Petition for Writ of Certiorari — Cadillac of Naperville, Inc., Petitioner v. National Labor Relations Board

Supreme Court briefFeb 22, 2022

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No. ______________

United States Supreme Court

__________

CADILLAC OF NAPERVILLE, INC.,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

__________

On Petition for Writ of Certiorari to the United

States Court of Appeal for the D.C. Circuit

__________

PETITION FOR A WRIT OF CERTIORARI

__________

Michael P. MacHarg

Tae Y. Kim

(Counsel of Record)

ADAMS AND REESE LLP

20 F Street NW, Suite 500

Washington, DC 20001

P: 202.737.3234

F: 202.737.0264

tae.kim@arlaw.com

Counsel for Petitioner

QUESTIONS PRESENTED

(1) Whether the Court of Appeal improperly

narrowed the First Amendment protection

owed employers in a labor dispute by requiring

objective factual support for an employer’s

personal speculation or opinion?

(2) Whether the Court of Appeal’s opinion—which

affirms the NLRB based on novel factual

inferences not found in the record below—

perpetuates substantial inconsistency and

confusion in the NLRB’s approach to employer

speech?

(3) Whether the NLRB’s practice of disregarding

state criminal laws respecting admission of

evidence improperly impedes the state’s

sovereignty under principles of federalism and

comity?

CORPORATE DISCLOSURE STATEMENT

Cadillac of Naperville, Inc. (“CON”) has no

parent corporation and no person or entity owns 10%

or more of its stock.

STATEMENT OF RELATED CASES

•

Cadillac of Naperville, Inc. v. National Labor

Relations Board, Nos. 19-1150/19-1167, U.S.

Court of Appeals for the D.C. Circuit.

Judgment entered September 17, 2021.

•

Cadillac of Naperville, Inc. and Automobile

Mechanics Local 701, International

Association of Machinists & Aerospace

Workers, AFL-CIO, No. 13-CA-207245,

National Labor Relations Board. Decision and

Order entered June 12, 2019.

•

Cadillac of Naperville, Inc. and Automobile

Mechanics Local 701, International

Association of Machinists & Aerospace

Workers, AFL-CIO, No. 13-CA-207245, JD-4118, National Labor Relations Board, Division

of Judges. Decision entered June 19, 2018.

iii

TABLE OF CONTENTS

Page(s)

QUESTIONS PRESENTED ........................................ i

CORPORATE DISCLOSURE STATEMENT ............ii

STATEMENT OF RELATED CASES .......................ii

TABLE OF CONTENTS ........................................... iii

TABLE OF APPENDICES ......................................... v

TABLE OF AUTHORITIES ..................................... vii

OPINIONS AND ORDERS BELOW.......................... 1

STATEMENT OF JURISDICTION ........................... 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................... 3

STATEMENT OF THE CASE .................................... 4

REASONS TO GRANT THE WRIT ........................... 7

1. The Court of Appeal improperly

narrowed the scope of protected

employer speech under 29 U.S.C.

§ 158(c) and the First Amendment .................. 7

A. Gissel Packing does not require

an employer’s non-factual

statement to be supported by

“objective facts” ........................................... 8

B. By finding Laskaris’s words are

not entitled to First Amendment

Protection, the Court of Appeal

perpetuated the NLRB’s inconsistent

rulings concerning employer speech ........ 11

TABLE OF CONTENTS – CONTINUED

Page(s)

2. This Court should vacate the Court

of Appeal’s decision affirming the

admission of illegally obtained

evidence below ..................................................... 16

CONCLUSION.......................................................... 18

TABLE OF APPENDICES

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

DIST RICT OF COLU MBI A CIRCU IT ,

DATED NOVEMBER 20, 2020 .................................. 1a

APPENDIX B — OPINION OF THE

NATIONAL LABOR RELATIONS BOARD,

DATED JUNE 12, 2019 ............................................. 34a

APPENDIX C — DECISION OF THE

NATIONAL LABOR RELATIONS BOARD,

DIVISION OF JUDGES, DATED JUNE 19,

2018 ............................................................................. 138a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT, FILED NOVEMBER

22, 2021 ....................................................................... 221a

TABLE OF AUTHORITIES

CASES

Adtranz ABB Daimler-Benz Transp., N.A., Inc. v.

NLRB, 253 F.3d 19 (D.C. Cir. 2001).................. 18

Am. Lung Ass’n v Environmental Prot. Agency,

985 F.3d 914 (D.C. Cir. 2021) ............................. 18

Ben Franklin Division of City Products, Corp.,

251 NLRB 1512 (N.L.R.B. 1980) .................. 13, 14

Cadillac of Naperville v. NLRB,

14 F.4d 703 (D.C. Cir. 2021) ....................... passim

Cadillac of Naperville, Inc.,

368 NLRB No. 3 (N.L.R.B. 2019) ....... 6, 12, 13, 14

Cadillac of Naperville, Inc.,

2018 WL 3047010 (N.L.R.B. Div. of Judges

June 19, 2018) ....................................................... 6

Chamber of Commerce of U.S. v. Brown,

554 U.S. 60 (2008) ............................................. 8, 9

Crown Cork & Seal Co. v. NLRB,

36 F.3d 1130 (D.C. Cir. 1994) ......................... 9, 15

Dombrowski v. Pfister,

380 U.S. 479 (1965) ............................................. 18

Flamingo Hilton-Laughlin v. NLRB,

148 F.3d 1166 (D.C. Cir. 1998) ..................... 10, 11

vii

TABLE OF AUTHORITIES – CONTINUED

Letter Carriers v. Austin,

418 U.S. 264 (1974) ............................................... 9

Linn v. Plant Guard Workers,

383 U.S. 53 (1966) ................................................. 9

Mapp v. Ohio,

367 U.S. 643 (1961) ............................................. 17

NLRB v. Enterprise Ass’n,

429 U.S. 507, 531 (1977) ..................................... 13

NLRB v. Gissel Packing Co.,

395 U.S. 575 (1969) ..................................... passim

NLRB v. General Elec. Co.,

418 F.2d 736 (2d Cir. 1969) ............................ 9, 15

NLRB v. Golub Corp.,

388 F.2d 921 (2d Cir. 1967) .................................. 9

NLRB v. S&H Grossinger’s, Inc.,

372 F.2d 26 (2d Cir. 1967) .................................. 14

NLRB v. Virginia Elec. & Power Co.,

314 U.S. 469 (1941) ............................................... 8

Orange Cty. Publications,

334 NLRB 350 (N.L.R.B. 2001) .......................... 18

People v. Ceja,

814 N.E.2d 171 (Ill. Ct. App. 2004) .................... 17

viii

TABLE OF AUTHORITIES – CONTINUED

Phoenix Glove Co.,

268 NLRB 680 (N.L.R.B. 1984) .......................... 13

Safeway Trails, Inc. v. NLRB,

641 F.2d 930 (D.C. Cir. 1979) ............................. 15

SEC v. Chenery Corp.,

318 U.S. 80 (1943) ..................................... 8, 12, 13

Tasty Baking Co. v. NLRB,

254 F.3d 114 (D.C. Cir. 2001) ............................. 14

Thomas v. Collins,

323 U.S. 516 (1945) ......................................... 8, 11

Trinity Servs. Group, Inc. v. NLRB,

998 F.3d 978 (D.C. Cir. 2021) ............................. 11

U.S. Airways v. Nat’l Mediation Bd.,

177 F.3d 985 (D.C. Cir. 1999) ............................. 15

Williams Gas Processing-Gulf Coast Co. v. FERC,

373 F.3d 1335 (D.C. Cir. 2004) ........................... 13

STATUTES AND RULES

U.S. CONST. amend. I .................................................. 3

29 U.S.C. § 158 .............................................. 4, 7, 8, 11

29 U.S.C. § 160 ...................................................... 6, 17

Ill. St. Ch. 720 § 5/14-2 ............................................. 17

OPINIONS AND ORDERS BELOW

The Decision of the Administrative Law Judge

issued on June 19, 2018, may be found at 2018 WL

3047010 (N.L.R.B. Div. of Judges June 19, 2018) and

is reprinted as Appendix C hereto (138a-220a). The

National Labor Relations Board’s June 12, 2019

Decision and Order is reported at 368 NRLB No. 3

(N.L.R.B. 2019) and is attached as Appendix B (34a137a). The United States Court of Appeals for the

D.C. Circuit issued its decision on September 17,

2021. This decision is reported at 14 F.4th 703 (D.C.

Cir. 2021), and reprinted as Appendix A (1a-33a)

hereto. Finally, the D.C. Circuit issued an order

denying rehearing en banc on November 22, 2021.

That order is reprinted as Appendix D (221a-222a).

STATEMENT OF JURISDICTION

The United States Court of Appeals for the

D.C. Circuit issued its decision on September 17,

2021, and denied rehearing en banc on November 22,

2021. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment of the United States

Constitution States provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting

the free exercise thereof, or abridging the

freedom of speech, or of the press, or the

right of the people peaceably to assemble,

and to petition the Government for a

redress of grievances.

U.S. CONST. amend. I.

The National Labor Relations Act, 29 U.S.C.

§§ 151 et seq. states in relevant part as follows:

(a) Unfair labor practices by

employer

It shall be an unfair labor practice for an

employer—

(1) to interfere with, restrain, or

coerce employees in the exercise of

the rights guaranteed in section

157 of this title;

***

threat of reprisal or force or promise

of benefit

The expressing of any views, argument,

or opinion, or the dissemination thereof,

whether in written, printed, graphic, or

visual form, shall not constitute or be

evidence of an unfair labor practice under

any of the provisions of this subchapter, if

such expression contains no threat of

reprisal or force or promise of benefit.

29 U.S.C. § 158(a)(1), (c).

STATEMENT OF THE CASE

This case provides an opportunity to confront

significant overreach by the NLRB on the First

Amendment rights of employers. More than fifty

years ago, in NLRB v. Gissel Packing Co., 395 U.S.

575, 616-18 (1969), this Court outlined the limited

circumstances under which an employer’s free speech

rights may be curtailed during a labor dispute. This

Court openly affirmed the premise that employers

must be free to communicate their general views

about unionism or other labor activities, requiring

only that statements purporting to describe the

“precise effects” of unionization be supported by

“objective facts.

But the D.C. Circuit’s decision below

represents a substantial departure from Gissel

Packing. The NLRB took a vague statement of

pessimism by an employer—that things “would not

be the same” if a strike occurred—and transformed it

into an unlawful threat of reprisal. It did so by

admonishing the employer that this decidedly nonfactual statement must nevertheless be supported by

objective facts.

For its part, the Court of Appeal perpetuated

this fiction, deriving novel factual inferences not

found in the record below to support the NLRB’s

conclusion. This holding represents a growing

encroachment by the NLRB on employers’ First

Amendment Rights that both Congress and this

Court have taken great care to preserve.

The pertinent facts of this case are as follows:

CON is an automobile dealership in Naperville,

Illinois. Cadillac of Naperville v. NLRB, 14 F.4d 703,

710 (D.C. Cir. 2021); (2a). It is a member of the New

Car Deal Committee (“NCDC”), a multiemployer

bargaining unit including employees in 129

dealerships in the Chicago area. Id.; (2a-3a). 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 across the dealerships. Id.;

(3a).

In May of 2017, the NCDC and the union

began to negotiate a new collective-bargaining

agreement. Id.; (3a). The union negotiators included

CON mechanic John Bisbikis. Id.; (3a).

On June 29, Bisbikis approached Frank

Laskaris, the owner and president of CON, to discuss

shop-related issues. Id.; (3a). When that portion of

the conversation ended, their discussion turned to

ongoing labor negotiations. Id.; (3a). Laskaris told

Bisbikis that “things would not be the same” if the

mechanics decided to strike. Id.; (3a). On August 1,

after the collective-bargaining agreement expired,

mechanics at the NCDC dealerships went on strike.

Id.; (3a).

At a staff meeting in early October—after the

strike ended and a new collective bargaining

agreement was reached—Laskaris talked extensively

about the strike and its aftermath. Id. at 711; (5a).

One mechanic secretly made a recording of the

meeting, which the NLRB later admitted into

evidence. Id.; 6(a). The tape became the basis of

several unfair labor practices alleged by the NLRB.

The union filed a complaint against CON. Id.

at 712; (6a). After a hearing, the administrative law

judge found CON had committed several unfair labor

practices. Cadillac of Naperville, Inc., 2018 WL

3047010 (N.L.R.B. Div. of Judges June 19, 2018);

(207a-208a). Among them, the ALJ concluded

Laskaris violated section 8(a)(1) of the NLRA by

telling Bisbikis that “things would not be the same” if

the mechanics went on strike. Id.; (207a).

The NLRB affirmed these findings. Cadillac of

Naperville, Inc., 368 N.L.R.B. No. 3, at *2-*4

(N.L.R.B. 2019); (38a-46a). CON subsequently

sought review of the NLRB's decision in the D.C.

