s precedents
require—there is scarcely anything in the record to support the
Board’s finding that Barr’s text message would have come
across as out of the ordinary, coercive, or intimidating.2 See
2 Stern Produce defends the surveillance as “necessary to the
furtherance of [a] legitimate business interest.” Parsippany Hotel
Mgmt. Co. v. NLRB, 99 F.3d 413, 420 (D.C. Cir. 1996) (quoting The
Broadway, 267 N.L.R.B. 385, 401 (1983)). The company claims a
strong interest in using the cameras to ensure employee and vehicle

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Bellagio, 854 F.3d at 711–12; Intertape Polymer Corp. v. NLRB,
801 F.3d 224, 235–36 (4th Cir. 2015).
We recognize that Ruiz was a known supporter of the union
organizing drive and that he had previously been subjected to
unfair labor practices. But those facts cannot automatically
render suspect any interaction between him and management in
perpetuity. An employer does not wade “into territory violative
of the Act” because of a “single remark made to an employee
who was known to the management as a union supporter” that
does not refer—directly or indirectly—“to the employee’s union
activity.” NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 113–14
(1st Cir. 1978); see also Beverly Cal. Corp., 227 F.3d at 835.
Of the precedents the Board cited in its decision, each one
found unlawful surveillance based on much more intensive or
prolonged observation of union employees. See Stoughton
Trailers, Inc., 234 N.L.R.B. 1203, 1205–07 (1978); K-Mart
Corp., 255 N.L.R.B. 922, 924 (1981), enforced, 676 F.2d 710
(9th Cir. 1982); Fieldcrest Cannon, Inc., 318 N.L.R.B. 470,
500–03 (1995), enforced in relevant part, 97 F.3d 65 (4th Cir.
1996) (en banc). Our own decisions have similarly upheld
findings of impressions of surveillance that were premised on
elevated or abnormal scrutiny of pro-union employees. See,
safety. But Barr never testified why he needed to look at Ruiz’s
camera on the day he sent the text message. Stern Produce belatedly
asserts in its reply brief that Barr pulled up Ruiz’s route before texting
him to confirm that he was not driving, and the system automatically
displayed the camera feed alongside Ruiz’s location.
That explanation, while consistent with the record, is not “self-
evident” enough to plug the evidentiary gap on its own. United Food
& Com. Workers Union Loc. 204 v. NLRB, 506 F.3d 1078, 1086–87
(D.C. Cir. 2007). Even if we disregard Stern Produce’s claim, what
matters is that the information available to Ruiz gave him no good
reason to suspect that the monitoring was abnormal.

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e.g., Bellagio, 854 F.3d at 712 (citing Parsippany Hotel Mgmt.,
99 F.3d at 419–20, and Sands Hotel & Casino, 306 N.L.R.B.
172, 189 (1992), enforced sub nom. S.J.P.R., Inc. v. NLRB, 993
F.2d 913 (D.C. Cir. 1993)).
The “very brief,” and not “out of the ordinary,” observation
of Ruiz was “qualitatively different.” Bellagio, 854 F.3d at 712.
As far as Ruiz could tell, Barr had watched him in line with
company protocol. The one-off warning not to cover his camera
did not refer to union activity. Nor did it suggest in any way
that Ruiz had been singled out because of his support for the
union.
At bottom, the Board’s errors reveal just how far it strayed
from its statutory mandate. Its finding of a Section 8(a)(1)
violation cannot be squared with any reasonable understanding
of that provision’s prohibition on practices that “coerce
employees in the exercise of the rights guaranteed” by the Act.
29 U.S.C. § 158(a)(1); see, e.g., Webster’s New International
Dictionary 519 (2d ed. 1934) (“coerce” is “[t]o constrain or
restrain by force, esp. by law or authority; to repress; curb”;
“[t]o compel to any action”; or “[t]o compel or enforce”); 2 The
Oxford English Dictionary 587 (1933) (similar). Indeed, the
Board altogether “ignore[d] [the] critical coercion element”
inherent in Section 8(a)(1)’s plain text. NCRNC, LLC v. NLRB,
--- F.4th ----, 2024 WL 876347, at *4 (D.C. Cir. Mar. 1, 2024)
(second alteration in original) (quoting Greater Omaha Packing
Co. v. NLRB, 790 F.3d 816, 823 (8th Cir. 2015)); accord
Belcher Towing Co. v. NLRB, 726 F.2d 705, 708 (11th Cir.
1984).
The Board’s misguided attempt to find a labor-law violation
in one text message is “the product of a familiar phenomenon”:
years ago the Board took an expansive view of the scope of the
Act and then, over time, it “presse[d] the rationale of that

