BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, PROUTY, AND WILCOX

This case presents several issues arising from employer opposition to a union organizing campaign, including the important question of whether an employer violates Section 8(a)(1) of the National Labor Relations Act (the Act or NLRA) by compelling its employees, on pain of discipline or discharge, to attend a meeting during which it expresses its views concerning unionization.1

In April 2021,2 a group of employees founded the Amazon Labor Union and began organizing at two of the Respondent's locations in Staten Island, New York. During the campaign, the Respondent held a series of mandatory meetings urging the employees to reject union representation. Such meetings are commonly referred to as captive-audience meetings, a term we also use here. Most of the unfair labor practices alleged in this case grow out of statements made by the Respondent's agents at those meetings. The others concern the alleged discriminatory enforcement of the Respondent's Solicitation Policy and an alleged threat to employee Dana Miller.

The judge found that the Respondent violated Section 8(a)(1) of the Act by threatening employees that it would withhold benefits during the mandatory meetings.3 The judge also found that the Respondent violated Section 8(a)(1) by discriminatorily enforcing its solicitation policy.4 However, applying the Board's decision in Babcock & Wilcox Co., 77 NLRB 577 (1948), the judge found that requiring employees to attend the meetings or face discipline or discharge was lawful.5

On exception, the General Counsel argues that the Board should overturn Babcock & Wilcox and find that an employer violates Section 8(a)(1) by mandating employee attendance at a meeting where it expresses its views concerning unionization. As explained in greater detail below, we find that the largely unexplained holding of Babcock & Wilcox is not compelled by the text or the legislative history of the Act; rather, it is flawed as a matter of statutory policy. We therefore overrule Babcock & Wilcox and hold that an employer interferes with employees' decision whether to exercise their Section 7 rights within the meaning of Section 8(a)(1) of the Act when it compels employees to attend a captive-audience meeting on pain of discipline or discharge.

1. FACTUAL BACKGROUND

The Respondent operates fulfillment and storage centers including, as relevant here, in Staten Island, New York. As noted above, in April 2021, a group of employees founded the Union and began a campaign to organize the Respondent's JFK8 fulfillment center. Thereafter, the [*2] Union also began organizing the Respondent's nearby LDJ5 storage center. The Union conducted its campaign from a tent at a bus stop across the street from the JFK8 facility. During the campaign, some employees posted messages on the Respondent's Voice of Associates, or "VOA," digital message boards.

The Respondent responded to the Union's organizing effort with its own campaign to dissuade employees from signing union-authorization cards and selecting union representation. The Respondent's campaign included a series of meetings that the Respondent stipulated it required employees to attend.6 As discussed further below, between November 2021 and April 2022, the Respondent conducted these mandatory meetings at both the JFK8 and LDJ5 facilities.7

1. CAPTIVE-AUDIENCE MEETINGS

In Babcock & Wilcox Co., 77 NLRB 577 (1948), the Board held, without explanation, that the "language" and "legislative history" of Section 8(c) of the Act preclude the Board from holding that an employer violates Section 8(a)(1) when it requires employees to attend a captive-audience meeting. The Respondent stipulated that the employees here were required to attend many captive-audience meetings, during which the Respondent's agents made statements opposing union representation generally and the Union specifically. At one point in the campaign, the Respondent held meetings at its JFK8 facility every 45 minutes from 9 a.m. to p.m. and 7 p.m. to 4 a.m. 6 days a week. Managers personally notified employees that they were scheduled to attend, escorted them to the meetings, and scanned their ID badges to digitally record attendance. Pursuant to Babcock & Wilcox, the judge dismissed the General Counsel's allegations that these meetings were unlawful. The General Counsel argues that we should overrule Babcock & Wilcox and hold that captive-audience meetings and other similar mandatory employer-employee encounters violate Section 8(a)(1). The Respondent disagrees, contending that such meetings do not violate Section 8(a)(1) and are affirmatively protected under free speech principles, including [*11] those embodied in Section 8(c).

Consistent with "the authority to develop and apply fundamental national labor policy" that Congress has conferred upon us, Beth Israel Hospital v. NLRB, 437 U.S. 483, 500 (1978), and informed by our "[c]umulative experience" doing so, NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975) (quotations omitted), as well as a careful examination of the language and legislative history of Section 8(c), we have decided to overrule Babcock & Wilcox. For the reasons explained below, we conclude that captive-audience meetings violate Section 8(a)(1) because they have a reasonable tendency to interfere with and coerce employees in the exercise of their Section 7 right to freely decide whether or not to unionize, including the right to decide whether, when, and how they will listen to and consider their employer's views concerning that choice. Section 8(c) permits an employer to hold and express its views on unionization to employees, but only if no "threat of reprisal or force or promise of benefit" is made. Thus, Section 8(c) does not license employers to compel employees, on pain of discipline or discharge, to attend meetings where they are forced to listen to the employer's views, for such compulsion amounts to a "threat of reprisal" and is "without the protection of the First Amendment." NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969).

Below, we first describe the legal background of the captive-audience meeting issue. We then provide the Board's first comprehensive analysis of that issue. That analysis leads to two conclusions. The first is that captive-audience meetings interfere with and coerce employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1). The second is that free-speech principles, including those embodied in Section 8(c) and the First Amendment, do not insulate employers from liability for such violations. We do not, however, broadly prohibit employers from holding workplace meetings with their employees to express their lawful views on unionization in a noncoercive manner. Thus, we specify straightforward steps that employers may take to avoid violating Section 8(a)(1) when they wish to hold such a meeting, including by informing employees, in advance, of the subject matter and the voluntary nature of the meeting.19

1. Background

In the years immediately following the 1935 enactment of the Act, the Board took the position that it required employers to maintain strict neutrality concerning unionization. See, e.g., Nebel Knitting Co., 6 NLRB 284, 293-294 (1938), enfd. 103 F.2d 594 (4th Cir. 1939); Virginia Ferry Corp., 8 NLRB 730, 736 (1938), enfd. 101 F.2d 103 (4th Cir. 1939). However, within a few years, the Supreme Court clarified that employers and unions are free to express their views on unionization, while also making clear that they may not interfere with, restrain, or coerce employees in the course of expressing those views.

In NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941), the Court reviewed a Board decision finding unfair labor practices based in part on the employer's speeches and written materials presented to employees. Id. at 476-477. In light of the employer's First Amendment challenge, the Court remanded the case for the Board to explain whether its findings were based on the substance [*12] of the employer's statements alone or rather on the employer's entire course of conduct. Id. at 477-480. The Court distinguished between the expression of views, which was permitted, and coercive conduct "evidenced in part by speech," which was not permitted, observing:

Neither the Act nor the Board's order here enjoins the employer from expressing its view on labor policies or problems, nor is a penalty imposed upon it because of any utterances which it has made. The sanctions of the Act are imposed not in punishment of the employer but for the protection of the employees. The employer in this case is as free now as ever to take any side it may choose on this controversial issue. But certainly conduct, though evidenced in part by speech, may amount in connection with other circumstances to coercion within the meaning of the Act. If the total activities of an employer restrain or coerce [its] employees in their free choice, then those employees are entitled to the protection of the Act. And in determining whether a course of conduct amounts to restraint or coercion, pressure exerted vocally by the employer may no more be disregarded than pressure exerted in other ways.

Id. at 477; see also NLRB v. American Tube Bending Co., 134 F.2d 993, 994-995 (2d Cir. 1943) (applying Virginia Electric & Power and holding that the substance of an employer's letter and speech to employees "that a union would be against the employees' interests as well as the employer's" was not unlawful).

A few years later, in Thomas v. Collins, 323 U.S. 516 (1945), the Supreme Court held that the application of a Texas statute that required union organizers to register with the state and to obtain an "organizer's card" before soliciting union members violated the First Amendment. Under the Texas statute, a union organizer who had failed to register was enjoined from soliciting members and then was held in criminal contempt after he addressed a meeting of employees in connection with an upcoming union representation election. Id. at 520-524. The Court observed that the Act protects "workers' right to organize freely for collective bargaining" and further observed that included within this broader right is the "right fully and freely to discuss and be informed" concerning their organizational choice. Id. at 533-534. The Court also noted the distinction between protected "persuasion" and prohibited "coercion," observing:

[D]ecision here has recognized that employers' attempts to persuade to action with respect to joining or not joining unions are within the First Amendment 's guaranty. National Labor Relations Board v. Virginia Electric Power Co., 314 U.S. 469 [(1941)]. Decisions of other courts have done likewise. When to this persuasion other things are added which bring about coercion, or give it that character, the limit of the right has been passed. Cf. National Labor Relations Board v. Virginia Electric & Power Co., supra. But short of that limit the employer's freedom cannot be impaired. The Constitution protects no less the employees' converse right.

