United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 1998 Decided July 9, 1999
No. 97-1718
Pioneer Hotel, Inc.,
d/b/a Pioneer Hotel & Gambling Hall,
Petitioner
v.
National Labor Relations Board,
Respondent
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Norman H. Kirshman argued the cause for petitioner.
With him on the briefs was Gary G. Branton.
David A. Seid, Attorney, National Labor Relations Board,
argued the cause for respondent. With him on the brief were
Linda Sher, Associate General Counsel, John D. Burgoyne,
Acting Deputy Associate General Counsel, and Fred L. Corn-
nell, Jr., Supervisory Attorney.
Before: Wald, Silberman and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Pioneer Hotel, Inc. petitions for
review of a decision and order of the National Labor Rela-
tions Board ("NLRB" or "Board"), concluding that Pioneer
committed unfair labor practices in violation of sections
(8)(a)(1) and (3) of the National Labor Relations Act (NLRA),
29 U.S.C. s 158(a)(1), (3). See Pioneer Hotel, Inc., 324
N.L.R.B. 918 (1997). The Board cross-applies for enforce-
ment. With two exceptions, we grant the cross-application
for enforcement and deny the petition for review.
Pioneer operates a hotel, a casino, and three restaurants in
Laughlin, Nevada. In late 1994 or early 1995, a union1 began
an effort to organize the company's employees. An Adminis-
trative Law Judge (ALJ) determined, and the NLRB agreed,
that during the course of the union's campaign Pioneer
committed unfair labor practices by: (1) terminating supervi-
sor Thomas Grace because he refused to commit an unfair
labor practice; (2) interrogating employee Sheila Falk re-
garding her support for the union; (3) directing employees to
remove their union buttons while at work; (4) denying em-
ployee James Guirey access to the employee dining room
where he was circulating a petition; (5) reducing Guirey's
work hours and then laying him off; and (6) suspending
employee Anthony Zabala, reducing his work hours, and then
laying him off. Id. at 918, 930.
The ALJ concluded that the first four incidents violated
section 8(a)(1) of the NLRA, and that the last two violated
sections 8(a)(1) and (3). Section 7 of the NLRA, 29 U.S.C.
s 157, guarantees employees "the right to self-organization,
to form, join, or assist labor organizations, ... and to engage
__________
1 Local Joint Executive Board of Las Vegas Culinary Workers
Union, Local 226 and Bartenders Union, Local 165, affiliated with
Hotel Employees and Restaurant Employees International Union,
AFL-CIO.
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection...." Section
8(a)(1) makes it an unfair labor practice "to interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed" by section 7. Section 8(a)(3) makes it an unfair
labor practice for an employer to discriminate "in regard to
... tenure of employment or any term or condition of em-
ployment to ... discourage membership in any labor organi-
zation...."
Our role in reviewing the NLRB's decision is limited.
Time Warner Cable v. NLRB, 160 F.3d 1, 3 (D.C. Cir. 1998).
"We must uphold the judgment of the Board unless, upon
reviewing the record as a whole, we conclude that the Board's
findings are not supported by 'substantial evidence,' 29 U.S.C.
s 160(e), (f), or that 'the Board acted arbitrarily or otherwise
erred in applying established law to the facts of the case.' "
International Union of Electronic, Electrical, Salaried,
Mach. & Furniture Workers v. NLRB, 41 F.3d 1532, 1536
(D.C. Cir. 1994) (internal quotations omitted). We are also
required to give "substantial deference to the inferences
drawn by the NLRB from the facts." Time Warner, 160
F.3d at 3. For the reasons stated below, we conclude that
the ALJ's first two determinations are not supported by
substantial evidence, but that the remaining four are.
