United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2015 Decided July 24, 2015

No. 12-1054

BRUCE PACKING COMPANY, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

LABORERS' INTERNATIONAL UNION OF NORTH AMERICA,

LOCAL NO. 296, AFL-CIO,

INTERVENOR

Consolidated with 12-1137

On Petition for Review and Cross-Application 

for Enforcement of an Order of 

the National Labor Relations Board

Bryan P. O'Connor argued the cause for petitioner. With 

him on the briefs were Joseph E. Schuler and Joel J. 

Borovsky.
2

Nicole Lancia, Attorney, National Labor Relations Board, 

argued the cause for respondent. With her on the brief were 

John H. Ferguson, Associate General Counsel, Linda 

Dreeben, Deputy Associate General Counsel, and Usha 

Dheehan, Supervisory Attorney.

Before: ROGERS, GRIFFITH, and WILKINS, Circuit Judges.

Opinion for the court filed by Circuit Judge GRIFFITH. 

GRIFFITH, Circuit Judge: 

Bruce Packing Company petitions for review of a 

decision of the National Labor Relations Board that the 

company committed unfair labor practices in an effort to beat 

back a union-organizing drive at one of its plants. For the 

reasons set forth below, we grant in part and deny in part both 

the company’s petition for review and the Board’s 

cross-application for enforcement.

I

Bruce Packing operates two meat-processing plants in 

Oregon, one in Silverton, the other in Woodburn. Jorge Mesa 

managed the sanitation department in both plants, with Osmin 

Martinez serving as his assistant. Thirteen people worked the 

day shift in the sanitation department at the Silverton plant

under supervisor Abel Esparza. Faced with adverse economic 

conditions, on June 25, 2009, the president of Bruce Packing 

directed department managers to reduce their total staff at 

Silverton and Woodburn by ten percent within two days. 

Mesa told Martinez to pick sanitation employees from the day

shift and swing shift at both plants to lay off. Martinez 
3

terminated workers from both shifts in both locations, 

including four from the Silverton day shift: Manuel Coria, 

Jose Carmen Maciel, Daniel Luna, and Federico Nieves 

Rojas.

Just the month before, these four employees had begun

supporting efforts by Laborers’ International Union of North 

America, Local No. 296, to organize the employees of the 

plant. Coria hosted union meetings at his home, distributed 

union literature, and talked to his co-workers about the 

benefits of the union in the employee lunchroom in view of 

Esparza’s office. Maciel attended the meetings in Coria’s 

home and participated in the lunchroom talks, as did Luna.

Rojas also joined the lunchroom talks and voiced his support 

for the union, though he never attended any of the meetings at 

Coria’s home.

A few months after the layoffs, a Regional Director of the 

National Labor Relations Board issued a complaint against 

Bruce Packing, alleging that the company had committed

unfair labor practices in violation of sections 8(a)(1) and (3) 

of the National Labor Relations Act (NLRA) by discharging 

Coria, Maciel, Luna, and Rojas for supporting the union’s 

drive to organize. The complaint also alleged that the 

company coercively interrogated and threatened employees

with unspecified reprisals if they continued to engage in union 

activities.

During a three-day hearing before an Administrative Law 

Judge, Martinez testified that he alone decided whom to 

terminate. He claimed that he spent thirty minutes evaluating 

the work performance of seventy employees and another thirty 

minutes deciding whom to terminate. Martinez asserted that 
4

he based his decision on his own observations as well as prior

performance reports that he received orally from Esparza, but 

that he never reviewed any personnel files or spoke with

Esparza about the terminations. Martinez further testified that 

Rojas was laid off for his repeated tardiness. In his testimony, 

Esparza confirmed that he had told Martinez of Rojas’s poor 

attendance. Coria testified that he remembered Rojas saying 

that he “kind of” understood why he was laid off, because he 

had been late frequently. 

