# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2015 Decided July 24, 2015

No. 12

- 1054

B RUCE P ACKING C OMPANY

, I NC

., P ETITIONER

v.

N ATIONAL L ABOR R ELATIONS B OARD

, R ESPONDENT

L ABORERS ' I NTERNATIONAL U NION OF N ORTH A MERICA

, L OCAL N O

. 296, AFL

- CIO,

I NTERVENOR

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,

ar gued the cause for respondent. With her on the brief were John H. Ferguson , Associate General Counsel, Linda

Dreeben , Deputy Associate General Counsel, and Usha

Dheeh an , Supervisory Attorney.

Before: R OGERS

, G RIFFITH

, and W ILKINS

, Circuit Judges

.

Opinion for the court filed by Circuit Judge G RIFFITH

.

G RIFFITH

, 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 plant s. 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 i n the sanitation department at the Silverton p lant

under supervisor Abel Esparza

. F aced with adverse economic

conditions

, on June 2 5 , 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

. Martinez3

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 talk ed to his co

- workers about the

benefits of the u nion 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 attend ed any of the meetings at

Coria’s home.

A few months after the l ay offs , a Regional Director of the National Labor Relations Board issued a complaint against Bruce Packing, alleging that the company had committed unfair labor practice s in violation of section s 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 th reat ened employees

w ith 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 who m to
terminate . He claimed that he spent thirty minutes evaluating

the work performance of seventy employees and another thirty minutes deciding who m to terminate

. Martinez asserted that4

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 t he Silverton p lant

, 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 u nion . 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 Nava rro was laid off , but that he had

terminated the day shift employees because of their support
for the u nion. 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’s5

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 h earing was a violation of due

process

. The ALJ instructed the parties to brief the question of whether the amendment should be permitted

.

Following briefing, t he ALJ denied the General

Counsel’s motion to amend the complaint, reasoning that

Bruce Packin g 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 di d not credit any of

Martinez’s uncorroborated tes timony and found that Esparza had “substantial input” in selecti ng the employees for

termination

. She found credible Nav arro’s statements that Esparza chose the employees who were terminated based on their support for the union

. As for Rojas, t he ALJ found

sufficient ev idence 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

Br uce Packing violated the NLRA by terminating Maciel, Coria, and Luna

. However, o ver the dissent of one member,

the Board reversed the ALJ’s refusal to allow the General Counsel to amend the complaint

. The Board foun d that the

issue had been “fully litigated, ” and concluded that the company had violated the Act. A lso o ver a dissent, the Board6

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

termination

, concluding the company had failed to show that

he was lai d off for poor attendance. Bruce Packing timely appealed the Board’s ruling on these two issues

, an d the

NLRB filed a cross

- ap plication for enforcement of its order in full. This court has jurisdiction over the final decision of the

Boa rd 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 e vidence 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 disagree d 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 it s conclusion that the terminatio n 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) (int ernal 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 alleg ed 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)). T he

burden t hen shifts to the employer to prove by a preponderance of the evidence that it wo uld 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 showin g 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 terminate d Rojas for his poor attendance

anyway

. “When reviewing for substant ial 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 befor e us is whether the evidence can be read, as the Board reads it, to support the conclusion th at 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 . T he record shows that he arrived late seven times between January
26 and March 19 of 2009

. Esparza testified that he reporte d 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”

understoo d the decision

. The question, however, “is not just whether the employe r’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 t o convince us that the Board acted unreasonably in

hol ding that the company did not meet its burden

. The company did not even attempt to compare Rojas to other employees to show that h e would have been terminated regardless of his union activity. For example, t he re is no

evidence t hat Rojas’s history of tardiness was unusual . T he 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, t here 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 iss uance of an order based thereon,” 29 U.S.C. § 160(b), b ut 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 t hat 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 “t he 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 tha t 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 i t s 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 was10

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 b urden to show that it could have elicited specific testimony or countered with different defenses that would

have defeat ed 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

s o long as the re is even a chance that the company could have successfully defended against th e charge

. Id

. Bruce Packing

h as 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 exp lained 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 recall ed

witnesses to rebut Cortez’s testimon y after the General

Counsel moved to amend the complaint. We disagree. Th e

company had no meaningful opportunity to recall witnesses because the ALJ simply closed the hearing in the face of the due process challenge w ithout giving the company the option to reopen evidence. Moreover, w e 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 amen dment 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 compl a i nt , 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 litigate d the issue. Bruce Packing lacked both actual notice of the n ew char ge 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.