Circuit. The Court of Appeal’s jurisdiction was

proper pursuant to 29 U.S.C. § 160(e) and (f). The

court, however, affirmed the NLRB and denied

CON’s Petition for Rehearing En Banc.

REASONS TO GRANT THE WRIT

The Court of Appeal improperly

narrowed the scope of protected

employer speech under 29 U.S.C. § 158(c)

and the First Amendment.

Nearly five weeks before collective bargaining

efforts failed and a strike commenced, CON’s owner,

Frank Laskaris, had a conversation with mechanic

and union negotiator, John Bisbikis. Bisbikis

initiated the dialog to talk about “shop-related

issues.” Naperville, 14 F.4d at 710; (3a). After that

discussion ended, Laskaris raised the issue of labor

negotiations. Id.; (3a). He told Bisbikis that if the

employees went on strike, “things would not be the

same.” Id.; (3a). The NLRB did not find this

statement was delivered in an aggressive manner.

Yet the Court of Appeal concluded Laskaris’s

words were an unlawful threat and unfair labor

practice under 29 U.S.C. § 158(a)(1). Naperville, 14

F.4d at 715-19 (16a-23a). This holding is error for

two reasons. First, the Court of Appeal misread this

Court’s opinion in NLRB v. Gissel Packing Co., 395

U.S. 575, 616-18 (1969) to impose a novel

requirement that an employer’s statement, even

when it does not reference specific adverse economic

consequences, must nevertheless be based on

“objective fact.” In doing so, the created an entirely

new category of non-factual employer statements not

entitled to critical First Amendment protection.

Second, the Court of Appeal improperly

concluded Laskaris’s statements constitute an

unlawful “threat of reprisal.” It did so despite the

NLRB’s own precedents finding more direct and

offensive speech was protected by the First

Amendment. Moreover, the Court of Appeal relied

on novel factual inferences to give context to

Laskaris’s words, thereby disregarded this Court’s

instruction in SEC v. Chenery Corp., 318 U.S. 80, 87

(1943) that “an administrative order must be

judged… upon [those grounds] which the record

discloses that [the agency’s] action was based.” With

the court’s blessing, the NLRB twisted Laskaris’s

vaguely pessimistic forecast into a statement of

certain doom, which the court then condemned as

unsupported by fact. This holding renders the free

speech guarantees of Section 8(c) and the First

Amendment wholly illusive for employers opposing

unionization efforts.

A. Gissel Packing does not require an

employer’s non-factual statement to be

supported by “objective facts”

Section 8(c) guarantees that the expression “of

any views, argument, or opinion” by an employer is

neither an unfair labor practice, nor evidence of an

unfair labor practice, “if such expression contains no

threat of reprisal or force or promise of benefit.” 29

U.S.C. § 158(c). This provision was added to the Act

for the express purpose of remedying the NLRB’s

historical overreach in restricting employer speech.

See Chamber of Commerce of U.S. v. Brown, 554 U.S.

60, 67 (2008). Indeed, this Court would later confirm

that Section 8(c) guaranteed the First Amendment

right of employers to engage in non-coercive speech

about unionization. Thomas v. Collins, 323 U.S. 516,

537-38 (1945) (citing NLRB v. Virginia Elec. & Power

Co., 314 U.S. 469, 477 (1941)).

But the enactment of Section 8(c) did more

than “merely implement[] the First Amendment.”

Brown, 554 U.S. 60, 67 (quoting Gissel Packing, 395

U.S. at 617). It also manifested “congressional intent

to encourage free debate on issues dividing labor and

management.” Id. (quoting Linn v. Plant Guard

Workers, 383 U.S. 53, 62 (1966)). “It is indicative of

how important Congress deemed such ‘free debate’

that [it] amended the NLRA rather than leaving to

the courts task of correcting the NLRB’s decisions on

a case-by-case basis.” Id. This policy judgment

demonstrates that “freewheeling use of the written

and spoken word… has been expressly fostered by

Congress and approved by the NLRB.” Id. (quoting

Letter Carriers v. Austin, 418 U.S. 264, 272-73

(1974)). These cases firmly underscore Congress’s

intent to jealously guard employers’ First

Amendment rights in labor cases.

The Courts of Appeal have historically heeded

this call. In Crown Cork & Seal Co. v. N.L.R.B., 36

F.3d 1130, 1134 (D.C. Cir. 1994), for instance, the

D.C. Circuit read Gissel Packing to identify two types

of statements the NLRB may penalize “without

encroaching on the employer’s First Amendment

rights.” First, the Board may condemn a “threat of

reprisal.” Id. A threat of reprisal is a high bar. It “is

not merely a prediction that adverse consequences

will develop[,] but a threat that they will be

deliberately inflicted in return for an injury-to return

evil for evil.” Id. at 1138 (emphasis in original)

(quoting NLRB v. Golub Corp., 388 F.2d 921, 928 (2d

Cir. 1967)). In other words, it is the speaker’s motive

that controls. See id.; see also NLRB v. General Elec.

Co., 418 F.2d 736, 761 (2d Cir. 1969) (noting the

NLRA “depends heavily on evaluation of motive and

intent”).

Second, the NLRB may punish “at least some

predictions of adverse economic consequences,” but

only those which “suggest that the action will occur

not because of the ordinary operations of a market

economy [], but because the employer, for reasons of

labor strategy, will seek to penalize concerted

activity.” Id. at 1134. By its own terms, this second

category applies only where an employer has

predicted particular economic damage as a result of

union efforts. Accordingly, these statements must be

“carefully phrased on the basis of objective fact to

convey an employer’s belief as to demonstrably

probable consequences beyond his control….” Gissel

Packing, 395 U.S. at 618.

The court below substantially confused this

framework. It should have considered only whether

Laskaris’s statement falls within the first category of

restricted speech—whether it constitutes a “threat of

reprisal.” The second category was not in play. After

all, Laskaris’s assertion that “things would not be the

same,” has no economic component. Yet the court—

like the NLRB before it—incorrectly evaluated

Laskaris’s statement under the second category,

concluding it was unlawful because it did not

“communicate any objective facts or predictions as to

the effects of a potential strike.” Naperville, 14 F.4d

at 715-19 (16a-23a) (quotation marks omitted).

By requiring Laskaris’s statement to contain

“objective facts” in order to be lawful, the court

effectively excluded statements that are not intended

to convey facts from Section 8(c)’s protection. While

it is certainly true that a factual statement

predicting the “precise effects” of union activity must

not be misleading, no such statement was made here.

See Gissel Packing, 395 U.S. at 618. And it is wellsettled that non-factual statements, such as

speculation or opinions are indeed protected, and

need not be based on objective fact. Flamingo Hilton-

Laughlin v. NLRB, 148 F.3d 1166, 1174 (D.C. Cir.

1998) (“concluding Section 8(c) protected a statement

speculating about the potential duration of

bargaining negotiations); Thomas, 323 U.S. at 537

(holding that the First Amendment rights of

employers necessarily require not just the right to

“merely describe facts,” but to “persuade to action.”)

In fact, “§8(c) unambiguously protects ‘any views,

argument, or opinion’—even those that the agency

finds misguided, flimsy or daft.” Trinity Servs.

Group, Inc. v. NLRB, 998 F.3d 978, 981 (D.C. Cir.

2021) (emphasis in original) (quoting 29 U.S.C. §

158(c)).

Laskaris’s statement, however “flimsy,” should

have been protected by the First Amendment. But

the Court of Appeal instead imposed a new standard

of precision on employers—requiring specific factual

support for any statement referencing future events.

This Court should grant this Petition to correct the

Court of Appeal’s misreading of Gissel Packing.

By finding Laskaris’s words are not

entitled to First Amendment

Protection, the Court of Appeal

perpetuated the NLRB’s inconsistent

rulings concerning employer speech.

The Court of Appeal also erred in another

respect: it upheld the Board’s holding despite the

absence of substantial evidence to support it. The

NLRB, in fact, cited only two reasons for its

conclusion that Laskaris committed an unfair labor

practice: (1) his statement was not based on

“objective facts” under Gissel Packing and (2) it was

made roughly one month before the strike

commenced. Naperville, 368 NLRB No. 3 at *3 (41a-

42a). The NLRB offered no other facts or context to

show Laskaris’s words were the product of a

retaliatory motive. See id.; (41a-42a).

But if this Court rejects the NLRB’s reliance

on Gissel Packing’s “adverse economic consequences”

framework, all that remains is the bare assertion

that Laskaris’s statement occurred several weeks

before a strike. See id. This alone is not substantial

evidence of motive, and the NLRB found no other

facts to show Laskaris’s statement was an unlawful

threat of reprisal.

Yet the Court of Appeal drew its own, novel

factual inferences from the record to support the

NLRB’s conclusion. Specifically, the court noted

Laskaris’s statement was made “after [Bisbikis]

pressed his objection to a new workplace policy that

required workers to pay part of the cost of their

uniforms.” Naperville, 14 F.4d at 716 (17a).

“Laskaris,” the court held, “chose to link the

potential strike and its consequences to the

discussion of an unpopular new employer-imposed

policy.” Id.; (17a).

But the NLRB never found a “link” between

the policy discussed at the June 29 meeting and

Laskaris’s subsequent statement. See Naperville,

368 NLRB at *3; (41a-42a). Nor did Bisbikis testify

that any connection existed. Bisbikis, in fact, did not

even identify the policy he and Laskaris discussed. 1

The court’s contextualization, therefore disregards

the express mandate of Chenery, which requires that

“[t]he grounds upon which an administrative order

1 It was Laskaris who explained at trial that this

allegedly “unpopular” policy required employees to pay about $2

each for their work shirts.

must be judged are those upon which the record

discloses that its action was based.” 318 U.S. at 87.

Indeed, “[i]t is axiomatic that [appellate courts] may

uphold agency orders based only on reasoning that is

fairly stated by the agency in the order under

review.” Williams Gas Processing-Gulf Coast Co. v.

FERC, 373 F.3d 1335, 1345 (D.C. Cir. 2004).

Without the court’s novel inferences, there is

no substantial evidence of retaliatory motive.2

Indeed, dissenters on both the Board and Court of

Appeal recognized the impossibility of establishing

motive based only on Laskaris’s words. Both Board

Member Emanuel and Judge Katsas would have held

Laskaris’s statement was too vague to be

threatening. Naperville, 368 NLRB No. 3 at *3 n.7;

(42a); Naperville, 14 F.4d at 721; (27a). In fact, in

dissent, Judge Katsas emphasized the Board’s own

precedents substantiating that statements like this

one are not threatening.

In Phoenix Glove, for instance, the Board held

a supervisor did not make an unlawful threat when

saying “that the employees did not need a union and

that they would be ‘messing up’ if they got one.”

Naperville, 14 F.4d. at 721; (29a); Phoenix Glove Co.,

268 NLRB 680, 680 n.3 (N.L.R.B. 1984). The Board

reasoned this statement was “too vague and

ambiguous” to constitute a threat. Id. Likewise, in

Ben Franklin, a statement that the union “would just

mess up the employees worse” was too vague to be

threatening. Ben Franklin Division of City

Products, Corp., 251 NLRB 1512 (N.L.R.B. 1980).

2 NLRB findings must be supported by substantial

evidence in order to be affirmed. NLRB v. Enterprise Ass’n of

Steam, Hot Water, Hydraulic Sprinkler, Pneumatic Tube, Ice

Machine and General Pipefitters of New York and Vicinity,

Local Union No. 638, et al, 429 U.S. 507, 531 (1977).

The Board’s holdings in these prior cases, Judge

Katsas rightly noted, should have controlled its

decision here.

Courts of Appeal, too, have been resistant to

find an unlawful threat when confronted with

statements too vague to discern their meaning. The

Second Circuit, for instance, declined to find

unlawful threats where management made “several

vague and general statements of pessimism about

the future progress and growth of [the employer] if

the Union should win the election.” NLRB v. S&H

Grossinger’s, Inc., 372 F.2d 26, 28 (2d Cir. 1967).

These statements, the court observed, “seem to have

been prophecies of a somewhat shadowy doom”

rather than a legitimate threat of reprisal. Id.

Laskaris’s words are likewise too vague to ascribe

them any particular meaning. Under these

circumstances, his statement was entitled to Section

8(c)’s protections.

Further, neither the NLRB nor the Court of

Appeal should have considered Laskaris’s after-thefact conduct to determine whether his June 29

statement was unlawful. Citing allegedly

threatening statements made by Laskaris some 3-4

months after the June 29 statement was made, the

Board held the employees surely understood the

earlier statement as “a foreshadowing of worse to

come.” Naperville, 368 NLRB No. 3, at *3; (42a).

This conclusion, however, impermissibly credits the

employees with clairvoyance. As the dissent noted,

“the lawfulness of any given statement turns on

whether it has a ‘reasonable tendency to coerce or to

interfere with’ protected activity.” Naperville, 14

F.4d at 722; (31a) (emphasis in original); (quoting

Tasty Baking Co. v. NLRB, 254 F.3d 114, 124 (D.C.