Id. at 537-538 (footnotes omitted).

With this guidance from the Supreme Court in mind, in Clark [*13] Bros. Co., 70 NLRB 802 (1946), the Board considered the legality under the Act of an employer's antiunion campaign speeches "made on the [employer's] premises during working hours." Id. at 804. The Board first held that making such a speech on work premises during working hours was unlawfully coercive because the employer "paid its employees for listening" and had "exclusive access to [them] in a matter relating to their organizational activities." Id. But the Board also separately held that "the conduct of the respondent in compelling its employees to listen to a speech on self-organization . . . independently constitutes interference, restraint, and coercion within the meaning of the Act." Id. As to this second holding, the Board reasoned that the Act guarantees employees the right to freely receive aid, advice, and information from others concerning their organizational rights and that that "freedom is meaningless . . . unless the employees are also free to determine whether or not to receive such aid, advice, and information." Id. at 805. The Board concluded that the employer's use of "its superior economic power"—its mandate that the employees attend a meeting where it would express its antiunion views—thus "independently violated Section 8(1) of the Act." Id. In response to the dissent of Member Reilly—who took the view, "as a matter of policy as well as established judicial precedent," that the employer had not committed a violation, id. at 813 —the Board noted that the case involved "coercive acts," and "not mere expressions of opinions," such that its decision was consistent with the Supreme Court's guidance. Id. at 806.20

The Second Circuit enforced the Board's order. NLRB v. Clark Bros. Co., 163 F.2d 373 (2d Cir. 1947). The court reasoned that the particular facts of the case did "not call for laying down so broad a rule" as the Board had, but it noted that an employer should only be able to hold a captive-audience meeting "provided a similar opportunity to address [employees] were accorded representatives of the union." Id. at 376. Given that the employer had not provided such an equivalent opportunity, and had mounted an aggressive antiunion campaign that culminated in the captive-audience meeting soon before voting in a representation election was to begin, the court concluded that "the Board was justified in finding that the respondent's conduct was coercive and an interference with the employees' right to self-organization[.]" Id.

In 1947, Congress passed the Labor Management Relations Act, commonly referred to as the Taft-Hartley Act. It amended the National Labor Relations Act in many respects, including by making explicit that Section 7 —which guarantees employees the right to self-organize, form, join, or assist unions, bargain collectively, and engage in other concerted activities—also protects employees' "right to refrain from any or all of such activities." As Senator Taft explained, this right to refrain "was always implicit" in the Act. 93 Cong. Rec. 7001 (June 12, 1947), reprinted in 2 NLRB, Legislative History of the Labor Management Relations Act, 1947 (hereinafter "2 LMRA Hist.") at 1623; see also Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 67 (2008) (explaining that the Taft-Hartley Act "emphasized" the right to refrain). In all other respects, Section [*14] 7 and Section 8(a)(1) of the Act remained unchanged. See H.R. Rep. No. 80-510 (hereinafter "Conference Report"), at 38-40 (1947), reprinted in 1 NLRB, Legislative History of the Labor Management Relations Act, 1947 (hereinafter "1 LMRA Hist.") at 542-544. Thus, the amendments did not narrow statutory protections for employees in any way.

With relatively little debate, Congress also included, among the Taft-Hartley Act's provisions, Section 8(c), which equally "protects speech by both unions and employers." Brown, 554 U.S. at 67. Section 8(c) provides:

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(c). This provision largely codifies the Supreme Court's decisions in Virginia Electric & Power and Thomas, as, in the Court's words, it "implements the First Amendment." Gissel, 395 U.S. at 617. As repeatedly reflected in the Taft-Hartley Act's legislative history and subsequently confirmed by the Supreme Court, Section 8(c) also "prevent[s] the Board from attributing antiunion motive to an employer on the basis of [its] past statements"—as relevant, for instance, to an allegation of an employer's unlawful retaliation against employees in violation of Section 8(a)(3) of the Act. Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 62 fn. 5 ( 1966) (citing Conference Report at 45, reprinted in 1 LMRA Hist. at 549 ); see also, e.g., H.R. Rep. No. 80-245 (hereinafter "House Report"), at 33 (1947), reprinted in 1 LMRA Hist. at 324; 93 Cong. Rec. 7002 (June 12, 1947) (statement of Senator Taft), reprinted in 2 LMRA Hist. at 1624. Senator Taft explained that, consistent with the text of Section 8(c), "the privilege of this subsection is limited to expression of 'views, arguments, or opinion,'" such that "[i]t has no application to statements which are acts in themselves or contain directions or instructions." 93 Cong. Rec. 7002 (June 12, 1947), reprinted in 2 LMRA Hist. at 1624.

The legislative history of the Taft-Hartley Act reflects little consideration of the issue of captive-audience meetings. Such meetings are not mentioned, for instance, in the House Report or the Conference Report. However, the report of the Senate Committee on Labor and Public Welfare characterized the Board's first holding in Clark Bros.—that, independent of the mandatory nature of the meeting, it is an unfair labor practice for an employer to make a speech concerning unionization "in the plant on working time"—as "too restrictive" and therefore recommended overruling that holding. S. Rep. No. 80-105 (hereinafter "Senate Report"), at 23-24 (1947), reprinted in 1 LMRA Hist. at 429-430. The Senate Report's single reference to Clark Bros. is the only one in the Taft-Hartley Act's voluminous legislative history.

In 1948, in Babcock & Wilcox, the Board again considered the scenario in which an employer had "compel[led] its employees" to attend a meeting during which it expressed its antiunion views. 77 NLRB at 578. Overruling Clark Bros. in its entirety, the Board found that the captive-audience meeting was not unlawful on the ground that "the language of Section 8(c) of the amended Act, and its legislative history, make it clear that the doctrine of the Clark Bros. case no longer exists as a basis for finding unfair labor practices in circumstances such as this record discloses." Id. The Board offered no further analysis beyond this statement. Rather, it treated the meaning of Section 8(c) as self-evident. [*15] It did not explain how the language of Section 8(c) or its legislative history permits employers not only to express their views on unionization, but also to compel employees, on pain of discipline or discharge, to attend meetings where those views are expressed.

Three years later, in Bonwit Teller, Inc., 96 NLRB 608 (1951), the Board found that an employer violated Section 8(a)(1) and committed objectionable conduct sufficient to set aside an election when it held a captive-audience meeting but failed to grant the union's request to hold an equivalent meeting on the employer's premises under similar conditions. Id. at 611. The Board found that the employer's conduct—actively campaigning against the union, including by holding a captive-audience meeting while rejecting the union's request for its own captive-audience meeting—constituted discriminatory enforcement of a no-solicitation rule. Id. at 611-612. The Board further found that "an even more fundamental consideration" for deeming the employer's conduct unlawful was that "the right of employees, guaranteed by Section 7 of the Act, freely to select or reject representation by a labor organization necessarily encompasses the right to hear both sides of the story under circumstances which reasonably approximate equality." Id. at 612. Accordingly, in the Board's view, "an employer who chooses to use [its] premises to assemble [its] employees and speak against a union may not deny that union's reasonable request for the same opportunity to present its case, where the circumstances are such that only by granting such request will the employees have a reasonable opportunity to hear both sides." Id. The Board rejected the dissent's view that its findings were barred by Section 8(c), as it noted that an employer is "free to exercise fully its right of free speech" as protected by that provision. Id. at 615. The Second Circuit affirmed the Board's order in relevant part, on the ground that the employer had discriminatorily applied its no-solicitation rule. Bonwit Teller, Inc. v. NLRB, 197 F.2d 640, 645-646 (2d Cir. 1952).