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expansion to the limits of its logic.” NLRB v. Int’l Bhd. of Elec.
Workers, Loc. 340, 481 U.S. 573, 597 (1987) (Scalia, J.,
concurring in judgment). The Board then focused its analysis
here not on the statutory text—the “authoritative source of the
law”—but on its own constructions of (its own constructions of)
the Act. Id. at 597–98. The Board extended the Act’s
prohibition on “coerc[ing]” employees to first reach acts that
“reasonably tend[]” to coerce, e.g., Blue Flash Express, Inc., 109
N.L.R.B. 591, 593 (1954); then acts that create an impression of
surveillance, e.g., Harrington & Richardson, Inc., 136 N.L.R.B.
1095, 1098 (1962); and then “out of the ordinary” actual or
perceived surveillance of pro-union activity, e.g., Metal Indus.,
Inc., 251 N.L.R.B. 1523, 1523 (1980).
Relying on that logical progression, the Board here went
one step further, asserting that a single communication to a pro-
union employee referencing a generally applicable policy of
employee monitoring fell within Section 8(a)(1)’s ambit as “out
of the ordinary” surveillance. That argument, as explained,
stretches Board precedent so far that not even “fidelity to [the]
logic” of those prior decisions can sustain the Board’s finding.
Int’l Bhd. of Elec. Workers, 481 U.S. at 598 (Scalia, J.,
concurring in judgment). More importantly, nor can “obedience
to [the] text” of the Act. Id.
Faced with a Board decision that made similar errors,
Justice Scalia borrowed some wisdom from another Supreme
Court decision that rings equally true here:
The seductive plausibility of single steps in a
chain of evolutionary development of a legal rule
is often not perceived until a third, fourth, or
fifth ‘logical’ extension occurs. Each step, when
taken, appeared a reasonable step in relation to
that which preceded it, although the aggregate or

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end result is one that would never have been
seriously considered in the first instance. This
kind of gestative propensity calls for the ‘line
drawing’ familiar in the judicial, as in the
legislative process: ‘thus far but not beyond.’
Id. (quoting United States v. 12 200-ft. Reels of Film, 413 U.S.
123, 127 (1973)). Rather than drifting “further and further from
the meaning of the [Act],” id., we conclude that the Board
lacked substantial evidence to find that the text message to Ruiz
violated Section 8(a)(1).
III.
Stern Produce also argues against the Board’s finding that
the written warning to Ponce amounted to discrimination against
protected activity in violation of Sections 8(a)(1), (3), and (4) of
the Act, 29 U.S.C. § 158(a)(1), (3), and (4). Those provisions
prohibit employers from punishing employees in retaliation for
participating in Board proceedings or unionization efforts.3 See
Parsippany Hotel Mgmt., 99 F.3d at 422.
In particular, the Board has held that an employer may not
discipline an employee because of “anti-union animus.” NLRB
v. Transp. Mgmt. Corp., 462 U.S. 393, 401 (1983) (discussing
Wright Line, 251 N.L.R.B. 1083 (1980), enforced, 662 F.2d 899
(1st Cir. 1981)). In other words, an employer violates the Act if
3 Section 8(a)(3) bars employers from discriminating against
employees to discourage them from union membership. 29 U.S.C.
§ 158(a)(3). Section 8(a)(4) prohibits discrimination against an
employee “because he has filed charges [with the Board] or given
testimony” in a Board proceeding. Id. § 158(a)(4). Violating either
of those provisions automatically results in a derivative violation of
Section 8(a)(1). See Ozburn-Hessey Logistics, LLC v. NLRB, 833 F.3d
210, 217–18 (D.C. Cir. 2016).