I
We begin with the Board's contention that Pioneer termi-
nated supervisor Thomas Grace because he refused to commit
an unfair labor practice. Although supervisors are not them-
selves protected by the NLRA, an employer violates section
8(a)(1) when it discharges a supervisor "for refusing to com-
mit an unfair labor practice." Automobile Salesmen's Union
Local 1095 v. NLRB, 711 F.2d 383, 386 (D.C. Cir. 1983); see
also Marshall Durbin Poultry Co. v. NLRB, 39 F.3d 1312,
1315-16 (5th Cir. 1994). The gravamen of the Board's finding
with respect to Grace is that Pioneer fired him because he, in
turn, had refused to fire one of his employees for pro-union
activities.
A
Grace was the director of Pioneer's food and beverage
department. According to his testimony, on June 20, 1995 he
was told by Pioneer's human resources manager that corpo-
rate management wanted Anthony Zabala, an employee
whom Grace knew to be a union supporter, fired. Pioneer
Hotel, 324 N.L.R.B. at 927-28; App. 604-05. Grace said he
"wouldn't do that because Tony was a good employee...."
He also said he did not care "what Chris Lowden.... [a]nd
his prima donna self wanted," referring to a corporate manag-
er who was the son of Pioneer's majority owner. Thereafter,
instead of firing Zabala, Grace said he transferred Zabala to
one of Pioneer's restaurants "to get him out of the line of
fire." When Grace told the human resources manager what
he had done, she replied, "I hope this little stunt doesn't cost
you your job." 324 N.L.R.B. at 928; App. 605-09.
In July 1995, Pioneer's general manager announced he was
resigning to move to another company. Grace applied for the
position, but it went instead to Chris Lowden. Grace had
frequently disparaged Lowden in front of other employees,
calling him not only a "prima donna" but also a "spoiled little
rich boy." 324 N.L.R.B. at 928; App. 1056. On August 2,
1995, Lowden decided to fire Grace. Lowden did so, he
testified, because of Grace's poor performance and "lack of
respect." 324 N.L.R.B. at 928; App. 970. Another Pioneer
manager said Grace was fired as part of a "corporate restruc-
tur[ing]." 324 N.L.R.B. at 928; App. 1049.
The initial complaints filed by the NLRB's General Counsel
did not list the dismissal of Grace as an unfair labor practice.
Following Grace's testimony at the hearing, however, the
Administrative Law Judge asked "whether there's any reme-
dy that needs to be considered for" Grace. App. 617-18. At
the end of that day's proceedings, the General Counsel moved
to amend the complaints to charge that Pioneer terminated
Grace for refusing to commit an unfair labor practice. Deci-
sion on Resp.'s Mot. to Reconsider at 2 (App. 54) [hereinafter
Decision]. The ALJ granted the motion, and Pioneer filed a
motion to reconsider.
The next day, the ALJ advised the parties that he had
consulted "with a colleague" as to the best procedure to follow
in ruling on the motion for reconsideration--that is, whether
to rule immediately or to hold the issue until the parties had
an opportunity to litigate the merits of the Grace charge.
App. 853; Decision at 3 (App. 55). Although the ALJ did not
name the colleague with whom he had consulted, the context
of his statements strongly suggests he was referring to a
fellow judge. Id.; see also App. 843, 858.
In its motion to reconsider, Pioneer argued that the prof-
fered amendment was neither timely nor "closely related" to
the charges in the original complaints. See 29 U.S.C.
s 160(b); Drug Plastics & Glass Co. v. NLRB, 44 F.3d 1017,
1020 (D.C. Cir. 1995). The ALJ found that the amendment
was closely related and denied the motion. App. 53-57.
Thereafter, Pioneer asked the ALJ to disqualify himself on
the grounds that he had acted improperly by suggesting the
amendment, by consulting with a colleague, and by otherwise
displaying bias against Pioneer. The ALJ declined. Id. at
162. He subsequently found Pioneer to have committed an
unfair labor practice by discharging Grace, Pioneer Hotel, 324
N.L.R.B. at 929, and the Board affirmed his rulings in all
respects, id. at 918 & nn. 1, 2.
B
Before reaching the merits of this unfair labor practice
charge, we must consider Pioneer's threshold objections to
the ALJ's actions and to the amendment of the complaints.
