 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued May 6, 2015                   Decided July 24, 2015

                       No. 12-1054

             BRUCE PACKING COMPANY, INC.,
                     PETITIONER

                            v.

           NATIONAL LABOR RELATIONS BOARD,
                     RESPONDENT

   LABORERS' INTERNATIONAL UNION OF NORTH AMERICA,
                LOCAL NO. 296, AFL-CIO,
                      INTERVENOR


                Consolidated with 12-1137


       On Petition for Review and Cross-Application
              for Enforcement of an Order of
           the National Labor Relations Board


    Bryan P. O'Connor argued the cause for petitioner. With
him on the briefs were Joseph E. Schuler and Joel J.
Borovsky.
                               2


    Nicole Lancia, Attorney, National Labor Relations Board,
argued the cause for respondent. With her on the brief were
John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, and Usha
Dheehan, Supervisory Attorney.

    Before: ROGERS, GRIFFITH, and WILKINS, Circuit Judges.

    Opinion for the court filed by Circuit Judge GRIFFITH.

    GRIFFITH, Circuit Judge:

    Bruce Packing Company petitions for review of a
decision of the National Labor Relations Board that the
company committed unfair labor practices in an effort to beat
back a union-organizing drive at one of its plants. For the
reasons set forth below, we grant in part and deny in part both
the company’s petition for review and the Board’s
cross-application for enforcement.

                               I

     Bruce Packing operates two meat-processing plants in
Oregon, one in Silverton, the other in Woodburn. Jorge Mesa
managed the sanitation department in both plants, with Osmin
Martinez serving as his assistant. Thirteen people worked the
day shift in the sanitation department at the Silverton plant
under supervisor Abel Esparza. Faced with adverse economic
conditions, on June 25, 2009, the president of Bruce Packing
directed department managers to reduce their total staff at
Silverton and Woodburn by ten percent within two days.
Mesa told Martinez to pick sanitation employees from the day
shift and swing shift at both plants to lay off. Martinez
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terminated workers from both shifts in both locations,
including four from the Silverton day shift: Manuel Coria,
Jose Carmen Maciel, Daniel Luna, and Federico Nieves
Rojas.

     Just the month before, these four employees had begun
supporting efforts by Laborers’ International Union of North
America, Local No. 296, to organize the employees of the
plant. Coria hosted union meetings at his home, distributed
union literature, and talked to his co-workers about the
benefits of the union in the employee lunchroom in view of
Esparza’s office. Maciel attended the meetings in Coria’s
home and participated in the lunchroom talks, as did Luna.
Rojas also joined the lunchroom talks and voiced his support
for the union, though he never attended any of the meetings at
Coria’s home.

     A few months after the layoffs, a Regional Director of the
National Labor Relations Board issued a complaint against
Bruce Packing, alleging that the company had committed
unfair labor practices in violation of sections 8(a)(1) and (3)
of the National Labor Relations Act (NLRA) by discharging
Coria, Maciel, Luna, and Rojas for supporting the union’s
drive to organize. The complaint also alleged that the
company coercively interrogated and threatened employees
with unspecified reprisals if they continued to engage in union
activities.

    During a three-day hearing before an Administrative Law
Judge, Martinez testified that he alone decided whom to
terminate. He claimed that he spent thirty minutes evaluating
the work performance of seventy employees and another thirty
minutes deciding whom to terminate. Martinez asserted that
                               4


he based his decision on his own observations as well as prior
performance reports that he received orally from Esparza, but
that he never reviewed any personnel files or spoke with
Esparza about the terminations. Martinez further testified that
Rojas was laid off for his repeated tardiness. In his testimony,
Esparza confirmed that he had told Martinez of Rojas’s poor
attendance. Coria testified that he remembered Rojas saying
that he “kind of” understood why he was laid off, because he
had been late frequently.

     Maria Cortez, Maciel’s wife and coworker at the
Silverton plant, testified that Esparza spoke to her on the
phone on June 19 for some eighty minutes. According to
Cortez, Esparza asked her to confirm that employees were
forming a group to support the union. She also claimed he
cautioned her that the employees “should be careful because
this was a delicate thing.” J.A. 61. Cortez alleged that Esparza
promised her a raise and asked her to tell Maciel and Coria
that he “had a raise for them and that they should be very
careful because this was really . . . very delicate.” J.A. 62.
Esparza denied making these statements.

     Finally, Mauro Navarro, a sanitation employee from the
night shift at the Silverton plant who was also terminated,
testified that he went to Esparza’s home to speak with him
after the layoffs. Navarro claimed that Esparza said that he did
not know why Navarro was laid off, but that he had
terminated the day shift employees because of their support
for the union. Esparza testified that he had simply told
Navarro that he did not know why Navarro had been laid off.

   At the close of the final day of the hearing before the
ALJ, Bruce Packing rested its defense and the Board’s
                               5


General Counsel called no rebuttal witnesses. The General
Counsel then moved to amend the complaint based on
Cortez’s testimony the day before to allege that Bruce Packing
had committed an additional unfair labor practice by
unlawfully promising wage increases and better benefits to
Cortez, Maciel, and Coria if they ceased advocating for union
organization. Bruce Packing objected that amending the
complaint so late in the hearing was a violation of due
process. The ALJ instructed the parties to brief the question of
whether the amendment should be permitted.

