UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


PIONEER HOTEL INC

v.

NLRB


97-1718a

D.C. Cir. 1999


*	*	*


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 




__________

n 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


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 


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


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 




__________

n 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


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 




__________

n 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


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.


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.