United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2019 Decided July 19, 2019

No. 18-1155

NATIONAL LABOR RELATIONS BOARD,

PETITIONER

v.

INGREDION INCORPORATED, D/B/A PENFORD PRODUCTS CO.,

RESPONDENT

LOCAL 100G, BAKERY, CONFECTIONERY, TOBACCO WORKERS 

AND GRAIN MILLERS INTERNATIONAL UNION, AFL-CIO, CLC,

INTERVENOR

Consolidated with 18-1244

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Brian J. Paul argued the cause for petitioner Ingredion

Incorporated. With him on the briefs were Stuart R. Buttrick, 

Ryan J. Funk, Jeffrey P. Justman, and Kyle J. Essley.

Eric Weitz, Attorney, National Labor Relations Board, 

argued the cause for respondent National Labor Relations 
2

Board. With him on the brief were Peter B. Robb, General 

Counsel, David S. Habenstreit, Assistant General Counsel, and 

Usha Dheenan, Supervisory Attorney.

Before: ROGERS, SRINIVASAN, and WILKINS, Circuit 

Judges.

Opinion for the court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Ingredion, Inc. petitions for 

review of the Decision and Order of the National Labor 

Relations Board on the ground that five of the Board’s findings, 

including that Ingredion violated the National Labor Relations 

Act (“the Act”) by dealing directly with employees and 

denigrating a union in the eyes of employees, are unsupported 

by substantial evidence. We conclude that Ingredion fails to 

meet its burden in this regard. We further conclude that 

Ingredion’s contentions that the Board violated its due process 

rights and improperly imposed a notice-reading remedy lack 

merit. Accordingly, we deny the petition and grant the Board’s 

cross-application for enforcement of its Order. 

I.

Ingredion is a multinational corn starch manufacturing 

company. In March 2015, it acquired a corn processing plant 

in Cedar Rapids, Iowa. Approximately 165 of the plant’s 

employees were represented by a local division of the Bakery, 

Confectionery, Tobacco Workers, and Grain Millers 

International Union, AFL-CIO (“the Union”). Ingredion 

recognized the Union and assumed the existing collective

bargaining agreement (“CBA”), which was scheduled to expire 

on August 1, 2015. On June 1, 2015, Ingredion and the Union 

commenced negotiations for a new CBA. The Union proposed

to modify the existing CBA in several ways. Ingredion
3

proposed to start from scratch with an entirely new CBA in 

both substance and form. The parties had not reached an 

agreement as of August 18, when Ingredion declared that they 

were at impasse and presented its “last, best, and final offer.” 

After rejecting the Union’s counteroffer of September 10, 

Ingredion unilaterally implemented the terms of its final offer 

on September 14, 2015. Ten days later, the Union filed charges 

with the Board alleging that Ingredion had engaged in 

numerous unfair labor practices proscribed by Section 8(a)(1) 

and (5) of the Act, 29 U.S.C. § 158(a)(1), (5). The Board’s 

General Counsel issued a complaint against Ingredion in 

January 2016.

Section 8(a)(1) and Section 8(a)(5) define unfair labor 

practices in overlapping terms. Section 8(a)(1) provides that it 

is “an unfair labor practice for an employer to interfere with, 

restrain, or coerce employees in the exercise of” their right to 

bargain collectively. Id. § 158(a)(1). Section 8(a)(5) provides 

that it is “an unfair labor practice for an employer to refuse to 

bargain collectively with the representatives of his employees.” 

Id. § 158(a)(5). Because a refusal to bargain necessarily 

interferes with bargaining, “an employer who violates section 

8(a)(5) also, derivatively, violates section 8(a)(1).” Exxon 

Chem. Co. v. NLRB, 386 F.3d 1160, 1164 (D.C. Cir. 2004).