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the employee’s protected conduct is a “substantial or motivating
factor in the adverse action.” Id.
To determine an employer’s motivation for taking adverse
action against an employee, the Board applies its Wright Line
framework. See Bally’s Park Place v. NLRB, 646 F.3d 929, 935
(D.C. Cir. 2011). Under Wright Line, the General Counsel must
first establish that (1) the employee engaged in protected
activity, (2) the employer knew about it, and (3) the employer
had “animus” against the activity. Constellium Rolled Prods.
Ravenswood, LLC v. NLRB, 45 F.4th 234, 239–40 (D.C. Cir.
2022) (citation omitted); see Wright Line, 251 N.L.R.B. at 1089.
The General Counsel’s prima facie case must suffice to allow
the Board to infer that the employer acted with an improper
motive. Ozburn-Hessey, 833 F.3d at 218. The employer then
can rebut that inference by showing that it would have punished
the employee even if he had not engaged in protected activity.
Constellium, 45 F.4th at 240.
The Board found that the General Counsel made out the
first two elements of the prima facie case. It is undisputed that
Ponce played an active role in the organizing efforts among the
drivers at Stern Produce. The General Counsel also produced
adequate proof that Stern Produce knew of Ponce’s protected
activities. Ponce had been an open union activist and a member
of the union drive leadership committee since at least 2015. He
testified in the first Board proceeding and was named in the
union’s charges—a fact that Stern Produce leadership broadcast
to employees in meetings intended to discourage union support.
Stern Produce I, 2019 WL 3530188, at *13. He was one of the
union supporters that the company agreed to reinstate as part of
the settlement in Stern Produce II. 2021 WL 2347342, at *2.
And in their testimony in this proceeding, Stern Produce leaders
admitted that they knew of his involvement in the union drive.
Those facts are enough to sustain the finding that Stern Produce

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knew Ponce had been engaged in protected conduct.
Stern Produce claims that none of the General Counsel’s
evidence demonstrates that the company knew when it
disciplined Ponce that he was “contemporaneous[ly]” involved
with organizing efforts. That may be so, but the record shows
that Ponce’s union activism was both longstanding and ongoing.
It was reasonable to infer, as the Board did, that Ponce
continued to support unionization in the first few months
following his reinstatement.
As to the third element of the prima facie case, however, the
Board fell short in finding that the General Counsel sufficiently
established Stern Produce’s anti-union animus. An employer’s
“[s]imple animus” and “general hostility” toward the union are
insufficient on their own. Nichols Aluminum, LLC v. NLRB, 797
F.3d 548, 554–55 (8th Cir. 2015) (citation omitted); accord
Intertape Polymer Corp., 372 N.L.R.B. No. 133, 2023 WL
9291828, at *10–11 (Aug. 25, 2023). Rather, there must be
something more to connect the employer’s animus to the
adverse action. See Tschiggfrie Props., Ltd. v. NLRB, 896 F.3d
880, 886 (8th Cir. 2018); AutoNation, Inc. v. NLRB, 801 F.3d
767, 774 (7th Cir. 2015).
Wright Line, after all, sets forth a “causation test” that is
designed to determine whether an employee’s protected conduct
was a “motivating factor” in the employer’s action. 251
N.L.R.B. at 1089; Transp. Mgmt. Corp., 462 U.S. at 401. The
causation requirement gives effect to the Act’s language, which
prohibits an employer’s adverse action only if it was connected
to union activities—specifically, if the employer discriminated
“to encourage or discourage [union] membership,” 29 U.S.C.
§ 158(a)(3), or “because [the employee] ha[d] filed charges or
given testimony” before the Board, id. § 158(a)(4).

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This means that the General Counsel must present evidence
of animus that, when coupled with the employer’s knowledge of
the employee’s protected conduct, suffices to support a
“reasonable inference” that a “causal relationship”—or, put
otherwise, a “link,” or a “nexus”—existed between the
employee’s union activity and the employer’s adverse action.
Tschiggfrie Props., Ltd., 368 N.L.R.B. No. 120, 2019 WL
6320585, at *8, *11 (Nov. 22, 2019); Chevron Mining, Inc. v.
NLRB, 684 F.3d 1318, 1328 (D.C. Cir. 2012) (quoting Tracker
Marine, LLC, 337 N.L.R.B. 644, 646 (2002)).
The General Counsel failed to clear that bar here. The
evidence was not sufficient to sustain a reasonable inference that
Ponce’s protected conduct caused Stern Produce to issue the
written warning to him.
Most obviously, there is nothing to the General Counsel’s
citation of the text message to Ruiz as a labor violation tending
to show that Stern Produce had anti-union animus. See Austal
USA, LLC, 356 N.L.R.B. 363, 364 (2010). We have concluded
that the incident with Ruiz did not violate the Act, so it carries
no such weight.
Also inadequate is Stern Produce’s alleged anti-union
conduct in 2020.4 The Board inferred animus from (1) the
union’s claim that the company refused to recall drivers who
supported the organizing drive, including Ponce, and (2) the
short period between Stern Produce’s reinstatement of Ponce
pursuant to the settlement agreement and the issuance of the
4 The Board claims we lack jurisdiction to consider this issue
because Stern Produce did not raise it before the Board. See 29 U.S.C.
§ 160(e). In its brief defending the ALJ’s decision, Stern Produce
argued that the General Counsel was wrong to rely on unsupported
“allegations concerning Stern’s ‘recidivism.’” That adequately
preserved the issue.

