Cadillac of Naperville, Inc. v. NLRB ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2020 Decided September 17, 2021
No. 19-1150
CADILLAC OF NAPERVILLE, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 19-1167
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Michael P. MacHarg argued the cause for petitioner. With
him on the briefs was Tae Y. Kim. Alisa P. Cleek entered an
appearance.
Jared D. Cantor, Senior Attorney, National Labor
Relations Board, argued the cause for respondent. With him
on the brief were Ruth E. Burdick, Acting Deputy Associate
General Counsel, David S. Habenstreit, Assistant General
Counsel, and Julie B. Broido, Supervisory Attorney.
2
Before: MILLETT, PILLARD, and KATSAS, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Opinion concurring in part and dissenting in part filed by
Circuit Judge KATSAS.
PER CURIAM: The service mechanics at Cadillac of
Naperville went on strike in August 2017. The National Labor
Relations Board found that the dealership responded to the
strike unlawfully by discharging one mechanic for his union
activity, threatening to retaliate against several mechanics, and
refusing to bargain with the mechanics’ union. The dealership
challenges these rulings, as well as two procedural rulings by
the administrative law judge.
At the NLRB’s request, we remand the discharge issue for
the Board to apply its intervening decision changing the
framework under which it assesses alleged retaliation in mixed-
motive cases. We reject the dealership’s other challenges.
I
A
Section 7 of the National Labor Relations Act gives
employees the right to unionize, to bargain collectively, and to
engage in concerted action for their “mutual aid or protection.”
29 U.S.C. § 157. Section 8(a) of the Act safeguards those
rights by prohibiting employers from engaging in a variety of
unfair labor practices. Section 8(a)(1) makes it unlawful to
“interfere with, restrain, or coerce employees in the exercise of
the rights guaranteed” by section 7. Id. § 158(a)(1). Section
8(a)(3) prohibits employment discrimination to “discourage
membership” in a union. Id. § 158(a)(3). Section 8(a)(5)
3
makes it unlawful “to refuse to bargain collectively” with a
union. Id. § 158(a)(5).
B
Cadillac of Naperville, Inc. (Naperville) is an auto
dealership in Naperville, Illinois. The dealership is a member
of the New Car Deal Committee (NCDC), a multiemployer
bargaining unit including employees in 129 dealerships in the
Chicago area. The NCDC negotiates master collective-
bargaining agreements with the Automobile Mechanics Local
701, International Association of Machinists and Aerospace
Workers, AFL-CIO, which represents some 2,000 mechanics
employed across the dealerships.
In May 2017, the NCDC and the union began to negotiate
a new collective-bargaining agreement. The union negotiators
included Naperville mechanic John Bisbikis as well as union
representatives Sam Cicinelli and Kenneth Thomas.
On June 29, Bisbikis approached Frank Laskaris, the
owner and president of Naperville, to discuss shop-related
issues. In particular, Bisbikis asked Laskaris to rescind the
dealership’s new policy of charging workers for part of the cost
of their uniforms. Laskaris rebuffed the request and turned the
conversation to the “sputtering labor negotiations.” Cadillac
of Naperville, Inc., 368 N.L.R.B. No. 3, slip op. at 8 (June 12,
2019). Laskaris then “warned” Bisbikis that “things would not
be the same” if the mechanics decided to strike. Id. at 17; see
also id. at 3, 8, 19–20. On August 1, after the collective-
bargaining agreement expired, mechanics at the NCDC
dealerships went on strike.
On August 9, Naperville informed six of its strikers,
including Bisbikis, that they had been permanently replaced.
The notices stated that the strikers would be placed on a
4
preferential hiring list, but only if they unconditionally applied
to return to work. In response, the strikers escalated their
demonstrations. Positioning themselves directly across the
main entrance to the dealership, they blew horns, sought to
engage customers, and yelled at non-striking employees. On
one occasion, a striker named Patrick Towe impeded an elderly
customer’s test drive by walking in front of her vehicle.
On September 15, the NCDC and the union entered into a
settlement that allowed many of the strikers to return to work.
Two days later, the union’s members ratified both the
settlement and a successor collective-bargaining agreement.
On September 18, Bisbikis, Cicinelli, and Thomas met
with Laskaris to discuss the strikers’ recall. Laskaris stated that
he did not want Bisbikis present because Bisbikis was a
ringleader of the strike and Laskaris no longer wanted to
employ him. On Cicinelli’s advice, Bisbikis left the room.
Later that day, Bisbikis, Cicinelli, and Thomas met again with
Laskaris. In that meeting, Bisbikis called Laskaris a liar,
Laskaris responded that Bisbikis should “get the f*** out” of
the room, and Bisbikis replied by calling Laskaris a “stupid
jack off” in Greek. Naperville, 368 N.L.R.B. No. 3, at 10. As
Bisbikis left the room, Laskaris said, “[E]ven if I have to take
you back, now I’m firing you for insubordination.” Id.
Laskaris did fire Bisbikis, assertedly for insubordination.
On September 20, Laskaris spoke with Towe, the
mechanic who had obstructed the test-drive. Laskaris said he
hoped that employees would refrain from such conduct. He
then said, “I don’t want any of you here,” and told Towe to look
for another job because Towe would not be employed at
Naperville for long. Naperville, 368 N.L.R.B. No. 3, at 12.
On September 21, Laskaris sought to restrict union access
to Naperville premises. In a letter to the union, he stated that
5
Cicinelli and Thomas were no longer welcome on the property
because of their assertedly threatening conduct. And he
required other union representatives to make appointments to
see union members while they were at work.
On September 25, Laskaris held a staff meeting to
complain about union leafletting outside the dealership even
after the strike was over. He told employees that the leafleting
was “taking money out of their pockets” and that if the
dealership ran out of work, “all of the recalled employees
would be laid off.” Naperville, 368 N.L.R.B. No. 3, at 13.