An administrative law judge determined, after conducting 

an evidentiary hearing, that Ingredion had committed several 

violations of Section 8(a). As relevant here, the ALJ found that 

Ingredion had violated Section 8(a)(1) by “denigrating the 

Union” in the eyes of employees and by “threatening 

employees that they would lose their jobs if they went on 

strike.” Ingredion, Inc., No. 18-CA-160654, slip op. at 58–59, 

2016 WL 4501993 (NLRB Div. of Judges Aug. 26, 2016)

(“ALJ Decision”). He further found that Ingredion had violated 

Section 8(a)(5) (and, derivatively, Section 8(a)(1)) by dealing 
4

with employees directly rather than through the Union, by 

unilaterally implementing new terms and conditions of 

employment without first reaching an overall impasse in 

bargaining, and by failing to respond in a timely manner to a 

Union request for information. Id. at 58.

The Board affirmed with respect to all five violations. 

Ingredion, Inc., 366 NLRB No. 74, slip op. at 1–2 & nn.1–3

(May 1, 2018) (“Decision”). It directed Ingredion to cease and 

desist from its violations of the Act, rescind the unilaterally 

implemented terms and conditions of employment, and 

compensate employees for losses incurred as a result of its 

violations. Id. at 2–3 (“Order”). In addition, the Board ordered

Ingredion to have its chief negotiator, Ken Meadows, read a 

notice describing these remedies to assembled employees “or 

permit a Board agent, in the presence of Meadows and other 

corporate officials responsible for labor relations, to read the 

notice to employees.” Id. at 3. One Board Member dissented 

from the latter portion of the Order. See Decision at 1 n.2.

II.

The Board’s factual findings are conclusive “if supported 

by substantial evidence on the record considered as a whole.” 

29 U.S.C. § 160(e); see, e.g., Elastic Stop Nut Div. of Harvard 

Indus., Inc. v. NLRB, 921 F.2d 1275, 1279 (D.C. Cir. 1990) 

(citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487–

88 (1951)). Substantial evidence “means such relevant 

evidence as a reasonable mind might accept as adequate to 

support a conclusion.” E.g., Universal Camera, 340 U.S. at 

477 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938)); King Soopers, Inc. v. NLRB, 859 F.3d 23, 29 (D.C. 

Cir. 2017). The court, consequently, must affirm the Board’s

findings unless “no reasonable factfinder” could find as it did. 

Alden Leeds, Inc. v. NLRB, 812 F.3d 159, 165 (D.C. Cir. 2016)
5

(quoting Bally’s Park Place, Inc. v. NLRB, 646 F.3d 929, 935 

(D.C. Cir. 2011)). The court’s assessment of the Board’s 

decision occurs in light of Congress’s broad delegation to the 

Board to carry out the Act, see, e.g., NLRB v. Curtin Matheson 

Sci., Inc., 494 U.S. 775, 786 (1990); Allied Mech. Servs., Inc. 

v. NLRB, 668 F.3d 758, 764–65 (D.C. Cir. 2012), and

recognition that matters involving the interpretation of 

incidents between management and labor will often turn on the 

Board’s assessment of events in light of its expertise in the area 

of labor relations, see, e.g., Republic Aviation Corp. v. NLRB, 

324 U.S. 793, 800 (1945); United Servs. Auto. Ass’n v. NLRB, 

387 F.3d 908, 913 (D.C. Cir. 2004).

1. Direct dealing. The Board found that Ingredion 

engaged in direct dealing with employees when its chief 

negotiator, Ken Meadows, first visited the plant on April 6, 

2015. Decision at 1 n.1. Ingredion acknowledges that 

Meadows spoke to at least five employees during that visit but 

maintains that his “impromptu conversations” with them were 

too “brief and general” to constitute direct dealing. See Pet’r’s 

Br. 38–41.

Section 9(a) of the Act obligates an employer to treat union 

officials as “the exclusive representatives of [its] employees.” 

29 U.S.C. § 159(a). The Supreme Court has held that this 

obligation includes “the negative duty to treat with no other.” 

Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 683–84

(1944) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 

U.S. 1, 44 (1937)). It is therefore “an infringement of the Act 

for the employer to disregard the bargaining representative by 

negotiating with individual employees, whether a majority or a 

minority, with respect to wages, hours and working 

conditions.” Id. at 684. 
6

Under Board precedent, an employer violates Section 

8(a)(1) and (5) of the Act if it “attempt[s] to arm itself for 

upcoming negotiations” by directly “soliciting the sentiment of 

the employees on a subject to be discussed at the bargaining 

table.” Harris-Teeter Super Mkts., Inc., 310 NLRB 216, 217 

(1993); see Obie Pac., Inc., 196 NLRB 458, 458–59 (1972). 

