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National Labor Relations Board v. Ingredion Inc.

United States Court of Appeals, District of Columbia Circuit

July 19, 2019

National Labor Relations Board, Petitioner
v.
Ingredion Incorporated, d/b/a Penford Products Co., Respondent Local 100G, Bakery, Confectionery, Tobacco Workers and Grain Millers International Union, AFL-CIO, CLC, Intervenor

          Argued May 6, 2019

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

          Brian J. Paul argued the cause for petitioner Ingredion Incorporated. With him on the briefs were Stuart R. Buttrick, Ryan J. Funk, Jeffrey P. Justman, and Kyle J. Essley.

          Eric Weitz, Attorney, National Labor Relations Board, argued the cause for respondent National Labor Relations Board. With him on the brief were Peter B. Robb, General Counsel, David S. Habenstreit, Assistant General Counsel, and Usha Dheenan, Supervisory Attorney.

          Before: Rogers, Srinivasan, and Wilkins, Circuit Judges.

          OPINION

          Rogers, Circuit Judge.

         Ingredion, Inc. petitions for review of the Decision and Order of the National Labor Relations Board on the ground that five of the Board's findings, including that Ingredion violated the National Labor Relations Act ("the Act") by dealing directly with employees and denigrating a union in the eyes of employees, are unsupported by substantial evidence. We conclude that Ingredion fails to meet its burden in this regard. We further conclude that Ingredion's contentions that the Board violated its due process rights and improperly imposed a notice-reading remedy lack merit. Accordingly, we deny the petition and grant the Board's cross-application for enforcement of its Order.

         I.

         Ingredion is a multinational corn starch manufacturing company. In March 2015, it acquired a corn processing plant in Cedar Rapids, Iowa. Approximately 165 of the plant's employees were represented by a local division of the Bakery, Confectionery, Tobacco Workers, and Grain Millers International Union, AFL-CIO ("the Union"). Ingredion recognized the Union and assumed the existing collective bargaining agreement ("CBA"), which was scheduled to expire on August 1, 2015. On June 1, 2015, Ingredion and the Union commenced negotiations for a new CBA. The Union proposed to modify the existing CBA in several ways. Ingredion proposed to start from scratch with an entirely new CBA in both substance and form. The parties had not reached an agreement as of August 18, when Ingredion declared that they were at impasse and presented its "last, best, and final offer." After rejecting the Union's counteroffer of September 10, Ingredion unilaterally implemented the terms of its final offer on September 14, 2015. Ten days later, the Union filed charges with the Board alleging that Ingredion had engaged in numerous unfair labor practices proscribed by Section 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1), (5). The Board's General Counsel issued a complaint against Ingredion in January 2016.

         Section 8(a)(1) and Section 8(a)(5) define unfair labor practices in overlapping terms. Section 8(a)(1) provides that it is "an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of" their right to bargain collectively. Id. § 158(a)(1). Section 8(a)(5) provides that it is "an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees." Id. § 158(a)(5). Because a refusal to bargain necessarily interferes with bargaining, "an employer who violates section 8(a)(5) also, derivatively, violates section 8(a)(1)." Exxon Chem. Co. v. NLRB, 386 F.3d 1160, 1164 (D.C. Cir. 2004).

         An administrative law judge determined, after conducting an evidentiary hearing, that Ingredion had committed several violations of Section 8(a). As relevant here, the ALJ found that Ingredion had violated Section 8(a)(1) by "denigrating the Union" in the eyes of employees and by "threatening employees that they would lose their jobs if they went on strike." Ingredion, Inc., No. 18-CA-160654, slip op. at 58-59, 2016 WL 4501993 (NLRB Div. of Judges Aug. 26, 2016) ("ALJ Decision"). He further found that Ingredion had violated Section 8(a)(5) (and, derivatively, Section 8(a)(1)) by dealing with employees directly rather than through the Union, by unilaterally implementing new terms and conditions of employment without first reaching an overall impasse in bargaining, and by failing to respond in a timely manner to a Union request for information. Id. at 58.

         The Board affirmed with respect to all five violations. Ingredion, Inc., 366 NLRB No. 74, slip op. at 1-2 & nn.1-3 (May 1, 2018) ("Decision"). It directed Ingredion to cease and desist from its violations of the Act, rescind the unilaterally implemented terms and conditions of employment, and compensate employees for losses incurred as a result of its violations. Id. at 2-3 ("Order"). In addition, the Board ordered Ingredion to have its chief negotiator, Ken Meadows, read a notice describing these remedies to assembled employees "or permit a Board agent, in the presence of Meadows and other corporate officials responsible for labor relations, to read the notice to employees." Id. at 3. One Board Member dissented from the latter portion of the Order. See Decision at 1 n.2.

         II.

         The Board's factual findings are conclusive "if supported by substantial evidence on the record considered as a whole." 29 U.S.C. § 160(e); see, e.g., Elastic Stop Nut Div. of Harvard Indus., Inc. v. NLRB, 921 F.2d 1275, 1279 (D.C. Cir. 1990) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487- 88 (1951)). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." E.g., Universal Camera, 340 U.S. at 477 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); King Soopers, Inc. v. NLRB, 859 F.3d 23, 29 (D.C. Cir. 2017). The court, consequently, must ...


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