On October 6, Laskaris held another staff meeting. For
forty minutes, he expounded on the strike and its aftermath. At
one point, Laskaris threatened to enforce company rules more
strictly: “I suggest you read your little blue book that he waved
in my face like a smug a**hole … and if I follow that book
your life will get harder …. There’s so much stuff in that book
that nobody enforces. Why? Because we don’t want to be that
kind of place.” Naperville, 368 N.L.R.B. No. 3, at 15 (ellipses
in original). At another point, Laskaris disparaged the
grievance process in the collective-bargaining agreement: “Let
me tell you about the grievance process…. What I’m telling
you is I don’t give a s*** about grievances. Grieve all you
want. It doesn’t matter. They can’t do s***…. I don’t care on
what you grieve, I don’t care how much you complain, they’re
not going to tell me what to do.” Id. Laskaris’s summation
was even more colorful:
I can be the nicest guy in the world, you put me in a
corner, I’m going to f***ing eat your face. That’s
who I am. I’ll give you a kidney, Ronnie[,] but you
f*** with me and my people, I’m going to eat your
kidney out of your body and spit it at you. That’s how
nasty I can be. It’s not in my nature to be a prick, but
6
when I see s*** like that Pat, it’s easy to be a prick to
you; real easy. And they can’t stop me from being a
prick.
Id. at 16. One mechanic secretly made a recording of the tirade,
which the NLRB later admitted into evidence.
On October 27, Laskaris spoke with Brian Higgins, a
mechanic who had been permanently replaced during the
strike. When Higgins expressed an interest in returning to
work, Laskaris said that he did not want Higgins or any of the
permanently replaced employees at the dealership and that if
Higgins did return, “it would not be long before he was gone.”
Naperville, 368 N.L.R.B. No. 3, at 16.
C
The union filed a complaint against Naperville. After a
hearing, an administrative law judge found that Naperville had
committed several unfair labor practices. First, the ALJ found
that Laskaris violated section 8(a)(1) of the NLRA by making
threats to employees. The threats included telling Bisbikis that
“things would not be the same” if the mechanics went on strike,
advising Towe to look for another job, announcing that recalled
employees would be laid off if work ran out, warning of stricter
enforcement of company rules, describing grievances as futile,
saying that he would eat an employee’s kidney, and implying
that Higgins would quickly be fired if he returned to work.
Naperville, 368 N.L.R.B. No. 3, at 16–19. Second, the ALJ
found that Naperville violated sections 8(a)(1) and 8(a)(3) by
firing Bisbikis in retaliation for his union activity. Id. at 19–
21. Finally, the ALJ found that Naperville violated sections
8(a)(1) and 8(a)(5) by restricting the union’s access to its
members. Id. at 22.
7
The NLRB affirmed these findings but gave different
reasoning as to the firing of Bisbikis. The ALJ had assessed
the firing under Wright Line, Inc., 251 N.L.R.B. 1083 (1980).
Under that decision, the agency bears the initial burden of
proving that union activity was a “motivating factor” in an
adverse action against an employee; if the agency meets this
burden, the employer must prove that it “would have taken the
same action in the absence of the unlawful motive.” Novato
Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1101 (D.C. Cir.
2019). In contrast, the Board assessed the discharge under
Atlantic Steel Co., 245 N.L.R.B. 814 (1979). That decision
identifies four factors for determining whether an employee has
forfeited NLRA protection through “opprobrious conduct”:
“(1) the place of the discussion; (2) the subject matter of the
discussion; (3) the nature of the employee’s outburst; and
(4) whether the outburst was, in any way, provoked by an
employer’s unfair labor practice.” Id. at 816.
Naperville sought review of the Board’s decision, and the
Board filed a cross-application for enforcement. After briefing
had concluded, the Board asked us to remand the discharge
issue for reconsideration in light of its intervening decision in
General Motors, LLC, 369 N.L.R.B. No. 127 (July 21, 2020).
That decision held that Wright Line, not Atlantic Steel, provides
the appropriate framework for analyzing adverse actions that
might reflect either protected activity or misconduct by the
employee. Id., slip op. at 1–2.
We have jurisdiction over the petition for review under 29
U.S.C. § 160(f) and over the cross-application for enforcement
under 29 U.S.C. § 160(e).
II
Naperville first challenges two evidentiary rulings made
by the ALJ. We review such rulings only for abuse of
8
discretion, and we require prejudice to set them aside. See
Napleton 1050, Inc. v. NLRB, 976 F.3d 30, 39 (D.C. Cir. 2020).
A
Naperville contends that the ALJ did not give it adequate
access to witness affidavits at the administrative hearing. The
Board’s regulations permit respondents to use and examine
witness affidavits “for the purpose of cross-examination.” 29
C.F.R. § 102.118(e)(1). Naperville asked to retain a witness’s
affidavit for a short time after his cross-examination, but the
ALJ required it to return the affidavit immediately.
Right or wrong, the ALJ’s decision was not prejudicial.
Whether an error is prejudicial depends on the “closeness of
the case, the centrality of the issue in question, and the
effectiveness of any steps taken to mitigate the effects of the
error.” 800 River Rd. Operating Co., LLC v. NLRB, 846 F.3d
378, 386 (D.C. Cir. 2017) (quoting Huthnance v. District of
Columbia, 722 F.3d 371, 381 (D.C. Cir. 2013)). Here, although
Naperville bore the burden of showing prejudice, see Desert
Hosp. v. NLRB, 91 F.3d 187, 190 (D.C. Cir. 1996), it made no
attempt to do so. Its briefs did not explain how retaining the
affidavit after the cross-examination might have improved its
prospects at the hearing. And when asked about prejudice at
oral argument, Naperville argued only that showing it was
unnecessary. We thus reject Naperville’s challenge to the
ruling on the witness affidavit.