For example, the employer in Harris-Teeter exercised a

contractual right to temporarily change its employees’ work 

schedule amid ongoing negotiations with the union and then

asked the employees if they “liked the change” or had other 

comments about it. 310 NLRB at 216. The Board held that 

this solicitation of employee views on a subject of negotiation 

violated Section 8(a)(1) and (5) because it “usurp[ed] the 

[u]nion’s function.” Id. at 217.

The record shows that less than two months before the start 

of negotiations with the Union over a new collective bargaining 

agreement, Meadows spent approximately 25 minutes 

speaking with employees about subjects that were to be 

addressed during the negotiations. He criticized the work 

schedules and health insurance benefits provided by the

existing CBA and asked what the employees hoped to see in a 

new agreement. They expressed interest in a wage raise of 3 to

3.5 percent, an increased pension multiplier, different work 

schedules, more vacation days, and health insurance coverage 

for early retirees. Meadows told the employees that any wage 

increase would be “in the range of 2 to 2.5 percent,” that the 

health insurance policy would be changed, and that the pension 

multiplier would not be increased because “pensions were a 

thing of the past and ‘would probably be going away.’” ALJ 

Decision at 7, 37–38 (quoting Hr’g Tr. 61 (Apr. 18, 2016)).

Employees who had worked at the plant and been represented 

by the Union for decades testified that they had never had a 

manager or supervisor approach them to discuss contract 

negotiations prior to Ingredion’s takeover of the plant. 
7

Ingredion does not dispute that Meadows had direct 

contact with employees and solicited their views about key 

terms in soon-to-be-commenced bargaining with the Union. 

Whether such contact is too brief or informal to constitute a 

violation of Section 8(a)(1) and (5) is the type of on-the-ground 

assessment that “implicates [the Board’s] expertise in labor 

relations,” United Servs., 387 F.3d at 913 (alteration in 

original) (quoting NLRB v. City Disposal Sys., Inc., 465 U.S. 

822, 829 (1984)). Ingredion points to nothing in the record 

considered as a whole that would cause the court to doubt the 

reasonableness of the Board’s finding. The Board’s finding 

rests on substantial evidence that Meadows’ conduct

“undermine[d] the exclusive agency relationship” between the 

Union and its members, Obie Pac., 196 NLRB at 459, 

illustrating one of the ills Congress sought to guard against by

enacting Sections 8(a) and 9(a) of the Act, 29 U.S.C. §§ 158(a), 

159(a). 

2. Denigration of the Union. The Board found that one 

of Ingredion’s managers unlawfully denigrated the Union in 

the eyes of employees by falsely representing that it was 

unwilling to negotiate on certain subjects. See Decision at 1 

n.1. Ingredion contends that the manager did not violate the 

Act because he made only “a non-actionable statement of 

opinion, not a ‘threat of reprisal or force or promise of 

benefit.’” Pet’r’s Br. 44 (quoting NLRB v. Gissel Packing Co.,

395 U.S. 575, 618 (1969)). 

Section 8(a)(1) of the Act makes it unlawful for an 

employer to “interfere with, restrain, or coerce employees” 

with respect to collective bargaining. 29 U.S.C. § 158(a)(1). 

Section 8(c), however, permits an employer to express a 

“view[], argument, or opinion” about bargaining so long as it 

does not threaten or coerce the employees. Id. § 158(c). In 
8

Gissel Packing, 395 U.S. at 620, the Supreme Court 

distinguished the statements of opinion protected under Section 

8(c) from “coercive . . . overstatements” that an employer “has 

reason to believe will mislead his employees.” 

