182 F.3d 939 (D.C. Cir. 1999)
Pioneer Hotel, Inc.,d/b/a Pioneer Hotel & Gambling Hall, Petitionerv.National Labor Relations Board, Respondent
No. 97-1718
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 10, 1998Decided July 9, 1999

[Copyrighted Material Omitted]
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. Cornnell, Jr., Supervisory Attorney.
Before:  Wald, Silberman and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge:


1
Pioneer Hotel, Inc. petitions for  review of a decision and order of the National Labor Relations 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. § 158(a)(1), (3).  See Pioneer Hotel, Inc., 324  N.L.R.B. 918 (1997).  The Board cross-applies for enforcement.  With two exceptions, we grant the cross-application  for enforcement and deny the petition for review.


2
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 Administrative 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 supervisor Thomas Grace because he refused to commit an unfair  labor practice;  (2) interrogating employee Sheila Falk regarding her support for the union;  (3) directing employees to  remove their union buttons while at work;  (4) denying employee 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.


3
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.  § 157, guarantees employees "the right to self-organization,  to form, join, or assist labor organizations, ... and to engage 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 employment to ... discourage membership in any labor organization...."


4
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.  § 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.


5
* We begin with the Board's contention that Pioneer terminated supervisor Thomas Grace because he refused to commit  an unfair labor practice.  Although supervisors are not themselves protected by the NLRA, an employer violates section  8(a)(1) when it discharges a supervisor "for refusing to commit 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.


6
* 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 corporate 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 manager 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.


7
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 restructur[ing]."  324 N.L.R.B. at 928;  App. 1049.


8
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 remedy 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.  Decision on Resp.'s Mot. to Reconsider at 2 (App. 54) [hereinafter  Decision].  The ALJ granted the motion, and Pioneer filed a  motion to reconsider.


9
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.


10
In its motion to reconsider, Pioneer argued that the proffered amendment was neither timely nor "closely related" to  the charges in the original complaints.  See 29 U.S.C.  § 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

11
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.


12
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....").


13
Second, we reject Pioneer's contention that the ALJ engaged 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. § 557, and the American Bar Association's Model  Code of Judicial Conduct.  In quoting the relevant provisions, however, Pioneer neglects to cite the clauses that limit  their application.  Although 5 U.S.C. § 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 person[s] outside the agency," id. § 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 "consult[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 agency."  29 C.F.R. § 102.126 (1998).


14
Third, we reject Pioneer's assertion that comments the  ALJ made in his decision rejecting its motion for reconsideration 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 representing a different casino, also charged him with improperly  crossing the line between judge and advocate.  But the 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)).


15
Finally, we consider the propriety of amending the complaints.  This is a matter of consequence because without  amendment, NLRA section 10(b), 29 U.S.C. § 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 amendment'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.


16
Grace was at one time the director of the department in  which most of the unfair labor practices alleged in the complaints 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, Pioneer asserts the same defense to both:  each firing, at least in  part, was assertedly due to a "corporate restructuring" plan.


17
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

18
Although we agree with the ALJ and the Board that the  complaints were properly amended to include Grace's termination, we cannot find substantial evidence to support the  conclusion that Grace was fired "because he refused to commit 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. Transportation Management Corp., 462 U.S. 393, 398-402 (1983) (approving 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 Lowden, Grace said no more than that he "wouldn't do that  because Tony was a good employee...."  Id.;  see id. at 60607.  Since the Board is unable to show that Grace's termination was motivated by protected conduct, we have no need  to consider whether Pioneer could rebut a prima facie case of 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

19
In this Part, we consider the remaining unfair labor practice charges against Pioneer.


20
The first charge is that Grace--ironically, the same supervisor who allegedly risked his job to avoid unlawfully terminating 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 circumstances, it reasonably 'tends to restrain, coerce, or interfere 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)).


21
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.


22
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 employees' 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.


23
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 unfair 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).


24
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 employees to return to work without loss of pay.  The record,  however, supports the ALJ's conclusion that Pioneer's repudiation 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).


25
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 defenses 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 company enforced its rules in discriminatory fashion).  And while it  is true that Pioneer's security guards never physically removed Guirey from the dining room, their repeated admonitions effectively stopped his petitioning.  App. 695.


26
The record also supports the conclusion that Pioneer violated sections 8(a)(1) and (3) by subsequently reducing Guirey's  hours and then laying him off.  See Transportation Management, 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.  Pioneer 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.


27
Finally, we uphold the determination that Pioneer violated  sections 8(a)(1) and (3) by suspending Anthony Zabala, reducing 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 activity 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.


28
On October 21, 1995, Zabala received a three-day suspension for the hand billing incident.  On October 26 he was laid  off, purportedly due to the "restructuring," although there is  substantial evidence the layoff deviated from Pioneer's promise 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.


29
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 activities, 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

30
For the reasons stated above, we grant the Board's crossapplication 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.


31
So ordered.



Notes:


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.


2
 Pioneer also cites 5 U.S.C. § 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 "scurrilous."  Decision at 3 (App. 55).


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.