B
Naperville challenges the Board’s admission of the
recording of the October 6 meeting. Naperville contends that
the recording was made in violation of Illinois law, which
prohibits recording a “private conversation” without the
consent of all parties, 720 Ill. Comp. Stat. 5/14-2(a)(2).
9
The NLRA provides that Board proceedings “shall, so far
as practicable, be conducted in accordance with the rules of
evidence applicable in the district courts of the United States.”
29 U.S.C. § 160(b). Thus, the NLRB must follow the Federal
Rules of Evidence unless doing so would be impracticable. See
McDonald Partners, Inc. v. NLRB, 331 F.3d 1002, 1007 (D.C.
Cir. 2003). Under Rule 402, “[r]elevant evidence is
admissible” unless the United States Constitution, a federal
statute, the Rules themselves, or “other rules prescribed by the
Supreme Court” provide otherwise. Fed. R. Evid. 402. The
recording—which contains several statements by Laskaris
alleged to be threatening or coercive—is plainly relevant to the
unfair-labor-practice claims at issue. Naperville neither
disputes the relevance of the recording nor contends that any
other Federal Rule requires its exclusion. Nor does Naperville
contend that following Rule 402 was impracticable. The ALJ
thus properly admitted the recording.
Naperville’s objections are unpersuasive. First, the
dealership argues that admitting the tape frustrated Illinois’
public policy of discouraging secret recordings. But as
explained above, the NLRA makes clear that state policy does
not dictate the admissibility of evidence in Board proceedings.
Next, Naperville objects that admitting the recording
contravened Weiss v. United States, 308 U.S. 321 (1939),
which requires the suppression of items intercepted in violation
of the Communication Act of 1934. Id. at 331. But that federal
statute expressly made such communications inadmissible in
court. Id. at 326; see also Nardone v. United States, 302 U.S.
379, 380–82 (1937). Naperville does not contend that any
similar federal statute or rule applies here. Finally, Naperville
argues that admitting unlawful recordings will prejudice
employers. But it provides no reason to think that employees
are more likely to record their employers than vice versa. And
in any event, the governing rules provide no textual basis for
10
accommodating Naperville’s naked policy argument. The ALJ
permissibly admitted the recording.1
III
We turn to the substance of the Board’s decision. Our
review is “deferential,” Comau, Inc. v. NLRB, 671 F.3d 1232,
1236 (D.C. Cir. 2012) (cleaned up), but not a “rubber stamp,”
Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 484 (D.C.
Cir. 2020). Although we “accord considerable deference” to
the Board’s policy judgments, Stephens Media, LLC v. NLRB,
677 F.3d 1241, 1250 (D.C. Cir. 2012), we must set aside a
decision that rests on an error of law, is unsupported by
substantial evidence, or “departs from established precedent
without a reasoned explanation,” Comau, 671 F.3d at 1236
(cleaned up).
A
Section 8(a)(1) of the NLRA makes it an unfair labor
practice to “interfere with, restrain, or coerce employees in the
exercise of” their right to bargain collectively. 29 U.S.C.
§ 158(a)(1). This section “forbids coercive statements that
threaten retaliation against employees” for protected union
activity. Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C.
Cir. 2001). Section 8(c), however, cabins section 8(a)(1). It
provides that expressing “any views, argument, or opinion” is
neither an unfair labor practice nor evidence of an unfair labor
practice, as long as the views contain “no threat of reprisal or
1
Because we resolve this issue under the Federal Rules of
Evidence, we need not address the Board’s alternative argument that
the recording was not of a “private conversation” covered by the
Illinois law. See Edmondson & Gallagher v. Alban Towers Tenants
Ass’n, 48 F.3d 1260, 1266 (D.C. Cir. 1995).
11
force or promise of benefit.” 29 U.S.C. § 158(c). We assess
whether statements violate section 8(a)(1) under “the totality of
the circumstances,” with an eye to whether “the statement has
a reasonable tendency to coerce or to interfere with” section 7
rights. Tasty Baking, 254 F.3d at 124.
We begin with the several statements on which the panel
is unanimous, then we address the one statement on which we
are divided.
1
We unanimously conclude that the challenged statements
made by Laskaris in September and October of 2017 threatened
retaliation for protected activity and thus constituted unfair
labor practices.
a
The Board found that Laskaris violated section 8(a)(1) on
September 20, by telling Towe that he did not want any former
strikers at the dealership and that Towe should look for a new
job. The Board reasoned that the statement threatened to
discharge Towe for his union activity. Naperville, 368
N.L.R.B. No. 3, at 1 n.2. We agree.
Naperville argues that Laskaris threatened to fire Towe not
because of his union activity but because of his misconduct
during the strike, which included obstructing a test-drive. This
argument overlooks Laskaris’s comment regarding the other
strikers. Moreover, the ALJ found that the “overarching
theme” of Laskaris’s criticism was Towe’s union activity, not
the one specific instance of misconduct. Naperville, 368
N.L.R.B. No. 3, at 17. And that finding, in turn, rested on the
ALJ’s decision to credit Towe’s testimony about the
conversation, id. at 12 n.24, which we accept because it was
12
not “patently insupportable,” Exxel/Atmos, Inc. v. NLRB, 28
F.3d 1243, 1246 (D.C. Cir. 1994) (quoting NLRB v. Creative
Food, 852 F.2d 1295, 1297 (D.C. Cir. 1988)).
b
The Board found that Laskaris violated section 8(a)(1) on
September 25, by telling the recalled mechanics that union
leafletting was harming the dealership financially and that he
would fire them if the dealership ran out of work. The Board
reasoned that Laskaris targeted only former strikers, as
opposed to the dealership’s employees in general, thereby
singling them out for a threat of adverse treatment based on
protected activity. Naperville, 368 N.L.R.B. No. 3, at 3.