Just 2 years later, the Board again changed the applicable legal framework in a pair of cases issued the same day, Livingston Shirt Corp., 107 NLRB 400 (1953), and Peerless Plywood Co., 107 NLRB 427 (1953). In Livingston Shirt, the Board overruled Bonwit Teller, concluding that an employer did not commit an unfair labor practice when, after holding its own captive-audience meetings, it barred the union seeking to represent its employees from holding similar meetings on its premises. 107 NLRB at 404-409. The Board reasoned that Section 8(c) 's protection of free speech does not have "real meaning" if it "gives rise to an obligation on the part of the employer to accord an equal opportunity for the union to reply" to an employer's captive-audience meeting with an equivalent meeting of its own. Id. at 405-406. The Livingston Shirt Board admitted, however, that in the companion case, Peerless Plywood, it was "deviating from the strict logic" of its decision. Id. at 408. In Peerless Plywood, the Board concluded, in the context of a representation case in which the Board assesses allegations of objectionable campaign [*16] conduct, that "employers and unions alike will be prohibited from making election speeches on company time to massed assemblies of employees within 24 hours before the scheduled time for conducting an election." 107 NLRB at 429. The Board reasoned that "the combined circumstances of (1) the use of company time for preelection speeches and (2) the delivery of such speeches on the eve of the election tend to destroy freedom of choice and establish an atmosphere in which a free election cannot be held." Id. at 429-430.

In the years since, the Board has permitted employers to strictly control employees during captive-audience meetings conducted more than 24 hours in advance of an election. To be sure, in some cases, the Board has found that an employer violated the Act when it imposed discipline on employees who made statements or asked questions during a captive-audience meeting.21 More recently, however, the Board has found that while an employer cannot discharge an employee for making statements or asking questions at a captive-audience meeting, it may still lawfully take other disciplinary measures short of discharge to "refus[e] to allow others to express their opposing, pro-union viewpoints during the meeting." Electrolux Home Products, 368 NLRB No. 34, slip op. at 4 & fns. 13-14 (2019); see also Eagle-Picher Industries, 331 NLRB 169, 169 (2000). The Board has also found that employers can effectively preempt employee statements or questions by excluding certain employees—like known union supporters—from meetings that are mandatory for other employees.22

1. Analysis

Congress conferred on the Board "the authority to develop and apply fundamental national labor policy," Beth Israel Hospital, 437 U.S. at 500, including the authority to change its view on issues presented under the Act. See J. Weingarten, Inc., 420 U.S. at 265-266; see also NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786-787 (1990).23 Today we do what the Babcock & Wilcox Board failed to do in 1948: carefully examine the issues presented by captive-audience meetings and provide a reasoned explanation for a change in the Board's view. We explain both how such meetings infringe on employees' freedom to exercise their rights under Section 7 of the Act and why, contrary to Babcock & Wilcox, Section 8(c) does not insulate employers from unfair labor practice liability in this context. While the Board's approach to captive-audience meetings has been fixed for decades, it has never been fully or persuasively explained. Captive-audience meetings are now a common feature of campaigns.24 Given the importance of the issue, we believe a reexamination is long overdue. That reexamination leads us to overrule Babcock & Wilcox and its progeny, for the reasons that follow.

Under the legal status quo, an employer can compel employees, under the threat of discipline or discharge, to attend meetings where they are required to listen to the employer's views on whether they should unionize or not. As just noted, employers frequently opt to do so. An employer can hold these meetings repeatedly, for whatever length of time it wants, and whenever it wants, with the sole exception, pursuant to Peerless Plywood, that it cannot do so within [*17] 24 hours of a representation election. An employer can observe employees at these meetings, seeing, among other things, with whom they associate and how they react to what they hear. An employer can silence, or even banish, employees who would express their own views or even just ask questions. It should be clear, then, that a captive-audience meeting is an extraordinary exercise and demonstration of employer power over employees in a context where the Act envisions that employees will be free from such domination. We thus prohibit captive-audience meetings.

Neither Section 8(c) nor the First Amendment precludes the Board from finding captive-audience meetings unlawful. The plain meaning of Section 8(c) 's statutory text is that employers and unions may noncoercively express their views concerning unionization and that the substance of those views cannot be held against them. That unambiguous text does not suggest that, in addition to protecting their speech, Section 8(c) also permits employers to compel employees to listen to their speech. Such permission would be out of keeping with the First Amendment, which protects the right to free expression but does not grant the right to a captive audience nor authorize employer coercion in the labor relations setting. The Taft-Hartley Act's legislative history confirms as much. It makes clear, as the Supreme Court has explained, that the purpose of Section 8(c) is to permit employers and unions to noncoercively express their views on unionization and to prohibit those views from being used against them as evidence of an unlawful motive for other challenged actions. The single congressional report that briefly addresses the Board's decision in Clark Bros. references only one of the holdings there—that employers may not hold meetings to express their views during "working time"—and not the decision's independent condemnation of the practice of compelling employees to attend those meetings. In any case, that report's origins caution against relying on it to support a broad reading of Section 8(c).

1. Section 8(a)(1)

Section 7 of the Act provides, in most relevant part, that employees "shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities." 29 U.S.C. § 157. Section 8(a)(1) enforces Section 7 by making it unlawful for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section [7 ]." Id. § 158(a)(1). "The broad purpose of [Section] 8(a)(1) is to establish 'the right of employees to organize for mutual aid without employer interference.'" Exchange Parts, 375 U.S. at 409 (quoting Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945) ). Accordingly, "[t]he basic test for an 8(a)(1) violation . . . is whether—regardless of intent—the employer engaged in conduct that reasonably tends to interfere with the free exercise of employee rights under the Act." [*18] MEI-GSR Holdings, LLC d/b/a Grand Sierra Resort & Casino/HG Staffing, LLC, 365 NLRB 751, 752 (2017).25

The Board's traditional interpretation of the statutory phrase "interfere with" is consistent with its ordinary meaning. See, e.g., Standard-Coosa-Thatcher Co., 85 NLRB 1358, 1360 (1949) ("Inherent in the very nature of the rights protected by Section 7 is the concomitant right of privacy in their enjoyment—'full freedom' from employer intermeddling, intrusion, or even knowledge."). Accordingly, with judicial approval, the Board has long and consistently found that employers violate Section 8(a)(1) when they intrude on the privacy and autonomy of employees by, for instance, surveilling, interrogating, or polling them with regard to their exercise of Section 7 rights.26 These protections for employees' privacy and autonomy are necessary to make Section 7 rights meaningful, given the power that employers have over employees in the workplace—power that the Act and the Supreme Court explicitly recognize.27

Captive-audience meetings intrude on this protected sphere of employee privacy and autonomy and reasonably tend to interfere with employees' exercise of Section 7 rights in at least three distinct ways. First, captive-audience meetings impinge on an employee's "Section 7 right to choose, free from any employer coercion, the degree to which [they] will participate in the debate concerning representation,"28 which is an aspect of the employee's more fundamental right to be let alone with respect to the exercise of rights under the Act. Second, captive-audience meetings can readily serve as a mechanism for employers to observe and surveil employees as they address the exercise of employees' Section 7 rights. Finally, because the employer has compelled employees to attend captive-audience meetings on pain of discipline or discharge, the employer's message in the meeting urging rejection of or support for the union is reasonably likely to take on a similarly coercive character. Just as employees may reasonably conclude that they have no real choice but to attend the meeting, so may employees reasonably conclude that, in fact, they do not have free choice concerning union representation. The employer's ability to require attendance at the meeting demonstrates the employer's economic power over the employees and reasonably tends to inhibit them from acting freely.

To begin, when employers compel employees to attend captive-audience meetings under threat of discipline or discharge, they force them to participate, at least as listeners, in the debate concerning union representation. The power to compel attendance at captive-audience meetings is not an incident of Section 8(c) 's protection of employers' speech. Instead, exercising the power to compel attendance is quintessentially conduct by which employers "interfere with" employees' exercise of their own Section 7 rights. To be sure, an employer generally has the prerogative to dictate the work tasks and activities that fill its employees' working time, see, e.g., Peyton Packing Co., 49 NLRB 828, 843 (1943) ("Working time is for work."), enfd. 142 F.2d 1009 (5th Cir. 1944), but when an employer compels [*19] its employees to attend a captive-audience meeting, it is not exercising that prerogative. Rather, it is meddling in the decision-making sphere that, under the Act, belongs exclusively to employees: namely, whether, when, and how employees choose to exercise their Section 7 rights or to refrain from doing so. It is well established that an employer may not "condition[] an employee's continued employment on the employee's abandonment of [their] Section 7 rights." Intercon I (Zercom), 333 NLRB 223, 223 fn. 4 (2001). To hold otherwise would be to eviscerate the rights granted by the Act. Compelling employees to attend a captive-audience meeting effectively conditions their employment on the abandonment of their Section 7 rights.