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written warning.
But the allegations of anti-union hostility were just that:
allegations. Stern Produce insists that it made a “business
decision” to settle the charges rather than fight them before the
Board (especially since the company was experiencing a labor
shortage), and the Board does not question that explanation.
Although the Board’s order approving the settlement ordered
Stern Produce to “[c]ease and desist from” selectively recalling,
firing, or refusing to reinstate certain employees, the Board
never found that the company had done any of those things.
Stern Produce II, 2021 WL 2347342, at *1. Nor did the Ninth
Circuit, in enforcing the order, address the substance of the
General Counsel’s complaint. See Order, NLRB v. Stern
Produce Co., No. 21-71140 (9th Cir. June 25, 2021).
All the Board had to go on in that proceeding were the
union’s allegations (as endorsed by the General Counsel), which
were never tested in an adversarial process and which did not
result in factfinding by a neutral decisionmaker. The Board,
however, treated the charges as if they were evidence
establishing Stern Produce’s “prior treatment” of Ponce.
That approach is—to repeat once more the Supreme Court’s
statement in Allentown Mack—“nonsense.” The sole decision
the Board cited to justify its approach merely holds that
“evidence from [a] settled case” is relevant and admissible for
the purpose of determining an employer’s motive. St. Mary’s
Nursing Home, 342 N.L.R.B. 979, 980 (2004), enforced, 240 F.
App’x 8 (6th Cir. 2007). It does not support the proposition that
mere allegations, unsupported by record evidence, can be used
against the employer as proof in future matters before the Board.
The General Counsel did not attempt to substantiate the
allegations from Stern Produce II in this proceeding; those
claims remain unproven and untested.

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It follows that the Board also erred in giving weight to the
short amount of time between Ponce’s reinstatement and the
warning. As a general principle, the timing of an employer’s
adverse action can shed light on its causes. Tasty Baking, 254
F.3d at 126. Specifically, the Board has inferred improper
motive when an employer disciplined an employee who had
recently returned to the workplace after an unlawful discharge
or failure to recall. See FiveCAP, Inc. v. NLRB, 294 F.3d 768,
785–88 (6th Cir. 2002); Mesnikoff [Mid-State Broad. Co.], 248
N.L.R.B. 1206, 1206–07 (1980), enforced, 636 F.2d 1209 (3d
Cir. 1980).
Here, though, neither the Board nor any court has found that
Stern Produce acted unlawfully in failing to recall Ponce. All
the record tells us is that the company agreed to bring him back
as part of the settlement. That distinguishes this case from one
in which a company punishes an employee in violation of the
Act and is forced to remedy the situation but then takes further
adverse action against the employee. In such a case, the short
timeframe between the return to work and the new adverse
action may suggest that the employer—still motivated by the ill
intent that inspired the original punishment—“seize[d] upon”
the first available “opportunity” (as the Board puts it) to retaliate
against the worker for being pro-union.
When the initial adverse action was not unlawful, it
provides no insight into the employer’s attitude toward the union
or the causes of the employer’s discipline of a pro-union
employee. As a result, the discharge or the failure to recall does
not cast a pall over any later adverse actions taken against the
employee. To nonetheless draw a negative inference against
Stern Produce in those circumstances, as the Board did here, is
irrational and unsupported by precedent.
The Board stood on slightly better footing in relying on