First, we find nothing improper about the ALJ's inquiry as
to "whether there's any remedy that needs to be considered
for" Grace. That query did not impermissibly cross the line
between judge and advocate. See NLRB v. Tamper, Inc., 522
F.2d 781, 789-90 (4th Cir. 1975) ("[W]e do not doubt that the
Administrative Law Judge in the exercise of his discretion
may call attention to an uncharged violation....").
Second, we reject Pioneer's contention that the ALJ en-
gaged in an improper ex parte communication by consulting
with a colleague on "the correct procedure" for handling the
Grace amendment. App. 853. Pioneer contends that such a
consultation violated both the Administrative Procedure Act,
5 U.S.C. s 557, and the American Bar Association's Model
Code of Judicial Conduct. In quoting the relevant provi-
sions, however, Pioneer neglects to cite the clauses that limit
their application. Although 5 U.S.C. s 557(d)(1)(C) does
require an ALJ who makes "a communication prohibited by
this subsection" to put it on the public record, the only
prohibited communications are those with "interested per-
son[s] outside the agency," id. s 557(d)(1)(A), (B).2 Similarly,
while the Model Code of Judicial Conduct bars ex parte
communications, American Bar Ass'n, Model Code of Judicial
Conduct Canon 3(B)(7) (1990),3 it expressly excepts "con-
sult[ation] with court personnel ... or with other judges," id.,
Canon 3(B)(7)(c). And the NLRB's own ex parte rules, which
Pioneer also inexplicably fails to cite, likewise only prohibit
communications with "interested person[s] outside this agen-
cy." 29 C.F.R. s 102.126 (1998).
Third, we reject Pioneer's assertion that comments the
ALJ made in his decision rejecting its motion for reconsidera-
tion evidenced prejudicial hostility toward one of Pioneer's
counsel. Decision at 3 (App. 55). Although the ALJ could
have been more restrained in his language4--an admonition
that could on occasion apply to this court as well--there was
nothing to suggest the kind of bias or partiality that requires
judicial disqualification. See Liteky v. United States, 510
U.S. 547, 555-56 (1994). The ALJ's decision did refer to an
earlier case in which Pioneer's attorney, at the time repre-
senting a different casino, also charged him with improperly
crossing the line between judge and advocate. But the
__________
2 Pioneer also cites 5 U.S.C. s 554(d)(1), which bars ex parte
consultation with "a person or party on a fact in issue." There is no
suggestion that the ALJ consulted with his colleague on any
question of fact.
3 But see Model Code, Application s A n.3 (explaining that Model
Code does not necessarily apply to ALJs).
4 He referred to allegations made by Pioneer's counsel as "scurri-
lous." Decision at 3 (App. 55).
decision did no more than cite the NLRB's ruling in the case
as evidence that judicial conduct like that at issue here does
not improperly transgress that line. See Decision at 3 (App.
55) (citing Sahara Las Vegas Corp., 297 N.L.R.B. 726, 727 n.2
(1990)).
Finally, we consider the propriety of amending the com-
plaints. This is a matter of consequence because without
amendment, NLRA section 10(b), 29 U.S.C. s 160(b), would
have barred the charge relating to Grace's firing as untimely.
See Decision at 4 (App. 56). To determine whether an
amendment was permissible, the ALJ asked whether the
amendment and the initial complaints were "closely related."
Id.; see TIC-The Industrial Co. S.E., Inc. v. NLRB, 126 F.3d
334, 339 (D.C. Cir. 1997); Drug Plastics, 44 F.3d at 1020. To
make that determination, the ALJ asked whether the amend-
ment's allegations "(1) involve the same legal theory as
allegations in the timely filed charges; (2) arise from the
same factual circumstances; and (3) entail the same or similar
defenses by the Respondent." Decision at 4 (App. 56). We
have approved this test several times before, see, e.g., TIC,
126 F.3d at 339; Drug Plastics, 44 F.3d at 1021, and agree
with the Board that it was satisfied in this case.