Naperville’s responses do not persuade. First, it argues
that section 8(c) protected its criticism of the leafletting. But
the Board found an unfair labor practice based on a threat to
fire the recalled mechanics, not because Laskaris criticized the
leafletting. Naperville also would construe the comments as a
truism governing all employees generally—no work means no
jobs. But Laskaris made the comments in a staff meeting
involving only the former strikers, and the Board reasonably
construed the comments as directed against them specifically.
c
As to the October 6 philippic, the Board found that three
statements crossed the line—the threat to make the mechanics’
lives “harder” by ramping up enforcement of company rules,
denigration of the grievance process as futile, and the rhetorical
threat to eat the kidney of any employee who “f***[ed] with”
him. Naperville, 368 N.L.R.B. No. 3, at 3–4. In the context of
a speech harshly critical of recent union activity, the threat to
increase enforcement of company rules would reasonably be
understood as threatening retaliation because of that activity.
13
See, e.g., Miller Indus. Towing Equip., Inc., 342 N.L.R.B.
1074, 1074 (2004). Moreover, because “filing and prosecution
of employee grievances is a fundamental, day-to-day part of
collective bargaining,” Laredo Packing Co., 254 N.L.R.B. 1, 4
(1981) (quoting Crown Cent. Petroleum Corp. v. NLRB, 430
F.2d 724, 729 (5th Cir. 1970)), it is an unfair labor practice to
say that a “contractual grievance procedure” is “futile,” M.D.
Miller Trucking & Topsoil, Inc., 361 N.L.R.B. 1225, 1225
(2014), which is what Laskaris did here. Naperville objects
that section 8(c) allows employers to criticize the substance of
individual grievances. But the Board faulted Laskaris for
making clear that he would refuse to honor all grievance
determinations, not for addressing the merits of any individual
one. Finally, while the Board and the ALJ split on whether
Laskaris’s kidney comment reflected a threat of violence, the
Board was clearly correct that, at a minimum, it would
“reasonably tend to coerce employees in the exercise of their
Section 7 rights.” Naperville, 368 N.L.R.B. No. 3, at 4.
d
The Board found that Laskaris violated section 8(a)(1) on
October 27, by telling Higgins that he did not want to employ
any of the former strikers and that, if Higgins returned, “it
would not be long before he was gone.” Naperville, 368
N.L.R.B. No. 3, at 16; see id. at 1 n.2. Naperville attempts to
cast the statement about Higgins as a lawful prediction about
his commitment to the dealership. But that overlooks the
context of the remark, which followed immediately after
Laskaris’s comment that he did not want to take back any of
the striking mechanics. The Board thus had ample ground for
concluding that Laskaris’s comment was a threat of reprisal for
Higgins’ union activities.
14
2
The Board also found that Laskaris violated section 8(a)(1)
by “warning” Bisbikis that “things would not be the same” if
the employees went on strike. Naperville, 368 N.L.R.B. No. 3,
at 1, 3; see id. at 8 (ALJ decision). The Board agreed with the
ALJ’s conclusion that, under the facts of this case, “the
statement cannot be viewed as anything but a threat that a strike
would produce only negative consequences for the unit.” Id. at
3 (brackets omitted). Substantial evidence supports the
Board’s finding that Laskaris’s statement was an unlawful
threat.
On June 29, just a month before the union contract was set
to expire, Bisbikis came into Laskaris’s office seeking the
rescission of a new policy requiring employees to pay for a
portion of their uniforms’ cost. Naperville, 368 N.L.R.B. No.
3, at 8. Laskaris rebuffed Bisbikis’s demand. Turning the
conversation to the company’s ongoing labor negotiations with
the union, Laskaris then told Bisbikis that “things would not be
the same” if the mechanics chose to strike. Id.; see also id. at
3, 19–20.
The Board reasonably concluded on this record that
Laskaris’s statement was a threat rather than a mere prediction
about the consequences of union activity. While an employer
may “communicate to his employees any of his general views
about unionism or any of his specific views about a particular
union,” and even predict “the precise effects he believes
unionization will have on his company[,]” this does not give
employers carte blanche to make threats against union activity
under the guise of innocent prognostication. NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969). Instead, the
employer’s comments must be “carefully phrased on the basis
of objective fact to convey an employer’s belief as to
15
demonstrably probable consequences[,]” and those
consequences must be ones that are “beyond [the employer’s]
control[.]” Id.; see also United Food & Com. Workers Union
Loc. 204 v. NLRB, 506 F.3d 1078, 1081 (D.C. Cir. 2007)
(Employer predictions of adverse consequences must “rest on
objective facts outside the employer’s control[.]”); General
Elec. Co. v. NLRB, 117 F.3d 627, 632 (D.C. Cir. 1997) (“We
ask whether [the employer] based its predictions about the
effect of unionization on objective facts about consequences
beyond its control or whether its predictions were unrelated to
economic necessity, thus amounting to [unlawful] threats of
reprisal[.]”) (citations omitted)).
Substantial evidence supported the Board’s decision that
Laskaris’s words did not refer to adverse circumstances
“outside the employer’s control[,]” United Food, 506 F.3d at
1081, but instead implied that the dealership would make
things worse for the mechanics after the strike. The record
shows that Laskaris made the remark, without any
qualification, after a union activist pressed his objection to a
new workplace policy that required workers to pay part of the
cost of their uniforms. Laskaris, in other words, chose to link
the potential strike and its consequences to the discussion of an
unpopular new employer-imposed policy. Naperville, 368
N.L.R.B. No. 3, at 8; J.A. 143. By linking his authority over
the new uniform policy and the economic cost it imposed on
employees with the adverse consequences that would come
after a strike, Laskaris crossed the line from the innocent
expression of a viewpoint to a threat. Or so the Board
reasonably concluded. Cf. United Food, 506 F.3d at 1084 (“[I]t
is the Board’s duty, not ours, to focus on the question: What
did the speaker intend and the listener understand?”) (internal
quotation marks and citations omitted)).