The Board has held that an employer violates Section 

8(a)(1) by “misrepresent[ing] the [u]nion’s bargaining 

positions” in a way that “tends to undermine” employee 

support for the union. Miller Waste Mills, Inc., 334 NLRB 466, 

467–68 (2001), enforced, 315 F.3d 951 (8th Cir. 2003); see

Faro Screen Process, Inc., 362 NLRB 718, 718–19 (2015). In 

Miller Waste Mills, for example, the employer sent employees 

a letter that “blamed the [u]nion for preventing the employees 

from receiving their customary annual wage increase,” 334 

NLRB at 467, even though the employer “believed that the 

[u]nion had given its blessing to a wage increase,” id. at 479. 

The Board ruled that the letter violated Section 8(a)(1) because 

it caused the employees to lose faith in their union 

representatives and thus interfered with their ability to bargain 

collectively. Id. at 467.

The record shows that Ingredion’s manager told an 

employee in early July not to sign his retirement papers because 

“there was a better contract coming” and he “would like the 

retirement that [Ingredion] was going to propose.” ALJ 

Decision at 30. The manager also told the employee not to “let 

a few people in the union body sway what [he] want[ed] to do.” 

Id. (quoting Hr’g Tr. 727 (Apr. 21, 2016)). The manager 

claimed that Ingredion’s chief labor negotiator, Meadows, had 

given him permission to discuss the topic with employees. Id.

The record further shows that shortly after speaking with 

the first employee, this manager approached another employee 

who was considering retirement and told him to contact his 

union representatives and “have them get a hold of the 
9

company and start negotiating.” Id. (quoting Hr’g Tr. 740 (Apr. 

21, 2016)). In fact, the parties had already held three 

bargaining sessions and had scheduled additional sessions for 

the entire week of July 27. Id. at 11–13. The manager told this

second employee the “pension is negotiable, the hours, wages 

are negotiable, everything is negotiable.” Id. at 30 (quoting 

Hr’g Tr. 740). The second employee testified that after 

conferring with the first employee, he concluded that Ingredion 

had “‘a lot to give’” them, that “the Union was not telling 

[them] everything,” and that the parties “needed to get together 

and negotiate.” Id. at 31 (quoting Hr’g Tr. 741). 

Ingredion’s contention that the manager’s statements were 

non-threatening, see Pet’r’s Br. 44, misunderstands the nature 

of its violation. The Board did not find that the statements were 

threatening, but rather that they were misleading. See Decision

at 1 n.1. The record evidence supports the Board’s finding that 

Ingredion violated Section 8(a)(1) by misrepresenting the 

Union’s position in a way that tended to cause employees to 

lose faith in the Union.

3. Impasse. The Board found that Ingredion violated 

Section 8(a)(1) and (5) of the Act by unilaterally implementing

new terms and conditions of employment when “the parties had 

not reached an overall impasse in bargaining.” Id. at 1. 

Ingredion contends that it bargained with the Union to a valid 

impasse over a single issue, namely the format of the new 

CBA. See Pet’r’s Br. 20–22. Here, Ingredion simply ignores 

record evidence to the contrary.

It is well established that “an employer commits an unfair 

labor practice if, without bargaining to impasse, it effects a 

unilateral change of an existing term or condition of

employment.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 

190, 198 (1991); see, e.g., Wayneview Care Ctr. v. NLRB, 664 
10

F.3d 341, 347 (D.C. Cir. 2011). An impasse occurs “when 

‘good faith negotiations have exhausted the prospects of 

concluding an agreement.’” Wayneview, 664 F.3d at 347

(quoting Taft Broad. Co., 163 NLRB 475, 478 (1967)). A party 

claiming impasse based on a single critical issue has the burden 

of showing “there can be no progress on any aspect of the 

negotiations until the impasse relating to the critical issue is 

resolved.” Id. at 350 (quoting CalMat Co., 331 NLRB 1084, 

1097 (2000)). 

The record shows that although the Union’s proposals 

used the format of the existing CBA and Ingredion’s proposals 

used a different format, this did not prevent the parties from 

proceeding to negotiate and reach agreement on some material 

issues. For example, the Union added to its June 29 proposal 

certain provisions initially proposed by Ingredion regarding 

union elections, seniority, and paid time off. Compare Union 

Proposal of June 29, art. II, §§ 2, 4; art. V, § 1; art. VIII, § 3, 

with Ingredion Proposal of June 1, art. III, §§ 1, 3; art. V, § 1;

art. XIV, § 4. Similarly, Ingredion added to its July 28 and 29 

proposals certain elements of the existing CBA that the Union 

wanted to retain. Compare Ingredion Proposal of July 28, art. 