Grace was at one time the director of the department in
which most of the unfair labor practices alleged in the com-
plaints occurred. The October 1995 firing of Zabala, an
employee of that department, was a central focus of the
original complaints. See infra Part II. Part of the evidence
that Pioneer fired Zabala for union activism in October was
that it had unsuccessfully ordered Grace to fire Zabala for the
same reason just a few months earlier. The amendment's
charge was that Grace was fired for refusing to carry out that
order. Pioneer Hotel, 324 N.L.R.B. at 927. Hence, the two
allegations "arise from the same factual circumstances." And
while the legal theories are not identical, they are closely
related: both allege that Pioneer violated section 8(a)(1) by
firing employees out of anti-union animus. Moreover, Pio-
neer asserts the same defense to both: each firing, at least in
part, was assertedly due to a "corporate restructuring" plan.
This is not, then, a case like Drug Plastics, where the only
connection between the amendment and the complaint was
that the alleged conduct was part of the same "anti-union"
campaign. 44 F.3d at 1020-21. Rather, in this case "th[e]
amended allegation was properly allowed, because it shared a
significant factual affiliation with the original charge." TIC,
126 F.3d at 339.5
C
Although we agree with the ALJ and the Board that the
complaints were properly amended to include Grace's termi-
nation, we cannot find substantial evidence to support the
conclusion that Grace was fired "because he refused to com-
mit unfair labor practices." Pioneer Hotel, 324 N.L.R.B. at
930 (emphasis added). Proof of such motivation is required
to establish the Board's prima facie case. See Marshall
Durbin Poultry, 39 F.3d at 1315-16; Automobile Salesmen's
Union, 711 F.2d at 386. See generally NLRB v. Transporta-
tion Management Corp., 462 U.S. 393, 398-402 (1983) (ap-
proving Wright Line, 251 N.L.R.B. 1083 (1980)); TIC, 126
F.3d at 337. The entirety of the evidence on this point is
Grace's own testimony, not one word of which states that
Grace was told to fire Zabala because of his union activities or
that Grace refused to do so because he thought it would
constitute an unfair labor practice. To the contrary, Grace
was told no more than that corporate management "wanted
Tony fired." App. 605. And besides disparaging Chris Low-
den, Grace said no more than that he "wouldn't do that
because Tony was a good employee...." Id.; see id. at 606-
07. Since the Board is unable to show that Grace's termi-
nation was motivated by protected conduct, we have no need
to consider whether Pioneer could rebut a prima facie case of
__________
5 Pioneer also claimed in its briefs that the amendment violated
its right to due process, because the General Counsel had not
moved to amend until after he rested his case in chief. Pioneer
abandoned that point at oral argument, however, conceding that
because the hearing was recessed for two months, it had an
opportunity to prepare to rebut the new allegation.
anti-union animus--for example, by demonstrating that Grace
would have been fired in any event because he had publicly
belittled the person who ended up as his boss. See TIC, 126
F.3d at 338; see also Transportation Management, 462 U.S.
at 401-03.
II
In this Part, we consider the remaining unfair labor prac-
tice charges against Pioneer.
The first charge is that Grace--ironically, the same super-
visor who allegedly risked his job to avoid unlawfully termi-
nating Zabala--did himself commit an unfair labor practice
by interrogating another employee about the union. Such an
interrogation violates the NLRA only "if, under all the cir-
cumstances, it reasonably 'tends to restrain, coerce, or inter-
fere with rights guaranteed by the Act.' " Purdue Farms,
Inc. v. NLRB, 144 F.3d 830, 835 (D.C. Cir. 1998) (quoting
Rossmore House, 269 N.L.R.B. 1176, 1177 (1984)).
We find this charge unsupported by substantial evidence.
The sum and substance of the charge is a single conversation
Grace initiated with employee Sharon Falk by saying: "I
know that you're in the union and it's okay with me...."
