Full opinion text
MURPHY, Circuit Judge. In two separate National Labor Relations Board (NLRB) proceedings, RELCO Locomotives, Inc. (RELCO) was found to have unlawfully discharged a total of eight workers for engaging in protected labor activity. The NLRB ordered the workers reinstated and petitioned for enforcement of its orders. RELCO cross petitioned for review of each of the two orders. After the initial briefing was completed, RELCO raised a new issue challenging the Board’s composition and claiming that several members had been appointed in violation of the recess appointments clause of the United States Constitution. We consolidated the eases for oral argument and now address both the labor law issues as well as RELCO’s challenge to the recess appointments. Concluding that substantial evidence supports the Board’s labor law conclusions and that we lack the authority to decide RELCO’s challenge to the recess appointments, we grant the NLRB’s application for enforcement and deny RELCO’s petitions for review of the two NLRB orders. I. Before the court are two separate NLRB decisions, designated here as REL-CO I and RELCO II, each of which concerned the termination of four different employees by the company.. RELCO builds and refurbishes locomotives in a plant located in Albia, Iowa. RELCO’s management includes Chief. Executive Officer Mark Bachman, Chief Administrative Officer Doug Bachman (Mark’s brother), Operations Manager David Crall, and Fabrication Supervisor Cliff Benboe, who together were responsible for most of the terminations at issue in this case. RELCO I involves the terminations of Jeffrey Smith, Ronald Dixon, Timothy Kraber, and Dana See, while RELCO II addresses the terminations of Mark Baugher, Charles Newton, Richard Pace, and Nicholas Ren-frew. Each evidentiary hearing before the Board was initially presided over by an Administrative Law Judge (ALJ). Its general counsel represented the Board during the proceedings and RELCO was represented by its own counsel. In each of the cases the ALJ issued a comprehensive opinion concluding that the complainants had been terminated because of protected labor activity and ordering that each be reinstated and receive backpay. See National Labor Relations Act, 29 U.S.C. § 158(a). In RELCO I the ALJ also found that a nondisclosure agreement required by RELCO was unlawful and ordered it rescinded. The NLRB affirmed in both cases, without substantial comment in RELCO II and with only minor and immaterial modifications in RELCO I. The factual circumstances surrounding each termination are discussed below. A. RELCO I Evidentiary Hearing 1. Jeffrey Smith Jeffrey Smith was a welder with REL-CO from January 2008 until his termination in June 2009. In early 2009, Smith attempted to meet with RELCO CEO Mark Bachman to discuss the attendance system and a pay increase. After failing to arrange a face to face meeting, Smith composed a lengthy letter which he delivered to his supervisor to pass on to Bach-man. In March 2009, Smith discovered a labor union insignia for the Brotherhood of Railroad Signalmen (BRS) on a train he was repairing. He wrote an email inquiring about representation, and the union responded by dispatching organizer Mark Ciurej. Smith became an enthusiastic union proponent among his coworkers at RELCO. He solicited his fellow employees to sign union cards on a daily basis before, during, and after work. Other employees testified that they viewed Smith as a persistent and visible organizer on behalf of the union campaign. One RELCO employee Smith approached about the union was Jonathan Graber. Graber was adamantly opposed to a union and repeatedly rebuffed Smith, telling Smith he was a “damn fool” for trying to unionize. Smith only stopped approaching Graber after Graber told him he was implacably opposed to the union and did not want to discuss it anymore. A day or two after that conversation, Graber saw CEO Bachman at a carwash and informed him about the union activity. Bachman replied that he already was aware of the campaign. Graber also spoke to two other supervisors about the campaign. He denied naming any particular employees as participating in the campaign, but the ALJ found this disclaimer not credible. Several days after Graber spoke with Bachman about the union campaign, Bach-man called a meeting on May 15, 2009 with all RELCO employees to speak about unions. Bachman first asked several contractors who belonged to a union to leave the room. In an hour long speech Bach-man expressed his opposition to bring a union to RELCO, indicating that it would result in layoffs and impede his ability to provide pay raises and other opportunities for advancement. Bachman then asked if any employees had questions. Smith rose and asked if Bachman would agree to a discussion with employees about forming a union. Bachman replied “shut up and sit down.” On Monday June 8, Smith was using a cutting torch to strip steel plates from locomotive frames. He was wearing steel tipped boots as required by RELCO safety policies. Unfortunately the cutting torch created sparks which burned the laces and the stitches binding the soles of the boots. To deal with the situation Smith replaced the burned laces with zip ties and fastened the body of the boot to the sole with duct tape. Fabrication supervisor Cliff Benboe demanded that Smith replace the boots. Smith informed Benboe that he could not afford new boots, but Benboe was unmoved. On Tuesday and Wednesday, Smith went to work wearing boots without steel toes. Benboe noticed the boots were different from those Smith had been wearing before and asked if they were steel toed. Smith asserted that they were, but when Benboe pressed against a boot with a hammer, he discovered that it did not have a steel toe. Benboe ordered Smith into the break room and told him to wait there. Benboe returned with Operations Manager David Crall. The two informed Smith that he would have to get steel toed boots before he could return to work. Smith replied that he would not be able to acquire new boots until 10 the next morning when his wife received her paycheck. Smith claims he inquired as to how this would affect his attendance record since he was already at the maximum amount of tardiness before he would be discharged under company policy. Benboe and Crall deny the issue of attendance was ever raised. Benboe did write an incident report that indicated that Smith would not be returning until 10 the next morning. That evening, Smith borrowed money from his mother in law to obtain new boots. Before he could call Benboe to inform him he would be able to return to work on time Thursday, he received a voicemail from Benboe. In the ensuing telephone conversation, Benboe instructed Smith to report to a meeting at 10 that morning. At the meeting, Benboe and Crall informed Smith that they had spoken with Bachman and decided to fire him for a gross safety violation, that is, for failure to wear steel toed boots. Smith claimed that the issue of attendance was never discussed at the meeting. Crall, by contrast, stated that the decision to fire Smith stemmed from his failure to arrive to work on time on Thursday, and that the supervisors had not yet come to a- decision about the steel toed boots. The ALJ credited Smith’s account of what had occurred at the meeting. 