Maria Cortez, Maciel’s wife and coworker at the 

Silverton plant, testified that Esparza spoke to her on the 

phone on June 19 for some eighty minutes. According to 

Cortez, Esparza asked her to confirm that employees were 

forming a group to support the union. She also claimed he

cautioned her that the employees “should be careful because 

this was a delicate thing.” J.A. 61. Cortez alleged that Esparza 

promised her a raise and asked her to tell Maciel and Coria 

that he “had a raise for them and that they should be very 

careful because this was really . . . very delicate.” J.A. 62. 

Esparza denied making these statements. 

Finally, Mauro Navarro, a sanitation employee from the 

night shift at the Silverton plant who was also terminated, 

testified that he went to Esparza’s home to speak with him

after the layoffs. Navarro claimed that Esparza said that he did 

not know why Navarro was laid off, but that he had 

terminated the day shift employees because of their support 

for the union. Esparza testified that he had simply told 

Navarro that he did not know why Navarro had been laid off. 

At the close of the final day of the hearing before the 

ALJ, Bruce Packing rested its defense and the Board’s 
5

General Counsel called no rebuttal witnesses. The General 

Counsel then moved to amend the complaint based on 

Cortez’s testimony the day before to allege that Bruce Packing

had committed an additional unfair labor practice by 

unlawfully promising wage increases and better benefits to 

Cortez, Maciel, and Coria if they ceased advocating for union 

organization. Bruce Packing objected that amending the 

complaint so late in the hearing was a violation of due 

process. The ALJ instructed the parties to brief the question of 

whether the amendment should be permitted. 

Following briefing, the ALJ denied the General 

Counsel’s motion to amend the complaint, reasoning that 

Bruce Packing had insufficient notice to defend against the 

new charge. On the merits of the claims in the complaint, the 

ALJ concluded that Bruce Packing’s discharge of Maciel, 

Coria, and Luna violated the NLRA. She did not credit any of 

Martinez’s uncorroborated testimony and found that Esparza 

had “substantial input” in selecting the employees for 

termination. She found credible Navarro’s statements that 

Esparza chose the employees who were terminated based on 

their support for the union. As for Rojas, the ALJ found

sufficient evidence that he would have been laid off for his 

poor work attendance regardless of his support for union 

organization.

On appeal, the Board affirmed the ALJ’s conclusion that 

Bruce Packing violated the NLRA by terminating Maciel, 

Coria, and Luna. However, over the dissent of one member, 

the Board reversed the ALJ’s refusal to allow the General 

Counsel to amend the complaint. The Board found that the 

issue had been “fully litigated,” and concluded that the 

company had violated the Act. Also over a dissent, the Board 
6

reversed the ALJ’s dismissal of the charge related to Rojas’s 

termination, concluding the company had failed to show that 

he was laid off for poor attendance. Bruce Packing timely 

appealed the Board’s ruling on these two issues, and the 

NLRB filed a cross-application for enforcement of its order in 

full. This court has jurisdiction over the final decision of the 

Board pursuant to 29 U.S.C. § 160(e), (f). 

II

Our review of the substance of the Board’s decision is 

limited, and we will set it aside “only when the Board has 

acted arbitrarily or otherwise erred in applying established law 

to the facts, or when its findings of fact are not supported by 

substantial evidence in the record considered as a whole.” 

ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1438 (D.C. Cir. 1997) 

(internal quotation marks omitted); see also Bally’s Park 

Place, Inc. v. NLRB, 646 F.3d 929, 935 n.4 (D.C. Cir. 2011) 

(“[W]here the Board has disagreed with the ALJ, as occurred 

here, the standard of review with respect to the substantiality 

of the evidence does not change.” (internal quotation marks 

omitted)). We agree with the Board that substantial evidence 

supports its conclusion that the termination of Rojas violated 

the NLRA. In contrast, we “owe[] no deference to the 

[Board’s] pronouncement on a constitutional question,” 

leaving us to review the due process claim de novo. J.J. 

Cassone Bakery, Inc. v. NLRB, 554 F.3d 1041, 1044 (D.C. 