     Following briefing, the ALJ denied the General
Counsel’s motion to amend the complaint, reasoning that
Bruce Packing had insufficient notice to defend against the
new charge. On the merits of the claims in the complaint, the
ALJ concluded that Bruce Packing’s discharge of Maciel,
Coria, and Luna violated the NLRA. She did not credit any of
Martinez’s uncorroborated testimony and found that Esparza
had “substantial input” in selecting the employees for
termination. She found credible Navarro’s statements that
Esparza chose the employees who were terminated based on
their support for the union. As for Rojas, the ALJ found
sufficient evidence that he would have been laid off for his
poor work attendance regardless of his support for union
organization.

     On appeal, the Board affirmed the ALJ’s conclusion that
Bruce Packing violated the NLRA by terminating Maciel,
Coria, and Luna. However, over the dissent of one member,
the Board reversed the ALJ’s refusal to allow the General
Counsel to amend the complaint. The Board found that the
issue had been “fully litigated,” and concluded that the
company had violated the Act. Also over a dissent, the Board
                               6


reversed the ALJ’s dismissal of the charge related to Rojas’s
termination, concluding the company had failed to show that
he was laid off for poor attendance. Bruce Packing timely
appealed the Board’s ruling on these two issues, and the
NLRB filed a cross-application for enforcement of its order in
full. This court has jurisdiction over the final decision of the
Board pursuant to 29 U.S.C. § 160(e), (f).

                               II

     Our review of the substance of the Board’s decision is
limited, and we will set it aside “only when the Board has
acted arbitrarily or otherwise erred in applying established law
to the facts, or when its findings of fact are not supported by
substantial evidence in the record considered as a whole.”
ConAgra, Inc. v. NLRB, 117 F.3d 1435, 1438 (D.C. Cir. 1997)
(internal quotation marks omitted); see also Bally’s Park
Place, Inc. v. NLRB, 646 F.3d 929, 935 n.4 (D.C. Cir. 2011)
(“[W]here the Board has disagreed with the ALJ, as occurred
here, the standard of review with respect to the substantiality
of the evidence does not change.” (internal quotation marks
omitted)). We agree with the Board that substantial evidence
supports its conclusion that the termination of Rojas violated
the NLRA. In contrast, we “owe[] no deference to the
[Board’s] pronouncement on a constitutional question,”
leaving us to review the due process claim de novo. J.J.
Cassone Bakery, Inc. v. NLRB, 554 F.3d 1041, 1044 (D.C.
Cir. 2009) (internal quotation marks omitted). We disagree
with the Board’s decision to allow the late amendment of the
General Counsel’s complaint, which left Bruce Packing
without notice of a new charge that it lacked the opportunity
to fairly contest.
                              7


                              A

     Section 8(a)(3) of the NLRA makes it an unfair labor
practice to “encourage or discourage membership in any labor
organization” through “discrimination in regard to hire or
tenure of employment or any term or condition of
employment.” 29 U.S.C. § 158(a)(3). The Board assesses
alleged improper terminations under the test set forth in
Wright Line, 251 N.L.R.B. 1083 (1980). The Wright Line test
first requires the NLRB General Counsel to make a prima
facie showing that “‘an antiunion animus contributed to the
employer’s decision to discharge an employee.’” Avecor, Inc.
v. NLRB, 931 F.2d 924, 928 (D.C. Cir. 1991) (quoting NLRB
v. Transp. Mgmt. Corp., 462 U.S. 393, 395 (1983)). The
burden then shifts to the employer to prove by a
preponderance of the evidence that it would have taken the
same action even if the employee had not been “involved with
the union.” Id.

     The parties agree that the General Counsel met his initial
burden of showing that Rojas’s support for the union was a
motivating factor in his termination. But Bruce Packing
maintains, as the ALJ originally found, that it showed that
Martinez would have terminated Rojas for his poor attendance
anyway. “When reviewing for substantial evidence, we do not
ask whether record evidence could support the petitioner’s
view of the issue, but whether it supports the [agency’s]
ultimate decision.” Fla. Gas Transmission Co. v. FERC, 604
F.3d 636, 645 (D.C. Cir. 2010). Thus, the question before us
is whether the evidence can be read, as the Board reads it, to
support the conclusion that Bruce Packing did not show it
would have terminated Rojas absent his union activity. We
conclude that it can.
                              8