16
After all, the content and context of Laskaris’s comment
must be read in light of “the economic dependence of the
employees on their employers”—especially when, as here,
labor negotiations are underway. Gissel Packing, 395 U.S. at
617. Those circumstances made Bisbikis attuned to the
“intended implications of the [employer] that might be more
readily dismissed by a more disinterested ear.” Id. Keep in
mind that “the line between prediction and threat is a thin one,”
especially in the midst of difficult labor negotiations, “and in
the field of labor relations that line is to be determined by
context and the expertise of the Board.” Timsco Inc. v. NLRB,
819 F.2d 1173, 1178 (D.C. Cir. 1987).
Given that record, Naperville and the dissenting opinion
err in insisting that Laskaris’s comment was too vague for the
Board to find it a threat. See Pet. Br. 34–36; Dissenting Op. at
1–5. In support, the dissenting opinion offers a list of
statements deemed non-threatening, without any explanation
of their surrounding context. Dissenting Op. at 2. To be sure,
considered in a factual vacuum, the claim that “things would
not be the same” post-strike might not necessarily be an
unlawful threat.
But here the law, like nature, abhors a vacuum. Contrary
to the dissenting opinion’s approach, there is no list of
acceptable and unacceptable statements. Labor law does not
categorize statements as permissible or impermissible based
just on which words were used. Instead, words draw their
meaning from context, and that case-specific context lends
strong support to the Board’s decision here. Specifically,
Laskaris’s comment about things changing arose within a tense
conversation between the employer and a union activist over a
disputed new policy that Laskaris’s dealership had imposed,
that Laskaris controlled, that economically burdened the
workers, and that Laskaris insisted on continuing, all while
17
labor negotiations were ongoing. See J.A. 197–199. And it
was Laskaris who connected the discussion over an unpopular
employer-set working condition with ongoing labor
negotiations and the threat of a strike. In light of the
contentiousness of the dispute over an employment policy
entirely within the employer’s control and the course in which
Laskaris took the discussion, the Board reasonably concluded
that Laskaris was not predicting that a strike would improve
conditions. Instead, by connecting the strike and a disfavored
new policy that the dealership itself had imposed, the Board
found as a matter of fact that Laskaris was implying that the
employer could make conditions worse still. That hardly
qualifies as “bland[,]” Dissenting Op. at 5.
The dissenting opinion says that the fact that Laskaris,
rather than Bisbikis, testified to the content and unpopularity of
the new uniform policy makes this context less revealing.
Dissenting Op. at 4–5. If anything, Laskaris’s testimony that
the new policy was “big scuttlebutt” among the employees who
“were all squawking” about it buttresses the Board’s
conclusions. J.A. 197–198.
The dissenting opinion then brushes off the notion that
paying roughly $2 per work shirt could be a source of relevant
upset. Dissenting Op. at 5. Suffice it to say that the workers
whose paycheck got smaller time and again could reasonably
look at the issue through a different economic lens.
In other words, on this record, the Board’s finding that
Laskaris’s statement amounted to a threat and not just a
prediction of economic consequences beyond his control
passes muster under our “highly deferential” and “tightly
cabined” standard of review. Inova Health Sys. v. NLRB, 795
F.3d 68, 73, 80 (D.C. Cir. 2015); see, e.g., Ebenezer Rail Car
Servs., Inc., 333 N.L.R.B. 167, 167 n.2 (2001) (holding that
18
supervisor’s statement to an employee that he would “regret
this all year” was an unlawful threat when uttered
“immediately after the announcement of the union election
victory,” given “the context and timing of [the] statement”).
The only question before us, after all, is whether the Board’s
ruling “rest[s] upon reasonable inferences[.]” Tasty Baking,
254 F.3d at 125. The Board’s decision here does, and so we
cannot overturn it “simply because other reasonable inferences
may also be drawn.” Id.The Board’s decision also comports with its own
precedent. In Valmet, Inc. the Board held that an employer
violated the law when he told an employee that, if a union were
formed, they could no longer have one-on-one conversations,
and then added “[r]emember that I hired you.” 367 N.L.R.B.
No. 84, slip op. at 2 n.7 (Feb. 4, 2019). In the Board’s words,
the employer’s warning that “things would change if the
[u]nion came in,” combined with his assertion of employment
authority, constituted a threat. Id. So too here the Board found
a threat when Laskaris combined an assertion of authority—his
rejection of employees’ request to rescind a newly adopted
policy that hit them in their wallets—with a warning that things
would change if the employees chose to strike. Naperville, 368
N.L.R.B. No. 3, at 3.
In so holding, we must decline the credit the dissenting
opinion ascribes to us for the Board’s reasoning. Dissenting
Op. at 4–6. It was the Board’s idea (correctly) to accord
significance to the timing and setting of Laskaris’s statement
as a response to the conversation “Bisbikis initiated * * * about
employee concerns.” Naperville, 368 N.L.R.B. No. 3, at 3.
The Board and the ALJ both found that Laskaris’s comment
“did not communicate any objective facts or predictions as to
the effects of a potential strike,” and under the circumstances
could only be viewed as a threat. Id. (internal quotation marks
19
omitted); see also id. (citing Valmet, Inc., 367 N.L.R.B. No. 84,
slip op. at 2 n.7). The ALJ, whose findings the Board here
adopted, repeatedly noted the context for Laskaris’s comment
in explaining its conclusion that the statement was unlawful.
Id. at 8, 17, 19–20 (“At this meeting, Laskaris rejected
Bisbikis’ proposal [to rescind the new uniform policy] and
warned him that if the mechanics went on strike, ‘things
wouldn’t be the same.’”).2
The dissenting opinion also argues that, because the
Board’s decision places an instance of speech beyond the
protection of the First Amendment, constitutional avoidance
counsels in favor of setting aside the NLRB’s decision
regarding Laskaris’s “things would not be the same” statement.
Dissenting Op. at 5–6. That is incorrect for two reasons.