As the Supreme Court has explained, Section 7 guarantees "workers' right to organize freely for collective bargaining," and that right "comprehends whatever may be appropriate and lawful to accomplish and maintain such organization," including the "right fully and freely to discuss and be informed concerning this choice." Thomas, 323 U.S. at 533-534. A captive-audience meeting overrides employees' right to freely be informed about unionization—or not. In the context of a political election, being compelled to attend a party's campaign meeting would rightly be denounced as antithetical to voters' freedom of choice. The same should be true in the context of union representation elections, not least because, as the Supreme Court has recognized, employees are vulnerable in a way that typical independent voters are not, given employees' economic dependence on the employer. See, e.g., Gissel, 395 U.S. at 617-618.

The compelled participation that the Act specifically protects against is also irreconcilable with American law's more general focus on protecting the "unwilling listener's interest in avoiding unwanted communication," despite the communicators' wish to express their views. Hill v. Colorado, 530 U.S. 703, 716-717 (2000) (upholding state law preventing protesters from approaching entrants to health clinic). That interest "is an aspect of the broader 'right to be let alone'" that Justice Brandeis characterized as "'the most comprehensive of rights and the right most valued by civilized men.'" Id. at 717 (quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) ). Thus, while the "right to persuade" is an essential right "protected by the First Amendment, as well as by federal statutes," id. at 717-718 (internal citation omitted), like the Act's Section 8(c), it remains the case that "'no one has a right to press even 'good' ideas on an unwilling recipient,'" id. at 718 (quoting Rowan v. U.S. Post Office Dept., 397 U.S. 728, 738 (1970) ). Accordingly, where "'the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure,'" the need to protect such unwilling listeners is at its zenith. Id. (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975); Lehman v. Shaker Heights, 418 U.S. 298 (1974) ). By contrast, when a person is not captive—like the pedestrian who can readily walk away or the television viewer who can easily change the channel—"the burden normally falls upon the [person] to 'avoid further bombardment.'" Erznoznik, 422 U.S. at 210-211 (quoting Cohen v. California, 403 U.S. 15, 21 ( 1971) ). In light of Section 7 's guarantees, employees [*20] in the workplace have a legitimate interest in avoiding unwanted communication concerning the exercise of their Section 7 rights. Captive-audience meetings are particularly powerful tools to force a message onto unwilling listeners. Employees summoned by their employer to such meetings cannot simply walk away to avoid hearing views that they would rather not hear, unless they are prepared to lose their jobs or suffer other discipline. Under the Act and the First Amendment, employers undoubtedly have the right to persuade, but that right must accommodate employees' right to be left alone in the sphere protected by the Act, just as in other settings the right of a speaker does not override the right of an unwilling listener. Employers may express their views on unionization, but they may not compel employees to listen to them.

Captive-audience meetings intrude on employees' private sphere surrounding Section 7 rights in a second way by enabling employers to observe and monitor employees in a series of employer-structured events.29 To begin, employees directed to attend a captive-audience meeting must choose whether or not to comply with the employer's order. This puts employees to the sort of employer-compelled "observable choice" concerning union support that the Board has prohibited in a variety of settings.30 Next, captive-audience meetings let employers observe the behavior of employees in an employer-controlled setting that will reasonably tend to reveal their sentiments concerning unionization. Obviously, employees who speak out in opposition to the employer's views—perhaps because they feel pressure to do so31—will be noticed by the employer, as will employees who ask questions. In turn, employees who speak might well fear that they have exposed themselves to reprisal because they have frustrated the employer's expression of its own views, to which employees have been compelled to listen. But even employees who do not speak are subject to observation at the meeting—a meeting they must attend. An employer might monitor where employees sit (for instance, whether someone sits and talks with known union supporters or opponents) and other nonverbal behaviors (like raised eyebrows, rolled eyes, or darting glances) in response to the employer's statements. In sum, captive-audience meetings subject employees to the employer's scrutiny, as employees surely understand. Such scrutiny tends to interfere with the exercise of Section 7 rights.32

Finally, the Supreme Court's recognition in Gissel, 395 U.S. at 617, that a realistic appraisal of an employer's communications about unionization must account for "the economic dependence of the employees on their employers" and "the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear" applies with particular force to statements made during a captive-audience meeting. The directive to attend the meeting, on pain of discipline or discharge, necessarily [*21] drives home to employees that the employer controls their participation in the election campaign by means of its economic power over them. The captive-audience context, in turn, clearly communicates to employees that they lack the genuine freedom to choose whether, when, and how to participate in the choice concerning union representation, just as they lacked the freedom to choose whether to attend the meeting. This context, then, implicates the Supreme Court's distinction between free speech and coercive speech in the labor context. As the Court has observed, an employer's expression of views is not protected when to "persuasion other things are added which bring about coercion, or give it that character." Thomas, 323 U.S. at 537. Compelling employees to listen to the employer's views adds coercion to persuasion.33

For each of these reasons, captive-audience meetings violate Section 8(a)(1) of the Act. They impermissibly demonstrate to employees that their employer's power over them in the workplace extends to the denial of the exercise of the rights guaranteed by Section 7.

2. Free-speech principles

A careful examination of Section 8(c) of the Act—which the Babcock & Wilcox Board failed to do—demonstrates that it does not immunize employers who conduct captive-audience meetings. The Supreme Court has repeatedly held that "people are entitled to rely on the law as written," such that "when the meaning of the statute's terms is plain," the analysis "is at an end." Bostock v. Clayton County, 590 U.S. 644, 673-674 (2020).34 Below, we first explain that the analysis here appropriately starts and ends with the text of Section 8(c). Its plain meaning is that employers may noncoercively express their views on unionization, but they may not coerce employees to listen to them. We then explain that even if Section 8(c) 's legislative history is consulted, it confirms that Section 8(c) was not intended to shield employers from liability under Section 8(a)(1) for compelling attendance at a captive-audience meeting. Instead, it was intended to prevent the Board from using the content of an employer's lawful expression of its views as evidence of an unlawful motive in connection with an unfair labor practice, like unlawful retaliation under Section 8(a)(3) that, unlike unlawful interference under Section 8(a)(1), requires proof of motive. Last, we explain that, like Section 8(c), the First Amendment does not shield employers from liability under Section 8(a)(1) for compelling attendance at a captive-audience meeting. As the Supreme Court has explained, "[a]ny assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting," and, "[t]hus, an employer's rights cannot outweigh the equal rights of the employees to associate freely." Gissel, 395 U.S. at 617. Prohibiting captive-audience meetings ensures the proper balance by not interfering with employers' right to express their views on unionization, while protecting employees' right to decide, for themselves, whether, when, and how to engage with those views.

1. Section 8(c) 's text

Section 8(c), as noted, provides:

The expressing of any views, argument, or opinion, [*22] 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(c). Section 8(c) 's unambiguous meaning is that employers may noncoercively express their views on unionization, but they may not compel employees to listen to them. On its face, Section 8(c) does not address captive-audience meetings. That fact is telling. When an employer compels its employees to attend a meeting, it is not "expressing" or "disseminating" any "views, argument, or opinion" in the "ordinary, contemporary, common meaning" of those words. Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405, 414 (2017) (internal quotation marks omitted).35 As the Supreme Court's cases in the free speech context illustrate, expressing or disseminating a view is distinct from compelling someone to listen to it. Prohibiting compulsion does not impermissibly interfere with expression or dissemination. Had Congress intended not only to protect employers' freedom to express their views, but also to immunize them from unfair labor practice liability for compelling employees to listen to their views, it surely would have said so specifically.

An employer's act of compelling employees to attend a captive-audience meeting is thus not Section 8(c) -protected expressive speech. This distinction between coercive conduct prohibited by Section 8(a)(1) and speech protected by Section 8(c) has been explicitly or implicitly drawn by the Board in analogous contexts, with judicial approval.36 In Allegheny Ludlum, for instance, the employer, as part of its antiunion campaign, prepared a video "as to why employees should vote against representation." 333 NLRB at 735. Under Section 8(c), the Board observed, "employers have the right to present noncoercively their position regarding a union organizing campaign, including through the use of antiunion campaign videotapes[.]" Id. at 738. But the employer crossed the line when it coerced employees, including by individually soliciting them, to appear in the video. Id. at 740-743. This was a straightforward manifestation of the Supreme Court's rule that "[a]ny assessment of the precise scope of employer expression . . . must be made in the context of its labor relations setting," such that "an employer's rights cannot outweigh the equal rights of the employees to associate freely[.]" Gissel, 395 U.S. at 617. Accordingly, the Third Circuit, in affirming the Board's decision, found that it "reasonably balance[d] the rights created under sections 8(a)(1) and 8(c)." Allegheny Ludlum, 301 F.3d at 179. We strike that same balance in prohibiting captive-audience meetings.

