Petition for review denied and enforcement granted by published opinion. Judge MICHAEL wrote the opinion, in which Judge MOTZ and Senior Judge YOUNG joined.
OPINION
FPC Holdings, Inc. (FPC) petitions for review of an order of the National Labor Relations Board. The Board’s order found that FPC violated the National Labor Relations Act (the “Act”), 29 U.S.C. §§ 158(a)(1), (3), by reprimanding and ultimately discharging two employees for engaging in protected concerted activities. FPC raises two issues. On the first, a claim that the Board erred in
I.
FPC is a Baltimore-based company that distributes paper and plastic packaging materials, janitorial products, and 7-Up products to supermarkets and fast food restaurants. The history of FPC’s development began in 1953 with the formation of Fiber Products Company, Inc., which operated as an independent company until June 1990. Fiber Products distributed only packaging and janitorial products. In June 1990 Fiber Products’ owners formed FPC as a holding company, and Fiber Products became its subsidiary. FPC immediately acquired Thomas Buccheri & Sons, Inc., a wholesale distributor similar to (but smaller than) Fiber Products. Later, in September 1991, FPC bought from the 7-Up Bottling Company a beverage distribution operation that was merged into the Buccheri subsidiary.
FPC began losing large sums of money in 1991. As an initial response, FPC imposed an employeе wage freeze in the summer of that year. Thereafter, in the face of continuing losses, it took steps to consolidate and modernize its operations. In June 1992 the old Buccheri warehouse (on Franklintown Road) was closed and its lease cancelled. Except for a few drivers who were transferred to Fiber Products, the Buccheri employees were phased out. Buccheri customers were then served from the original Fiber Products warеhouse on Strickland Street. The 7-Up operation and all sales staff were moved to a new facility on Commerce Drive. In October 1992 the Fiber Products and Buc-cheri subsidiaries were formally merged into FPC, with FPC as the surviving corporation.
FPC employs approximately ten truck drivers at its Strickland Street warehouse. Until October 1992 this number included Dave DeCarlo and Robert Zeback. • The drivers leave the warehouse to make their runs between 4:00 and 6:00 a.m. each morning, returning between 11:00 a.m. and 3:00 p.m. Any return after 4:00 p.m. is considered a “late” return, for which drivers are required to give prior notice to the warehouse. The drivers are allowed a forty-five minute lunch break during the course of their deliveries.
Gilbert Tyler, FPC’s transportation supervisor, held monthly drivers’ meetings at which safety rules and other topics were discussed. In the spring or early summer of 1992 the drivers began to gather by themselves prior to these company meetings and discuss informally complaints and concerns about their jobs. The 1991 wage freeze was a frequent subject of discussion. DeCarlo served as the drivers’ spokesman in the ensuing meetings with management. In April 1992, following a meeting among drivers about the wage freeze, DeCarlo met with Bonnie Roe (personnel director) about a promised wage increase. Roe reassured De-Carlo that he was a “good employee,” but she told him that his “attitude” was slipping.
As mentioned above, drivers were allowed a lunch break during their deliveries to be taken at their discretion. On May 26, 1992, five drivers, including DeCarlo and Zeback, met for lunch at Bob’s Big Boy Restaurant. The drivers discussed labor grievances. The length of the lunchtime meeting was disputed: DeCarlo and Zeback testified that it lasted about an hour, and Roe testified that it lasted two hours. While the drivers were inside the restaurant, an FPC customer called the warehouse and reported that the drivеrs’ trucks were parked outside Big Boy’s. FPC’s warehouse operations manager, Michael Taylor, drove to the restaurant and took down the numbers of the trucks, but he
Several days after the Big Boy meeting, Roe met with Zeback for a probationary evaluation. During the evaluation Roe told Zeback that he was a “troublemaker” and was “consorting with troublemakers.” Shortly thereafter, Roe prepared a written reprimand for Zeback. The reprimand cited Zeback for taking a “2 hr. lunch” and for “[attendance at a ‘Dave DeCarlo meeting’ ” to “discuss ‘pay.’ ” In addition, it said “R. Z. admits to being there [with] 4 other drivers. Knows this is against policy and that [it] is grounds for immediate dismissal.” FPC also prepared a written reprimand for DeCarlo that accused him of “poor attitude, cooperation, meeting on company time.” Prior to the Big Boy meeting DeCarlo had never received a negative evaluation.