2. Ronald Dixon Ronald Dixon worked as a fabricator at RELCO from December 2008 to September of 2009. Dixon was one of Smith’s earliest recruits in the union campaign and regularly joined Smith in recruiting other employees. After Smith was terminated, Dixon became the leading union proponent among the RELCO employees. He continued soliciting employees to sign union cards until the day he was terminated. Like Smith, Dixon continually approached Jonathan Graber about forming a union and was rebuffed and told he was a “damn fool.” After Smith had been terminated and while Dixon was the leader of the RELCO employees favoring a union, BRS organizer Ciurej sent a five page letter to plant employees responding to anti union objections made in Bachman’s May 15 speech. Bachman then called another meeting at the end of July to respond to Ciurej’s letter. He followed up this meeting with a letter to all employees imploring them not to “fall for the union’s hollow promises.” He warned that if the employees joined the union, “our entire extremely generous wage and benefit package, that all of you already enjoy, would be negotiated between the Company and the .union. The chalkboard could in essence be completely erased and all of these great benefits and wages you already have could be talked about for the first tim.e between the parties.” In September 2009, Ciurej planned to respond by handbilling outside the RELCO plant. Graber informed Bachman about Ciurej’s plan. About a week after Ciurej’s handbilling, Dixon was assigned a job installing rain guards and spark arresters on top of a new locomotive. Dixon had never done this job .before, so Benboe instructed him on how properly to perform the work. Dixon climbed to the top of the locomotive in accordance with Benboe’s instructions and began work. Meanwhile, Bachman, Crall, and other managers were having a meeting in a conference room overlooking the shop floor. Bachman claims, he looked out the window; and saw Dixon working on top of the locomotive with his feet dangling over the edge. Bachman considered this to be an unsafe position because of the possibility of a fall. Dixon denied that his feet were ever dangling off the edge of the locomotive. Mark Baugher, an experienced fabricator, testified that he had seen Dixon working on the top of the locomotive that day and had not seen his feet hanging over the edge. In any event, Bachman instructed that Dixon be ordered off of the locomotive. Benboe testified that he then instructed Dixon either to center himself on top of the locomotive or position a ladder from which to work. Dixon claimed that he could not reach the part of the locomotive he was working on from a ladder. Nevertheless, he placed the ladder up against the locomotive in accordance with Ben-boe’s wishes. Twenty minutes later, Bach-man again claimed to have seen Dixon working with his .feet hanging off the edge of the locomotive. Bachman ordered him off the car again and had Benboe escort him to the breakroom. Benboe informed Dixon there that he was fired for insubordination. Dixon initially assumed Benboe was kidding, but then asked to show Ben-boe where he had been working to demonstrate he had complied with his directive. Benboe refused and escorted Dixon out of the plant. 3. Timothy Kraber Kraber' began working for RELCO a second time in March 2008. He had previously worked with the company from January to July 2007. When Kraber had begun his work at RELCO, the company paid for the cost of cleaning and maintaining employee uniforms. In early 2009, however, RELCO began deducting $36 per month from each employee’s paycheck for this service. Employees were disgruntled, but no serious opposition manifested itself until Kraber began to suspect that REL-CO was overcharging them. Kraber had spoken to a driver for the cleaning service and learned that RELCO was charged only about $34 per month for the cleaning. Kraber asked Operations Manager David Crall about this discrepancy, and he promised to investigate it. Kraber also noted that employees had never signed, paperwork acknowledging the pay reduction before RELCO started deducting cleaning charges from their paychecks. On March 4, 2010, Doug Bachman called a meeting to discuss the uniform cleaning issue. He also brought forms for the employees to sign authorizing RELCO to deduct cleaning expenses from their pay. At the meeting, Kraber challenged Doug Bachman as to whether RELCO was being charged less for cleaning than the amount of the deduction. Doug Bachman claimed not to know the answer. Kraber then proposed that the employees refuse to sign the authorization form until the company provided information about the cost of cleaning, and the employees voted to accept Kraber’s proposal. The meeting then became heated as employees grew convinced RELCO was overcharging them. Kraber and another employee actively challenged Doug Bachman, who was also very upset. While all of this was going on, Kraber was having issues with his attendance. Kraber had begun experiencing back problems near the end of 2009 that required him to take medical absences. RELCO’s attendance policy assigned workers “points” for every unexcused absence. Accumulating more than twelve points resulted in termination. Kraber met with Crall in December 2009 to discuss the number of points he had, contending that some of his points should be expunged because he had submitted written medical excuses. Crall promised to look into the matter. On December 4, 2009, Mark Bachman posted a memo near the employee breakroom about the medical release policy. The memo stated that only medical notes from a doctor would be acceptable for excused absences. Kraber, who had previously used notes from a chiropractor to substantiate his excused absences, claimed he never saw this memo. Kraber missed work due to his back from January 19 through January 25, 2010. On the first two days Kraber saw a chiropractor who then referred him to a doctor. When he returned to work, Kraber submitted notes from the chiropractor and the doctor explaining his absence. Benboe and Crall met with Kraber on February 1 to tell him that he had fifteen points, well over RELCO’s limit. They also informed him that due to the policy change his note from the chiropractor would not be accepted. Kraber contested the calculation of his points and said that he would “beat” them if the issue came before an unemployment hearing. He also informed the supervisors that he “wouldn’t be dealing with this” if the workers had a union. Kraber spoke to supervisor Curt Peterson later that day, once again complaining about the attendance policy and suggesting that a union would solve these problems. Peterson promised to look into the attendance controversy and attempt to fix it. A few days later, Peterson told Kraber that his point total had been reduced to ten and would be reduced to six if he could provide a doctor’s note to replace the chiropractor’s note excusing January 19 and 20. Kraber obtained a note from his doctor and submitted it to Peterson. Peterson contended that the note was illegible so Kraber called his doctor to request another. Instead, a nurse from the doctor’s office called Peterson directly and explained the content of the earlier note. Peterson then told Kraber that the note sufficed and his points would be expunged. While RELCO contends that Peterson had told Kraber he needed to bring in another note, Kraber’s account was corroborated by another witness. On February 26, 2010, Kraber missed work and was assessed two attendance