Cir. 2001)). Moreover, Section 8(c) was drafted

specifically to prevent “the Board’s practice of

inferring the existence of an unfair labor practice

from a totally unrelated speech or opinion delivered

by the employer.” Safeway Trails, Inc. v. NLRB, 641

F.2d 930, 933 (D.C. Cir. 1979) (citing General Electric

Co., 418 F.2d at 760). In other words, the Act

purposefully imposes “a rule of relevancy on the

Board in evaluating the legality of statements by

parties to a labor dispute.” Id. By allowing the

Board to rely on unrelated events occurring months

into the future to prove the “threatening” nature of

Laskaris’s speech, the Court of Appeal disregarded

the statute’s express language and purpose.

Ultimately, Laskaris’s vague expression of

pessimism about a potential strike carried with it no

inherent promise of employer-led retaliation.

Instead, it merely conveyed Laskaris’s opinion that a

strike would not be beneficial, in an apparent

attempt to persuade Bisbikis to see his point of view.

But “[i]f the Board may take management

statements that … assert a risk, twist them into

claims of absolute certainty, and then condemn them

on the ground that as certainties they are

unsupported, the free speech right is a pure illusion.”

Crown Cork, 36 F.3d 1130 at 1140.

It is likely true that Laskaris “might have

explained more precisely” what he meant when he

expressed to Bisbikis that “things [would] not be the

same” if a strike occurred. U.S. Airways v. Nat’l

Mediation Bd., 177 F.3d 985, 993-94 (D.C. Cir. 1999).

“But if unions are free to use the rhetoric of Mark

Antony while employers are limited to that of a

Federal Reserve Board chairman, … the employer’s

speech is not free in any practical sense.” Id.

(quoting Crown Cork, 36 F.3d at 1140). Employers

should not be held to an exacting standard of

rhetorical precision in order to claim the protections

owed them under Section 8(c) and the First

Amendment. Nor should an employer lose the rights

guaranteed him by the Constitution and laws where

the enforcing agency failed to produce substantial

evidence that his speech was properly subject to

restriction.

Requiring an employer to support his

decidedly non-factual statements with objective facts

is not only confusing, but empowers the NLRB to

restrict employer speech in a manner inconsistent

with the “freewheeling” and open debate intended by

Congress and guaranteed by the First Amendment.

This Court should therefore vacate the Court of

Appeal’s opinion and restore to Laskaris—and to all

employers—the right to make open-ended, nonfactual statements about the impact of union activity

where there is no substantial evidence showing a

threat of reprisal was made.

2. This Court should vacate the Court of

Appeal’s decision affirming the admission

of illegally obtained evidence below.

On October 6, 2017, after the strikers returned

to work at CON, Laskaris held a staff meeting.

Unbeknownst to Laskaris, and without his

permission, one of the mechanics secretly recorded

the meeting. This recording was admitted into

evidence at trial over CON’s objection. Ultimately,

the Court of Appeal affirmed three NLRA violations

based on the content of the recording.

CON argued on appeal that the recording

should not have been admitted into evidence, noting

that recordings made without the consent of both

parties is a criminal act under Illinois state law. See

Ill. St. Ch. 720 § 5/14-2. The Court of Appeal rejected

CON’s arguments. It noted the Federal Rules of

Evidence make relevant evidence admissible “unless

the United States Constitution, a federal statute, the

Rules themselves, or other rules prescribed by the

Supreme Court provide otherwise.” Naperville, 14

F.4d at 713; (10a) (quotation marks omitted) (citing

29 U.S.C. § 160(b)). Reasoning that a violation of

state law is not among the bases for exclusion of

relevant evidence, the court concluded the ALJ

properly admitted the recording. See id.

This analysis, however, is flawed. The right to

have illegally obtained evidence excluded from

judicial proceedings, even in the criminal context,

does not find its genesis in the Rules of Evidence.

Instead, it arises from the substantive rights of the

affected party. See Mapp v. Ohio, 367 U.S. 643, 649

(1961). The court’s examination of the Rules,

therefore, does not fully resolve the issues raised by

CON’s objection to the NLRB’s use of the recording.

Under controlling substantive law, the Illinois

state legislature determined that conversations

between two parties should not be recorded without

the consent of both. Ill. St. Ch. 720 § 5/14-2. This

law is plainly intended for the protection of the

individual without whose consent the recording is

made. Accordingly, Illinois courts strictly construe

this prohibition, suppressing such recordings in

criminal proceedings. See, e.g., People v. Ceja, 814

N.E.2d 171, 173 (Ill. Ct. App. 2004). The statute and

the cases enforcing it demonstrate the state’s

vigorous commitment to preventing unlawful

recordings.

The NLRB, however, routinely admits

evidence, including recordings, obtained in

contravention of state law. Orange Cty. Publications,

334 NLRB 350, 354 (N.L.R.B. 2001). The Court of

Appeal, however, was not bound by erroneous NLRB

precedents. Adtranz ABB Daimler-Benz Transp.,

N.A., Inc. v. NLRB, 253 F.3d 19, 26 (D.C. Cir. 2001).

Nor is this Court. Principles of comity and

federalism suggest that state restrictions on illegally

obtained evidence should apply equally in

proceedings by a federal agency in the affected state.

Holding otherwise offends the states’ rights as

sovereigns in their own jurisdictions to prevent the

illegal recording of their citizens. See Am. Lung

Ass’n v Environmental Prot. Agency, 985 F.3d 914,

968 (D.C. Cir. 2021) (explaining that federalism

allows the States to retain substantial sovereign

powers with which the federal government does not

typically interfere). Indeed, criminal law is one of

many areas of traditional state responsibility that

the Board should not be free to invade. Dombrowski

v. Pfister, 380 U.S. 479, 484 (1965) (“federal

interference with a State’s good-faith administration

of its criminal laws is peculiarly inconsistent with

our federal framework”). By allowing admission of

an illegally recorded conversation, the Board

frustrates the State’s attempts to end this practice.

Based on the interest this Court has in

preserving the right of states to enforce criminal laws

as their respective legislatures deem fit, it should grant

CON’s petition, reverse the Court of Appeal’s holding,

and find the recording was improperly admitted.

CONCLUSION

By granting CON’s Petition for Writ of

Certorari, this Court can clarify the reach of Gissel

Packing and reaffirm the free speech rights of

employers during labors disputes. Specifically, nonfactual statements or statements that are too vague

to constitute definitive threats of reprisal should be

entitled to First Amendment protection.

Further, this Petition presents an opportunity

for the Court to end the NLRB’s longtime practice of

admitting evidence obtained in violation of state law.

This Court should not countenance the agency’s

continued interference with the states’

administration of their criminal laws.

For these reasons, CON respectfully requests

that this Court grant its Petition.

Respectfully submitted, this the 22nd day of

February, 2022.

CADILLAC OF

NAPERVILLE, INC.

/s/ Tae Y. Kim

Michael P. MacHarg

Tae Y. Kim

(Counsel of Record)

ADAMS AND REESE LLP

20 F Street NW, Suite 500

Washington, DC 20001

P: 202.737.3234

F: 202.737.0264

tae.kim@arlaw.com

Counsel for Petitioner

APPENDIX

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT,

DATED NOVEMBER 20, 2020

UNITED STATES COURT OF APPEALS,

DISTRICT OF COLUMBIA CIRCUIT

November 20, 2020, Argued;

September 17, 2021, Decided

No. 19-1150 Consolidated with 19-1167

CADILLAC OF NAPERVILLE, INC.,

Petitioner,

NATIONAL LABOR RELATIONS BOARD,

Respondent.

Before: Millett, Pillard, and Katsas, Circuit Judges.

OPINION

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’

Appendix A

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.

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) makes it unlawful

“to refuse to bargain collectively” with a union. Id. § 158(a)

(5).

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

Appendix 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, AFLCIO, 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 shoprelated 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 preferential hiring list, but only if they

Appendix A

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 collectivebargaining 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

Appendix A

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 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

Appendix A

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 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.

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

Appendix A

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.

The NLRB aff irmed these f indings 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, 439 U.S. App. D.C. 454 (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

Appendix A

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).

Naperville first challenges two evidentiary rulings

made by the ALJ. We review such rulings only for abuse

of discretion, and we require prejudice to set them aside.

See Napleton 1050, Inc. v. NLRB, 976 F.3d 30, 39, 449 U.S.

App. D.C. 429 (D.C. Cir. 2020).

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

Appendix A

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, 427 U.S. App. D.C. 283 (D.C. Cir. 2017)

(quoting Huthnance v. District of Columbia, 722 F.3d

371, 381, 406 U.S. App. D.C. 110 (D.C. Cir. 2013)). Here,

although Naperville bore the burden of showing prejudice,

see Desert Hosp. v. NLRB, 91 F.3d 187, 190, 319 U.S. App.

D.C. 383 (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.

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).

10a

Appendix A

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, 356 U.S. App. D.C. 417

(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, 60 S. Ct. 269, 84 L. Ed. 298 (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.

11a

Appendix A

United States, 302 U.S. 379, 380-82, 58 S. Ct. 275, 82

L. Ed. 314 (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 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, 399 U.S. App. D.C. 399 (D.C. Cir. 2012) (cleaned

up), but not a “rubber stamp,” Circus Circus Casinos, Inc.

v. NLRB, 961 F.3d 469, 484, 447 U.S. App. D.C. 164 (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, 400 U.S. App. D.C. 297 (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).

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, 310 U.S. App. D.C. 409 (D.C. Cir. 1995).

12a

Appendix 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, 349 U.S. App. D.C. 37 (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 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.

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.

13a

Appendix 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 not “patently

insupportable,” Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243,

1246, 307 U.S. App. D.C. 376 (D.C. Cir. 1994) (quoting

NLRB v. Creative Food, 852 F.2d 1295, 1297, 271 U.S.

App. D.C. 328 (D.C. Cir. 1988)).

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

14a

Appendix A

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.

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. 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,

15a

Appendix A

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.

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.

16a

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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

17a

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the guise of innocent prognostication. NLRB v. Gissel

Packing Co., 395 U.S. 575, 618, 89 S. Ct. 1918, 23 L. Ed.

2d 547 (1969). Instead, the employer’s comments must

be “carefully phrased on the basis of objective fact to

convey an employer’s belief as to 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, 378 U.S. App. D.C. 325 (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,

326 U.S. App. D.C. 73 (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

18a

Appendix A

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)).

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,

260 U.S. App. D.C. 374 (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.

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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 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

20a

Appendix A

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, 417 U.S. App. D.C. 331 (D.C. Cir. 2015);

see, e.g., Ebenezer Rail Car Servs., Inc., 333 N.L.R.B.

167, 167 n.2 (2001) (holding that 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

21a

Appendix A

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 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

22a

Appendix A

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.

Fi rst , Naper v i l le has never a rg ued — t o 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 U.S. 301,

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, 131 S. Ct. 1207, 179

L. Ed. 2d 172 (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.

23a

Appendix A

311 n.10, 99 S. Ct. 1123, 59 L. Ed. 2d 333 (1979) (quoting

29 U.S.C. § 160(e)); see also Sims v. Apfel, 530 U.S. 103,

108, 120 S. Ct. 2080, 147 L. Ed. 2d 80 (2000); U-Haul Co.

of Nevada, Inc. v. NLRB, 490 F.3d 957, 963, 377 U.S. App.

D.C. 4 (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.

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, 357 U.S.

App. D.C. 261 (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, 397 U.S. App. D.C. 290 (D.C. Cir. 2011). Here,

the Board found that Naperville violated section 8(a)(3)

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Appendix A

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 intervening decision in General Motors. There, the

Board held that mixed-motive terminations should be

assessed under Wright Line rather than General Motors,

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, 438 U.S. App. D.C. 230 (D.C. Cir.

2018). An agency may obtain a remand without confessing

error, so long as it genuinely intends “to reconsider, rereview or modify” its original decision. Limnia, Inc. v.

Dep’t of Energy, 857 F.3d 379, 387, 429 U.S. App. D.C.

118 (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, 448 U.S. App. D.C.

101 (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

25a

Appendix A

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 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.

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.

26a

Appendix A

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, 111 S. Ct. 2215,

115 L. Ed. 2d 177 (1991).

Here, Naperville did just that. The successor collectivebargaining agreement, which applied to Naperville at all

relevant times, granted the union access to the dealership

to 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, 65 S. Ct. 982, 89 L.

Ed. 1372 (1945). Although that case recognized conditions

27a

Appendix A

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

We remand the unlaw ful 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.

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.

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, 381 U.S. App. D.C. 37 (D.C. Cir. 2008).

28a

Appendix A

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, 128 S. Ct. 2408, 171

L. Ed. 2d 264 (2008) (quoting NLRB v. Gissel Packing

Co., 395 U.S. 575, 617, 89 S. Ct. 1918, 23 L. Ed. 2d 547

(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, 86 S.

Ct. 657, 15 L. Ed. 2d 582 (1966), and “favor[s] uninhibited,

robust, and wide-open debate in labor disputes,” Letter

Carriers v. Austin, 418 U.S. 264, 273, 94 S. Ct. 2770, 41

L. Ed. 2d 745 (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, 308 U.S. App. D.C. 326 (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) 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

29a

Appendix A

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, 163 U.S. App. D.C.