Near the end of September 1992 a group of drivers, including DeCarlo and Zeback, met before work to discuss getting union representation. DeCarlo agreed to talk to his brother, who was a union shop steward at a paper company. The drivers agreed to meet with a union representative on October 6. The dаy after the September meeting, Zeback and DeCarlo invited other drivers (either in person at the warehouse or over the company CB radio) to the upcoming October 6 meeting to consider unionizing.
On October 5, after completing their runs, DeCarlo and Zeback were summoned separately into Taylor’s office and told that they were being permanently laid off. In response to questions from DeCarlo and Ze-baek, Taylor said that their seniority did not matter and that the company was not cutting their routes, but that they “had to go.” The October 6 meeting with the union representative was canceled because the other drivers were afraid of retribution. No other drivers were laid off at that time.
Following the layoffs, FPC moved two backup drivers to DeCarlo’s and Zeback’s routes. FPC also ran advertisements in local newspapers soliciting applications for “truck driver” and “driver/warehouseman” positions and characterizing itself as an “expanding” company. The company placed written reprimands in the personnel files of Mike Come-gys and Tim Taylor, two other drivers present at the Big Boy meeting, and gave raises to four other drivers.
On October 26, 1992, and November 10, 1992, respectively, DeCarlo and Zeback filed charges with the Board alleging that they had been terminated by FPC because of their union activities. On January 28, 1993, the Board’s General Counsel consolidated the two eases and issued a complaint alleging violations of Sections 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. §§ 158(a)(1), (3).
II.
A.
FPC first challenges the Board’s adoption of the ALJ’s decision to permit the General Counsel to amend the complaint to
Under Section 10(b) of the Act, 29 U.S.C. § 160(b), a complaint may be based only upon violations occurring within six months prior to the filing of a charge with the Board. A complaint or an amended complaint may include allegations not in the original charge if the violations alleged occurred within six months before the charge and are “closely related” to the allegations in the charge. Redd-I, Inc.,
The Board considers three factors in determining whether complaint or amended complaint allegations are closely related to a timely charge: (1) whether the allegations involve the same legal theory as the allegations in the charge, (2) whether the allegations arise from the same factual situatiоn or sequence of events as the allegations in the charge, and (3) whether a respondent would raise the same or similar defenses to both allegations. Redud-I,
In challenging the amendment, FPC first argues that the two sets of allegations do not involve the same legal theory because they arise under different sections of the Act. The discharge allegations, it claims, arise under Section 8(a)(3), whereas the added reprimand allegations arise under Section 8(a)(1). This argument fails for two reasons. First, as the amended complaint alleges, termination in retaliation for attempts to organize a union violates both Sections 8(a)(3) and 8(a)(1), see e.g., NLRB v. Nueva Eng’g, Inc.,
Next, FPC argues that the two sets of allegations are not factually related because they arise out of what it claims are two separate events: the Big Boy meeting and the attempt to form a union. Thе Board, however, has consistently held that allegations are closely related when they are “part of an overall plan to resist organization.” Waste Management,
Finally, we reject FPC’s argument that the “allegations require different defenses.” We cоnclude that FPC could be expected to raise similar defenses to the two sets of allegations. An employer may defend against an allegation of unlawful termination by showing legitimate reasons for the layoff. Therefore, DeCarlo’s and Zeback’s employment records, including their reprimands, could reasonably be expected to be raised in response to the discharge allegations. Likewise, FPC could be expected to rely on the same records to account for its pre-termination conduct in defending against the reprimand allegations.
In sum, the reprimand allegations were closely related to the discharge allegations in the original charges, and the ALJ did not err in allowing amendment of the consolidated complaint.
B.
FPC next challenges the ALJ’s findings (adopted by the Board) that FPC’s reprimands and ultimate termination of DeCarlo and Zeback violated Section 8(a)(1) and Seсtion 8(a)(3) of the Act. We must accept the Board’s findings if backed by substantial evidence. Universal Camera Corp. v. NLRB,
1.
The Board has established a formula for determining when an allegedly discriminatory discharge violates the National Labor Relations Act. First, the General Counsel must make out a prima facie case that the employer’s decision to lay off an employee was motivated by anti-union animus. The burden then shifts to the employer to prove affirmatively that the samе action would have been taken even in the absence of the employee’s union activity. Wright Line,
2.