points. Crall told Bachman that Kraber now had 12 points and thus could be terminated, but Bach-man said he wanted to review Kraber’s record himself before making any decision. Bachman was on vacation at the time, and though he returned sometime after February 28, he left again on a business trip on March 2. He returned to the plant on March 5 (one day after the meeting about the uniform cleaning charge) and terminated Kraber on March 8. Kraber had meanwhile returned to work on March 1 and was surprised when a week later he learned from Benboe that he had been fired. Kraber protested that Peterson had removed the attendance points he had accumulated for his absences on January 19 and 20. Benboe said that the termination decision was “final” and escorted Kraber from the building. Kra-ber called Peterson at his home that night to ask why the points had not been removed. Peterson claimed he had not gotten around to it but would speak to management the next morning. When Kraber returned his work uniform the next morning, he asked Crall if Peterson had spoken to him and repeated that he had provided the doctor’s note. Crall promised to look into the matter, but he failed to contact Kraber. When Kraber called Crall, he was told that Bachman would not reconsider his termination because he could not read the doctor’s note. 4. Dane See Dane See began working for RELCO in January 2009. He participated in the March 4, 2010 meeting with Doug Bach-man about the cost of cleaning employee uniforms. After the meeting concluded, See contacted the cleaning company directly to ask how much it charged RELCO for the service. A customer service representative told See that RELCO was charged $6.20 per week per uniform. See then asked if the customer service representative would email him that quote. Instead, the representative emailed See to tell him that the $6.20 quote may have been inaccurate. After See emailed the representative once more, he had no further contact with the cleaning company. The next day See discussed with his fellow employees what he had learned from the cleaning vendor. Later that day, See was confronted by Benboe and Crall about his contact with the cleaning representative, and then terminated for “inappropriate interaction with the vendor.” Although RELCO initially claimed See had harassed the cleaning vendor it later discovered that See had been confused another employee. RELCO then changed its position and offered reemployment to See. 5. The nondisclosure agreement Following the work uniform dispute, RELCO modified its nondisclosure agreement to forbid any employee from contacting its vendors to discuss the cost of uniform maintenance. The revised agreement also eliminated employee rights to recover litigation costs if the employee prevailed in an enforcement action brought by RELCO. Benboe distributed the new agreement on July 10 and warned employees that if they failed to sign it, they would have to “go upstairs” and speak to Bachman. Several employees refused to sign the agreement. Benboe met with employees again several weeks later, read the names of those who had not signed the agreement, and again threatened that they would be sent to Bachman if they refused. While a few employees still refused to sign the agreement, there is no evidence that Benboe or Bachman ever disciplined them in any way. B. Findings by the ALJ and Rulings by the NLRB in RELCO I The ALJ found that Smith, Dixon, Kraber, and See had all been unlawfully terminated. See 29 U.S.C. § 158(a). Specifically, the ALJ found that the nondiscriminatory reasons given for the terminations of Smith, Dixon, and Kraber were pretexts masking RELCO’s intent to punish them for union activity. The ALJ found that the reason given for See’s termination — inappropriate contact with a vendor — was itself protected activity because it was a natural extension of the concerted action by RELCO workers with regard to the work uniform cleaning expense. The ALJ ordered reinstatement of all four employees, expungement of negative references from their employment histories, and back pay. The ALJ also found that a nondisclosure agreement RELCO had distributed to its employees was overly broad and violated the National Labor Relations Act (NLRA). While RELCO argued that the issue was moot because the company has since withdrawn the agreement, the ALJ found no evidence that it had been withdrawn and ruled that the issue was not moot because the presence of the agreement had a substantial chilling effect on the ability of workers to engage in concerted action and it therefore required remediation. He ordered RELCO to post a public notice to its employees indicating that it had reinstated Smith, Dixon, Kraber, and See, and would refrain from interfering with the NLRA rights of its employees. RELCO appealed to the NLRB, which affirmed the ALJ’s decision in a two page order. It noted that the suspicious timing and pretextual nature of RELCO’s termination decisions were strong evidence that hostility to unionization was the true reason for the firing of Smith, Dixon and Kraber. It also observed that only disputed issue with respect to See was whether his actions with respect to the work uniform charges were protected activity under the NLRA, and concluded that the ALJ correctly determined that it was. The Board also rejected RELCO’s challenge to the ALJ’s credibility terminations and found no basis to reverse them. Finally, the Board modified the ALJ’s remedial order to include also an order for public rescission of the nondisclosure agreement. C. RELCO II Evidentiary Hearing 1. Mark Baugher Mark Baugher began working for REL-CO as a fabricator in March 2007. REL-CO encouraged, but did not require, its fabricators to become certified welders. Baugher was not certified, and he attended union meetings and signed a union card during the 2009 campaign. On September 13, 2010, Baugher asked his supervisor to grant him a personal day off from work. He wanted to testify in the RELCO I unfair labor practices trial, but he did not reveal that information to his supervisor. The supervisor advised Baugher that he could only grant him a half day. Later that day, CEO Mark Bachman emailed Operations Manager David Crall and asked him to prepare a reprimand to Baugher for not wearing his hard hat while on duty. Crall replied by asking for more details, but Bachman did not provide them because at that time he was occupied with hearings in RELCO I. The hard hat matter was put aside until the following week, and no one spoke to Baugher about the alleged infraction. On September 14, Baugher asked project manager Cliff Ben-boe for a vacation day. When Benboe expressed doubt that he could approve it on such short notice, Baugher revealed that he had been subpoenaed in the REL- CO I case. Benboe replied “Oh, you’re involved in this too?” and placed a call to Crall. Baugher was then granted time to appear and testify at the ALJ hearing. Baugher testified against RELCO at the hearing on September 15 and contradicted Bachman’s claim that Dixon had been working on top of a railcar with his feet dangling. Bachman was present for Baugher’s testimony and read his related statement and affidavit. The union election at RELCO was held on October 20, and a majority of employees voted against forming a union. Six days later while Baugher was working on a locomotive with another employee, he placed a blue flag on the train. The blue flag