Finding a violation of Section 8(a)(1) based on compelling employees to attend a captive-audience meeting does not require the Board to rely on the employer's expression of views, argument, or opinion as "evidence of" the unfair labor practice.37 That prohibition, as the Supreme Court has explained, is intended "to prevent the Board from attributing antiunion motive to an employer based on [its] past [*23] statements." Linn, 383 U.S. at 62 fn. 5 (citing Conference Report at 45, reprinted in 1 LMRA Hist. at 549 ). Such a motive is required to prove only certain violations, like an employer's retaliation, in violation of Section 8(a)(3), for an employee's exercise of Section 7 rights. The test for interference and coercion under Section 8(a)(1), by contrast, "does not turn on the employer's motive." American Freightways, 124 NLRB at 147. Accordingly, in cases such as Allegheny Ludlum, the violation of Section 8(a)(1) was based not on the employer's expression of views—whether in a video, literature, or paraphernalia—but rather on its pressuring and coercing employees to participate in or accept the expression. In the captive-audience context, similarly, the Section 8(a)(1) violation turns not on the substance of the employer's views, but rather on the employer's use of compulsion: the threat, whether explicit or implicit, that employees will suffer discipline, discharge, or some other adverse consequence if they fail to attend the meeting. Employers retain full freedom to express their views on unionization to employees in the workplace, provided that they do not compel employees to listen to them.

Moreover, for the reasons articulated above, an employer's message in a captive-audience meeting cannot meet the explicit requirement of Section 8(c) that, to be protected, an employer's views must "contain[] no threat of reprisal." As explained, by compelling employees to attend a captive-audience meeting and communicating its own message there, the employer creates a reasonable tendency that economically dependent employees will feel inhibited from exercising free choice as to whether, when, and how to participate in the decision concerning union representation. This tendency is eliminated if the employer expresses its views to employees who voluntarily choose to attend such a meeting, because such a meeting does not carry the threat of discipline or discharge for not attending.

1. Section 8(c) 's legislative history

Because the language of Section 8(c) is unambiguous, as we have shown, there is no need to consider its legislative history. See Bostock, 590 U.S. at 673-674. But even if we were to consider the legislative history, as a whole it confirms that Section 8(c) was not intended to shield employers from liability under Section 8(a)(1) for compelling attendance at a captive-audience meeting. Rather, Section 8(c) was intended to prevent the Board from using the content of an employer's lawful expression of views as evidence of an unlawful motive in connection with an unfair labor practice that, unlike unlawful interference under Section 8(a)(1), requires proof of motive. The sole piece of legislative history that even mentions Clark Bros. suggests only an intent to overrule that case in part unrelated to the issue of compelling attendance at captive-audience meetings.

The Conference Report, which "next to the statute itself [] is the most persuasive evidence of congressional intent," Demby v. Schweiker, 671 F.2d 507, 510 (D.C. Cir. 1981), does not mention captive-audience meetings. Instead, it describes what Section 8(c) was designed to address: "The practice which the Board has had in the past [*24] of using speeches and publications of employers concerning labor organizations and collective-bargaining agreements as evidence, no matter how irrelevant or immaterial, that some later act of the employer had an illegal purpose gave rise to the necessity for this change in the law." Conference Report at 45, reprinted in 1 LMRA Hist. at 549. In other words, Section 8(c) was intended to prevent the Board from ascribing an antiunion motive to an employer in connection with an alleged unfair labor practice that requires proof of motive—such as a retaliatory discharge of employees for union activities, in violation of Section 8(a)(3) —based on the substance of the employer's earlier lawful statement of opposition to unionization. The Supreme Court has thus observed that the "congressional intent" was "to prevent the Board from attributing antiunion motive to an employer on the basis of [its] past statements." Linn, 383 U.S. at 62 fn. 5 (citing Conference Report at 45, reprinted in 1 LMRA Hist. at 549 ).

Moreover, the Conference Report makes clear that Section 8(c) was principally derived from the free speech provision of the House bill rather than from the corresponding provision in the Senate bill. Conference Report at 45, reprinted in 1 LMRA Hist. at 549. The House Report accompanying that House bill, like the Conference Report, makes no mention of captive-audience meetings. Instead, like the Conference Report, it describes the type of Board decisions that Section 8(c) was intended to "correct[]," such as when the Board infers from an employer's past criticism of a union that a foreman's later discharge of a union official for gross misconduct "was for union activity." House Report at 33, reprinted in 1 LMRA Hist. at 324.

Senator Taft, the principal sponsor of the legislation, placed a statement in the Congressional Record, which, with reference to the Section 8(c) that emerged from the Conference, expressed a substantially similar view to that of the Conference and House Reports:

The conferees had in mind a number of Board decisions in which because of the fact that an employer has at some time committed an unfair labor practice a speech by him, innocuous in itself, has been held not to be privileged . . . . There have also been a number of decisions by the Board in which discharges of employees, even though there was no evidence in the surrounding circumstances of discrimination, have been deemed unfair labor practices simply because at one time or another the employer has expressed himself as not in favor of unionization of his employees. The object of this section, therefore, is to make it clear that decisions of this sort cannot be made under the conference bill.

93 Cong. Rec. 7002 (June 12, 1947), reprinted in 2 LMRA Hist. at 1624. Senator Taft also confirmed what is plain from the statutory text: "[T]he privilege of this subsection is limited to expression of 'views, arguments, or opinion,'" such that "[i]t has no application to statements which are acts in themselves or contain directions or instructions." Id. An employer's directive to employees requiring them to attend a captive-audience meeting clearly falls into this category of statements to which Section 8(c) does not apply.

The Senate Report [*25] accompanying the Senate bill is the only piece of legislative history that even mentions Clark Bros. It states:

Another amendment to this section would insure both to employers and labor organizations full freedom to express their views to employees on labor matters, refrain from threats of violence, intimation of economic reprisal, or offers of benefit. The Supreme Court in Thomas v. Collins (323 U.S. 516 ) held, contrary to some earlier decisions of the Labor Board, that the Constitution guarantees freedom of speech on either side in labor controversies and approved the doctrine of the American Tube Bending case (134 F. (2d) 993 ). The Board has placed a limited construction upon these decisions by holding such speeches by employers to be coercive if the employer was found guilty of some other unfair labor practice, even though severable or unrelated (Monumental Life Insurance, 69 N. L. R. B. 247 ) or if the speech was made in the plant on working time (Clark Brothers, 70 N. L. R. B. [No.] 60 ). The committee believes these decisions to be too restrictive and, in this section, provides that if, under all the circumstances, there is neither an expressed or implied threat of reprisal, force, or offer of benefit, the Board shall not predicate any finding of unfair labor practice upon the statement. The Board, of course, will not be precluded from considering such statements as evidence.

Senate Report at 23-24, reprinted in 1 LMRA Hist. at 429-430.

The reference to Clark Bros. having been "too restrictive" would seem to be the unspecified "legislative history" that the Babcock & Wilcox Board relied on—along with the equally unexamined "language of Section 8(c) "—to conclude that Section 8(c) gives employers a right to hold captive-audience meetings. See Babcock & Wilcox, 77 NLRB at 578. The Babcock & Wilcox Board ignored that Section 8(c) was principally derived from the House bill, not the Senate's bill discussed in the Senate Report, and ignored the rest of the legislative history, which, as explained, nowhere suggests that Congress intended to address the captive-audience issue.