308 (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,

331 U.S. App. D.C. 312 (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

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Appendix A

the Board here involve facially threatening language. See

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

31a

Appendix A

Antony” while limiting employers “to that of a Federal

Reserve Board chairman,” Crown Cork & Seal Co., 36

F.3d at 1140.

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,

349 U.S. App. D.C. 37 (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

32a

Appendix A

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 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, 131 S. Ct. 1207, 179 L. Ed. 2d

172 (2011) (cleaned up); see, e.g., Peel v. Att’y Registration

& Disciplinary Comm’n, 496 U.S. 91, 108, 110 S. Ct. 2281,

110 L. Ed. 2d 83 (1990) (plurality opinion); id. at 111-17

(Marshall, J., concurring in the judgment); Bose Corp. v.

Consumers Union, 466 U.S. 485, 508, 104 S. Ct. 1949, 80 L.

Ed. 2d 502 (1984). Moreover, statutes must be interpreted

33a

Appendix A

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, 108 S. Ct. 1392, 99 L. Ed. 2d 645

(1988); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S.

731, 740-43, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983); NLRB

v. Catholic Bishop of Chi., 440 U.S. 490, 499-507, 99 S. Ct.

1313, 59 L. Ed. 2d 533 (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 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, 63 S. Ct. 454, 87 L. Ed. 626 (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.

34a

Appendixof

B the national

Appendix b — opinion

labor relations board, dated

june 12, 2019

National Labor Relations Board (N.L.R.B.)

Case 13-CA-207245

Cadillac of Naperville, Inc

and

Automobile Mechanics Local 701,

International Association of

Machinists & Aerospace Workers, AFL-CIO.

June 12, 2019

DECISION AND ORDER

BY CHAIRMAN RING AND MEMBERS MCFERRAN

AND EMANUEL

On June 19, 2018, Administrative Law Judge Michael

A. Rosas issued the attached decision. The Respondent

filed exceptions and a supporting brief, the General

Counsel filed an answering brief, and the Respondent

filed a reply brief. The General Counsel also filed limited

exceptions with supporting argument.

The National Labor Relations Board has delegated

its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record

in light of the exceptions and briefs and has decided to

35a

Appendix B

affirm the judge’s rulings,1 findings, 2 and conclusions only

1. During the hearing, the judge made two evidentiary rulings:

(1) admitting the recording, made surreptitiously in violation of

Illinois state law, of the Respondent’s October 6, 2017 meeting; and

(2) denying the Respondent’s request to possess witness statements

after cross-examination, to which the Respondent objected and

now excepts. The Respondent requests that we (1) overturn Board

precedent and ignore the recording, and (2) remand the case for

further cross-examination and allow the Respondent to maintain

the witness statements after cross-examination.

Sec. 102.35 of the Board’s Rules and Regulations provides, in

pertinent part, that a judge should “[r]egulate the course of the

hearing” and “[t]ake any other necessary action” authorized by the

Board’s Rules. Thus, the Board accords judges significant discretion

in controlling the hearing and directing the creation of the record.

See Parts Depot, Inc., 348 NLRB 152, 152 fn. 6 (2006), enfd. 260

Fed.Appx. 607 (4th Cir. 2008). Further, it is well established that

the Board will affirm a judge’s evidentiary ruling unless that ruling

constitutes an abuse of discretion. See Aladdin Gaming, LLC, 345

NLRB 585, 587 (2005), petition for review denied sub nom. Local

Joint Executive Board of Las Vegas v. NLRB, 515 F.3d 942 (9th

Cir. 2008).

We deny both requests as the judge’s rulings were not an abuse

of discretion. The rulings were consistent with Board precedent and

neither unreasonable nor an interference with the Respondent’s case.

See Orange County Publications, 334 NLRB 350, 354 (2001) (“The

Board has found such tape recordings of employer meetings with

employees to be admissible as evidence, even when the surreptitious

recording violates State law.”) (citations omitted), enfd. 27 Fed.Appx.

64 (2d Cir. 2001); Wal-Mart Stores, Inc., 339 NLRB 64, 64 (2003)

(“[T]he plain meaning of Sec. 102.118(b) of the Board’s Rules and

Regulations limits the purpose of disclosure [of witness statements]

to cross-examination.”).

2. We adopt the judge’s findings that the Respondent violated

Sec. 8(a)(1) when it threatened employee Patrick Towe with discharge

on September 20, 2017, and expressed doubt about employee Brian

36a

Appendix B

to the extent consistent with this Decision and Order. 3

At issue here are alleged violations in connection with

an economic strike by the Respondent’s auto mechanics.

As explained below, in addition to the earlier mentioned

judge’s findings that the Board is adopting, we also adopt

the judge’s conclusion that the Respondent violated Section

8(a)(3) and (1) by terminating employee and Union Steward

John Bisbikis for his union activity, but we revise the

judge’s rationale. Additionally, we agree with the judge, for

the reasons stated in his decision and those set forth below,

Higgins’ employment longevity on October 27, 2017. We also adopt

the judge’s findings that the Respondent violated Sec. 8(a)(5) and (1)

when it unilaterally prohibited union representatives’ access to unit

employees on the Respondent’s premises, enacted new attendance

policies, and removed free gloves and free drinking water.

There are no exceptions to the judge’s finding that the

Respondent violated Sec. 8(a)(5) and (1) by failing to reinstate five

strikers for 2 months after their unconditional offer to return to

work or to the judge’s dismissal of the allegation that the Respondent

moved a unit employee to less agreeable nonunit work following the

strike.

The Respondent has excepted to some of the judge’s credibility

findings. The Board’s established policy is not to overrule an

administrative law judge’s credibility resolutions unless the clear

preponderance of all the relevant evidence convinces us that they

are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950),

enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the

record and find no basis for reversing the findings.

3. We have amended the judge’s remedy consistent with our

findings herein. We shall modify the judge’s recommended Order

to conform to our findings and substitute a new notice to conform

to the Order as modified.

37a

Appendix B

that the Respondent violated Section 8(a)(1) by making

threatening or coercive statements in a conversation with

Bisbikis before the strike and at two employee meetings

after the strike, but we reverse the judge’s findings that

certain other statements were unlawful.

I. BACKGROUND FACTS

The Respondent is an auto dealership in Naperville,

Illinois, and has been a member of the New Car Dealer

Committee (NCDC), a multiemployer bargaining entity,

since 2002. The Respondent recognizes the Automobile

Mechanics Local 701, International Association of

Machinists & Aerospace Workers, AFL-CIO (the Union)

as the exclusive bargaining agent of its 12 mechanics.

On May 6, 2017,4 the Union and the NCDC began

negotiations for a successor contract as the existing

collective-bargaining agreement was set to expire on

July 31. The Union’s negotiating team included Business

Agents Sam Cicinelli and Kenneth Thomas, and employee

and Union Steward John Bisbikis. On August 1, after the

parties failed to reach a new agreement, unit employees

went on strike. The Respondent laid off several nonunit

employees during the strike.

4. All dates are in 2017 unless otherwise noted.

38a

Appendix B

On August 9, the Respondent sent letters to six

strikers, including Bisbikis, advising them that they

were being permanently replaced and would be placed

on a preferential hiring list provided they made an

unconditional offer to return to work. In response,

the strikers positioned themselves across the street

from the dealership’s main entrance, blew horns, used

a loudspeaker, sought to engage customers, yelled at

nonstriking employees, and interfered with a customer

attempting to take a vehicle for a test drive.

On September 15, the NCDC and the Union entered

into a strike settlement agreement. On September 17,

employees ratified the settlement agreement and the

2017-2021 successor collective-bargaining agreement.

Following discussions on September 18, discussed infra,

seven of the striking employees received recall letters

from the Respondent later that day. The seven recalled

employees returned to work on September 20.

II. THE 8(A)(3) DISCHARGE

On September 18, Cicinelli, Thomas, and Bisbikis

met with the Respondent’s Owner and President, Frank

Laskaris, in his office. The purpose of the meeting was

to discuss the return-to-work process for the strikers. 5

During the meeting, Laskaris and Bisbikis engaged in

a back-and-forth that culminated in Laskaris telling

Bisbikis to “get the fuck out before I throw you out.” As he

5. Laskaris and Bisbikis also discussed the permanently

replaced employees and grievances filed by unit employees.

39a

Appendix B

was leaving the office, Bisbikis called Laskaris a “stupid

jack off” in Greek. Laskaris responded that he was firing

Bisbikis for insubordination. Later that day, Laskaris sent

Bisbikis a “notice of termination for insubordinate conduct

and inappropriate language.” The notice referenced

Bisbikis’ conversation in Laskaris’ office and noted that

it was a “direct violation of [the Respondent’s] Standards

of Conduct” and a “terminable action.”

In finding that the Respondent violated Section 8(a)

(3) and (1) of the Act by discharging Bisbikis, the judge

applied the test set forth in Wright Line, 251 NLRB 1083

(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455

U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982), which

is appropriate when the alleged violation turns on the

employer’s motive in taking an adverse action against an

employee. However, where, as here, an employer defends

a discharge based on employee misconduct that is part

of the res gestae of the employee’s union or protected

concerted activity, and that occurred during a workplace

confrontation, the employer’s motive is not at issue, and

the test set forth in Atlantic Steel, 245 NLRB 814 (1979),

applies.6 See Postal Service, 360 NLRB 677, 682, 360

NLRB No. 74 (2014). Under that test, the question is

whether the conduct at issue was so egregious as to lose

the Act’s protection. See Meyer Tool, Inc., 366 NLRB No.

32, slip op. at 1 fn. 2 (2018), enfd. by summary order 763

Fed. Appx. 5, 2019 WL 949082 (2d Cir. 2019). In making

this determination, the Board considers four factors: (1)

6. While the judge eventually applied Atlantic Steel, he did so

after applying Wright Line. The only appropriate test in this situation

is that set forth in Atlantic Steel.

40a

Appendix B

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 provoked by an employer’s

unfair labor practice. See Atlantic Steel, supra at 816.

We find that all four Atlantic Steel factors weigh

in favor of protection. As the judge noted, the incident

occurred in Laskaris’ office and was not witnessed by any

other employees. Bisbikis, in his capacity as shop steward,

was discussing the return-to-work process, the permanent

replacement of striking employees (including Bisbikis),

and other grievances filed by employees. The outburst was

brief--a single name-calling incident--and not a sustained

course of action. See Kiewit Power Constructors, Co.,

355 NLRB 708, 710 (2010) (finding that a single, brief

verbal outburst weighed in favor of protection), enfd.

652 F.3d 22, 397 U.S. App. D.C. 290 (D.C. Cir. 2011).

Additionally, the outburst was not accompanied by any

threats or menacing behavior. See, e.g., Staffing Network

Holdings, LLC, 362 NLRB 67, 67 fn. 1, 75, 362 NLRB No.

12 (2015) (adopting the judge’s finding that the nature of

the outburst weighed in favor of protection where, among

other things, the employee was not hostile and neither

raised her voice nor made threats), enfd. 815 F.3d 296

(7th Cir. 2016). Moreover, Laskaris himself used vulgar

language in the workplace, including during that very

meeting. See generally Corrections Corp. of America, 347

NLRB 632, 636 (2006) (finding that an employee did not

lose the Act’s protection by cursing where profanity was

commonly used by employees and supervisors and was

used in the room where the employee’s conduct occurred).

Lastly, we find that Laskaris provoked Bisbikis when he

41a

Appendix B

denied Bisbikis’ account of an earlier conversation the

two of them had engaged in about terms and conditions

of employment, used profanity while dismissing Bisbikis

from the meeting, and threatened to remove Bisbikis by

force. See Network Dynamics Cabling, 351 NLRB 1423,

1429 (2007) (finding that an employee’s outburst during

protected conduct was provoked by certain comments

made by a supervisor where, although the comments were

not alleged as unfair labor practices, the comments clearly

sought to interfere with the employee’s protected right to

assist organizational activity).

In light of the above, we agree with the judge’s

conclusion that the Respondent violated Section 8(a)(3)

and (1) when it discharged Bisbikis.

III. THE 8(A)(1) THREATS

June 29

On June 29, Bisbikis initiated a conversation with

Laskaris about employee concerns. Laskaris responded

that “things would not be the same” if employees went

on strike. The judge found that Laskaris’ statement was

unlawful as it did not “communicate any objective facts

or predictions as to the effects of a potential strike,”

and that “the statement cannot be viewed as anything

but a threat that a strike would produce only negative

consequences for the [u]nit.” We agree with the judge’s

finding. Laskaris’ statement that “things would not be the

same” is similar to other statements the Board has found

unlawful. See, e.g., Colonial Parking, 363 NLRB No. 90,

42a

Appendix B

slip op. at 7 (2016) (finding that, despite the close and good

relationship the employer had with employees in the past, a

supervisor’s warning that employees’ terms and conditions

of employment would change for the worse because of

their protected activity constituted an unspecified threat

of future reprisals); Valmet, Inc., 367 NLRB No. 84, slip

op. at 2 fn. 7 (2019) (finding an employer’s direction to

an employee to “[r]emember that I hired you” unlawful).