XX, § 3, and Ingredion Proposal of July 29, art. XI, §§ 5–6, 

with CBA art. IV, §§ 11–12; art. X, § 1(g). In addition, the 

parties created and exchanged summaries that compared the 

substantive terms of their proposals despite the differences in 

format. Moreover, at the time Ingredion declared impasse, 

major economic issues had received little attention from the 

parties: Ingredion had made only a single wage proposal, the 

Union had not made “any specific proposal regarding wages,” 

and there had “been relatively little discussion regarding other 

important economic issues such as health insurance and 

retirement benefits.” ALJ Decision at 48. For that reason, the 

Board concluded that “further discussion of the substantive 

terms may well have resulted in the parties compromising with 
11

respect to the format and language of a new agreement.” Id. A 

review of the record as a whole, then, shows substantial 

evidence to support the Board’s finding that although the 

format of the new contract was a “major issue[],” id., it did not 

create an overall impasse, see Decision at 1 (adopting ALJ 

Decision at 47–49).

4. Delay in providing requested information. Ingredion 

promptly responded to most of the Union’s requests for 

information but took eleven weeks to provide three items of 

pension-related information. The Board found that this delay 

was unreasonable and therefore violated Section 8(a)(1) and 

(5). See id. at 1 n.1. Ingredion maintains that it “made a 

‘reasonable good-faith effort’” to produce the items “‘as 

promptly as circumstances allow[ed].’” Pet’r’s Br. 48 

(alteration in original) (quoting Good Life Beverage Co., 312 

NLRB 1060, 1062 n.9 (1993)). 

“The duty to bargain collectively” imposed by Section 

8(a)(5) “includes a duty to provide relevant information needed 

by a labor union for the proper performance of its duties as the 

employees’ bargaining representative.” Detroit Edison Co. v. 

NLRB, 440 U.S. 301, 303 (1979). “An employer violates the 

Act not only by refusing to provide such relevant information 

but also by not providing it in a timely manner.” Brewers & 

Maltsters, Local Union No. 6 v. NLRB, 414 F.3d 36, 45 (D.C. 

Cir. 2005). Under Board precedent, an unjustified delay of 

seven weeks may constitute a violation of Section 8(a)(1) and 

(5). See, e.g., Woodland Clinic, 331 NLRB 735, 737 (2000); 

Bundy Corp., 292 NLRB 671, 672 (1989). 

The record shows that Ingredion’s contemporaneous 

explanation for the delay differs from the explanation it 

presented to the court. Meadows did not tell the Union that the 

information would be difficult or time-consuming to retrieve, 
12

see Pet’r’s Br. 48, 50, but rather that Ingredion might not

provide pension-related information because it intended to 

discontinue the existing pension plan. See ALJ Decision at 12. 

This was not a valid reason for delaying compliance with an 

information request; regardless of what Ingredion intended, it 

had an obligation to provide the information in a timely manner 

because it was relevant to the Union’s proposals. See Country 

Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1191 (D.C. Cir. 

2000). Given Ingredion’s inadequate and changing 

explanation for the delay, the Board was entitled to conclude 

that the delay was unreasonable. See Decision at 1 n.1

(adopting ALJ Decision at 36–37).

5. Threats of job loss. The Board found that Ingredion 

violated Section 8(a)(1) of the Act when one of its managers 

told employees discussing a potential strike, “You boys, you 

might want to think long and hard about walking out on these 

people. They’ve got the deep pockets and lots of plants that 

make the same thing you do. You may not get back in the door 

if you go out.” ALJ Decision at 32 (quoting Hr’g Tr. 38 (Apr. 

18, 2016)). Ingredion characterizes this as “a truthful statement 

that one potential consequence of a strike is job loss.” Pet’r’s 

Br. 47.