First, Naperville has never argued—to the administrative
law judge, to the Board, or to this court—that finding
Laskaris’s statement to be an unfair labor practice implicates
the First Amendment in any way. At a minimum,
constitutional avoidance disfavors judges raising constitutional
questions that the parties have not. Doubly so under the
National Labor Relations Act that statutorily precludes us
“from considering an objection that has not been urged before
the Board, ‘unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances[,]’”
which are not present here. Detroit Edison Co. v. NLRB, 440
2
The dissenting opinion adjures us to “make an independent
examination of the whole record” in this case. Dissenting Op. at 5
(quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). So the
dissenting opinion inconsistently faults us for being both too
independent in our consideration of the whole record and not
independent enough. Compare Dissenting Op. at 4, 5–6 with
Dissenting Op. at 5. Our care to analyze whether the whole record
substantiates the Board’s decision cannot be both wrong and right.
20
U.S. 301, 311 n.10 (1979) (quoting 29 U.S.C. § 160(e)); see
also Sims v. Apfel, 530 U.S. 103, 108 (2000); U-Haul Co. of
Nevada, Inc. v. NLRB, 490 F.3d 957, 963 (D.C. Cir. 2007); cf.
Polynesian Cultural Ctr., Inc. v. NLRB, 582 F.2d 467, 473 (9th
Cir. 1978) (holding that raising First Amendment issue on
judicial appeal was “too late” under 29 U.S.C. § 160(e)).
Second, under long-settled Supreme Court precedent,
when an employer’s prediction that negative consequences will
arise from union activity contains the “implication” that the
employer may of its own accord contribute to those
consequences, the statement constitutes “a threat of retaliation
* * * and as such [is] without the protection of the First
Amendment.” Gissel Packing, 395 U.S. at 618. That is this
case.
B
Section 8(a)(3) of the NLRA makes it an unfair labor
practice to discriminate in employment to “discourage
membership” in a union. 29 U.S.C. § 158(a)(3). Employers
violate this provision if they take “an adverse employment
action in order to discourage union activity.” Ark Las Vegas
Rest. Corp. v. NLRB, 334 F.3d 99, 104 (D.C. Cir. 2003). But
the Board has held that an employee can lose section 8(a)(3)’s
protection by confronting the employer in a sufficiently
opprobrious manner. See Kiewit Power Constr. Co. v. NLRB,
652 F.3d 22, 26 (D.C. Cir. 2011). Here, the Board found that
Naperville violated section 8(a)(3) by firing Bisbikis.
Naperville, 368 N.L.R.B. No. 3, at 2. Naperville counters that
Bisbikis lost the protection of the NLRA by calling Laskaris a
“stupid jack off” after Laskaris cursed at him in the
confrontation immediately preceding his termination.
After briefing was complete, the NLRB asked us to
remand on this issue for reconsideration in light of its
21
intervening decision in General Motors. There, the Board held
that mixed-motive terminations should be assessed under
Wright Line rather than Atlantic Steel, 369 N.L.R.B. No. 127,
slip op. at 1–2, and that this change should apply “retroactively
to all pending cases,” id. at 10.
We have “broad discretion to grant or deny an agency’s
motion to remand.” Util. Solid Waste Activities Grp. v. EPA,
901 F.3d 414, 436 (D.C. Cir. 2018). An agency may obtain a
remand without confessing error, so long as it genuinely
intends “to reconsider, re-review or modify” its original
decision. Limnia, Inc. v. Dep’t of Energy, 857 F.3d 379, 387
(D.C. Cir. 2017). We consider whether the agency has
provided a reasoned explanation for a remand, see Clean Wis.
v. EPA, 964 F.3d 1145, 1175–76 (D.C. Cir. 2020), whether its
motion is “frivolous or made in bad faith,” Util. Solid Waste,
901 F.3d at 436, and whether granting the motion would
“unduly prejudice the non-moving party,” id.
Here, the Board has offered a reasonable ground for
remand—so that it may apply Wright Line in the first instance.
In General Motors, the Board explained its view that Wright
Line should govern cases like this one.3 In this case, the key
question under Wright Line is whether Laskaris would have
fired Bisbikis in the absence of his union activity. See Novato
Healthcare, 916 F.3d at 1100–01. Because the Board did not
address that question below, we remand for it to do so.
Other considerations also favor a remand. Naperville does
not contend that the Board is acting in bad faith. Further, there
3
General Motors reasoned that Atlantic Steel had produced
inconsistent results and prevented employers from addressing
genuinely abusive conduct, 369 N.L.R.B. No. 127, slip op. at 4–6
(July 21, 2020), and that the benefits of Wright Line warrant applying
it retroactively, id. at 10–11.
22
is little reason to think that a remand would unduly prejudice
Naperville. To the contrary, a remand would give the
dealership an opportunity to argue why its discharge of
Bisbikis was lawful, and to do so under a legal standard that
the Board views as more favorable to employers. See Gen.
Motors, 369 N.L.R.B. No. 127, at 5. A remand is also unlikely
to burden Naperville with substantial litigation costs, as an ALJ
has already found a violation under Wright Line, and
Naperville has already briefed its opposition to that finding
before the Board. See Naperville, 368 N.L.R.B. No. 3, at 19;
Brief in Support of Exceptions at 11–13 (No. 13-CA-207245)
(N.L.R.B. Aug. 31, 2018).
We thus remand for reconsideration on the question
whether Naperville unlawfully discharged Bisbikis. In doing
so, we take no position on whether the ALJ properly applied
Wright Line or whether Naperville adequately preserved its
objections before the Board.
C
Section 8(a)(5) of the NLRA makes it an unfair labor
practice for an employer to “refuse to bargain collectively”
with a union. 29 U.S.C. § 158(a)(5). Collective bargaining
means conferring “in good faith with respect to wages, hours,
and other terms and conditions of employment.” Id. § 158(d).