Moreover, although not necessary to finding the violation,

this statement was not an isolated occurrence. It was

followed on subsequent occasions by multiple additional

violations of the Act, all committed by Laskaris. This

context further supports finding that Laskaris’ remark

that “things would not be the same” if employees went on

strike would be perceived by employees as threatening--a

foreshadowing of worse to come.7

7. See, e.g., Aldworth Co., 338 NLRB 137, 141-142 (2002)

(statement that union supporters had “one foot out the door” could

reasonably be interpreted by other employees as a warning threat

because the remarks were in fact followed by retaliatory discipline

against those union supporters), enfd. 363 F.3d 437, 361 U.S. App.

D.C. 1 (D.C. Cir. 2004); Aircraft Plating Co., 213 NLRB 664, 664-665

(1974) (subsequent unlawful changes in work rules by the manager

served as verification of the manager’s threats that employees would

lose benefits because of their union sympathies, and an employee

was unlawfully discharged for her union activity).

Member Emanuel disagrees with his colleagues and would

find the statement lawful. The judge conceded that the statement

was “vague,” but nevertheless found it unlawful, relying primarily

on the timing of the statement (about 1 month before the strike). In

Member Emanuel’s view, the statement is too vague to constitute a

threat of reprisals, and neither the timing alone nor the Respondent’s

subsequent conduct is sufficient to render it coercive. See Valmet,

43a

Appendix B

September 25

On September 25, only a few days after the strikers

returned to work, Laskaris conducted a staff meeting,

attended solely by the recalled mechanics, in which he

expressed his frustration over the Union’s leafleting

outside the dealership. During the meeting, Laskaris

stated that the leafleting was taking money out of their

pockets and that if the Respondent ran out of work, it

would lay off all the recalled employees. The judge found

that Laskaris’ statement, which “cast union activity as

inimical to [u]nit members’ employment security,” was a

threat and not a lawful, fact-based prediction of economic

consequences beyond the employer’s control.

We agree. Laskaris singled out the recalled strikers,

rather than employees in general, as those who would

suffer the impact of any economic consequences. By

targeting employees who engaged in protected activity,

Laskaris went beyond the mere prediction of economic

consequences beyond his control. Accordingly, we find the

statement unlawful. 8

supra, slip op. at 2 fn. 7 (Member Emanuel, dissenting). In contrast,

the statement in Colonial Parking, supra, made it clear that the

employer would treat employees less favorably in the future.

8. Member Emanuel disagrees with his colleagues and would

find that this statement was a lawful prediction as to the precise

effects Laskaris believed leafleting would have on the Respondent.

See NLRB v. Gissel Packing Co., 395 U.S. 575, 618, 89 S. Ct. 1918, 23

L. Ed. 2d 547 (1969). In drawing this conclusion, Member Emanuel

emphasizes that only the recalled striking employees attended the

meeting. Therefore, the Respondent’s reference to them in predicting

44a

Appendix B

October 6

On October 6, Laskaris met with mechanics to discuss

his approach to labor relations going forward. During

his 40-minute speech, Laskaris made several statements

that the judge found unlawful. First, Laskaris informed

employees that there would be stricter enforcement

of company rules--stating that, if he chose to enforce

the rules as written, things would be much harder for

them. Second, he stated that he did not “give a shit about

grievances. Grieve all you want. It doesn’t matter. They

can’t do shit,” and that he did not care about grievances.

Third, he stated, “if I were you, I would have changed my

[union] membership a week before the strike.” Fourth, he

referenced nonunit employees who were laid off during the

strike and asked the recalled strikers to consider how the

laid-off employees felt. Lastly, he stated that he “can be

the nicest guy in the world” and would “give you a kidney,”

but “you fuck with me and my people, I’m going to eat your

kidney out of your body and spit it at you.”

We agree with the judge that the Respondent

violated Section 8(a)(1) when it threatened employees

with stricter enforcement of rules and suggested that

filing grievances was futile.9 We further agree with the

the adverse effects of union leafletting was because they were the

only employees in attendance.

9. Member Emanuel disagrees with his colleagues that

Laskaris’ statements about grievances were unlawful. He finds

the statements too vague to constitute a threat of futility. Rather,

Laskaris appeared to be simply expressing frustration with the filing

of grievances that, in Laskaris’s view, lacked merit.

45a

Appendix B

judge that the “eat your kidney” statement was unlawful,

although, contrary to the judge, we do not find that it

constituted a threat of physical violence. Instead, we find

that, given the circumstances (a 40-minute rant filled

with multiple unlawful statements), the statement, as

the judge alternatively found, would reasonably tend to

coerce employees in the exercise of their Section 7 rights.

See Wal-Mart Stores, Inc., 364 NLRB No. 118, slip op.

at 1 fn. 6 (2016) (reversing the judge and finding that an

employer’s statement that it would “shoot the union,” even

if not interpreted as a specific threat of violence, would

reasonably tend to coerce employees in the exercise of

their Sec. 7 rights).

We reverse the judge’s finding that the Respondent

violated Section 8(a)(1) when, at the October 6 meeting,

Laskaris told employees, “if I were you, I would have

changed my [union] membership a week before the strike.”

We find that Laskaris’ suggestion that employees should

have “changed” their union membership was an opinion,

as evidenced by the “if I were you” phrasing, permitted

by Section 8(c).10 Additionally, the General Counsel failed

to present any evidence demonstrating that Laskaris went

further than stating his opinion by, for example, assisting

employees in withdrawing their union support.11 We also

10. Sec. 8(c) gives employers the right to express their

views about unionization or a particular union as long as those

communications do not threaten reprisals or promise benefits. NLRB

v. Gissel, supra.

11. Member McFerran disagrees with her colleagues and

would adopt the judge’s finding that the Respondent violated Sec.

8(a)(1) by encouraging unit members to resign from or become only

46a

Appendix B

reverse the judge’s finding that the Respondent violated

Section 8(a)(1) when Laskaris told the recalled employees

that nonunit employees had lost their jobs over unit

employees’ decision to strike. We find that, in asking the

recalled employees to consider laid-off nonunit employees,

Laskaris’ statement was merely a truthful recitation of

what occurred during the strike.

IV. AMENDED REMEDY

In light of the General Counsel’s request during the

hearing for make-whole relief for the five late-recalled

strikers, we shall modify the Order to require the

Respondent to make unit employees and former unit

employees whole for any loss of earnings or other benefits

they suffered as a result of Respondent’s unlawful failure

and refusal to reinstate them from and after September

18, 2017, the date the strikers made their unconditional

offer to return to work, in the manner prescribed in F.

W. Woolworth Co., 90 NLRB 289 (1950), plus interest

as computed in New Horizons, 283 NLRB 1173 (1987),

financial-core members of the Union. In her view, Laskaris went

beyond simply stating his opinion about the Union; he improperly

warned unit employees to withdraw or minimize their memberships.

Thus, in the context of the multiple unlawful threats and statements

running throughout Laskaris’ speech on October 6, employees

would reasonably have understood Laskaris to be going beyond

expressing an opinion and instead sending a message that employees

would regret a choice not to follow his suggestion. See NLRB v. E.I.

DuPont de Nemours, 750 F.2d 524, 528 (6th Cir. 1984) (“the Board

considers the total context in which the challenged conduct occurs

and is justified in viewing the issue from the standpoint of its impact

upon the employees”).

47a

Appendix B

compounded daily as prescribed in Kentucky River

Medical Center, 356 NLRB 6 (2010).

ORDER

The Respondent, Cadillac of Naper ville, Inc.,

Naperville, Illinois, its officers, agents, successors, and

assigns, shall

1. Cease and desist from

(a) Threatening employees that their terms and

conditions of employment would not be the same if

they went on strike.

(b) Telling permanently replaced employees that the

Respondent does not want them to return to work and

that if they return to work it would not be long before

they were gone.

not be employed by the Respondent very long and

should find another job because they engaged in strike

or other union activities.

(d) Telling recalled striking employees that, if the

Respondent ran out of work, it would lay them off

first because they engaged in strike or other union

activities.

(e) Telling employees that it would more strictly

enforce company rules because of employees’ union

activities or support.

48a

Appendix B

(f) Telling employees that it would be futile to file

grievances.

(g) Telling employees that it would eat the kidneys of

employees because of their union activities or support.

(h) Enacting attendance policies and removing free

work gloves and drinking water because employees

engage in strike or other union activity, without first

notifying the Union and giving it an opportunity to

bargain over such changes.

(i) Prohibiting union representatives’ access to unit

employees without first notifying the Union and giving

it an opportunity to bargain over such changes.

(j) Unilaterally changing the terms and conditions of

employment of unit employees by implementing an

attendance policy and charging employees for the cost

of work gloves and drinking water.

(k) Discharging employees because they supported

the Union.

(l) Failing or refusing to immediately reinstate

economic strikers upon their unconditional offer to

return to work without a legitimate and substantial

business justification.

(m) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of

the rights guaranteed them by Section 7 of the Act.

49a

Appendix B

2. Take the following affirmative action necessary to

effectuate the policies of the Act.

(a) Within 14 days from the date of this Order, offer

John Bisbikis full reinstatement to his former job or, if

that job no longer exists, to a substantially equivalent

position, without prejudice to his seniority or to any

other rights or privileges previously enjoyed.

(b) Make Bisbikis whole for any loss of earnings and

other benefits suffered as a result of the discrimination

against him, in the manner set forth in the remedy

section of the judge’s decision.

consequences, if any, of receiving a lump-sum backpay

award, and file with the Regional Director for Region

13, within 21 days of the date the amount of backpay

is fixed, either by agreement or Board order, a report

allocating the backpay award to the appropriate

calendar years.

(d) Within 14 days from the date of this Order, remove

from its files any reference to Bisbikis’ unlawful

discharge, and within 3 days thereafter, notify him in

writing that this has been done and that the discharge

will not be used against him in any way.

(e) Notify all employees that written attendance

policies issued on and after September 18, 2017,

and policies issued on or after September 25, 2017,

charging employees for the cost of work gloves and

drinking water have been rescinded.

50a

Appendix B

(f) Before implementing any changes to policies

regarding attendance, work gloves, drinking water or

other terms and conditions of employment, notify and,

on request, bargain with the Union as the exclusive

collective-bargaining representative of employees in

the following bargaining unit:

All of Journeyman Technicians, Body Shop

Technicians, apprentices, lube rack technicians,

part time express technicians and semi-skilled

technicians.

(g) Make each striker whole for any loss of earnings

and other benef its suffered as a result of the

Respondent’s unlawful failure to reinstate them upon

their unconditional offer to return to work, in the

manner set forth in the amended remedy section of

this decision.

(h) Preserve and, within 14 days of a request, or such

additional time as the Regional Director may allow

for good cause shown, provide at a reasonable place

designated by the Board or its agents, all payroll

records, social security payment records, timecards,

personnel records and reports, and all other records,

including an electronic copy of such records if stored

in electronic form, necessary to analyze the amount of

backpay due under the terms of this Order.

(i) Within 14 days after service by the Region, post at

its facility in Naperville, Illinois, copies of the attached

51a

Appendix B

notice marked “Appendix.”12 Copies of the notice, on

forms provided by the Regional Director for Region

13, after being signed by the Respondent’s authorized

representative, shall be posted by the Respondent and

maintained for 60 consecutive days in conspicuous

places including all places where notices to employees

are customarily posted. In addition to physical posting

of paper notices, the notices shall be distributed

electronically, such as by email, posting on an intranet

or an internet site, and/or other electronic means, if

the Respondent customarily communicates with its

employees by such means. Reasonable steps shall be

taken by the Respondent to ensure that the notices

are not altered, defaced, or covered by any other

material. If the Respondent has gone out of business

or closed the facility involved in these proceedings,

the Respondent shall duplicate and mail, at its own

expense, a copy of the notice to all current employees

and former employees employed by the Respondent at

any time since June 29, 2017.

(j) Within 21 days after service by the Region, file

with the Regional Director for Region 13 a sworn

certification of a responsible official on a form

provided by the Region attesting to the steps that the

Respondent has taken to comply.

12. If this Order is enforced by a judgment of a United States

court of appeals, the words in the notice reading “Posted by Order

of the National Labor Relations Board” shall read “Posted Pursuant

to a Judgment of the United States Court of Appeals Enforcing an

Order of the National Labor Relations Board.”

52a

Appendix B

IT IS FURTHER ORDERED that the complaint is

dismissed insofar as it alleges violations of the Act not

specifically found.

Dated, Washington, D.C. June 12, 2019

John F. Ring

Chairman

Lauren McFerran

Member

William J. Emanuel

Member

53a

Appendix B

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that

we violated Federal labor law and has ordered us to post

and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your

behalf

Act together with other employees for your benefit

and protection

Choose not to engage in any of these protected

activities.

WE WILL NOT threaten you that your terms and

conditions of employment will change if you go on strike.

