                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                ________________

                Nos. 16-4300 & 17-1054
                  ________________

     MID-ATLANTIC RESTAURANT GROUP LLC,
              d/b/a Kelly’s Taproom,
                                 Petitioner in 16-4300

                           v.

      NATIONAL LABOR RELATIONS BOARD,
                                 Respondent

      NATIONAL LABOR RELATIONS BOARD,
                            Petitioner in 17-1054

                           v.

     MID ATLANTIC RESTAURANT GROUP LLC,
              d/b/a Kellys Taproom,
                                 Respondent

                  ________________

        Petition for Review and Cross-Application
              For Enforcement of an Order of
           The National Labor Relations Board
                    (No. 04-CA-162385)
                     ________________

      Submitted Under Third Circuit L.A.R. 34.1(a)
                   January 17, 2018

Before: AMBRO, RESTREPO, and FUENTES, Circuit Judges

            (Opinion filed: January 25, 2018)
                                     ________________

                                         OPINION*
                                     ________________

AMBRO, Circuit Judge


         Mid-Atlantic Restaurant Group, known as Kelly’s, petitions us to review the order

of the National Labor Relations Board that Kelly’s engaged in unfair labor practices by

discharging Robin Helms, a former bartender.1 The Board cross-appeals, asking us to

enforce its order.

         The Board had jurisdiction to issue its order under 29 U.S.C. § 160(c), and we

have jurisdiction over petitions for review and petitions for enforcement under 29 U.S.C.

§ 160(e) and (f). When reviewing the Board’s order, we are bound to accept its factual

findings “if they are supported by substantial evidence.” Stardyne, Inc. v. NLRB, 41 F.3d

141, 151 (3d Cir. 1994). We give its credibility determinations “great deference” and do

not disturb them unless they are “inherently incredible or patently unreasonable.” Atl.

Limousine, Inc. v. NLRB, 243 F.3d 711, 718-19 (3d Cir. 2001) (internal quotation marks

omitted). Although “our review is plenary over the Board’s legal analysis,” we afford

“substantial deference” to its interpretation of the National Labor Relations Act. Citizens

Publ’g & Printing Co. v. NLRB, 263 F.3d 224, 232 (3d Cir. 2001) (internal quotation

marks omitted).



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
    The Board adopted an administrative law judge’s findings and recommended order.
                                              2
       We hold neither the Board nor the ALJ erred. Accordingly, we deny the petition

for review and grant the Board’s petition for enforcement. As an initial matter, the Board

correctly determined that Helms engaged in protected, concerted activity by raising

scheduling complaints with her colleagues and on-site managers. Contrary to Kelly’s

assertions that the complaints were self-serving, Helms’s conversations were about senior

bartenders’ shift schedules. She told both her colleagues and on-site managers that she

was concerned that senior bartenders would lose lucrative shifts to new employees. As

such, her complaints were directed to “shared working conditions” and thus constituted

protected, concerted activity. MCPc Inc. v. NLRB, 813 F.3d 475, 485 (3d Cir. 2016).

       Moreover, substantial evidence supports the Board’s finding that Helms was

terminated for engaging in that type of activity: she was terminated shortly after making a

series of complaints to an on-site manager; senior management told her at her termination

meeting that they knew of her complaints; and senior management testified they wanted

to fire staff for complaining about working conditions. Kelly’s fails to satisfy its burden

to demonstrate it discharged Helms “for reasons unrelated to [her] protected activity.” Id.

at 487. It never informed her that it discharged her for another legitimate reason, and it

disciplined her inconsistently with other employees. See Herman Bros., Inc. v. NLRB,

658 F.2d 201, 210 (3d Cir. 1981) (“Inconsistency [in disciplinary procedures] . . . justifies

the Board’s inference that the . . . proffered excuse was not legitimate.”).

       Additionally, Kelly’s fails to show that the ALJ erred in crediting Helms’s

testimony over that of its own witnesses. The ALJ credited her testimony because it was

“detailed and consistent on both direct and cross-examination and . . . inherently

                                              3
plausible.” J.A. at 12a. In contrast, he made adverse credibility findings against Kelly’s

because senior management and an on-site manager offered different reasons for Helms’s

termination. Although the on-site manager testified Helms was terminated because of “a

discriminatory act based on race,” id. at 524a, he could not identify the particular act that

led to her termination, and his demeanor “reflected substantial uncertainty,” id. at 13a.

Given these facts, the ALJ’s credibility determinations were not “inherently incredible or

patently unreasonable.” Atl. Limousine, 243 F.3d at 718-19 (internal quotation marks

omitted); see also NLRB v. Loutin, Inc., 822 F.2d 412, 414 (3d Cir. 1987) (“Where

credibility determinations are based at least partially on the ALJ’s assessment of

demeanor, they are entitled to great deference, as long as relevant factors are considered

and the resolutions are explained.”).

       Further, the ALJ’s denial of Kelly’s motion for a bill of particulars was not an

abuse of discretion because the Board’s complaint was adequately pled. It stated Helms

openly complained about shift schedules; her complaints constituted protected, concerted

activity; and Kelly’s discharged her on that basis. Thus the Board was not obligated to

supplement its allegations in the complaint through a bill of particulars.2 See 29 C.F.R.

§ 102.15 (stating a complaint must “contain . . . [a] clear and concise statement of the

facts upon which the Board asserts jurisdiction”).



2
 Nor is Kelly’s entitled to discovery of any additional information regarding the actual
scope of facts at issue in the complaint. See Kenrich Petrochems., Inc. v. NLRB, 893
F.2d 1468, 1484 (3d Cir. 1990) (“[N]either the [C]onstitution nor the Administrative
Procedure Act confer[s] a right to discovery in federal administrative proceedings.”),
vacated on other grounds, 907 F.2d 400 (3d Cir. 1990) (en banc).
                                              4
       Finally, the ALJ did not abuse his discretion by considering evidence not

specifically pled in the complaint, such as references to individuals not mentioned in the

complaint and evidence beyond the complaint’s timeframe, because his decision did not

mention or find any unfair labor practice beyond the singular practice alleged in the

complaint. See Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 73 (3d Cir. 1965) (noting the

Board has “considerable leeway in amplifying or expanding certain details not

specifically set forth in the complaint if they accord with the general substance of the

complaint”).

       Thus we deny the petition for review and grant the Board’s petition for

enforcement.




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