Pioneer Hotel, 324 N.L.R.B. at 930; App. 601. He then
asked about a "problem," whether "my management people,
Mary and me and Chef Paul and those people, have ... done
something to make you unhappy with us." Falk replied, "No,
it isn't you guys, it's them.... [t]he Pioneer, the Lowdens."
Grace said, "Well, just so it's not something we're doing
wrong," and Falk again confirmed, "It isn't." According to
Grace, a final "[t]hank you ... ended it." Id.
This brief exchange does not evidence a tendency to coerce.
Without going into the case law in detail, it is enough to say
that most of the factors upon which both the Board and the
courts rely to find coercion are absent here. See Purdue
Farms, 144 F.3d at 835. Grace did not "appear to be seeking
information on which to base taking action against" Falk. Id.
He was not high in the company hierarchy, id., and according
to the NLRB itself, was personally protective of his employ-
ees' rights under the NLRA. The conversation did not occur
in "an atmosphere of 'unnatural formality.' " Id. Indeed,
"natural informality" would be a better description, as it
apparently occurred off to the side in the employee dining
room. App. 600. And there is no suggestion that Falk's
reply was not truthful. 144 F.3d at 835.
The Board fares better with respect to the remaining
charges. The record supports its contention that directing
employees to remove their union buttons constituted an un-
fair labor practice. The right to wear union buttons or other
insignia while at work is generally protected by the NLRA.
See Republic Aviation Corp. v. NLRB, 324 U.S. 793, 801-03
& n.7 (1945). In the absence of special circumstances, an
employer's prohibition against wearing such insignia violates
section 8(a)(1). See, e.g., NLRB v. Malta Constr. Co., 806
F.2d 1009, 1011 (11th Cir. 1986).
Pioneer's dress code originally barred only the wearing of
"stickers or pins" on employee name tags. Pioneer Hotel,
324 N.L.R.B. at 922 (quoting NLRB Ex. 60). In August
1995, the union sent Pioneer a letter listing the names of its
in-house organizing committee. Id. At approximately the
same time, the company modified its dress code by banning
"pins, stickers, [and] buttons" altogether. Id. (quoting
NLRB Ex. 8). Just days later, nine or ten employees were
sent home for refusing to remove buttons identifying them as
union "committee leaders." Id. Pioneer offered no evidence
to justify the ban below, see id. at 923, and does not seriously
defend it here. Instead, Pioneer relies principally on the
contention that it repudiated its action and allowed the em-
ployees to return to work without loss of pay. The record,
however, supports the ALJ's conclusion that Pioneer's repudi-
ation was ambiguous and inadequately publicized, and hence
ineffective under the case law. Id.; see General Indus.
Employees Union, Local 42 v. NLRB, 951 F.2d 1308, 1312 n.1
(D.C. Cir. 1991) (citing Passavant Mem'l Area Hosp., 237
N.L.R.B. 138, 138-139 (1978)); Wilson Trophy Co. v. NLRB,
989 F.2d 1502, 1511 (8th Cir. 1993).
We also find substantial evidence to support the conclusion
that Pioneer violated section 8(a)(1) by denying James Guirey
access to the employee dining room when he attempted to
circulate a petition there. Pioneer offers two principal de-
fenses to this charge: that Guirey was in violation of a
company policy barring employees from the dining room
more than thirty minutes before their shifts; and that Guirey
was never actually removed from or ordered to leave the
dining room. As to the first, we find substantial evidence to
support the ALJ's findings both that no such company policy
existed, and that even if one did, the security guards enforced
it selectively against Guirey's petitioning alone. See Pioneer
Hotel, 324 N.L.R.B. at 926; App. 693-95, 772-73; see also
NLRB v. S.E. Nichols, Inc., 862 F.2d 952, 958-59 (2d Cir.
1988) (affirming finding of unfair labor practice when compa-
ny enforced its rules in discriminatory fashion). And while it
is true that Pioneer's security guards never physically re-
moved Guirey from the dining room, their repeated admoni-
tions effectively stopped his petitioning. App. 695.