WE WILL NOT tell you, if you go on strike and

subsequently return to work, that we do not want you to

return to work and that, if you do return to work, it would

not be long before you were gone.

54a

Appendix B

WE WILL NOT tell you that you will not be employed

by us very long and should find another job if you engage

in strike or other union activities.

WE WILL NOT tell you that, if we run out of work,

we will lay you off first because you engage in strike or

other union activities.

WE WILL NOT tell you that we will more strictly

enforce company rules because of your union activities

or support.

WE WILL NOT tell you that it would be futile for

you to file grievances.

WE WILL NOT tell you that we will eat your kidneys

because of your union activities or support.

WE WILL NOT prohibit union representatives’

access to you without first notifying the Union and giving

it an opportunity to bargain over such a change.

WE WILL NOT enact attendance policies and

charge you for work gloves and drinking water because

you engage in strike or other union activity without

first notifying the Union and giving it an opportunity to

bargain over such changes.

WE WILL NOT discharge you if you support a union

or engage in union activities.

55a

Appendix B

WE WILL NOT fail and refuse to immediately

reinstate economic strikers upon their unconditional offer

to return to work without a legitimate and substantial

business justification.

WE WILL NOT in any like or related manner

interfere with, restrain, or coerce you in the exercise of

the rights listed above.

WE WILL, within 14 days from the date of the Board’s

Order, offer employee John Bisbikis full reinstatement

to his former job or, if that job no longer exists, to a

substantially equivalent position, without prejudice to his

seniority or to any other rights or privileges previously

enjoyed.

WE WILL make Bisbikis whole for any loss of

earnings and other benefits resulting from his discharge,

less any net interim earnings, plus interest, and WE

WILL also make him whole for reasonable search-forwork and interim employment expenses, plus interest.

WE WILL compensate Bisbikis for the adverse tax

consequences, if any, of receiving a lump sum backpay

award, and WE WILL file with the Regional Director

for Region 13, within 21 days of the date the amount of

backpay is fixed, either by agreement or Board order, a

report allocating the backpay award to the appropriate

calendar years.

WE WILL, within 14 days from the date of the

Board’s Order, remove from our files any reference to the

56a

Appendix B

unlawful discharge of Bisbikis, and WE WILL, within 3

days thereafter, notify him in writing that this has been

done and that the discharge will not be used against him

in any way.

WE WILL rescind written attendance policies issued

on and after September 18, 2017, and policies issued on

or after September 25, 2017, charging employees for the

cost of work gloves and drinking water.

WE WILL, before implementing any changes to

policies regarding attendance, work gloves, drinking

water or other terms and conditions of employment, notify

and, on request, bargain with the Union as the exclusive

collective-bargaining representative of employees in the

following bargaining unit:

A l l of Jou r ney ma n Techn icia ns, Body Shop

Technicians, apprentices, lube rack technicians, part

time express technicians and semi-skilled technicians.

WE WILL make whole with interest such employees

as would have been reinstated sooner but for our unlawful

refusal to reinstate them as soon as possible after

September 18, 2017, for wages and benefits lost on account

of our failure to reinstate them to their positions as soon

as possible after September 18, 2017.

CADILLAC OF NAPERVILLE, INC.

The Board’s decision can be found at www.nlrb.

gov/case/13-CA-207245 or by using the QR code below.

57a

Appendix B

Alternatively, you can obtain a copy of the decision from

the Executive Secretary, National Labor Relations Board,

1015 Half Street, S.E., Washington, D.C. 20570, or by

calling (202) 273-1940.

58a

Appendix B

DECISION

STATEMENT OF THE CASE

MICHAEL A. ROSAS, Administrative Law Judge.

This case was tried in Chicago, Illinois on March 2021, 2018. The complaint alleges that Cadillac of Naperville,

Inc. (the Company or Respondent) engaged in numerous

violations of the National Labor Relations Act (the Act)1

relating to a 7-1/2 week strike by its service mechanics

during the summer of 2017. 2 Specifically, the Company

is alleged to have violated Section 8(a)(1) of the Act by:

threatening employees before and after the strike with

discharge and other reprisal; informing employees that it

would be futile for them to bring complaints to the Union;

and encouraging or soliciting employees to resign their

membership or become core members in the Union. The

Company also allegedly violated Section 8(a)(3) and (1)

of the Act by discharging employee and union steward

John Bisbikis in retaliation for his union and protected

concerted activities. Finally, the Company allegedly

violated Section 8(a)(5) and (1) of the Act by implementing

new policies relating to employee attendance, grievance

procedures, free water and work gloves without affording

notice to the Union and an opportunity to bargain over

the change.

1. 29 U.S.C. §§ 151-169.

2. All dates refer to 2017 unless otherwise indicated.

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Appendix B

On the entire record, including my observation of

the demeanor of the witnesses, and after considering

the briefs filed by the General Counsel, Respondent and

Charging Party, 3 I make the following

FINDINGS OF FACT

I. JURISDICTION

The Company, a corporation, is engaged in the sale

and service of new and pre-owned automobiles at its

facility in Naperville, Illinois, where it annually derives

gross revenues in excess of $ 50,000, and purchases and

receives goods and materials valued in excess of $ 5000

directly from points outside the State of Illinois. The

Company admits, and I find, that it is an employer engaged

in commerce within the meaning of Section 2(2), (6), and

(7) of the Act and that the Union is a labor organization

within the meaning of Section 2(5) of the Act.

3. The Company excepted to my ruling that witness affidavits

needed to be returned to the General Counsel after cross-examination

pursuant to Jenks v. United States, 353 U.S. 657, 662, 77 S. Ct. 1007,

1 L. Ed. 2d 1103, 75 Ohio Law Abs. 465 (1957). Relying on the Board’s

decision in Wal-Mart Stores, Inc., 339 NLRB 64, fn. 3 (2003), the

Company argued that it was entitled to retain witness affidavits

until the close of the hearing. As I ruled at the time, that the Board’s

holding in that decision, as well as Sec. 102.118 of the Board’s Rules

and Regulations, is not inconsistent with my practice of permitting

renewed access to witness affidavits upon request in connection with

the cross-examination of other witnesses. (Tr. 104-108.)

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Appendix B

II. ALLEGED UNFAIR LABOR PRACTICES

A. The Company’s Operations

The Company, an auto dealership, has been individually

owned and operated by Frank Laskaris since 1996. He

serves as president. John Francek is vice president of

operations. The Company’s operations consist of the sales,

service, parts and administrative departments. Mark

Klodzinski, as service manager, supervises the service

and parts department employees.4 The discriminatee,

John Bisbikis, was employed 15 years by the Company as

a journeyman mechanic. He was never disciplined prior

to his termination. Bisbikis served as a union steward

for over 10 years. Prior to June, Bisbikis had a good

relationship with Laskaris, who often referred to him as

a leader of the mechanics.

B. The Expired Contract

The New Car Dealer Committee (the NCDC) is a

multi-employer bargaining committee composed of 129

car dealers who assigned their rights to it to negotiate

and administer master agreements with the Union

representing 1,949 employees. The Company has been

an employer-member of the NCDC since it was formed

in 2002. At all times since August 1, 2013, the Company

has recognized the Union as the exclusive collectivebargaining representative of its approximately 12

4 . T he Compa ny adm it s that Laska r is, Fra ncek a nd

Klodzinski are supervisors within the meaning of Section 2(11) and

agents within the meaning of Sec. 2(13) of the Act.

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Appendix B

mechanics. The mechanics comprise a bargaining unit (the

unit) appropriate for the purposes of collective bargaining

as described in the 2013-2017 contract between the NCDC,

on behalf of the Company and other car dealers (the

Expired Contract):

The Employer recognizes the Union as the exclusive

bargaining agent for all of its Journeyman Technicians,

Body Shop Technicians, apprentices, lube rack technicians,

part time express technicians and semi-skilled technicians.

Article 2 of the Expired Contract delineated the

unit employees’ duties and responsibilities as follows:

journeyman technicians perform electrical, mechanical

and other technical repair work; body shop technicians

perform painting and reconditioning work; semi-skilled

body shop technicians perform sanding, masking, buffing,

polishing, shop clean-up, disassemble damaged vehicles

and deliver parts to body shop technicians; semi-skilled

technicians prepare new vehicles for delivery, minor

inspections, repairs and maintenance services and

used vehicle reconditioning; apprentices perform the

work of, and are supervised by, journeyman technicians

and journeyman technicians and journeyman body

shop technicians; and lube rack and part-time express

team technicians perform miscellaneous tasks such as

minor maintenance work, snow plowing and removal,

transporting vehicles, cleaning and organizing shop

equipment and delivering parts.

Notwithstanding the aforementioned classifications,

article 4 of the Expired Contract provided the Company

flexibility in certain situations:

62a

Appendix B

Temporary Work. If business is slack, the Employer

may assign an employee work other than that which the

employee is regularly classified where such work would not

be hazardous to the employee due to lack of experience and

training. The employee shall receive their applicable rate.

This assignment shall not infringe on the jurisdiction of

another Union. Money earned under these circumstances

shall be considered a part of the employee’s regular flat

earnings.

Article 5 provides unit employees with an hourly

rate of pay times 40 hours worked each week, plus pay

for additional work performed within their specific

classifications. 5 In addition, mechanics were often able

to earn significantly more than the flat rate based on the

“book time” for particular tasks. However, book time

compensation was not applicable to work performed

outside of a unit employee’s specific duties. For example,

lube rack and part-time express team technicians

were responsible for cleaning vehicles. If a journeyman

mechanic or apprentice performed such work, however,

the time would be counted towards his base rate of pay,

but would not be compensable as additional pay.

Unit employees are required to acquire the tools

necessary to perform their work. They were also

responsible to provide tool boxes to secure their tools.

That arrangement is impliedly confirmed at article 14,

which requires the Company to insure employees’ personal

5. Notwithstanding the pay rate formula stated in the contract,

unit employees are guaranteed pay for 35 hours if present at the

dealership for at least 40 hours. (Tr. 162-163.)

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Appendix B

tools, requires employees to provide the Company with an

inventory of their personal tools, authorizes the Company

to inspect employee tool boxes, and requires employees to

remove their tools within 2 weeks of termination.6

C. The Strike

On May 6, the Union and the NCDC began negotiations

for a successor contract, which was due to expire on July

31. The members of the Union’s negotiation team included

Union representatives Sam Cicinelli and Kenneth Thomas,

and Bisbikis.

On June 29, with negotiations dragging on, Bisbikis

approached Laskaris in the latter’s office to discuss

several shop-related issues, including the Company’s

newly imposed requirement that employees pay part of the

cost of their uniform shirts. Laskaris rejected Bisbikis’

appeal regarding the shirts and redirected the discussion

towards the sputtering labor negotiations, warning that

if the mechanics decided to strike, “things wouldn’t be

the same.” 7

6. The cited provisions remained essentially the same in the

Successor Contract. (Jt. Exh. 1-2.)

7. I credit Bisbikis’ detailed version of this conversation in

contrast with Laskaris’ steadfast denial (“I wasn’t thinking about a

strike”) after conceding that, “a few weeks before it happened,” he

“thought there was a small chance” for a strike. (Tr. 116-117, 139,

205-208.)

64a

Appendix B

The parties were unable to negotiate a new contract by

the July 31 deadline and, on August 1, the Company’s unit

employees walked out and set up camp across the street

from the dealership. On August 4, the Company sent the

striking employees letters setting forth several changes

to their terms and conditions of employment:

To all Service Technicians,

It is very unfortunate that you have chosen

to strike. In serving the best interest of the

stability of Cadillac of Naperville, its employees

and their families, as well as our loyal and

trusting customers, you are hereby put on

notice of the following:

We will no longer be paying for your health

insurance. You will be responsible for the

premiums in their entirety.

We have placed ads for replacement technicians.

You will be notified once you have been replaced.

At that time should you make an unconditional

offer to return to work, you will be placed on a

preferential hiring list should an opening occur.

Cadillac of Naper ville w ill no longer be

responsible for your belongings when you are

not working. All tools, tool boxes, and personal

belongings must be removed from our property

by Saturday, August 5, 2017 by 5:30 p.m.

65a

Appendix B

Please make immediate arrangements to

have your tools and personal belongings

removed from our property by contacting

your immediate supervisor at (630) 355-2700

to arrange an appointment. They will assist

you in returning any special tools or Cadillac

of Naperville property, as well as assist in

an expedient and peaceful transfer of your

belongings.

Sincerely,

Cadillac of Naperville, Inc. 8

A s instr ucted, unit employees removed their

equipment and tool boxes during business hours by

August 5 and transported them on trailers to a commercial

storage facility. Empty toolboxes weighed at least 550

pounds; when full, they weighed several thousand pounds.