One mandatory subject of bargaining is union access to
employees during work hours. Ernst Home Ctrs., Inc., 308
N.L.R.B 848, 865 (1992). Employers cannot unilaterally
change employment terms on such mandatory subjects without
first “bargaining to impasse.” Litton Fin. Printing Div. v.
NLRB, 501 U.S. 190, 198 (1991).
Here, Naperville did just that. The successor collective-
bargaining agreement, which applied to Naperville at all
relevant times, granted the union access to the dealership to
23
adjust complaints individually or collectively. Before the
strike, Thomas had visited the dealership about once every six
weeks. Soon after the strike, Naperville barred both Thomas
and Cicinelli from its premises and required other union
representatives to request access before visiting the dealership.
By restricting the mechanics’ ability to communicate with the
union, Naperville changed their terms and conditions of
employment on a mandatory subject of bargaining. And it did
so unilaterally, without any effort to bargain with the Union.
Naperville seeks to defend its conduct under Republic
Aviation Corp. v. NLRB¸ 324 U.S. 793 (1945). Although that
case recognized conditions in which an employer could ban
union solicitation during working hours, id. at 803 & n.10, it
never suggested that an employer could institute such a ban in
the face of an operative bargaining agreement. We thus decline
to set aside the Board’s finding that Naperville violated
sections 8(a)(1) and 8(a)(5).4
IV
We remand the unlawful discharge claim for
reconsideration, deny the petition for review in all other
respects, and grant the Board’s cross-application for
enforcement in all other respects.
So ordered.
4
Under our precedent, conduct that violates section 8(a)(5) also
violates section 8(a)(1). S. Nuclear Operating Co. v. NLRB, 524 F.3d
1350, 1356 n.6 (D.C. Cir. 2008).
KATSAS, Circuit Judge, concurring in part and dissenting
in part: The National Labor Relations Board held that Frank
Laskaris, the owner and president of Cadillac of Naperville,
violated federal law by telling an employee that “things would
not be the same” if Naperville employees went on strike.
Cadillac of Naperville, Inc., 368 N.L.R.B. No. 3, slip op. at 3
(June 12, 2019). The Board further ordered Laskaris and the
dealership to cease and desist from making similar statements
in the future. Id. at 4. In my view, Laskaris’s statement was
protected speech as opposed to an unlawful threat of retaliation.
Section 8(a)(1) of the National Labor Relations Act makes
it an unfair labor practice for employers to “interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed” by the Act. 29 U.S.C. § 158(a)(1). But section
8(c) qualifies section 8(a)(1) with regard to speech. It states
that that the expression “of any views, argument, or opinion” is
neither an unfair labor practice, nor even evidence of an unfair
labor practice, “if such expression contains no threat of reprisal
or force or promise of benefit.” Id. § 158(c). Section 8(c)
“protects speech by both unions and employers” and thus
“‘implements the First Amendment.’” Chamber of Commerce
v. Brown, 554 U.S. 60, 67 (2008) (quoting NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969)). Moreover, section
8(c) serves “to encourage free debate on issues dividing labor
and management,” Linn v. United Plant Guard Workers, 383
U.S. 53, 62 (1966), and “favor[s] uninhibited, robust, and wide-
open debate in labor disputes,” Letter Carriers v. Austin, 418
U.S. 264, 273 (1974).
Section 8(c) protects statements to the effect that union
activity will harm employees by decreasing an employer’s
competitiveness. In Crown Cork & Seal Co. v. NLRB, 36 F.3d
1130 (D.C. Cir. 1994), we explained that an employer may “say
how the company is likely to respond to a changed economic
environment,” so long as its statements “imply no punitive or
retaliatory purpose.” Id. at 1138. For example, section 8(c)
2
protects speech “seeking to impugn” a union’s “record on job
security.” Id. at 1133, 1140. It protects this statement: “We
are against the Union because we know they can wreck the
Company and reduce the number of jobs.” Id. at 1144 (quoting
Laborers’ Dist. Council of Ga. v. NLRB, 501 F.2d 868, 872
n.11 (D.C. Cir. 1974)). It protects this statement: “Unions do
not work in restaurants …. If the Union exists at [the
restaurant] Shenanigans, Shenanigans will fail. That is it in a
nutshell.” Id. at 1145 (quoting NLRB v. Village IX, Inc., 723
F.2d 1360, 1364 (7th Cir. 1983)). It also protects this one:
“Please, don’t let this outside union force you and your
Company into a knock-down and drag-out fight!” Flamingo
Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1174 (D.C. Cir.
1998) (cleaned up). And this one: “A vote for the union would
put us back to the bargaining table which is a long and
expensive process, and who knows, we might wind [up] in
another strike.” Id. (cleaned up). Laskaris’s unelaborated
remark that “things would not be the same” after a strike is akin
to these remarks, but notably tamer.
The Board cited its precedents, though not ours, on the line
between protected speech and unprotected threats of
retaliation. Naperville, 368 N.L.R.B. No. 3, at 3. Yet even the
Board has held that statements like Laskaris’s are “too vague
and ambiguous” to constitute an unlawful threat. Phoenix
Glove Co., 268 N.L.R.B. 680, 680 n.3 (1984). For example, in
Phoenix Glove, the Board held that a supervisor could
permissibly say “that the employees did not need a union and
that they would be ‘messing up’ if they got one.” Id. Similarly,
in Ben Franklin Division of City Products Corp., 251 N.L.R.B.