In any event, the Senate Report itself does not demonstrate a clear intention to immunize employers who hold captive-audience meetings. Although it refers to the Board's decision in Clark Bros. as "too restrictive," the Report's description of that decision suggests that the Senate Committee intended simply to ensure that employers were free to express their constitutionally protected views on Section 7 activity in a "speech" "made in the plant on working time." Senate Report at 23, reprinted in 1 LMRA Hist. at 429. Clark Bros., as noted, had broadly held such a speech to be unlawful. 70 NLRB at 804. But that decision had "also" and "independently" held that "the conduct of the [employer] in compelling its employees to listen to a speech on self-organization" was separately unlawful. Id. The Senate Report does not address this second, separate holding. For the Board to hold that an employer may not compel employees to attend a captive-audience meeting does not prevent the employer from making the type of speech that the Senate Report actually addressed—one that is "in the plant" and "on working time," provided that attendance [*26] is voluntary. In the case of the compelled meeting, the unfair labor practice is in no sense "predicate[d]" on any employer "statement" made in the speech, see Senate Report at 24, reprinted in 1 LMRA Hist. at 430, but rather is based entirely on the employer's requirement that employees attend the speech on pain of discipline or discharge. Moreover, there is no suggestion in the sole Supreme Court decision cited by the Senate Report, Thomas v. Collins, that the free speech rights of employers and unions entail a right to compel others to listen. In fact, as we have pointed out, Thomas strongly suggests the opposite. In light of these considerations, the Senate Report simply cannot bear the weight that Babcock & Wilcox apparently placed on it.38

1. First Amendment

The First Amendment likewise does not entitle employers to hold captive-audience meetings. Not only would such a constitutional entitlement conflict with the general rule that the First Amendment gives "'no one . . . a right to press even 'good' ideas on an unwilling recipient,'" Hill, 530 U.S. at 718 (quoting Rowan, 397 U.S. at 738 ), it would also ignore the Supreme Court's admonition that "[a]ny assessment of the precise scope of employer expression . . . must be made in the context of its labor relations setting," such that "an employer's rights cannot outweigh the equal rights of the employees to associate freely." Gissel, 395 U.S. at 617. In the "labor relations setting," the First Amendment comfortably accommodates an employer's robust right to express its views on unionization with an employee's right to decline to listen to those views.

3. Lawful voluntary meetings

For the reasons explained above, we hold that an employer violates Section 8(a)(1) of the Act if it requires employees to attend a meeting at which the employer expresses its views on unionization. Importantly, requiring employees to attend such meetings is unlawful regardless of whether the employer expresses support for or opposition to unionization. Such captive-audience meetings violate Section 8(a)(1) and prohibiting them does not infringe employer speech protected by Section 8(c) and the First Amendment. The violation turns on the employer's use of its power to compel employees to attend such a meeting. Thus, a voluntary meeting, held in the workplace on work time, does not violate the Act.

To provide clear guidance for employers, we have decided to establish a safe harbor from liability for employers who wish to express their views concerning unionization in a workplace, work-hours meeting with employees. Thus, an employer will not be found to have violated Section 8(a)(1) if, reasonably in advance of the meeting, it informs employees that:

1. The employer intends to express its views on unionization at a meeting at which attendance is voluntary;
2. Employees will not be subject to discipline, discharge, or other adverse consequences for failing to attend the meeting or for leaving the meeting; and
3. The employer will not keep records of which employees attend, fail to attend, or leave the meeting.

An employer may avail itself of this "safe harbor" by giving employees these assurances. [*27] Then, of course, the employer must also follow through on these assurances to stay on the right side of the law. When an employer both gives these assurances and follows through on them, it may lawfully hold voluntary meetings with its employees on company time in order to noncoercively express its views on unionization. We do not hold, however, that the failure to give these assurances will itself result in a violation of Section 8(a)(1).

We add a few additional points of clarification. An employer will be found to have compelled attendance at a meeting concerning the employer's union views if, under all the circumstances, employees could reasonably conclude that attendance at the meeting is required as part of their job duties or could reasonably conclude that their failure to attend or remain at the meeting could subject them to discharge, discipline, or any other adverse consequences. An express order from a supervisor, manager, or other agent of the employer to attend such a meeting is sufficient, but not always necessary, to establish a violation. Moreover, attendance at a meeting that is included on employees' work schedules, as communicated by a supervisor, manager, or other agent of the employer, will be considered to be compelled. Compliance with the steps outlined above will ensure that the holding of the meeting itself is lawful, but it does not, of course, otherwise immunize employer and employee conduct or statements made during that meeting.

1. Response to the Dissent

Our dissenting colleague argues that the Board must continue to permit employers to use captive-audience meetings, which he views as promoting free discussion and debate in the workplace, even though employees are compelled by the employer to attend and may be silenced by the employer while there. He rejects our view that captive-audience meetings violate Section 8(a)(1) by interfering with employees' freedom to decide whether, when, and how to exercise their Section 7 rights or to refrain from doing so. Finally, our colleague contends that prohibiting captive-audience meetings raises serious constitutional questions, implicating the doctrine of constitutional avoidance—even though we permit employers to express their views freely, so long as they do not compel employees to listen to them, a balance consistent with the Gissel Court's view of how the First Amendment operates in the workplace. As we will explain, our dissenting colleague's arguments are unpersuasive. They reflect a misunderstanding of our position here, of the Board's jurisprudence under Section 8(a)(1), of Section 8(c) and the Supreme Court's relevant decisions, and of the Act's legislative history, among other key considerations. Our colleague, in short, does not supply the reasoned basis for concluding that captive-audience meetings must be permitted that the Board failed to provide in Babcock & Wilcox many years ago.39 We cannot agree that the Board's perfunctory decision there demonstrates the "considered judgment" that our colleague claims for it.

We start with the dissent's repeated claim that permitting captive-audience meetings promotes the Act's policy of encouraging free debate in the workplace. By definition, captive-audience meetings are unfree. They demonstrate, to employees, the power of the employer to control the debate. Not only are employees forced to assemble and listen to their employer's views, but they may also be prevented from expressing their own [*29] views—all on pain of discipline or discharge. Indeed, our dissenting colleague himself cites a Board decision he joined, which found that "[i]t is lawful for an employer to conduct a captive-audience meeting to persuade employees not to unionize while refusing to allow others to express their opposing, prounion viewpoints during the meeting," including by ordering the assembled employees to "shut up" and having that order followed. Electrolux Home Products, 368 NLRB No. 34, slip op. at 4 & fns. 13-14. Our holding today, of course, permits employers to express their view at voluntary meetings in the workplace—and such meetings do a much better job fostering the uninhibited and free debate that our dissenting colleague purports to champion.

Our colleague's contention that captive-audience meetings comport with Section 8(a)(1) is similarly untenable. He insists that if captive-audience meetings are prohibited, "then there would appear to be no principled basis for not similarly prohibiting any mandatory meeting at which an employer states its position on any term or condition of employment—such as a new safety rule or work process—or, indeed, any subject that affects employees' interests as employees." (Emphasis in dissent; internal quotations omitted.) But the meetings he refers to—which fall outside the definition of a captive-audience meeting used here—do not implicate the Section 7 concerns we address. Our colleague does not persuasively explain how, when an employer conducts an everyday workplace meeting and "states its position on [a] term or condition of employment" (whatever this may mean), the Section 7 rights of employees are implicated in any way, much less interfered with.40 As explained, our decision today prohibits only mandatory meetings where an employer expresses its views for or against unionization to its employees.

The dissent relatedly argues that because "an employer has the right to determine what work employees will be required to perform during working time . . . [i]t follows that, during working time, an employer may lawfully require employees to attend meetings about unionization as well." This argument is circular. It assumes that a captive-audience meeting may be regarded as "working time" consistent with the Act simply because the employer has imposed a requirement on employees to attend.41 Certainly, attending a captive-audience meeting is distinct from an employee's ordinary work duties, for which the employee was hired. Nor may an employer create work duties that infringe on Section 7 rights. We do not understand our colleague to argue that an employer lawfully could determine that a nonsupervisory employee's work duties included wearing an antiunion button, soliciting other employees to oppose the union, distributing the employer's campaign literature, or reporting on other employees' union activity—and then direct the employee to do so or be fired. The fundamental purpose of the Act, rather, is to limit the traditional power of employers to command and control their employees by carving out a space for [*30] employees to engage in protected concerted activity—even at work, during the workday. An employer's authority over its employees must be balanced against employees' Section 7 rights.42 Our decision today strikes such a balance.

Our dissenting colleague also unpersuasively argues that there is "no meaningful difference" between "the distribution of employer campaign literature," which the Board has held does not violate Section 8(a)(1), and "attendance at a captive-audience speech." We disagree. Distribution merely requires employees "to receive the [employer's] campaign literature." (Emphasis added by dissent, quoting Intermet Stevensville, 350 NLRB 1349, 1356 (2007).) Once employees have received the literature—which takes but an instant—they are free to read it or not, as and when they choose, consistent with their Section 7 rights. A captive-audience meeting is very different. It is a time-consuming affair, which employees are compelled to attend and where they must listen to their employer's views on unionization. The more apt analogy with employer distribution of campaign literature is provided by the voluntary meetings that our decision today expressly authorizes and protects.

