Page:Cordúa Restaurants, Inc. v. NLRB (19-60630) (2021) Opinion.pdf/17

 :3. Finally, the Board maintains that “it is well established that the Board’s finding of unlawful motive is reinforced where some or all of the employer’s proffered explanations for its actions are found to be pretextual.” As we discuss in the next section, the record supports that Cordúa’s purported reasons for firing Ramirez were pretextual. Substantial evidence supports the Board’s findings that (i) Ramirez engaged in protected activities, (ii) Cordúa had knowledge of Ramirez’s protected conduct, and (iii) Cordúa harbored animus toward these activities. Cordúa may only negate that Ramirez’s termination violated Section 8(a)(1) by establishing, as an affirmative defense, that Cordúa would have fired Ramirez even if he had not engaged in protected conduct. See ''Transp. Mgmt., 462 U.S. at 401–02; Delta Gas'', 840 F.2d at 313. The Board may counter Cordúa’s defense by showing that Cordúa’s purported reasons for firing Ramirez were pretextual. See Golden State Foods Corp., 340 NLRB 382, 385 (2003) (noting that if an employer’s stated justifications are found to be pretextual, “that is, either false or not in fact relied upon,” the employer “fails by definition” to carry its burden).
 * C. Cordúa’s affirmative defense

The Board found that Cordúa failed to show that it would have discharged Ramirez even in the absence of his protected conduct because “its claimed reason for discharging Ramirez—dishonesty—was pretextual.” Cordúa again argues on appeal that Ramirez either accessed or attempted to access other employees’ confidential records and lied about this attempt to Espinoza. Cordúa urges us to credit Reichman’s text messages to Ambroa, which stated that “Steven asked me if I can get other of [sic] peoples payrolls” but that she “didn’t take anything for Steven” and did not “want anything to do with what he was doing because I didn’t feel it was right.”