Cir. 2009) (internal quotation marks omitted). We disagree 

with the Board’s decision to allow the late amendment of the 

General Counsel’s complaint, which left Bruce Packing 

without notice of a new charge that it lacked the opportunity

to fairly contest.
7

A

Section 8(a)(3) of the NLRA makes it an unfair labor 

practice to “encourage or discourage membership in any labor 

organization” through “discrimination in regard to hire or 

tenure of employment or any term or condition of 

employment.” 29 U.S.C. § 158(a)(3). The Board assesses

alleged improper terminations under the test set forth in

Wright Line, 251 N.L.R.B. 1083 (1980). The Wright Line test 

first requires the NLRB General Counsel to make a prima 

facie showing that “‘an antiunion animus contributed to the 

employer’s decision to discharge an employee.’” Avecor, Inc. 

v. NLRB, 931 F.2d 924, 928 (D.C. Cir. 1991) (quoting NLRB 

v. Transp. Mgmt. Corp., 462 U.S. 393, 395 (1983)). The 

burden then shifts to the employer to prove by a 

preponderance of the evidence that it would have taken the 

same action even if the employee had not been “involved with 

the union.” Id. 

The parties agree that the General Counsel met his initial 

burden of showing that Rojas’s support for the union was a 

motivating factor in his termination. But Bruce Packing

maintains, as the ALJ originally found, that it showed that 

Martinez would have terminated Rojas for his poor attendance 

anyway. “When reviewing for substantial evidence, we do not 

ask whether record evidence could support the petitioner’s 

view of the issue, but whether it supports the [agency’s] 

ultimate decision.” Fla. Gas Transmission Co. v. FERC, 604 

F.3d 636, 645 (D.C. Cir. 2010). Thus, the question before us 

is whether the evidence can be read, as the Board reads it, to 

support the conclusion that Bruce Packing did not show it 

would have terminated Rojas absent his union activity. We 

conclude that it can. 
8

Bruce Packing insists that Rojas’s attendance record was 

so poor that Martinez would have chosen to lay him off in any 

case. There is no doubt that Rojas was often late to work. The 

record shows that he arrived late seven times between January 

26 and March 19 of 2009. Esparza testified that he reported 

on Rojas’s tardiness to Martinez. Even Rojas appeared to 

recognize that his attendance record could explain his 

termination, as Coria recalled Rojas saying that he “kind of”

understood the decision. The question, however, “is not just

whether the employer’s action also served some legitimate 

business purpose, but whether the legitimate business motive 

would have moved the employer to take the challenged action 

absent the protected conduct.” Chevron Mining, Inc. v. NLRB, 

684 F.3d 1318, 1327 (D.C. Cir. 2012). Bruce Packing has 

failed to convince us that the Board acted unreasonably in 

holding that the company did not meet its burden. The

company did not even attempt to compare Rojas to other

employees to show that he would have been terminated 

regardless of his union activity. For example, there is no 

evidence that Rojas’s history of tardiness was unusual. The 

record suggests that at least one other employee arrived to 

work late eight times in 2008 but was not let go. Thus, 

although there is evidence that Rojas was often late, there is 

no credited evidence before us that shows Bruce Packing

would have terminated Rojas for this reason alone. In this

light, the evidence amply supports the Board’s decision to 

reverse the ALJ and hold Bruce Packing accountable for 

Rojas’s discharge. 
9

B

Bruce Packing also alleges that the Board denied it due 

process by allowing the General Counsel to add a new 

allegation to the complaint at the end of the hearing before the 

ALJ. The NLRA permits the Board to amend a complaint “in 

its discretion at any time prior to the issuance of an order 

based thereon,” 29 U.S.C. § 160(b), but such a generous 

provision is limited by fundamental principles of fairness. See 

NLRB v. Blake Constr. Co., 663 F.2d 272, 283 (D.C. Cir. 