On August 9, the Company sent the following form

letters to 6 of the 13 striking employees - Bisbikis, Louis

Mendralla, Michael Wilson, Kenneth Scott, Brian Higgins

and Mathew Gibbs notifying them that they were being

replaced:

This letter is to advise you that you have been

permanently replaced as of today August 9, 2017. You will

be placed on a preferential hiring list provided you make

an unconditional application for a return to work. In the

8. Jt. Exh. 4.

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Appendix B

event you have a tool box or any personal belongings that

you have left behind, please call your supervisor to make

arrangements to pick them up.9

The Company was one of only three dealerships

that replaced employees during the strike. Francek

hired three replacement workers based on employment

advertisements10 or personal familiarity: Hector Plaza

(Aug. 7), Edward Silva, Jr. (Sep. 1) and Scott Anderson

(Sep. 2). Another employee, Michael Vitacco, was hired

on the day that the strike ended (September 15). They

were all retained as mechanics after September 15. In

addition, three nonunit employees were transferred from

other departments to fill-in for the striking mechanics:

service advisors Jay Montalvo and Jake Johnson (both

on August 7), and salesmen George Laskaris (Aug. 21).

Montalvo and Johnson returned to their jobs as service

advisors after the strike, while George Laskaris remained

as a mechanic.11

Initially, the striking employees picketed across the

side street from the dealership on Ogden Avenue. After

9. The letter sent to Gibbs was not included with the other five

letters in Jt. Exh. 5. However, the subsequent recall letter indicates

that he received the same notification.

10. There was no evidence of the advertisements or the terms

of employment of the replacement workers, specifically, whether they

were hired on a temporary, permanent or other basis.

11. I credited the reliability of GC Exh. 6, a company business

record, over that of GC Exh. 5, which appeared to be a chart compiled

for litigation.

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Appendix B

the termination letters went out on August 9, the strikers

became more vocal and repositioned themselves across the

street from the main entrance. They blew horns, utilized a

loud speaker to excoriate the Company, sought to engage

customers, and yelled at nonstriking employees. On one

occasion, striking mechanic Patrick Towe interfered

with an elderly customer attempting to take a test drive.

On several occasions, the Company called the police to

intercede.12 However, the Company never filed police

reports or unfair labor practice charges.

D. Strike Settlement Agreement

About 35 dealerships entered into interim agreements

after several weeks into the strike. On Friday, September

15, the NCDC, on behalf of the remaining member

companies, entered into a strike settlement agreement

(the settlement agreement), contingent upon ratification

by the union membership. The Union’s membership

ratified the settlement agreement, as well as the 2017-2021

collective-bargaining agreement (the Successor Contract),

on Sunday, September 17.

The settlement agreement addressed the return-towork procedures for all unit employees at the 129 dealermembers as follows:

12. I credited the undisputed testimony of Laskaris and

Francek that the police was called at unspecified times. However,

the incidents were brought under control once police arrived and no

police reports were filed. (Tr. 210-213, 224, 229-230, 282, 310-312.)

68a

Appendix B

2. Return to Work: The return-to-work process

will be determined by each individual dealer.

Employees will be reinstated per the terms of

the Successor Contract, but may be placed on

layoff depending on the business needs of the

Employer. Replacement employees, if retained,

shall be credited with seniority as set forth in

the Successor Contract and will be placed on

layoff status until higher seniority employees

within the same classification are recalled.

4. Mutual Non-Retaliation: Both parties, on

behalf of their respective members, hereby

covenant and agree to use their best efforts and

take any action deemed necessary to ensure an

orderly and peaceful return to work by striking

employees, to ensure no retaliation of any

kind towards any employee or NCDC member

dealer, and to maintain order in the workplace

once striking employees have returned to

work. NCDC and the Union agree, on behalf

of themselves and each of their respective

members, that there will be no retaliation

against any employee based upon conduct

that is protected by law, and that there will

be no retaliation against any NCDC member

dealer or the Union based on actions taken or

statements made during negotiations or the

ensuing labor dispute.13

13. Jt. Exh. 2-3.

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Appendix B

The Successor Contract set forth the seniority, layoff,

and recall provisions at article 3, which states, in pertinent

parts:

Section 2. Layoff and Recall. Part-time

Express Team Technicians will be laid off

before any other bargaining unit employee.

In a decrease or increase in the number of

Journeyman Technicians, apprentices, semiskilled technicians, or lube rack technicians,

when two employees are capable of doing

the job, the one with the least product line

seniority shall be laid offered first and recalled

in reverse order, provided the employer has

submitted a current product line seniority list

to the Union via certified mail. The Employer

shall be permitted to recall or hire up to three

(3) Lube Rack Technicians notwithstanding

the layoff status of any Journeymen. A Lube

Rack Technician hired or recalled while a

Journeyman is on layoff status may not be

promoted while that Journeyman retains recall

rights. The Employer shall notify the employee

of a layoff no later than the end of the employee’s

last scheduled workday of the calendar week,

not the Employer’s pay week.

Section 6. Reporting After Recall. The Employer

shall give notice of recall to the employee. An

employee who fails, without reasonable excuse,

to report for work within three (3) working days

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Appendix B

of notice of recall shall be considered as having

resigned from employment.14

E. Employees Attempt to Return to Work

on September 18

(1) Laskaris rebuffs employees’ efforts

to return during business hours

On September 18, the day following the Union

membership’s ratification of the Successor Contract, the

unit employees congregated in their customary location

across the street from the dealership at about 7 a.m.

Cicinelli and Thomas, anticipating a contentious returnto-work process due to the replacement letters received

by the five-unit members and concern over the logistical

difficulties in returning the returning mechanics’ tools and

tool boxes, were also present. In fact, Cicinelli arrived with

preprepared grievance forms, which he had the returning

employees sign.

A few minutes later, Cicinelli, Thomas, and Bisbikis

walked across the street to the dealership in order to

negotiate a date and process for the employees’ return

to work. They entered Laskaris’ office. Francek was

also present. Almost immediately, Laskaris said that he

14. The Company relies on this provision as the basis for

Laskaris’ belief that he had three days to recall the strikers. The

testimony of Laskaris and Francek, however, with both professing

ignorance as to the content of the settlement agreement or alluding to

conflicting advice from attorneys, did little to clarify the Company’s

responsibilities under this provision. (Tr. 218-219, 268-270, 306-308.)

71a

Appendix B

did not want Bisbikis present. Cicinelli responded that

Bisbikis was a necessary participant because he was the

steward and needed to be in the loop. Laskaris said that

he did not care, insisting that Bisbikis was the ringleader

and at fault for the strike, and he did not want him as an

employee. Bisbikis asked Cicinelli what he should do. The

latter suggested Bisbikis leave so he and Thomas could

resolve issues preventing the employees from returning

that day. Bisbikis complied and returned to join the other

unit members across the street.

During the meeting that ensued, Cicinelli insisted

that Laskaris was obligated to reinstate the replaced

employees pursuant to the settlement agreement.

Laskaris replied that he needed time to figure out whether

to recall the permanently replaced employees because he

had not seen the contract and was getting inconclusive

legal advice. He added that he did not want any of the

strikers back and asked, “can’t you find them all jobs?”

Cicinelli said that he probably could find them other

employment, but the employees wanted reinstatement. At

one point, Cicinelli referred to the replacement workers as

“scabs,” causing Laskaris to admonish Cicinelli because

they were “good family men” and note that the Union was

obliged to represent them as well. Cicinelli said he did not

care but concurred with the notion that the Union would

be responsible to represent them if they were retained

and became union members. As Cicinelli left to update

the employees, Laskaris proposed that in return for the

employees not returning he would give them $1000 or

$2000 each to find a job elsewhere. Cicinelli said it was

72a

Appendix B

his responsibility to run any offer by the employees but

considered it a futile effort.15

Cicinelli and Thomas left Laskaris’ office and

communicated his offer to the returning employees. After

the employees rejected the offer, Cicinelli and Thomas

returned to Laskaris’ office along with Bisbikis. Once

again, Laskaris asked why Bisbikis was there. Cicinelli

responded that Bisbikis was there to speak on behalf of

the unit employees. Bisbikis then began to explain that

the striking employees were personally offended after

receiving permanent replacement letters. He asked

Laskaris why he issued the letters, and if they issued

because he and the other mechanics did not get along with

Francek, which the latter denied. Bisbikis added that he

had been there for 15 years and excoriated Laskaris for his

treatment of Bisbikis and the other strikers. Laskaris said

he did not want to hear it and asked why Bisbikis would

want to return. Bisbikis replied that he had been there for

15 years and considered it his home. Francek interjected

by questioning the strikers’ loyalty because they harassed

customers and other employees during the strike. Bisbikis

denied that allegation. Francek then engaged Bisbikis in a

side conversation questioning the latter’s recent extended

15. Testimony regarding the first meeting was fairly consistent.

Laskaris’ testimony regarding his alleged confusion over how to

implement the settlement agreement and whether he was required to

displace the replacement workers was not credible. He had no interest

in ever reading the settlement agreement and shifted explanations

between contradictory legal advice and testimony evincing a clear

intent to deny reinstatement under any circumstances. (Tr. 38-41,

125-127, 220-226, 270.)

73a

Appendix B

absence and Bisbikis replying that he was still disabled

when he returned to work.16 Laskaris reiterated that he

did not want any of the strikers to return, especially the

“seven” who received permanent replacement letters.

Cicinelli said that the Union was aware of only five

such letters and asked Francek to provide copies of the

other two letters. As the conversation continued, there

was disagreement over how many people were issued

replacement letters, and to resolve that disagreement,

Francek left the room to retrieve copies of the letters.

With Francek gone, Bisbikis brought up his June

29 conversation with Laskaris about several employee

concerns. Laskaris denied ever having such a discussion

and Bisbikis accused him of lying. Laskaris cursed at

Bisbikis, telling him to “get the fuck out before I get

you the fuck out.” Bisbikis replied by calling Laskaris a

“stupid jack off” in Greek as he left the office. Laskaris

asked Bisbikis “what did you just say.” Bisbikis looked at

Laskaris and asked what he was talking about? I didn’t say

a word.” Cicinelli smirked, looked at Thomas and said “I

didn’t hear him say anything. Did you?” Laskaris replied,

“[n]ow even if I have to take you back, now I’m firing you

for insubordination.17

16. Bisbikis was on short-term disability for a herniated disc

in his back from December to May.

17. I credit the testimony of Laskaris, a fluent Greek speaker,

that Bisbikis called him a “stupid jack off” in Greek. Bisbikis did

not deny the statement at the time and the cavalier manner in which

Cicinelli and Thomas, neither of whom speak nor understand Greek,

denied hearing Bisbikis say anything manifested an evasiveness that

undermined their credibility regarding this incident. At the time,

74a

Appendix B

Cicinelli responded that the Union would have to file

another grievance regarding Bisbikis’ termination and

then asked Bisbikis to leave the room. He then asked

Laskaris to clarify his position regarding the recall

status of the remaining strikers. Laskaris reconsidered

and agreed to allow the remaining employees who did

not receive replacement letters to bring back their tools.

Cicinelli suggested that some had trailers and could

begin returning their tools in the afternoon. Laskaris

rejected that arrangement on the ground that it would

be too disruptive, insisting that it was not the Company’s

responsibility to transport the employees’ tools to the

dealership before they reported for work. The meeting

ended with Laskaris giving Cicinelli and Thomas a list

of guys who were not permanently replaced and the plan

for the return-to-work schedule. He also agreed to open

the shop two hours early on Tuesday at 5:30 a.m. and

needed them to be in their stalls by 7:30 a.m. ready to

go. Cicinelli insisted it would be a problem getting the

tools out of storage before 9 a.m. and Laskaris replied,

“It’s noon. My understanding is 701 has a truck. 701 has

a union hall for this purpose. Why don’t you go get their

tools, put them on the truck, take them down to the hall.

Not my issue. Now I need you to get away from the front

door and go.” After Cicinelli and Thomas left, Francek

followed up with telephone calls to each of the returning

mechanics. He spoke with some and left messages for

however, Bisbikis was standing by the door and not, as Laskaris

suggested, moving toward him in a threatening manner. (Tr. 42-48,

125-133, 142, 144, 167-173, 184-187, 221-234, 258, 273.) In addition,

Laskaris made no mention of threatening behavior on Bisbikis’ part

in the termination letter that followed.

75a

Appendix B

others. Some said they would be ready to start work at

7:30 a.m. One employee said he could not continue the call

without union representation.

(2) The Union attempts to recruit the

replacement workers

Shortly thereafter, Laskaris walked into the shop and

found Thomas speaking to the five replacement mechanics.

Laskaris intervened and said, ‘Ken, this is not the time.

Guys get back to work. Ken, I’ll set up a private conference

room for you before or after work any time you want

and you can sit and talk to them all you want, but you’re

not going to stop them from working.” Thomas left and

rejoined the group across the street.18

(3) The Company formally terminates Bisbikis

Later that morning, Laskaris sent Bisbikis a “notice of

termination for insubordinate conduct and inappropriate

language:”

Your insubordinate behavior occurred during a

conversation in my office on Monday, September

18, 2017 at or around 9:05 a.m. during a during

a business meeting where you spoke to me in

[G]reek and called me a [stupid jack off ]

. . . When confronted and told you can’t speak

to me that way, there was no apology nor denial

18. I base this finding on Laskaris’ credible and undisputed

testimony. (Tr. 251-252.)