The record also supports the conclusion that Pioneer violat-
ed sections 8(a)(1) and (3) by subsequently reducing Guirey's
hours and then laying him off. See Transportation Manage-
ment, 462 U.S. at 397-98. After the confrontation in the
dining room, Guirey continued his pro-union activity. Three
times he distributed leaflets at the hotel entrance, and on
each occasion the company's security guards videotaped him
and reported the incident to General Manager Chris Lowden.
App. 254-59. In October 1995, Pioneer cut Guirey's hours
without explanation, and without regard to seniority. Pio-
neer Hotel, 324 N.L.R.B. at 926-27. When Guirey was
subsequently laid off, Jorge Garcia, his supervisor, said it was
because of "poor work habits" and "a lack of consistency."
App. 431. This explanation was contrary to Guirey's most
recent six-month appraisal, which had rated his work as
"successful"; the statement of Guirey's immediate supervisor
that he was doing a good job and that the company wanted to
give him a raise; and Garcia's own concession that he had not
reviewed Guirey's personnel file. See Pioneer Hotel, 324
N.L.R.B. at 926; App. 304-05, 684, 704, 708-09, 730-31. We
defer to the ALJ's finding that the reasons given for the work
reduction and layoff were pretextual and intended to conceal
Pioneer's true motive--retaliation for Guirey's union activity.
Pioneer Hotel, 324 N.L.R.B. at 927.
Finally, we uphold the determination that Pioneer violated
sections 8(a)(1) and (3) by suspending Anthony Zabala, reduc-
ing his work hours, and subsequently laying him off because
of his pro-union activity. Zabala was a cook whose name
appeared on the list of in-house organizers the union sent
Pioneer in August 1995. Id. at 924 (citing App. 252). On
August 9, Zabala was sent home for refusing to remove a
union button. Id. Four days later, and without explanation,
he was assigned to more onerous pantry duties. Id. During
September and October, Zabala handed out union leaflets on
the premises; company security officers videotaped the activi-
ty and gave written reports to Chris Lowden. App. 254-55,
258-61. On one occasion, Zabala allegedly criticized Pioneer
while distributing handbills to a line of customers. Id. at 309.
The next day, October 14, Zabala's supervisor (Garcia again)
told him the company was cutting his hours as part of a
"restructuring," and was keeping only people who were good
workers and "loyal" to the company. Pioneer Hotel, 324
N.L.R.B. at 924; App. 506.
On October 21, 1995, Zabala received a three-day suspen-
sion for the handbilling incident. On October 26 he was laid
off, purportedly due to the "restructuring," although there is
substantial evidence the layoff deviated from Pioneer's prom-
ise that seniority would be followed during the restructuring
process. Pioneer Hotel, 324 N.L.R.B. at 925. Garcia later
told Zabala that he could be rehired only if he passed a cook's
test, a qualification never previously required. Id. And
notwithstanding the company's assertions that the layoff was
motivated by a need to downsize its operations and that
Zabala had failed the cook's test, the record contains evidence
that Pioneer was simultaneously hiring temporary employees
to do cooks' work without requiring them to take the test.
Id.
The ALJ inferred and the NLRB agreed that unlawful
motives lay behind the adverse actions taken against Zabala,
based on evidence of Pioneer's general anti-union animus, the
timing of Pioneer's actions vis-a-vis Zabala's pro-union activi-
ties, and the pretextual justifications offered by Pioneer. Id.
Discerning substantial evidence for the Board's findings of
fact, and deferring to its reasonable inferences from those
facts, we uphold the NLRB's determinations with respect to
Zabala.
III
For the reasons stated above, we grant the Board's cross-
application for enforcement and deny Pioneer's petition for
review in all respects other than those relating to Pioneer's
termination of Grace and Grace's interrogation of Falk. We
deny the cross-application and grant the petition with respect
to those two issues.
So ordered.