1981) (noting that due process requires that the “charged party 

is given adequate notice of all the alleged violations of the Act 

and that these violations are litigated before sanctions are 

imposed”).

In Conair Corp. v. NLRB, we explained that “the critical 

issue” with a late amendment to a complaint is not “whether 

there is substantial evidence in the record” to support the 

Board’s conclusion that a company has committed the 

newly-added offense, but whether the company was “told 

before the hearing record closed that the stakes included 

liability for” the proposed new charge. 721 F.2d 1355, 1371

(D.C. Cir. 1983). The proposed amendment in this case fails 

that test. The General Counsel waited until the very end of a 

three-day hearing, after Bruce Packing had rested its defense, 

before it moved to amend the complaint to include a new 

allegation that the company unlawfully promised employees 

an increase in wages in exchange for their agreement to stop 

supporting the union. Because no such charge had been 

introduced when Cortez gave the relevant testimony regarding 

Esparza’s promise of wage increases, Bruce Packing was not 

aware that her testimony might serve as a basis for liability 

and had no reason to pursue the issue. True, the testimony was 
10

undoubtedly unfavorable to the company and perhaps the 

better course would have been to cross-examine Cortez and 

explore the matter with Esparza. But because the testimony 

was not tied to a charge, Bruce Packing focused its attention 

elsewhere after eliciting from Esparza a general denial 

regarding the conversation. Conair requires that “it must be 

clear that the parties understand exactly what the issues are” at 

the time of the proceedings. Id. at 1372 (internal quotation 

marks omitted). Where, as here, the company did not know 

that it could be held liable for a charge related to the promised 

wage increase until the close of the hearing, that standard is 

not satisfied. 

The Board argues that the amendment should be 

permitted because the company has not shown what it would 

have done differently had it the opportunity to fully challenge 

the charge. But, as we made clear in Conair, Bruce Packing 

has no burden to show that it could have elicited specific 

testimony or countered with different defenses that would

have defeated the belated claim. Id. When a late amendment 

deprives an employer of notice and the opportunity to fairly

litigate its liability, we will find prejudice warranting reversal 

so long as there is even a chance that the company could have 

successfully defended against the charge. Id. Bruce Packing 

has satisfied that low standard. Given the chance, it could 

have attacked Cortez’s credibility on this specific aspect of 

the conversation, cross-examined her to expose any 

inconsistencies in her testimony, or explored the issue more 

fully with Esparza and other witnesses. No doubt Conair

places an added procedural burden on the General Counsel to 

ensure adequate opportunity for such defenses when evidence 

of potential wrongdoing first emerges during a hearing, but as 

we have explained previously, “[w]e believe that affording . . . 
11

notice during the proceeding [is] a minimal obligation.” Blake 

Constr. Co., 663 F.2d at 281. The General Counsel did not 

meet that obligation here.

The Board argues that Bruce Packing could have recalled

witnesses to rebut Cortez’s testimony after the General 

Counsel moved to amend the complaint. We disagree. The 

company had no meaningful opportunity to recall witnesses

because the ALJ simply closed the hearing in the face of the 

due process challenge without giving the company the option

to reopen evidence. Moreover, we do not think Bruce Packing 

was required to attempt to recall witnesses to cure the 

prejudice created when the General Counsel waited until the 

very last possible moment to raise the amendment with the 

ALJ. Nor are we convinced that the result should be different 

because Bruce Packing failed to object to the ALJ’s factual 

finding that Esparza impliedly promised the raises. Because 

the ALJ refused to amend the complaint, the factual finding of 

the implied promise was not connected to the relevant charge. 

The failure to object neither negates the company’s lack of 

notice nor proves that it fairly litigated the issue. Bruce 

Packing lacked both actual notice of the new charge during 

the hearing and the opportunity to fairly litigate the issue. We 

therefore set aside the Board’s decision to allow the 

amendment. 

III

The Board’s order will be enforced with respect to all 

issues, except its conclusion that Bruce Packing illegally 

promised benefits to employees who stopped supporting the 

union.