Our dissenting colleague's arguments related to Section 8(c) are no more persuasive. To begin, his position on the text's meaning is inconsistent.143 At one point he argues that Section 8(c) narrowly "focus[es] on the content of the employer['s] or union['s] 'expression' itself rather than on the circumstances surrounding it." But elsewhere, he says, instead, that a captive-audience meeting "is, by its very nature, 'the dissemination' of the employer's views" that Section 8(c) explicitly protects. Neither of these interpretations advances his position here. We agree that Section 8(c) protects the content of an employer's speech, but not the circumstances surrounding the speech. As we have explained, our prohibition of captive-audience meetings is based not on the employer views expressed at the meeting—whether for or against unionization—but on the surrounding circumstances: that employees are compelled to attend the meeting, on pain of discipline or discharge. We disagree, however, with our colleague's suggestion that an employer's order to attend a meeting is itself a protected "dissemination" of the employer's views under Section 8(c). As we have explained, such a directive does not communicate a view. Neither does the directive—which, of course, comes before the meeting—disseminate the employer's view to be communicated at the meeting, consistent with the ordinary meaning of "dissemination" as the spreading of a view.44 But even if one could view an employer's directive as "dissemination" in the statutory sense, Section 8(c) protects only a "dissemination" that "contains no threat of reprisal." 29 U.S.C. § 158(c). A directive to attend a captive-audience meeting, on pain of discipline or discharge, obviously contains a "threat of reprisal."

Our dissenting colleague's assessment of Section 8(c) 's legislative history is similarly unconvincing. He concedes that neither the Conference Report nor the House Report addresses captive-audience [*31] meetings. He emphasizes that the House Report indicates an intent to allow the Board to only prohibit a statement that "by its own express terms" constitutes a threat, House Report at 33, reprinted in 1 LMRA Hist. at 324, but he ignores that that language was not included in the enacted text of Section 8(c). And he draws from the Conference Report that the "purpose [of Section 8(c) ] is to protect the right of free speech," Conference Report at 45, reprinted in 1 LMRA Hist. at 549, but points to nothing in the Conference Report suggesting that compelling employees to listen to the employer's views is encompassed within that right, contrary to general free-speech principles. At bottom, what our dissenting colleague has engaged in is an exercise of "looking over a crowd and picking out [his] friends." Exxon Mobil, 545 U.S. at 568 (internal quotations omitted). He has found just one "friend"—the Senate Report—but, for the reasons we have explained, that Report is not friendly to his position.

Finally, our dissenting colleague contends that a prohibition on captive-audience meetings raises "serious constitutional problems" under the First Amendment and so, under the doctrine of constitutional avoidance, the Board must interpret the Act to permit such meetings. We are not persuaded. As explained, our focus is on the employer's requirement that employees attend the meeting and listen to the employer's views. An employer's implicit or explicit statement to employees that they must attend a captive-audience meeting or face job consequences is plainly a threat of reprisal. Such threats explicitly fall outside the protection of Section 8(c), and Section 8(c), as the Supreme Court has observed, "implements the First Amendment." Gissel, 395 U.S. at 617.

We see no serious constitutional problem, then, in prohibiting captive-audience meetings while permitting employers to express their views in voluntary meetings. We do not understand our colleague to argue that employers even arguably have the First Amendment right to threaten employees at a captive-audience meeting or to promise them benefits. He fails to see, however, that an employer's use of coercion to compel attendance at a captive-audience meeting is not immunized because the meeting involves the employer's expression of views.45 Rather, in the Supreme Court's words, the First Amendment permits the Board to find an unfair labor practice when "to this persuasion other things are added which bring about coercion, or give it that character." Thomas, 323 U.S. at 537-538. Of course, the Supreme Court has made clear that the Board has the authority to find unfair labor practices that are based on speech itself, if the speech amounts to a threat of reprisal, as in Gissel, or a promise of benefit, as in Exchange Parts, 375 U.S. at 408. Finding captive-audience meetings unlawful does not turn on the employer's speech at the meeting, or on the viewpoint expressed there, but rather on the employer's directive to attend the meeting—which may be speech, but which is undeniably coercive as well. An employer's First Amendment rights are not meaningfully diminished if the employer is forbidden from using its power [*32] over employees to compel them to listen to its views, while retaining the ability to express those views to employees willing to listen to them.

Relying principally on the Eleventh Circuit's recent decision in Honeyfund.com Inc. v. Governor, State of Florida, 94 F.4th 1272 (11th Cir. 2024), the dissent contends that prohibition of captive-audience meetings raises serious First Amendment questions because it "singles out captive-audience speeches about unionization for prohibition while permitting mandatory meetings on other subjects" and, as such, is an impermissible content-based restriction. We have carefully considered the Honeyfund.com decision but conclude that it is distinguishable. Nor does our colleague's assertion that we are impermissibly "singling out" captive-audience speeches from all other employer-mandated subjects have any merit.

In Honeyfund.com, the Eleventh Circuit granted a preliminary injunction against enforcement of a newly enacted Florida statute—the Stop W.O.K.E. Act, also known as the Individual Freedom Act—under the First Amendment. The court observed that Florida sought

to bar employers from holding mandatory meetings for their employees if those meetings endorse viewpoints the state finds offensive. But meetings on those same topics are allowed if speakers endorse viewpoints the state agrees with, or at least does not object to. This law, as Florida concedes, draws its distinctions based on viewpoint—the most pernicious of dividing lines under the First Amendment.

94 F.4th at 1275 (emphasis in original). The court went on to hold that "[b]y limiting its restrictions to a list of ideas designated as offensive, the [Stope W.O.K.E.] Act targets speech based on its content" and "by barring only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin." Id. at 1277.46

Our holding today makes no distinctions based on viewpoint.47 An employer may not require employees to attend a captive-audience meeting regardless of the view that the employer expresses—whether it urges employees to vote against the union, to vote for the union, or simply to refrain from exercising their Section 7 rights altogether. None of these viewpoints is "offensive" to the Act. What is offensive to the Act, rather, is the employer's use of its power to require employees to listen to its views—whatever they are. The Act is intended to protect employee free choice from precisely such coercion.

Contrary to our dissenting colleague's assertion, no serious First Amendment issue is posed here because we prohibit captive-audience meetings (as defined) and not all employer-mandated meetings in the workplace. This distinction is entirely a function of the Act's protection of Section 7 rights—and the Gissel Court has made clear that the First Amendment must be understood in the "context of [the] labor relations setting" in which the Board regulates. Gissel, 395 U.S. at 617.48 Where an employer-mandated meeting does not impinge on employees' Section 7 rights, the Board has no basis to regulate it. If our colleague's criticism of our holding were [*33] valid, in turn, it would undermine the Board's ability to effectively administer and enforce the Act. The Board necessarily "singles out" employer statements and actions that implicate Section 7, while ignoring others.49 An employer's threat of reprisal for supporting a union violates the Act; a threat for supporting a political candidate does not. An employer's statement prohibiting employees from talking about wages violates the Act; a statement prohibiting discussion about foreign policy does not. An employer's promise of benefits if employees vote against the union violates the Act; a promise of benefits for attending religious services does not. An employer's requirement that employees wear t-shirts communicating its anti-union message violates the Act; an employer's requirement that employees wear t-shirts communicating a message opposing climate change does not. These distinctions reflect the provisions of the Act, not the Board's impermissible content-based regulation of employer speech. In straining to find serious constitutional issues presented here, our colleague turns the doctrine of constitutional avoidance into its opposite, a doctrine of "constitutional collision." United States v. Hansen, 599 U.S. 762, 781 (2023).50 The Supreme Court, however, has made clear that "[w]hen legislation and the Constitution brush up against each other, our task is to seek harmony, not to manufacture conflict." Id.

MEMBER KAPLAN, dissenting in part.

The National Labor Relations Act embodies a Congressional policy "'favoring uninhibited, robust, and wide-open debate in labor disputes.'"1 As the Supreme Court has repeatedly stressed, "'freewheeling use of the written and spoken word . . . . has been expressly fostered by Congress.'"2 Consistent with this policy, the Union [*35] "aggressively" communicated its position that employees should choose union representation during its 2021-2022 organizing campaign at the Respondent's JFK8 fulfillment center and LDJ5 storage center.3 And the Respondent also vigorously communicated its position that employees should choose to remain unrepresented. No one disputes that the Respondent had the right to communicate its position to the employees. Instead, the General Counsel contends that the Respondent violated the Act because it required employees to attend meetings at which it campaigned against the Union. Substantially agreeing with the General Counsel, the majority holds that an employer violates Section 8(a)(1) of the Act "if it requires employees to attend a meeting at which the employer expresses its views on unionization," though my colleagues decline to apply their newly-fashioned standard retroactively to this case.

