United States Court of Appeals, District of Columbia Circuit
May 6, 2019
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
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.
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,
Before: Rogers, Srinivasan, and Wilkins, Circuit Judges.
Rogers, Circuit Judge.
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.
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.
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).
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.
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.
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 ...