     Bruce Packing insists that Rojas’s attendance record was
so poor that Martinez would have chosen to lay him off in any
case. There is no doubt that Rojas was often late to work. The
record shows that he arrived late seven times between January
26 and March 19 of 2009. Esparza testified that he reported
on Rojas’s tardiness to Martinez. Even Rojas appeared to
recognize that his attendance record could explain his
termination, as Coria recalled Rojas saying that he “kind of”
understood the decision. The question, however, “is not just
whether the employer’s action also served some legitimate
business purpose, but whether the legitimate business motive
would have moved the employer to take the challenged action
absent the protected conduct.” Chevron Mining, Inc. v. NLRB,
684 F.3d 1318, 1327 (D.C. Cir. 2012). Bruce Packing has
failed to convince us that the Board acted unreasonably in
holding that the company did not meet its burden. The
company did not even attempt to compare Rojas to other
employees to show that he would have been terminated
regardless of his union activity. For example, there is no
evidence that Rojas’s history of tardiness was unusual. The
record suggests that at least one other employee arrived to
work late eight times in 2008 but was not let go. Thus,
although there is evidence that Rojas was often late, there is
no credited evidence before us that shows Bruce Packing
would have terminated Rojas for this reason alone. In this
light, the evidence amply supports the Board’s decision to
reverse the ALJ and hold Bruce Packing accountable for
Rojas’s discharge.
                               9


                               B

     Bruce Packing also alleges that the Board denied it due
process by allowing the General Counsel to add a new
allegation to the complaint at the end of the hearing before the
ALJ. The NLRA permits the Board to amend a complaint “in
its discretion at any time prior to the issuance of an order
based thereon,” 29 U.S.C. § 160(b), but such a generous
provision is limited by fundamental principles of fairness. See
NLRB v. Blake Constr. Co., 663 F.2d 272, 283 (D.C. Cir.
1981) (noting that due process requires that the “charged party
is given adequate notice of all the alleged violations of the Act
and that these violations are litigated before sanctions are
imposed”).

     In Conair Corp. v. NLRB, we explained that “the critical
issue” with a late amendment to a complaint is not “whether
there is substantial evidence in the record” to support the
Board’s conclusion that a company has committed the
newly-added offense, but whether the company was “told
before the hearing record closed that the stakes included
liability for” the proposed new charge. 721 F.2d 1355, 1371
(D.C. Cir. 1983). The proposed amendment in this case fails
that test. The General Counsel waited until the very end of a
three-day hearing, after Bruce Packing had rested its defense,
before it moved to amend the complaint to include a new
allegation that the company unlawfully promised employees
an increase in wages in exchange for their agreement to stop
supporting the union. Because no such charge had been
introduced when Cortez gave the relevant testimony regarding
Esparza’s promise of wage increases, Bruce Packing was not
aware that her testimony might serve as a basis for liability
and had no reason to pursue the issue. True, the testimony was
                               10


undoubtedly unfavorable to the company and perhaps the
better course would have been to cross-examine Cortez and
explore the matter with Esparza. But because the testimony
was not tied to a charge, Bruce Packing focused its attention
elsewhere after eliciting from Esparza a general denial
regarding the conversation. Conair requires that “it must be
clear that the parties understand exactly what the issues are” at
the time of the proceedings. Id. at 1372 (internal quotation
marks omitted). Where, as here, the company did not know
that it could be held liable for a charge related to the promised
wage increase until the close of the hearing, that standard is
not satisfied.

     The Board argues that the amendment should be
permitted because the company has not shown what it would
have done differently had it the opportunity to fully challenge
the charge. But, as we made clear in Conair, Bruce Packing
has no burden to show that it could have elicited specific
testimony or countered with different defenses that would
have defeated the belated claim. Id. When a late amendment
deprives an employer of notice and the opportunity to fairly
litigate its liability, we will find prejudice warranting reversal
so long as there is even a chance that the company could have
successfully defended against the charge. Id. Bruce Packing
has satisfied that low standard. Given the chance, it could
have attacked Cortez’s credibility on this specific aspect of
the conversation, cross-examined her to expose any
inconsistencies in her testimony, or explored the issue more
fully with Esparza and other witnesses. No doubt Conair
places an added procedural burden on the General Counsel to
ensure adequate opportunity for such defenses when evidence
of potential wrongdoing first emerges during a hearing, but as
we have explained previously, “[w]e believe that affording . . .
                              11


notice during the proceeding [is] a minimal obligation.” Blake
Constr. Co., 663 F.2d at 281. The General Counsel did not
meet that obligation here.

     The Board argues that Bruce Packing could have recalled
witnesses to rebut Cortez’s testimony after the General
Counsel moved to amend the complaint. We disagree. The
company had no meaningful opportunity to recall witnesses
because the ALJ simply closed the hearing in the face of the
due process challenge without giving the company the option
to reopen evidence. Moreover, we do not think Bruce Packing
was required to attempt to recall witnesses to cure the
prejudice created when the General Counsel waited until the
very last possible moment to raise the amendment with the
ALJ. Nor are we convinced that the result should be different
because Bruce Packing failed to object to the ALJ’s factual
finding that Esparza impliedly promised the raises. Because
the ALJ refused to amend the complaint, the factual finding of
the implied promise was not connected to the relevant charge.
The failure to object neither negates the company’s lack of
notice nor proves that it fairly litigated the issue. Bruce
Packing lacked both actual notice of the new charge during
the hearing and the opportunity to fairly litigate the issue. We
therefore set aside the Board’s decision to allow the
amendment.

                              III

     The Board’s order will be enforced with respect to all
issues, except its conclusion that Bruce Packing illegally
promised benefits to employees who stopped supporting the
union.