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Stern Produce’s 2015 and 2016 misconduct. Those actions were
at least proven by the General Counsel and found by the Board
to have violated multiple provisions of the Act.
Yet that evidence, too, provides little if any insight into
Stern Produce’s motivations in 2021. The Board in Stern
Produce I reasoned that the remedies it ordered would “dissipate
the effects” of the company’s unlawful acts, emphasizing that
“over 3-1/2 years ha[d] elapsed” since those violations. Stern
Produce I, 2019 WL 3530188, at *1, *5–6. Stern Produce
implemented the remedies as ordered.
The Board’s 2019 findings thus undercut its current attempt
to characterize the company’s infractions as “recent history”
reflecting an unbroken anti-union campaign. If anything, the
two additional years between Stern Produce I and the events in
this case put the company’s prior misconduct even beyond the
rearview mirror. The Board cited no precedent supporting its
decision to reach back half a decade to find evidence of animus.
Its decisions approve only reliance on “contemporaneous” unfair
labor practices. Intertape Polymer Corp., 2023 WL 9291828, at
*7, *14; see also Parsippany Hotel Mgmt., 99 F.3d at 424. That
does not give the General Counsel the green light to cite every
labor-law violation a company has ever committed as evidence
of its anti-union animus.
Only one piece of evidence remains: what the Board
characterized as Stern Produce’s “disparate treatment” of Ponce.
The Board believes that an employer’s harsher treatment of an
employee engaged in protected activity, as compared to its
handling of others who committed similar misconduct, can be
“strong evidence” of wrongful animus. Constellium, 45 F.4th at
242 (citing Tschiggfrie Props., 2019 WL 6320585, at *11).
Here the Board found a “departure” from past practice in

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the fact that Ponce’s was the only written warning issued “for a
first infraction involving offensive language.” But the General
Counsel offered only two examples to establish past practice:
one incident when an employee made multiple sexist remarks to
a coworker that resulted in verbal counseling, and another when
an employee’s racist language garnered him a written warning
stating that it was “the 2d time this issue had been addressed.” 5
Even if Ponce’s misconduct sufficiently resembled that of
the other disciplined employees, the General Counsel did not
present enough evidence to permit a reasonable inference that
Ponce was “singled out” for especially harsh punishment.
Constellium, 45 F.4th at 242–43. An “isolated and marginal
deviation” from an employer’s policy “fails to show that the
policy was not applied in a neutral manner.” Kelly Constr. of
Ind., Inc., 333 N.L.R.B. 1272, 1272 (2001); see also St. George
Warehouse, Inc., 349 N.L.R.B. 870, 879 (2007). A grand total
of two instances does not a pattern make. It is a leap to say that
failing to adjudicate Ponce’s case perfectly in line with those
two incidents reflected a deviation from an otherwise
consistently observed norm.
That is particularly true at Stern Produce, where the
disciplinary policy itself leaves room for flexible, case-by-case
resolution. The company “encourages” a progressive discipline
system, in which each subsequent infraction results in escalating
consequences. In the same breath, though, the policy stresses
that the company “is not required to engage in progressive
discipline”; “is not obligated to follow any disciplinary or
grievance procedure”; and “may discipline or terminate
employees” at any time “without any prior warning,” depending
5 One other example, involving a driver who received a verbal
warning for calling a coworker “stupid,” did not involve offensive
language of the sort at issue in the other incidents and so proved a
poor comparator. The Board did not rely on this incident.

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on the circumstances of the misconduct. Company leadership
testified that they handled disciplinary decisions in accord with
those caveats.
Again, the Board’s failure to grapple with the company’s
formal rules and standard practices undermines its findings. The
Board asserted that Ponce’s written warning was the only
example of deviation from the progressive discipline
system—but the General Counsel only mustered two examples
when the company did follow the system. If Stern Produce held
itself out as not bound to adhere unfailingly to a progressive
approach, the mere fact of different outcomes in different cases
does not, without more, support a reasonable inference that
something nefarious was afoot.6
So, where does all of this lead? Stern Produce issued Ponce
a written warning that was facially consistent with the
company’s equal employment opportunity policy. The General
Counsel put forward no evidence bearing on Stern Produce’s
motivations in the leadup to the warning that would suggest that
Ponce was punished for improper reasons, other than an
insufficiently proven claim that Ponce’s discipline was
unusually severe. As for the separate incidents of alleged or
adjudicated violations of the Act, those did not constitute
convincing evidence that Stern Produce disciplined Ponce out of
anti-union animus.
The Board lacked substantial record evidence to find that
the General Counsel satisfied Wright Line’s prima facie
“causation test.” Wright Line, 251 N.L.R.B. at 1089. The
charges premised on the written warning to Ponce therefore
6 Even the supposed disparity in punishments fades under closer
scrutiny: counseling, the lowest tier of discipline, results in a written
corrective action form that documents the misconduct—just like
written warnings.

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fail.7
* * *
The Board lacked substantial evidence to find that Stern
Produce violated the National Labor Relations Act. Stern
Produce’s petition for judicial review is therefore granted, and
the Board’s decision and order are vacated. The Board’s cross-
application for enforcement is therefore denied.
So ordered.
7 We need not consider whether Stern Produce met its burden at
the second “step” of Wright Line to show that it would have
disciplined Ponce even if he had not supported the union.

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