Although an employer may communicate “what [it] 

reasonably believes will be the likely economic consequences” 

of a labor strike, Gissel Packing, 395 U.S. at 619, it violates

Section 8(a)(1) if it makes “coercive statements that threaten 

employees with job loss or plant closure in retaliation for 

protected union activities,” Care One at Madison Ave., LLC v. 

NLRB, 832 F.3d 351, 360 (D.C. Cir. 2016) (quoting 

Progressive Elec., Inc. v. NLRB, 453 F.3d 538, 544 (D.C. Cir. 

2006)). 
13

The Board reasonably found that the statement was not an 

“honest forecast[]” based on “economic realities,” Gissel 

Packing, 395 U.S. at 619–20, but a threat to terminate 

employees for exercising their right to strike. See Care One,

832 F.3d at 360–61. Further, Ingredion’s view that the Board 

lacked jurisdiction over the relevant allegation in the General 

Counsel’s complaint because it “was not ‘closely related’ to the 

claims in the [Union’s] first amended charge,” Pet’r’s Br. 45 

(quoting Precision Concrete v. NLRB, 334 F.3d 88, 91–92 

(D.C. Cir. 2003)), is meritless. The complaint alleged that in 

July 2015, the manager “threatened employees that they would 

never return to work if they went on strike,” Second Am. to 

Compl. 2. This is closely related to the Union’s charge that 

“[s]ince about April 6, 2015, [Ingredion] threaten[ed]

employees with replacement if they d[id] not agree to” its 

proposals, First Am. Charge. See G.W. Galloway Co. v. NLRB, 

856 F.2d 275, 280 (D.C. Cir. 1988). Further, in suggesting the

Board did not address this allegation, see Pet’r’s Br. 45,

Ingredion overlooks that the Board affirmed the ALJ’s findings

except as specified otherwise, never disavowed the ALJ’s 

finding that the statement was an unlawful threat, and ordered 

Ingredion to stop “[t]hreatening employees that they might lose 

their jobs if they went on strike,” Order at 2; see Decision at 1 

& nn.1–2. 

To the extent Ingredion’s challenge morphs into a due 

process objection, this too fails. Ingredion maintains it did not 

have a meaningful opportunity to respond to the unlawfulthreats allegation because it was added to the complaint just 

two days before the administrative hearing. See Pet’r’s Br. 51–

52. Yet the record shows Ingredion received a “full and fair 

opportunity to litigate the matter,” and in any event Ingredion 

points to no prejudice. See Davis Supermarkets, Inc. v. NLRB, 

2 F.3d 1162, 1169 (D.C. Cir. 1993). Thus, Ingredion has 
14

shown no basis for reversing the Board’s findings of unfair 

labor practices.

III.

Ingredion objects to the Board’s remedial Order on two 

grounds. First, it maintains it was denied due process by the 

provision rescinding all discipline imposed pursuant to 

unilaterally implemented terms and conditions because the 

complaint did not specifically request such a remedy. See 

Pet’r’s Br. 53–54. This is meritless. Ingredion was on notice 

that the remedy was in play because the complaint asked the 

Board to compensate employees “for any losses they have 

suffered as a result of the unilateral implementation” of new 

terms and conditions. Compl. 8. 

 

Second, Ingredion objects to the provision directing that 

Meadows read a notice describing Ingredion’s legal obligations 

to assembled employees “or permit a Board agent, in the 

presence of Meadows and other corporate officials responsible 

for labor relations, to read the notice to employees,” Order at 

3. The Board’s broad discretion to fashion remedies for 

violations of the Act, see, e.g., Fibreboard Paper Prods. Corp. 

v. NLRB, 379 U.S. 203, 216–17 (1964), allows it to impose this

“extraordinary remedy,” Decision at 1 n.2 (Member Emanuel, 

dissenting), where “upper management has been directly 

involved in multiple violations of the Act,” Veritas Health 

Servs., Inc. v. NLRB, 895 F.3d 69, 86 (D.C. Cir. 2018). Here, 

Ingredion’s chief negotiator played a central role in several 

violations of the Act, so the Board did not abuse its discretion 

by imposing the remedy.

Accordingly, we deny the petition for review and grant the 

Board’s cross-application for enforcement of its Order.