With these standards in mind, we turn first to the ALJ’s finding that FPC
In response, FPC claims thаt the reprimands were issued because DeCarlo and Zeback took an extended lunch break on the day of the Big Boy meeting and thereby delayed the return of their trucks, which were needed to move merchandise from the Buccheri warehouse. However, evidence presented at the hearing belied this claim. Timecards verified that DeCarlo and Zeback returned their trucks between 2:00 and 3:00 that afternoon, which was their customary return time and was well before FPC’s 4:00 p.m. deadline. Roe was the only witness to testify that the lunch interfered with the Buccheri move; neither Taylor (the warehouse manager) nor Tyler (the transportation supervisor) corroborated her claim. No FPC manager ever mentioned to DeCarlo and Zeback that they had tied up needed trucks, nor did such an allegation appear in their reprimands. Finally, if the trucks were urgently needed, Taylor, who drove to Big Boy’s, could have gоne inside and told the drivers that they should return to the warehouse. He did not do so. We conclude that substantial evidence supports the ALJ’s rejection of FPC’s proffered rationale for issuing the reprimands.
3.
We next address the ALJ’s finding that FPC’s termination of DeCarlo and Zeback violated Section 8(a)(3) of the Act. FPC contends first that no evidence demonstrated that it even was aware that its drivers were making plans to organize a union. Knowledge of union activity “is the ‘thrеshold question’ where a violation of Section 8(a)(3) of the Act is alleged,” Goldtex, Inc. v. NLRB,
Sufficient circumstantial evidence existed to back the ALJ’s finding that FPC knew about and was motivated by DeCarlo’s and Zebaek’s efforts to unionize. DeCarlo and Zeback made no secret of their activities and discussed the planned union meeting openly with other drivers in the warehouse, in FPC’s parking lot, and over the сompany’s CB radio. All of these discussions took place during a time when FPC was admittedly closely monitoring DeCarlo’s behavior. The timing of the layoffs (the day prior to the scheduled union meeting) and the fact that DeCarlo and Zeback were the only drivers discharged raise the inference that the layoffs were motivated by anti-union animus. See Goldtex,
FPC responds that the discharges of DeCarlo and Zeback were part of an overall downsizing that had been planned since August 1992. However, substantial evidence produced at the hearing again belies FPC’s purported rationale. The layoffs occurred just before the November-December holiday season, which Taylor testified was the company’s busiest time of the year when drivers were often called upon to drive extra runs. Neither DeCarlo’s nor Zeback’s routes were cut; backup drivers were immediаtely promoted to take them. Other than Marc Hurley, a driver who had been inactive for several months recovering from an injury, no other drivers were laid off. In fact, FPC later ran advertisements seeking applicants for truck driver positions.
Furthermore, other than the reprimands stemming from the Big Boy meeting, FPC produced no evidence of prior negative evaluations in the personnel file of either DeCarlo or Zeback. In fact, as to DeCarlo in particular, considerable evidence produced at the hearing showed that he was one of FPC’s most skilled and valuable employees. See Nueva Eng’g,
III.
In sum, the consolidated complaint was properly amended and substantial evidence backed the Board’s finding that FPC violated Sections 8(a)(1) and 8(a)(3) of the Act. We therefore deny the petition for review and enforce the Board’s order.
ENFORCED.
Notes
. Although some of the events relevant to this case occurred before thе operating subsidiaries (Fiber Products and Buccheri) were merged into FPC, we hereinafter refer to all of the companies as FPC, the party named in the General Counsel's consolidated complaint.
. A third driver, Marc Hurley, who had been recovering from a nonwork related injury since July, was laid off in November 1992.
. Section 8(a)(1) makes it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of” their right to engage in protected activities including "the right to self-organization, to form ... labor organizations, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.” 29 U.S.C. §§ 157, 158(a)(1). Section 8(a)(3) makes it an unfair practice “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3).
. The rule that allegations “closely related" to the charge may be added to the complaint is based on the following consideration: “because the role of the General Counsel is to vindicate public rights, the General Counsel should be permitted to amend the allegations in the charge based on information it obtains during its investigation .... Nevertheless, because the General Counsel is not vested with the authority to investigatе labor practices on its own initiative,” any complaint must therefore be closely related to the charge. Reebie,
. The recent decisions in Reebie Storage & Moving Co. v. NLRB,