1512 (1980), an employer stated that a union “‘would just mess
up the employees worse,’” and the Board concluded that the
statement was “entirely too vague and ambiguous” to constitute
an unfair labor practice. Id. at 1519. In contrast, the cases cited
by the Board here involve facially threatening language. See
3
Valmet, Inc., 367 N.L.R.B. No. 84, slip op. at 2 n.7 (Feb. 4,
2019) (“Remember that I hired you.”); Colonial Parking, 363
N.L.R.B. No. 90, slip op. at 4 (Jan. 5, 2016) (“Up until now you
and we were like family members, living in peace, in good
terms. From now on, we are not going to continue the
sentiment of family-ship.”); Ozburn-Hessey Logistics, LLC,
357 N.L.R.B. 1456, 1490 (2011) (employer “told an employee
that he did not want the employee to work” in the department
“because of the employee’s union activities” and “threatened
her with an unspecified reprisal” if she disclosed the
conversation); F.W. Woolworth Co., 310 N.L.R.B. 1197, 1200
(1993) (“if they think that I’m a bitch now, wait”).
The Board further reasoned that Laskaris’s statement was
unlawful because it did not “communicate any objective facts”
about the likely effects of a strike. Naperville, 368 N.L.R.B.
No. 3, at 3. This reasoning overreads a statement in Gissel
Packing that when an employer predicts the “precise effects”
of union activity, the prediction must rest on “objective fact.”
395 U.S. at 618. A “precise” assertion of fact, if unsupported,
could perhaps be unfairly misleading. But that concern does
not cover the kind of open-ended language at issue here. We
have thus held that section 8(c) protects “speculat[ion]” about
the possible negative outcomes of unionization. Flamingo
Hilton-Laughlin, 148 F.3d at 1174. Moreover, Gissel Packing
itself stressed that “an employer’s free speech right to
communicate his views to his employees is firmly established
and cannot be infringed by a union or the Board.” 395 U.S. at
617. And because section 8(c) ensures “free debate on issues
dividing labor and management,” Linn, 383 U.S. at 62, we
cannot leave unions “free to use the rhetoric of Mark Antony”
while limiting employers “to that of a Federal Reserve Board
chairman,” Crown Cork & Seal Co., 36 F.3d at 1140.
4
Finally, the Board reasoned that because Laskaris made
retaliatory threats three to four months after the statement at
issue, the mechanics likely understood the earlier statement as
“a foreshadowing of worse to come.” Naperville, 368
N.L.R.B. No. 3, at 3. But the lawfulness of any given statement
turns on whether it has a “reasonable tendency to coerce or to
interfere with” protected activity. Tasty Baking Co. v. NLRB,
254 F.3d 114, 124 (D.C. Cir. 2001). Here, there was no
reasonable connection between the first statement and later
ones, in time or subject matter. Laskaris’s June 2017 statement
that “things would not be the same” did not reasonably
foreshadow, say, his October 2017 threat to eat the kidney of a
former striker. So the later statements cannot fairly be used to
retroactively recharacterize the first one.
The administrative law judge reasoned that Laskaris’s
statement occurred “just before a strike.” Naperville, 368
N.L.R.B. No. 3, at 17. That is a bit of an exaggeration; Laskaris
made the statement on June 29, and the strike began on August
1. But in any event, the timing of the statement reveals nothing
about whether it was an unlawful threat of retaliation. And
because section 8(c) protects “wide-open debate in labor
disputes,” Letter Carriers, 418 U.S. at 273 (emphasis added),
we cannot temper its application precisely when the disputes
are becoming most acute.
My colleagues rest on a different theory. They contend
that Laskaris’s statement was threatening because it “arose
within a tense conversation” about an “unpopular” policy that
“burdened the workers”—namely, the requirement that
employees “pay a portion of uniform costs.” Ante at 15–16.
Neither the Board nor the ALJ mentioned this consideration in
their respective legal analyses. See Naperville, 368 N.L.R.B.
No. 3, at 3 (Board); id. at 17 (ALJ). Nor did John Bisbikis, the
employee to whom Laskaris spoke, even identify what the
5
policy was, much less connect it to any actual or perceived
threat. J.A. 143 (“I initiated the meeting to discuss some issues
that I was having in the shop, and after we talked about those
issues, he started the conversation by saying that if we went on
strike, things wouldn’t be the same.”). The policy itself was
mentioned only by Laskaris, and it involved a requirement that
employees pay half the wholesale cost of their work T-shirts,
which was “about $2 per shirt.” Id. at 197–98. In my
judgment, that contextual consideration does not transform
Laskaris’s bland and ambiguous “things would not be the
same” statement into a threat.
Deference cannot salvage the Board’s decision. It is
“firmly established” that the First Amendment, which section
8(c) implements, protects an “employer’s free speech right to
communicate his views to his employees.” Gissel Packing,
395 U.S. at 617. Appellate courts must “make an independent
examination of the whole record” in determining the scope of
free speech protections. Snyder v. Phelps, 562 U.S. 443, 453
(2011) (cleaned up); see, e.g., Peel v. Att’y Registration &
Disciplinary Comm’n, 496 U.S. 91, 108 (1990) (plurality
opinion); id. at 111–17 (Marshall, J., concurring in the
judgment); Bose Corp. v. Consumers Union, 466 U.S. 485, 508
(1984). Moreover, statutes must be interpreted to avoid serious
constitutional questions—a rule often applied to determine the
interplay between the NLRA and the First Amendment. See,
e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575–78 (1988); Bill
Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 740–43
(1983); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 499–
507 (1979). So if it were a close question whether “things
would not be the same” was an unlawful threat despite its
vagueness, ambiguity, and anodyne tone, I would resolve the
question in favor of speech rather than against it. Finally, even
if deference were otherwise appropriate, as my colleagues
6
argue, we could not uphold the Board’s decision on a rationale
different from the ones given by the agency itself. SEC v.
Chenery Corp., 318 U.S. 80, 95 (1943).
For these reasons, I would set aside the NLRB’s
determination that Laskaris committed an unfair labor practice
in telling an employee that “things would not be the same” in
the event of a strike. I agree with my colleagues that Laskaris’s
later statements were unprotected threats and that Naperville’s
other arguments lack merit. I therefore join the per curiam
opinion except for Part III.A.2, from which I respectfully
dissent.