is a safety precaution which indicates to employees that a train is being serviced. RELCO safety rules prohibit moving a train or removing the flag before the worker who placed it can be located. Baugher neglected to remove the flag at the end of his shift, and RELCO personnel attempted unsuccessfully to locate him. After checking and verifying that the locomotive was clear, RELCO personnel removed the blue flag. Baugher discovered his blue flag was missing the next morning and informed Benboe about it. On November 1 RELCO suspended Baugher two days without pay and placed him on probation, citing both the hard hat incident on September 13 and the blue flag incident on October 26. The disciplinary report also claimed that Baugher had been smoking while working in an enclosed car on September 13, loitering, and exhibiting poor work performance. In early December 2010, Baugher asked Crall when his probation would be lifted. Crall gave a vague response which did not identify any specific steps Baugher should take to lift his probation. At the end of the month Baugher received a performance review from Crall, his first in several years. Baugher was given a “satisfactory” rating in sixteen areas, an “exceeds expectations” rating in one, and “below expectations” in eight. Baugher’s “growth potential” as an employee was rated “performance plateau.” This term, which the ALJ described as something of a misnomer, meant that RELCO believed that Baugher had “learned basic job skills and knowledge and [was] actively working on refining that skill and knowledge.” It differs from the also oddly named “performance peaking” rating, which is a negative assessment indicating that the employee has been performing similar tasks for an extended period without improvement or desire to expand his or her skill set. Crall indicated that Baugher had not bettered himself since joining the company and set goals for him which included obtaining his welding certificate and keeping his work area organized. While Bachman claimed that Baugher was given a 60 to 90 day deadline to obtain his welding certificate, the ALJ discredited that assertion and found no deadline had been communicated. Baugher took the welding certification test in early January, but did not pass. He was unable to retake the test, in part because he could not find times when both he and Benboe (who was to oversee the test) were available. After Baugher’s failed test, no RELCO manager spoke about certification or any other issue relating to his performance review, nor indicate any dissatisfaction with his work. Baugher continued to be assigned to welding projections throughout early 2011. Although RELCO managers asserted that they had difficulty finding work for non certified welders in Baugher’s position, the ALJ discredited that testimony. On March 11, Benboe and Crall terminated Baugher. The reason given was that he had not made sufficient improvements on the areas identified in his performance review. Baugher asked Benboe if he had any problems with Baugher’s performance, and Benboe answered he did not. Benboe told Baugher that he had been informed Baugher was being terminated only a half hour earlier. At an unemployment hearing, Crall testified that Baugher was given until the end of REL-CO’s first quarter to complete his welding certification. Baugher testified that this was the first he had heard of any such deadline. 2. Charles Newton Charles Newton began working as a fabricator for RELCO in 2008. Newton attended union meetings and told his supervisor Jim Cronin that the unionization campaign probably arose from what Newton characterized as the company’s rough tactics towards its workers. Newton was also scheduled to testify during the REL-CO I unfair labor practices hearing. Crall approached Newton shortly before the hearing and asked if he would speak to RELCO’s attorney about his involvement in the case and what he would address in his testimony. Newton agreed and conversed with both RELCO’s attorney and Crall for approximately five minutes. Newton testified in RELCO I on September 15 about the company’s nondisclosure agreement and the warnings that employees who refused to sign it would be sent to speak with Bachman. Newton denied seeing a memo RELCO claimed it posted rescinding the agreement. Bach-man was present in the courtroom for Newton’s testimony and had the opportunity to review his statement and affidavit. Newton was also an observer on behalf of the union during the subsequent union election on October 20. In that capacity Newton attended a meeting with Crall, another supervisor, and an NLRB agent regarding procedures to be used during the election. As noted above, a majority of employees voted against unionizing. Newton received a work order to create a rear headlight for a train cab on November 29. He sought clarification of the work order from Cronin, his supervisor. Cronin suggested that he use a headlight located elsewhere in the shop for comparison. Newton then walked over to the location of that headlight and returned, passing Crall twice along the way. Crall asked Newton what he was doing, and Newton replied that he was in the process of building a headlight. Later, Cronin warned Newton that he was being “watched” and should not walk around anymore. Newton replied that he had only been inspecting a cab light as suggested by Cronin. Cronin warned him he should “be careful, they’re watching you.” Later the same day, a coworker asked Newton to assist him in bending a remote box. RELCO employees commonly approached one another directly for assistance if a foreman was not around. Newton agreed to help and walked to get his work gloves. Benboe saw Newton walking and asked what he was doing. Newton told him he was helping a coworker, and Benboe replied that he was walking around too much. When Newton offered to document his steps on a piece of paper, Benboe told him to drop the issue. At the end of Newton’s shift, Cronin handed Newton a warning which alleged he had been unproductive and stating that any “further occurrence will result in disciplinary action, up to and including termination.” Newton had never before been disciplined by RELCO or told he needed to increase his productivity. In December of 2010 Crall gave Newton his first performance review in several years. The review stated that Newton’s attendance was unacceptable and that he was “below expectations” in attitude, volume of acceptable work, and meeting deadlines. RELCO set goals for Newton to improve his attendance, obtain his welding certificate, and stay on task. It also rated Newton’s growth potential as “performance plateau,” the same level Baugher had received. Newton challenged REL-CO’s tabulation of his attendance record, and Crall eventually conceded error and agreed Newton’s attendance was acceptable. Newton also challenged Crall’s appraisal of his welding abilities and his attitude. Crall did not give any examples of Newton’s alleged deficiencies in these areas. Most of Newton’s work in early 2011 was refurbishing and electrical in nature; he did not do any welding during that period. Newton was complimented for his work, however, and he did not receive any negative feedback or criticism at any point following his 2010 performance review. Nonetheless, Crall terminated Newton on March 11, 2011 for low productivity without providing any examples of poor performance or unproductive time. Newton’s discharge letter claimed he had been put on probation following his December performance review, but the ALJ discredited this assertion as unsupported by any evidence. 