76a

Appendix B

of you actions, instead you very sarcastically

to Sam Cicinelli “I guess that means I should

leave now.”

This offensive and insubordinate behavior is a direct

violation of Cadillac of Naperville’s Standards of Conduct.

In order to assure orderly operations and provide the best

possible work environment, we expect employees to follow

rules of conduct that will protect the interests and safety

of all personnel.

This violation of conduct is a terminable action. We ask

that you immediately refrain from entering our property.

Should you have any personal items, please reach out

to your supervisor to make any and all arrangements

regarding your personal item pick up.19

(4) The Company recalls seven employees

Later that afternoon, Veronica Coy, the Company’s

controller, emailed “all currently employed technicians

returning from work stoppage” regarding the return-towork arrangement and copied Cicinelli and Thomas:

Return to Work Procedures: Under the terms

of the new contract, each individual dealer may

19. Laskaris testified, as the letter states, that Bisbikis’ conduct

violated the Company’s Standards of Conduct.” He also testified that

those standards were reflected in a “book” which was not produced.

(Tr. 259-260, 276-277; Jt. Exh. 6.) In the absence of documentary

evidence to support that assertion, there is insufficient evidence to

conclude that Bisbikis violated any written standards.

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Appendix B

determine how many employees to recall and

when. Please make note that after review of our

work requirements we have determined that

the following employed employees will need

to return to work AND in their assigned work

stall ready for work on September 19, 2017 at

7:30 a.m.

THE FOLLOWING EMPLOYEES HAVE

BEEN RECALLED:

ZIOCCHI, MICHAEL D

GONZALEZ, RONALD J

MICHOLSON, CHARLES E

SCHULTE, RYAN D

TOWE, PATRICK

AGUIREE-PORTILLO, ANTONIO

SCOTT, JERICHO

We have made arrangements to have the

dealership open 5:30 a.m. until 7:30 a.m. on

September 19, 2017 in order to bring TOOL

boxes and Tool carts in. Please note that ONLY

TOOL boxes and Tool carts will be allowed to be

returned to the stalls as we have a redesigned

shop and usage will be at full capacity.

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Appendix B

Please also note the Cadillac of Naperville

Attendance Policy

ATTENDANCE AND PUNCTUALITY

As an employee you are expected to be regular

in attendance and to be punctual. Any tardiness

or absence causes problems for your fellow

employees and your supervisor. When you are

absent, your work load must be performed by

others, just as you must assume the work load

of others who are absent. In order to limit

problems caused by absence or tardiness of

employees, we have adopted the following policy

that applies to absences not previously approved

by the Company.

If you are unable to report for work on any

particular day, you must call and speak to (not

text message or email) your supervisor at least

one hour before the time you are scheduled to

begin working for that day. Absent extenuating

circumstances, you must call in on any day you

are scheduled to work and will not report to

work.

Excessive absenteeism or tardiness may result

in disciplinary action up to and including

termination of employment. If you believe the

absence is legally protected, please see the

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Appendix B

company’s Disability Accommodation Policy for

more information. Each situation of absenteeism

or tardiness will be evaluated on a case-by-case

basis. Even one unexcused absence or tardiness

may be considered excessive, depending on the

circumstance. 20

F. Recalled Employees Attempt to Report

to Work on September 19

At 7 a.m. on September 19, the employees met at their

usual location across the street from the dealership. A

short while later, Cicinelli and Thomas marched across

the lot with the recalled mechanics to the service area

as vehicles were coming through the service entrance.

They were met there by Laskaris and Francek. Laskaris

asked what they were doing. Cicinelli said that he wanted

to discuss the logistics for the employees’ return since

the storage facility did not open until 9:30 a.m. Laskaris

replied that it was not his problem and if the employees

were not in their stalls with their tools ready to go at 7:30

a.m., he would issue them warning letters because they

were technically late. 21

Laskaris proceeded to escort the group into the new

car delivery area. As they passed customers in parked

vehicles waiting to enter, Cicinelli said to a customer that

“these are the real technicians. Your scabs are in there.”

Francek interjected, reassured the customer that the

20. Jt. Exh. 7.

21. Laskaris did not, in fact, issue written warnings to

employees for lateness on September 19.

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Appendix B

real mechanics were working and the dealership would

take care of him, adding that the individuals walking in

“can’t do shit.” 22

Once in the room, Laskaris told the employees, “This

is my facility. You’re going to listen to me. I don’t give

a fuck who tells you; listen to me. If I tell you to jump,

you ask me how high. This is my--you play by my rules.”

Cicinelli interjected, “as long as you adhere to the terms

outlined.” Laskaris responded, “I know what that is. I

don’t need to be reminded of that.” Cicinelli agreed with

that comment. Laskaris told the employees to bring their

tools after 5 or 5:30 p.m. that day and Cicinelli replied that

he would be filing another grievance for back pay for that

day because Laskaris continued to make it impossible for

the employees to bring the tools back since the storage

facility closed at 5 p.m. Laskaris then told Cicinelli to

have the unit employees bring them home. Cicinelli said

that they did not all have trailers to transport their tool

boxes and/or have room to fit them in their garages. Nor

did they have the option of leaving them outside their

homes since they were expensive. Laskaris said that was

not his problem. He said for them to bring them in the

next morning and Cicinelli replied that the storage facility

did not open until 9:30 a.m. Cicinelli noted Laskaris’

inconsistency in permitting employees to remove the tools

22. The testimony of Laskaris, Francek and Cicinelli confirmed

the interaction of Cicinelli and Francek with the customer. In

addition, Francek failed to refute Cicinelli’s testimony that the

former told the customer that the strikers “can’t do shit,” while

Francek’s testimony that Cicinelli referred to the mechanics on duty

as “scabs” was also undisputed. (Tr. 72-73, 240-241, 295.)

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Appendix B

on a Saturday, but now insisting it would be disruptive to

bring them while the facility was open for business. He

called it overly restrictive. Laskaris reminded Cicinelli

that he told employees the previous day about being ready

when reporting to work and that some confirmed they

would be ready to go. They went through several more

exchanges in which Laskaris said he was not going to do

it Cicinelli’s way and the latter insisting that he needed

to comply with the contract. Laskaris finally relented,

stating that he would run his shop in a manner consistent

with the contract, and agreed to let the employees bring

back their tools after 4:30 p.m. that day. 23

G. Employees Finally Return to Work

on September 20

The seven reinstated employees returned to work on

September 20. Later that morning, Laskaris pulled aside

apprentice mechanic Patrick Towe showed him a video

recording of someone walking across the entrance to

the dealership. It was Towe carrying a sign and walking

slowly on the stripe line in the middle of the street in front

of the driveway. Towe’s shenanigans enabled him to block

a customer who was waiting to take a test drive. She was

forced to drive very slowly behind Towe as he walked

across the parking lot entrance. The customer began to

accelerate as Towe had advanced to a point where he was

23. The testimony by Cicinelli, Laskaris, Francek and Towe

regarding their interaction was fairly consistent. However, given

Laskaris’ penchant for colorful discourse with his employees, I credit

Cicinelli’s version of Laskaris’ vulgar-filled remarks that day. (Tr.

51-55 80-81, 240-242, 294-297.)

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Appendix B

nearly out of her way. However, Towe suddenly pirouetted

and walked back towards the vehicle, causing the customer

to slam her breaks.

Laskaris asked if that was him on the video recording

and Towe said, “I don’t think so.” Laskaris was not swayed,

pointed out that the prankster was wearing his sweatshirt,

and comment on his harassment of a future service shop

customer. He concluded with a remark that he hoped that

Towe would refrain from similar conduct. Laskaris then

said “I don’t want any of you here.” After further remarks,

Laskaris said, “Well, if this is your home, you wouldn’t

be doing this” and he told Towe to look for another job

because he wouldn’t be there very long. Towe said okay

and Laskaris dismissed him back to work. 24

H. The Company Restricts Union Officials

Access to Employees

Prior to the strike, Thomas customarily visited unit

employees at the dealership approximately once every 6

weeks. 25 Laskaris, upset after the events of September

18 and 19, contacted an attorney and, on September 21,

Laskaris and Francek sent a letter to the Union limiting

its previously unfettered access to employees on its

premises:

24. The video was not a surveillance video generated by the

Company and Laskaris was evasive as to its source. (Tr. 243-245.)

In any event, I credit Towe’s testimony regarding this conversation,

which was not denied by Laskaris. (Tr. 82-84, 245.) Towe was laid

off on December 2, 2017.

25. The existence of this custom and practice prior to the strike

was undisputed. (Tr. 57-58, 252.)

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Appendix B

This letter will serve as notice to Sam Cicinelli,

Ken Thomas, and Mechanics Local 701. As

a result of the intimidating and threatening

behavior of union president Sam Cicinelli and

B.A. Ken Thomas on Monday and Tuesday

9/18 & 9/19 towards myself, our employees,

and shockingly even worse our customers.

Neither Cicinelli nor Thomas will be welcome

in our dealership or on property. If they

choose to ignore our request they will kindly

be asked to leave the property immediately.

Proper authorizes will be notified to have them

removed if necessary.

As a result of the actions and behavior of Local

#701 representatives mentioned above and

complaints received from 4 employees who felt

they were being “intimidated and bullied” by

B.A. Ken Thomas on Tuesday the 19th. Local

#701 representatives will need to make an

appointment and request access to our facility

and/or our employees while they are at work.

An agreed upon time must be scheduled with

myself or our V.P. John Francek. Failure to

make such arrangements and respect our fair

request will result in representatives from

Local #701 being asked to leave the property

immediately and return at an agreed upon

scheduled time.

In closing let me be very clear. I personally

will no longer be threatened or tolerate acts of

intimidation by local #701 representatives in

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Appendix B

my own place of business. Nor will I tolerate

such behavior towards my employees or our

customers. Such behavior will be met with swift

legal action going forward. I appreciate your

cooperation in advance. 26

Union access to the facility is governed by Article 8,

Section 2 of in both the Expired Contract and the Successor

Contract: “A Union representative shall be permitted

access to the Employer’s premises for the purpose of

adjusting complaints individually or collectively.” 27

I. The September 25th Staff Meeting

On September 25, Laskaris called a staff meeting

where he threatened employees with layoff. Laskaris

called the meeting to express his frustration over the

Union’s decision to leaflet outside the dealership post the

strike. During the meeting, Laskaris told the employees

that the Union’s leafleting was taking money out of their

pockets and that if they ran out of work, all of the recalled

employees would be laid off. 28

26. Laskaris’ assertion that employees complained about

the conduct of Cicinelli and Thomas was neither credible nor

corroborated. To the contrary, Laskaris’ testimony indicated his

annoyance at the fact that the union representatives were soliciting

the replacement workers while they were on the job and he injected

himself to break up the conversation. (Tr. 261-262, 275; Jt. Exh. 8.)

27. Jt. Exh. 2 at 44.

28. Laskaris did not dispute Gonzalez’ credible and undisputed

testimony regarding this incident. (Tr. 158.) Francek confirmed

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Appendix B

J. Changes to Company Rules and Practices

(1) Free water

During the term of the 2013-2017 agreement, the

Company provided unit employees with free gloves and

bottled water in the Parts Department. Mechanics are

required as part of their job to wear gloves and were

provided with free gloves as needed. Prior to the strike,

the Company also provided employees with a water

fountain, as well as free bottled water and Gatorade during

the summer months. The water fountain broke prior to the

strike, however, and the Company provided bottled water.

During the first week upon returning to work, the

Company no longer provided free water bottles and

removed the water fountain. They were told to remove

their refrigerators and the refrigerator in the break room

was removed.29 The following day, the changes were posted

in a sign on the wall. 30

making remarks about the leafleting and its connection to potential

layoffs if work did not pick up, but did not dispute Gonzalez’

testimony. (Tr. 297-298.)

29. Laskaris was vague as to whether the water fountain

broke--”not to my knowledge”--and testified that prior to the strike

free bottled water was provided in the employee lounge refrigerator

with a cup next to it for contributions that the Company matched for

charity. (Tr. 249-251, 260-261.) Francek testified that the Company

confirmed that the Company cleaned out old items. He also referred

to a technician’s refrigerator causing an electrical short, but did not

address the banning of refrigerators. (Tr. 300-301.)

30. GC Exh. 4.

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Appendix B

(2) Attendance policy

Prior to the strike, the Company did not have a formal

attendance policy. It was left up to the service manager’s

discretion as to how they wanted to handle call-offs or

calling in late. In some instances, the service manager

simply required mechanics to either leave a voicemail

message or text message him if they were going to be late.31

In its September 18 recall letter to seven employees, the

Company inserted an attendance policy at the end of the

email. About 2-3 weeks after employees returned to work,

the Company revised that policy. It stated in pertinent part:

. . . Technicians should contact their Department

Manager to report an absence at least (1) hour

prior to their starting time, and lateness at least

a (1/2) hour prior to their starting time so that

arrangements can be made.

If any technician is absent from wor

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