United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit

FILED No. 23-60513 November 25, 2024 ____________ Lyle W. Cayce Clerk Capstone Logistics, L.L.C.,

Petitioner/Cross-Respondent,

versus National Labor Relations Board,

Respondent/Cross-Petitioner. ______________________________

Petition for Review of an Order of the National Labor Relations Board Agency Nos. 15-CA-257443, 15-CA-259712 ______________________________ Before Southwick, Haynes, and Douglas, Circuit Judges. Dana M. Douglas, Circuit Judge: Capstone Logistics, LLC (“Capstone”) petitions for review of a National Labor Relations Board (“NLRB” or “the Board”) decision and order determining that Capstone violated the National Labor Relations Act (“NLRA”) by firing an employee for engaging in protected concerted activity or, alternatively, because it believed she had engaged in protected concerted activity. The Board opposes Capstone’s petition and cross- petitions for summary enforcement of its order. Because we determine that the decision of the NLRB was, in part, supported by substantial evidence, we DENY Capstone’s petition for review and ENFORCE the order. Case: 23-60513 Document: 75-1 Page: 2 Date Filed: 11/25/2024

No. 23-60513

I. Capstone is a nationwide company that provides labor to other businesses, including Associated Wholesale Grocers at its facilities. In the fall of 2019, Capstone began supplying personnel to work as auditors at Associated Wholesale Grocers’ food distribution warehouse in Pearl River, Louisiana. Using scan guns, the auditors checked groceries that had been loaded onto pallets on various docks, including the cold dock for perishables, to ensure that Associated Wholesale Grocers accurately fulfilled its customers’ orders. The auditors’ job also required them to spend some time inside of freezers at the facility. Associated Wholesale Grocers provided its employees with freezer suits to withstand the cold temperatures, but Capstone did not supply its auditors with such suits. After verifying the customers’ orders were correctly filled, the auditors then rewrapped the orders and rebuilt the pallets. Capstone initially told the Pearl River auditors that they would be paid hourly during their training and would receive production pay—at sixteen cents per case scanned—after their training. But in the nine months or so that Capstone provided auditors to Associated Wholesale Grocers at its Pearl River facility, its auditors were only ever paid an hourly wage. A. In September 2019, Capstone hired Joyce Henson to serve as lead auditor at the Pearl River facility. During her one-month tenure, Henson spoke to the other Capstone auditors, as well as Capstone and Associated Wholesale Grocers personnel, about a variety of work-related matters. The auditors expressed concerns related to safety and training, the need for warm clothing to withstand cold temperatures, and the rate of pay. Henson also spoke separately with Associated Wholesale Grocers and Capstone officials about her own pay as lead auditor. On either October 17 or 18, Prince Wilson, a Capstone manager who trained the auditors at the Pearl River facility,