The opinion
KENNEDY, Circuit Judge,
concurring in part and dissenting in part.
Because the March 1, 1993 amendment of the complaint naming Samuel Peters, Trustee, as the employer did not “involve[] the same legal theory” as any of the charge allegations and did not “raisef] similar defenses as the charge allegation,” Drug Plastics & Glass Co. v. NLRB, 44 F.3d 1017, 1021 (D.C.Cir.1995), the Administrative Law Judge was correct in holding the amendment untimely and the Board erred in concluding that the facts and legal issues to be decided remained the same. Mr. Peters was not the agent of Western, as had been alleged in the charges. He was a trustee appointed by a state court and the legal theory that he was an agent was one to which he had a valid defense. With the amendment, he was now being charged long after six months from when the events occurred, not as the agent of some other entity but as the employer with serious resulting liabilities. The facts may have remained the same, but the theory of liability and the availability of a complete defense completely changed. Nor was the change in legal theory harmless. Had Peters been named as employer in the charges, he would have had an opportunity to make an áccurate analysis of the consequences of his conduct and could have acted differently.
In all other respects, I concur.