3 & 4. Richard Pace and Nicholas Ren-frew Richard Pace began working for REL-CO in 2009, and Nicholas Renfrew began in 2006. After attending an employee meeting on the morning of December 22, 2010, Pace overheard a conversation between two other employees who were speculating that employee Chris Kendall had been fired. Pace recalled that he had not seen Kendall at the morning meeting, but he was surprised to hear that Kendall had been fired because he was known as a good employee and a hard worker. Pace walked to his unit and asked a coworker “What’s this I hear about Chris?” The coworker repeated the rumor that Kendall had been fired and wondered if it had been due to absenteeism, since Kendall had been off work the previous day to play Santa Claus at his child’s school. Soon the rumor that Kendall had been “fired for playing Santa Claus” spread through the RELCO shop. Renfrew heard the rumor from Pace and another employee and like Pace, Renfrew was surprised to hear of Kendall’s apparent discharge. Pace and Renfrew shared the sentiment that if a well regarded employee like Kendall could be let go, any one of them could be next. At lunch RELCO workers continued to talk about Kendall’s status. Pace, Renfrew, and many others expressed concerns that it was wrong to fire Kendall and worried that his discharge signaled cutbacks in the operation. Meanwhile, Kendall was actually at work and unaware of his reported termination. He had been assigned to the “paint blast” room that day, which was isolated from the remainder of the plant. Starting at around 9 AM Kendall began to receive text messages from other employees asking if he had been fired. He replied that that was incorrect. Text messages continued, including one from Pace. Kendall responded that if he had been fired, RELCO was “playing a hell of a cruel joke on me, sticking me over here in blast.” Both Pace and Renfrew eventually learned that Kendall had not been fired. Renfrew made a point to tell other employees that the rumor was erroneous and that Kendall had actually been working in the paint blast room. Towards the end of the day, Kendall’s supervisor noticed that he looked agitated and asked what was wrong. Kendall replied, “If I’m going to be fired, I would like for a supervisor to be the one to tell me.” Crall met with Kendall, who told him “If you’re going to fire me, let’s get it over with.” Crall assured Kendall he was not being fired, only receiving a performance review, and in fact was getting a raise. Kendall then calmed down and went home from work. Crall told Bachman that Kendall had been upset by the rumors of his termination. Bachman then requested that Kendall save the text messages he received so Bachman could look at them. Bachman met with Kendall the next morning and asked to see the text messages. Kendall was reluctant to show them since he considered the matter resolved, but eventually he agreed. Bachman told Kendall again that he was doing a good job and would not be fired. Bachman also said he would take care of the matter. Bachman met with Pace the following morning and asked about the rumors of Kendall’s termination. Pace asserted that the entire shop knew of the rumor, and acknowledged he sent a text to Kendall asking if it was true. He did so because Kendall was a friend and he wanted to know if the rumors were true. Bachman charged Pace with having spread a malicious rumor about Kendall’s livelihood and immediately terminated him. Bachman then met with Renfrew and had a similar conversation. Renfrew explained that once he learned that the rumor was false, he tried to stop the rumor’s spread by telling other employees. Bachman told Renfrew that he had potentially destroyed Kendall’s life by spreading malicious rumors. He then terminated Renfrew. D. Findings by the ALJ and Rulings by the NLRB in RELCO II The ALJ decided that all four employees had been unlawfully terminated. See 29 U.S.C. § 158(a) (barring retaliation against employees for engaging in protected labor activity). He also found that the negative performance review and warning given to Newton were unlawful and that the discipline of Baugher in November had been increased in retaliation for his testimony before the union. He noted that both Newton and Baugher were treated differently than other employees without union connections who had been accused of similar infractions. He ordered reinstatement and backpay for all four workers and rescission of the disciplinary actions and negative performance reviews given to Baugher and Newton. The NLRB affirmed .on April 30, 2012 without substantial comment. While RELCO had objected to the ALJ’s credibility determinations, the Board did not find any basis for reversing them. The Board also noted that while RELCO I dealt with similar labor law violations, it had not relied on that decision in ruling on the issues in RELCO II. E. RELCO’s Appeal of the NLRB decision and the NLRB’s Application for Enforcement RELCO petitions for review of the NLRB’s decisions, and the NLRB applies for enforcement of its order. In both RELCO I and RELCO II the Board adopted the ALJ’s factual findings and conclusions of law that the employees were terminated unlawfully with little or no modification. Thus, while we are reviewing the Board’s decision, most of the specific factual and legal findings in each case were, made in the first instance by the ALJ. The factual and legal analysis of each employee’s termination is unique, and we address them individually below. When reviewing a decision by the NLRB; “we afford great deference to the Board’s affirmation of the ALJ’s findings.” Town & Country Elec., Inc. v. NLRB, 106 F.3d 816, 819 (8th Cir.1997). We will enforce the Board’s order if it “has correctly applied the law and its factual findings are supported by substantial evidence on the record as a whole, even if we might have reached a different decision had the matter been before us de novo.” Id. While normally an employer is free to discharge an at will employee for any or no reason, the National Labor Relations Act, 29 U.S.G. § 151 et seq., provides protections to workers who seek to form a union or otherwise engage in concerted labor activities. Id. at § 158(a). In appraising a challenge to an employee’s termination allegedly caused by protected labor activity, the question is whether the employee’s termination was motivated by the protected activity. Concepts & Designs v. NLRB, 101 F.3d 1243, 1245 (8th Cir.1996). Motivation “is a question of fact that may be inferred from both direct and circumstantial evidence.” Id. The so called Wright Line analysis is applied when an employer articulates a facially legitimate reason for its termination decision, but that motive is disputed. See Wright Line, 251 NLRB 1083 (1980). The initial Wright Line burden is on the Board’s general counsel to establish that the employee’s protected activity “was a motivating factor” in his or her eventual termination. NLRB v. MDI Commer. Servs., 175 F.3d 621, 625 (8th Cir.1999). The elements of this prima facie case are “(1) the employee was engaged in protected activity; (2) ... the employer knew of the employee’s protected activity; and (3) ... the employer acted as it did on the basis of anti-union animus.” NLRB v. Rockline Indus., 412 F.3d 962, 966 (8th Cir.2005) (quoting FiveCAP, Inc. v. NLRB, 294 F.3d 768, 777 (6th Cir.2002)) (ellipses original). If the general counsel meets this burden, “the conduct is unlawful unless the employer proves it would have taken the same action absent the protected activity.” MDI, 175 F.3d at 625. The existence of a nondiscriminatory rationale for the termination is not enough to establish this affirmative defense. Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989). In order to satisfy the employer’s burden, the rationale cannot only be a potential or partial reason for the termination, it must be “the justification.” Rockline, 412 F.3d at 970 (emphasis in original). The Wright Line analysis is only necessary if the employer’s stated rationale for termination is not activity protected by the NLRA. If the employer’s stated reason is itself an activity protected by the statute, the Wright Line analysis does not apply because the employer has conceded that its motive was unlawful. St. Joseph’s Hospital, 337 NLRB 94, 95 (2001). 1. Jeffrey Smith Applying the prima facie Wright Line test, the Board contends that REL-CO knew that Smith was a union leader and this fact was a motivating factor in his termination. RELCO asserts in opposition that there is no substantial evidence that the company was aware of Smith’s union activities, much less that it harbored animus towards such activity or that its decision to terminate Smith was motivated by it. After reviewing the record, we conclude that substantial evidence supports the Board’s position. There is considerable circumstantial evidence that RELCO’s senior management was aware of Smith’s union activities. Bachman had indicated he was aware of the union campaign at RELCO, of which Smith was the acknowledged leader. Smith spoke up in favor of forming a union at the May 15th meeting and was told by Bachman to “shut up and sit down.” The ALJ found that Jonathan Graber had been informing Bachman about the union campaign and that Gra-ber’s denial that he had revealed the names of pro union employees to Bachman was not credible. Graber also admitted that he initiated discussions with management on several occasions to inform it about union activities. Although Graber denied telling Bach-man that Smith was involved in the union movement, the ALJ discredited Graber’s assertion based on ample evidence in the record. The ALJ noted that Graber was openly and avowedly anti union, and bore a grudge against Smith and Dixon in particular for being overbearing in their efforts to get him to join a union. At key moments Graber also initiated discussions with RELCO senior management about the union campaign to keep it abreast of ongoing developments. As the ALJ observed, Graber enjoyed a “meteoric progression to a coveted position with the company while the events of this case unfolded.” Graber also displayed a guarded manner when testifying in this case which indicated to the ALJ that he was hiding information. We conclude that there is substantial evidence supporting the finding that RELCO management had knowledge of Smith’s union -activities. There is also substantial evidence that RELCO harbored animus towards the union campaign in its facility. Upon learning of the campaign, Bachman called a meeting with all regular employees, except for union contractors who he requested leave the room. He then delivered an hour long speech pointing out the negative influence of unions. When Smith spoke out in favor of unions, Bachman demanded he “shut up and sit down,” a clear indicator of hostility. We also agree with the ALJ that Bach-man’s comment to the effect that inviting a union to RELCO would allow for the “chalkboard ... [to] be completely erased” was akin to a “bargain from scratch” threat which courts have found to be unlawful. See, e.g., NLRB v. Hitchiner Mfg. Co., 634 F.2d 1110, 1113 (8th Cir.1980) (per curiam). RELCO argues that Bachman’s statements cannot be considered for several reasons. First it contends that Bachman’s speech cannot be used as evidence of anti union animus because Section 8(c) of the NLRA prevents the “expression] of any views, argument, or opinion” from being used as “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). We disagree. With respect to RELCO’s “chalkboard” comment, we agree with the ALJ that it was akin to a “bargain from scratch” threat that would qualify as a “threat of reprisal.” Similarly, Bachman’s demand that Smith “shut up and sit down” was hardly an expression of a “view[], argument, or opinion,” but could be considered as a threat of reprisal against Smith if he were to continue to advocate for the union since RELCO had indicated it terminates employees for “insubordination.” Moreover, the NLRB has consistently held that “an employer’s antiunion comments, while themselves lawful, may nevertheless be considered as background evidence of animus toward employees’ union activities.” Tim Foley Plumbing Serv., Inc. 337 NLRB 328, 329 (2001). Section 8(c) is designed to shield employers from claims that rest solely on an employer’s communication that it disfavors unionization. See NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). That does not mean that these remarks be excised when considering whether the employer has evinced a hostility to unions. Otherwise, Section 8(c) would effectively prevent an employer’s statement of hostility to unions from being used as proof of such an attitude. RELCO also asserts that Bachman’s statements cannot be considered because Smith was fired not by him, but by Benboe and Crall. It cites Cardenas v. AT & T Corp., 245 F.3d 994 (8th Cir.2001), to argue that “remarks made by non-decision-makers with no connection to the alleged adverse employment decision cannot support a reasonable inference of pretext.” Id. at 1000. This reliance is misplaced. Cardenas was a Title VII case holding that the racial bias of supervisors not involved in the disputed employment decision could not be imputed to those who did make the adverse decision. Id. While it may be unreasonable to assume that an employee is speaking on behalf of the company when he or she expresses racist sentiments, the same is not true in the labor context. To the contrary, “it is eminently reasonable to assume that high-level corporate managers speak on behalf of the company when they express anti-union animus.” Parsippany Hotel Mgmt. Co. v. NLRB, 99 F.3d 413, 423 (D.C.Cir.1996). When Bachman, the company CEO, openly and overtly expressed to all RELCO employees his hostility towards unions, it is reasonable to assume that he was announcing the policy of RELCO. This viewpoint may then reasonably be imputed to other senior managers such as Benboe and Crall. Substantial evidence also supports the Board’s finding that RELCO’s anti union outlook was the cause of Smith’s termination, thus satisfying the final element of Wright Line’s prima facie burden. Circumstantial evidence which can support an unlawful motive includes “implausible ... false, or shifting reasons” for a termination, Hall v. NLRB, 941 F.2d 684, 688 (8th Cir.1991), the employer’s hostility toward the union, Lemon Drop Inn, Inc. v. NLRB, 752 F.2d 323, 325 (8th Cir.1985) (per curiam), and suspicious timing of a discharge, id. All of these factors are present here. RELCO demonstrated open hostility to unions, and Smith’s termination came a mere one month after he publicly challenged Bachman’s anti union speech. As for “shifting reasons,” RELCO has continually vacillated between asserting that Smith was terminated for a safety violation (not wearing steel toed shoes) and for attendance issues. The ALJ found neither story plausible. After management found he was wearing a defective boot, Smith was told to return, to work with a pair of steel toed shoes; it was only after he complied that he was fired. The ALJ also found that Smith had been told to come into work at 10 AM the next day by his supervisors and that Crall was not credible in claiming that Smith’s attendance was a stated reason for his termination. This evidence also prevented RELCO from establishing an affirmative defense, which required showing it would have terminated Smith even without his engaging in any protected activity. The Board’s conclusion that RELCO’s stated motives were pretextual provides substantial reason to reject its affirmative defense. See York Products, Inc. v. NLRB, 881 F.2d 542, 546 (8th Cir.1989). We accordingly conclude that substantial evidence supports the Board’s decision that Smith was unlawfully terminated due to his protected labor activities. 2. Ronald Dixon Substantial evidence also supports the Board’s position that Dixon was terminated because of his union activities. See Concepts & Designs, 101 F.3d at 1245. After Smith was fired, Dixon took over as the lead union advocate at RELCO, and substantial evidence indicates that REL-CO was aware of his role. Significantly, Graber had the same motives to tell REL-CO management about Dixon as he did to inform on Smith, and the Board was thus entitled to infer that RELCO had knowledge of Dixon’s protected activities. Similarly, the evidence of RELCO’s hostility toward unionization is relevant to Dixon’s termination as well. The nexus between Dixon’s protected activity and his termination is even stronger, since his termination came just a few days after union organizer Ciurej handbilled outside REL-CO’s plant. This was a high profile pro union action taken while Dixon was the acknowledged leader of pro union activity at RELCO, about which Bachman was informed in advance by Graber. This satisfies the initial Wright Line burden to demonstrate that the employee was engaged in protected activity, that the employer knew of this protected activity; and that the termination was motivated by anti-union animus. Under Wright Line, the burden now shifts to RELCO to show it would have terminated Dixon regardless of, its anti union animus. RELCO’s stated reason for terminating Dixon was that he was insubordinate by allegedly refusing to listen to Bachman’s order that he not dangle his feet off the side of the railcar. There is ample evidence that this was a pretext. Dixon denied that his feet were ever dangling off the car to begin with, let alone after he was initially reprimanded, and he claimed that he placed the ladder on the car precisely where he had been instructed by Benboe. Dixon’s account was corroborated by another worker, Baugher, who testified that he never saw Dixon’s feet dangling off the edge of the railcar. RELCO responds that it does not matter whether Dixon really was engaged in the claimed safety violation or not, only whether Bachman believed that he was and that he had insubordinately disregarded instructions. See Johnson v. AT & T Corp., 422 F.3d 756, 762 (8th Cir.2005). The ALJ was entitled to discredit Bach-man’s assertion that he believed Dixon was behaving insubordinately. Dixon presented evidence that he actually had not disregarded Bachman’s instructions, and this buttressed the ALJ’s determination that Bachman’s conflicting claim was either implausible or an outright fabrication. See Hall, 941 F.2d at 688. Dixon’s perception is further supported by the fact that immediately after his summary termination by Benboe, he offered to show Benboe his workspace to verify that the safety ladder had been properly placed, but Benboe refused. This supports the inference that RELCO management was looking for an excuse to terminate a known union sympathizer. Substantial evidence supports the Board’s determination that Dixon’s termination was motivated by anti union hostility. Since RELCO could not demonstrate that Bachman actually believed Dixon was insubordinate, it follows that RELCO could also not demonstrate insubordination was “the justification” for his termination. Rockline, 412 F.3d at 970 (emphasis original). 3. Timothy Kraber While Kraber was a union sympathizer like Dixon and Smith, the circumstances of his termination are more closely related to his protests involving the work uniform issues than for his union activities. Though not formally part of the unionization campaign, the attempts by workers to remove the RELCO uniform cleaning charge to their paychecks, or at least to ensure that the company was not overcharging them for the service, is a “concerted activity” protected by Section 7 of the NLRA. 29 U.S.C. § 157 (protecting employees’ rights to engage in “concerted activities for the purpose of ... mutual aid or protection”). There is no dispute that-RELCO knew that Kraber was involved in the work uniform issue. He was the first to express concerns about it to RELCO management, and he was a vocal participant in the meeting with Doug Bachman where RELCO workers collectively expressed their discontent about the uniform issues. There is also substantial evidence that RELCO management was unhappy with Kraber’s concerted activity. At the March 4 meeting, Kraber challenged RELCO’s work uniform policy and stated his belief that the company was overcharging its employees for cleaning the uniforms. While Doug Bachman ultimately agreed with Kraber’s suggestion to maintain the status quo until RELCO was able to provide detailed cost information, the meeting became increasingly heated after his comments. Thereafter Doug Bachman appeared greatly agitated at the insinuations by Kraber and others that the company was in effect taking money from its workers. Substantial evidence exists supporting the Board’s finding that Kraber was terminated because of his acrimonious interaction with Doug Bachman in connection with the protected activity. RELCO management was aware there was an ongoing dispute about how many attendance points Kraber possessed. Even when the company’s records showed him as having fifteen points, it permitted him to continue working until he was able to get some points expunged. When Kraber reportedly reached the twelve point threshold again on February 26, Bachman once more delayed terminating him until the company had the opportunity to examine Kraber’s record more closely, no doubt because he knew some of those points were disputed. RELCO raises a question posed elsewhere by the Seventh Circuit: “If [the company] acted with retaliatory intent, then why did it delay ... ?” NLRB v. Stor-Rite Metal Products, Inc., 856 F.2d 957, 965 (7th Cir.1988). The answer in this case may be straightforward. Prior to Kraber’s public challenge to RELCO management about the uniforms, the company may not have been planning to' terminate him, or at least had been planning to investigate his claim that his attendance points should have been expunged. RELCO argues that evidence that Peterson had already expunged some of Kra-ber’s attendance points and decided his doctor’s note was acceptable was inadmissible hearsay because it came from Kraber and a witness to his conversation with Peterson. The NLRB responds that