Unfair labor practice charges; Discharging an employee for engaging in protected concerted activity; National Labor Relations Act (NLRA) §§ 8(a)(3) & (1) (29 USC §§ 158(a)(3) & (1)); Prima facie case; Substantial evidence; An individual complaint under a collective bargaining agreement (CBA); The “Interboro doctrine”; NLRB v City Disposal Sys, Inc; Credibility determinations; Substantial or motivating factor in the adverse action; Pretext; Challenge to the National Labor Relations Board’s remedial order at the liability stage; Reinstatement & backpay; § 160(c); Compliance proceedings issue; Sure-Tan, Inc v NLRB

Granting petitioner-NLRB’s application for enforcement of its order, the court held that there was substantial record evidence supporting the Board’s finding that respondent-employer (VNS) violated NLRA §§ 8(a)(3) and (1) by terminating an employee (S) for complaining about an alleged CBA violation. The court first considered whether S engaged in protected concerted activity when he complained to a supervisor during a meeting about a co-worker’s (D) 40-hour guarantee. It evaluates whether an individual complaint under a CBA “amounts to concerted activity under the Interboro doctrine[,]” adopted by the Supreme Court in City Disposal. The parties agreed that the CBA did not prevent the side agreement with D, even if intervenor-Union’s bylaws did. The Board determined that S’s complaint constituted concerted activity under the Interboro doctrine. The court concluded that substantial evidence supported the Board’s factual finding that S “honestly and reasonably invoked a collectively bargained right.” It was “not persuaded to disturb the Board’s credibility determination that [S] invoked the contract at the meeting.” In addition, substantial evidence supported the Board’s finding that S’s invocation of a right under the CBA “was honest and reasonable, even though [D’s] side agreement did not in fact violate the” CBA. The Board credited S’s testimony that he believed that it did because a union representative had previously told him that the CBA did not guarantee 40 hours, and there was no evidence that an alleged “longstanding practice” was so widespread that S must have been aware of it. Next, the court cited seven pieces of evidence in concluding that there was both direct and circumstantial substantial evidence supporting the Board’s finding that his “protected conduct was a substantial or motivating factor in VNS’s termination decision.” It further held that substantial evidence, including documentary evidence, supported the Board’s finding of pretext. While VNS also challenged the Board’s remedial order, which included reinstatement and backpay, as overbroad, the court noted that its “arguments should first be made to the Board in compliance proceedings,” and declined to address them here.