Argued September 19, 2024 Decided December 13, 2024

No. 23-1237

ACUMEN CAPITAL PARTNERS, LLC, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT

Consolidated with 23-1265

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

Lawrence Peikes argued the cause for petitioner. With him on the briefs was Jeffrey R. Babbin.

Jared H. Odessky, 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 S. Habenstreit, 2 Assistant General Counsel, and Milakshmi V. Rajapakse, Supervisory Attorney.

Before: MILLETT and WILKINS, Circuit Judges, and ROGERS, Senior Circuit Judge.

Opinion for the Court by Senior Circuit Judge ROGERS.

ROGERS, Senior Circuit Judge: Acumen Capital Partners, LLC, a commercial property management company, petitions for review of the decision of the National Labor Relations Board that it discharged engineer Gregory Zapata because of his protected union activity in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) and (3). Acumen challenges the Board’s findings that it had knowledge of Zapata’s union activity and was motivated by anti-union animus in discharging him. Because the Board’s findings on the timing and the pretextual nature of Acumen’s explanation for Zapata’s discharge are supported by substantial evidence, the court denies the petition and grants the Board’s cross-application for enforcement of its decision and order.

I.

Acumen is a real estate management agent for a privately owned office building in Brooklyn, New York. The building houses commercial, non-profit, and government tenants. Acumen employs engineers to maintain the building’s boilers and chillers and to complete other maintenance and construction projects.

Jeffrey Rosenblum, co-managing member and owner of Acumen, hired Salvatore Coppola as chief engineer in March 2021. Coppola “wanted to be union, because [he had] been union for the last 25 years.” Hr’g. Tr. 202 (Aug. 30, 2022). 3 When he took the job at Acumen, Coppola told Rosenblum that “[e]verybody’s going [u]nion.” Id. In response, Rosenblum told Coppola “this is a nonunion building.” Id. Coppola understood from this statement that remaining non-union was one of the conditions of accepting the job. See id. at 202-03.

In April 2021, Acumen hired Gregory Zapata to work as one of the building engineers. Previously Zapata had been a member of the International Union of Operating Engineers, Local 30, AFL-CIO (“the Union”) for about five years. Early in his employment at Acumen, Zapata asked Coppola why Acumen was not union, and Coppola told him that Rosenblum “didn’t want the Union in the building.” Hr’g. Tr. 28. Rosenblum had little contact with the engineers and Coppola often served as the conduit between Rosenblum and the engineers, meeting almost daily with Rosenblum and providing the engineers with daily assignments.

Meanwhile in December 2021, during the COVID-19 pandemic, New York City issued a Vaccination Order requiring vaccinations for public and private sector employees within its jurisdiction. On December 6, Rosenblum learned from an announcement by the Mayor’s Office that employers would be required to exclude employees from the workplace if they had not received a COVID-19 vaccine by December 27. A Vaccination Order of December 13 instructed employers to exclude unvaccinated employees from the workplace (with exceptions), maintain a record of proofs of vaccination, affirm compliance on a separate form, and conspicuously post tha