Peterson’s statement is admissible under F.R.E. 801(d)(2)(D) as an admission against interest concerning a matter within the scope of Peterson’s agency. It also points out that the Federal Rules of Evidence are only advisory in Board proceedings, see 29 U.S.C. § 160(b); NLRB v. Addison Shoe Corp., 450 F.2d 115, 117 (8th Cir.1971), where hearsay is admitted if probative and corroborated by other evidence. RC Aluminum Indus., Inc., 343 NLRB 939, 940 (2004). RELCO rejoins that the general counsel never established the foundation for this hearsay and that Bachman, not Peterson, had authority for making attendance policy decisions. See Mitroff v. Xomox Corp., 797 F.2d 271, 276 (6th Cir.1986). We review evidentiary decisions for abuse of discretion, Bennett v. Nucor Corp., 656 F.3d 802, 809 (8th Cir.2011). Here, the ALJ had sufficient grounds to admit Peterson’s testimony. Peterson possessed at least apparent authority to expunge attendance points and he had done so for Kraber once before. Moreover, even if Peterson could not alter attendance points himself, there is little dispute that he was acting within his authority when he presented information to senior managers at RELCO about Kra-ber’s note or Peterson’s conversation with the doctor’s office. Finally even if it were hearsay, Peterson’s statement was corroborated by other evidence and is thus admissible in an administrative proceeding. See RC Aluminum, 343 NLRB at 940. Even if RELCO were to prevail on this evidentiary challenge, that would not dispose of the actual question before the Board. The relevant question is not how many attendance points Kraber “officially” had at any given time, but whether Bachman’s decision to fire Kraber instead of investigating his unexcused absences was caused by Kraber’s protected concerted activity. Bachman knew that Kraber’s attendance record was under dispute, and he appeared willing to investigate the issue right up until Kraber challenged his brother about the work uniform issues. At that point Bachman’s cooperation immediately ceased, and Kraber was terminated. Bachman’s unwillingness to consider the doctor’s note Kraber provided, in conjunction with Peterson having confirmed the content of the allegedly illegible note, further supports the finding that the termination decision was motivated at least in part by Kraber’s protected activity. RELCO argues that the delay from February 26 to March 8 is attributable only to Bachman’s absence during much of that period. The ALJ rejected that explanation, however, after noting that Bach-man actively discussed Kraber’s case while he was away and that RELCO terminated another employee (Dane See) during the same time period for actions relating to the same work uniform dispute. The ALJ determined that this justification was a “sham.” There is substantial evidence to support these findings. 4. Dane See Dane See was terminated on March 4 for inappropriate contact with a vendor. The ALJ found that this contact was itself protected activity. Consequently, the Wright Line burden shifting framework does not apply, since that analysis is only necessary where the case turns on the employer’s motivation. St. Joseph’s Hospital, 337 NLRB at 95. When the employer’s admitted motivation encompasses protected labor activity, the employer has in effect admitted an NLRA violation, and there is no need to proceed with the Wright Line analysis. RELCO challenges the Board’s decision on two grounds. First, it argues that See’s discussion with the work uniform vendor was not protected activity because it was not “concerted” action. It contends that See’s decision to contact the vendor was “solitary” in nature, not done with the approval of other employees. Second, it claims that the actual reason for See’s termination was RELCO’s belief he had harassed a vendor, and that such a termination is permitted even if the harassment occurs. as part of protected concerted activity. Substantial evidence supports the Board’s conclusion that See’s contact with the vendor was concerted action. Action is “concerted” when it is “engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Meyers Industries, Inc., 268 NLRB 493, 497 (1984) {Meyers I). Such action can include that of individual employees if it “represents either a continuation of earlier concerted activities or a logical outgrowth of concerted activities.” Mobil Exploration & Producing U.S., Inc. v. NLRB, 200 F.3d 230, 238 (5th Cir.1999) (quotation omitted). See also JCR Hotel, Inc. v. NLRB, 342 F.3d 837, 840 (8th Cir.2003). Thus, even action which “involves only a speaker and a listener” can qualify as concerted action if “it had some relation to group action in the interest of the employees.” Meyers Industries, Inc., 281 NLRB 882, 887 (1986) (Meyers II). RELCO does not dispute that employees’ expression of concern about the uniform cleaning charges at the March 4 meeting was concerted activity. See’s discussion with the vendor came later that evening and was on the exact same issue. On this record, substantial evidence supports the ALJ’s finding that See’s call to the vendor was a continuation of the concerted action the other employees had engaged in at the March 4 meeting. RELCO alternatively contends that it actually discharged See because it believed he had been rude and harassing to the vendor. An employer can terminate an employee for rude or abusive behavior even if that behavior occurs during protected concerted action. Carleton College v. NLRB, 230 F.3d 1075, 1080-81 (8th Cir.2000). RELCO now concedes that it had confused See with another employee and that See was not actually the employee who had allegedly' harassed the vendor. It claims however that it cannot be liable under the NLRA if this admittedly mistaken belief was the actual motivation for See’s termination. See Johnson, 422 F.3d at 762. While RELCO’s argument could be validated in a situation where the company’s stated motive for termination was neutral, the Supreme Court has declined to extend this safe harbor to circumstances where the stated motivation was “an alleged act of misconduct in the course of [protected] activity.” NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964). In such circumstances, so long as the employee was not “in fact guilty of that misconduct,” the employer’s honest belief to the contrary does not exempt it from liability. Id. Since RELCO concedes that See did not actually engage in the abusive conduct for which he was terminated, its argument does not provide a safe harbor. See id. 5. Mark Baugher Baugher’s testimony before the NLRB in RELCO I is protected activity under the NLRA. 29 U.S.C. § 158(a)(4). The Board found that RELCO knew about this testimony and that it was a motivating factor in the company’s decision to discipline and eventually discharge him, thus satisfying the prima facie Wright Line burden. RELCO contends that the second and third elements of the Wright Line test are not met because it claims it did not know Baugher had testified in RELCO I and that this testimony did not motivate their decision to terminate him. RELCO first contends that it cannot be proven that it knew that Baugher (or Newton) were involved in protected activity despite the fact that Bachman was present at the NLRB hearing where they testified. It argues that the ALJ’s admission of “the transcripts of the [RELCO I ] proceedings [was] for the sole purpose of showing animus” and that this ground