But Section 8(c) of the Act plainly states that "[t]he 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 Act, if such expression contains no threat of reprisal or force or promise of benefit." As the Board correctly recognized more than three-quarters of a century ago in Babcock & Wilcox Co., the text of Section 8(c) and its legislative history make it clear that an employer does not violate the Act by requiring employees to attend a meeting at which it campaigns against unionization.4 While my colleagues contend that Babcock was wrongly decided, none of their arguments withstand scrutiny.

To the contrary, the majority's attempt to ban so-called "captive-audience speeches" harkens back to an earlier era when the Board sought to impose on employers a policy of strict neutrality regarding unionization.5 This flagrantly unconstitutional overreach was decisively rejected by the Supreme Court as a violation of the First Amendment guarantee of freedom of speech. When the Board sought to evade those rulings by, among other things, banning captive-audience speeches, Congress responded by enacting Section 8(c) for the specific purpose of nullifying those evasions. I believe the Board should learn from that experience. Instead, the majority seems determined to repeat it. But their effort to prohibit captive-audience speeches today is just as indefensible as it was in 1948, when Babcock was decided.

In fact, subsequent First Amendment jurisprudence has made it even clearer that the Board simply does not have the power to prohibit captive-audience speeches. Nor may the rights guaranteed by the Constitution properly be regarded as obstacles to be evaded in the service of some other goal. The Constitution is the ultimate source of authority for the entire Federal Government, including the Board. While the rights set forth in the National Labor Relations Act are undeniably important, "those rights are subordinate to those enshrined in the Constitution [*36] where there is a potential conflict between the two."6 Here, the conflict between the majority's prohibition of captive-audience speeches and the Constitution is manifest and irreconcilable.

Making matters worse, my colleagues take this momentous step without first issuing a notice and invitation to file briefs so that interested amici could present their views. Public briefing and input are particularly warranted here because Babcock has been the law for more than 75 years, no court has ever questioned its holding, overruling it is a sea change in the legal landscape governing union election campaigns, and because of the impact of today's decision on the First Amendment guarantee of free speech. Especially under those circumstances, today's decision will be of immense significance to every employer, union, employee, member of the labor-management community, and to many others as well. The individuals and entities who will be affected by today's decision deserved the opportunity to speak to the important issues it raises before it was decided. For all of these reasons, the majority's failure to allow public briefing is indefensible.7

My colleagues compound their error by unjustifiably finding that the Respondent independently violated the Act when it mentioned, during some of its captive-audience speeches, its existing Open Door policy.8 Like the majority's unfounded ban on captive-audience speeches, this finding also impermissibly chokes off the "uninhibited, robust, and wide-open debate in labor disputes" that Congress intended to foster.9 And I also dissent from the majority's decision to sever the allegation that the Respondent unlawfully mentioned its existing educational benefits during some of its speeches. As explained below, I would affirm the judge's dismissal of this allegation. Whether or not my colleagues would agree with that result, the judge carefully analyzed this issue in his decision and the parties have fully briefed it. There is no valid justification for the majority to refuse to resolve it now.

1. CAPTIVE-AUDIENCE SPEECHES ARE LAWFUL

The complaint alleges, in relevant part, that the Respondent violated Section 8(a)(1) of the Act by holding seven mandatory meetings regarding unionization at its Staten Island JFK8 and LDJ5 facilities. The meetings were held at the Respondent's facility during employees' working time. The Respondent stipulated that attendance at the meetings was mandatory and that at those meetings it described its existing benefits, the process of collective bargaining, including the fact that wages and benefits can be increased or decreased as a result of bargaining, and urged employees to reject the Union. During several meetings, employees challenged some of the Respondent's statements. There is no indication that the Respondent took any action against any of those employees.

Employers regularly hold mandatory meetings to train employees on a new work process or equipment, human resources issues, safety standards, and the like.10 The Respondent [*37] also regularly holds such meetings.11 Indeed, the Respondent maintains a Learning Department at the facilities at issue in this case as well as a training room. Some employees working at Staten Island JFK8 and LDJ5 were assigned by the Respondent to be learning ambassadors, charged with training new hires and other employees in the skills required for their jobs. In short, mandatory meetings on a wide variety of job-related issues are a common and accepted feature of the American workplace.

1. Congress and the Courts Have Consistently Rejected Efforts by the Board to Restrict Non-Coercive Speech

The Board initially tried to enforce a policy of strict employer neutrality towards unions.12 The Supreme Court decisively rejected this blatant overreach in NLRB v. Virginia Electric & Power Co.13 Shortly thereafter, the Court reaffirmed in Thomas v. Collins

that employers' attempts to persuade to action with respect to joining or not joining unions are within the First Amendment 's guaranty. . . . When to this persuasion other things are added which bring about coercion, or give it that character, the limit of the right has been passed. But, short of that limit, the employer's freedom cannot be impaired. The Constitution protects no less the employees' converse right. Of course, espousal of the cause of labor is entitled to no higher constitutional protection than the espousal of any other lawful cause. It is entitled to the same protection.14

Undeterred, the Board thereafter sought to limit employer speech by prohibiting captive-audience speeches in Clark Brothers Co.15 and by finding otherwise lawful employer statements unlawful based on unrelated unfair labor practices in Monumental Life Ins. Co.16 Congress responded in 1947 by adding Section 8(c) to the Act. In doing so, it explicitly disapproved of Clark Brothers and Monumental Life Ins. Co. as "too restrictive" of the intended "full freedom" of both employers and labor organizations "to express their views to employees on labor matters" if they refrain from threats of violence, intimidation, economic reprisal, or offers of benefit.17 Responding to this clear Congressional command, the Board shortly thereafter repudiated the Clark Brothers ban on captive-audience speeches in Babcock.

A few years later, the Board once again targeted captive-audience speeches, this time by holding that they were unlawful unless the union was granted the opportunity to reply.18 This doctrine was roundly rejected by reviewing courts as an impermissible attempt to nullify Section 8(c).19 Rightly so, as subsequent Supreme Court First Amendment decisions have made clear.20 A few years after adopting the right-of-reply standard, the Board abandoned it.21

Thereafter, the Board abandoned its fruitless efforts to restrict captive-audience speeches and instead repeatedly reaffirmed that they were lawful. Until today.

1. Captive-Audience Speeches Do Not Violate the Act
2. Captive-audience speeches are lawful under Section 8(c)

Consistent with the Congressional policy of encouraging "free debate on issues [*38] dividing labor and management,"22 the Board has long held that the Act permits employers to hold captive-audience speeches.23 This is so in part because captive-audience speeches are protected by Section 8(c). As noted above, Section 8(c) provides that "[t]he 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 Act, if such expression contains no threat of reprisal or force or promise of benefit." By its terms, Section 8(c) permits the Board to find that "[t]he expressing of any views, argument, or opinion, or the dissemination thereof" is an unfair labor practice if, and only if, "such expression" contains a threat of reprisal or force or promise of benefit. (Emphasis added). The text of Section 8(c) makes clear that Congress intended that the inquiry into the lawfulness under the Act of the "expressing of any views, argument, or opinion," or the "dissemination" of those views, focus on the content of the employer or union "expression" itself rather than on the circumstances surrounding it. Condemning an otherwise lawful speech on the basis that attendance was mandatory contravenes that principle.

This interpretation of Section 8(c) is reinforced by its legislative history. As noted above, the legislative history of the Taft-Hartley Act plainly shows that Congress intended to repudiate the holding of Monumental Life Ins. Co., under which the Board held "speeches by employers to be coercive if the employer was found guilty of some other unfair labor practice, even though severable or unrelated."24 It is further reinforced by the fact that the only reference to Clark Brothers anywhere in the legislative history of the Taft-Hartley Act is its repudiation as a decision that was "too restrictive."25

As the Supreme Court subsequently recognized in NLRB v. Gissel Packing Co., Section 8(c) means that "an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a 'threat of reprisal or force or promise of benefit.'"26 Simply put, a captive-audience speech is an exercise of the freedom to communicate that the Supreme Court endorsed in Gissel. And Section 8(c) of the Act prevents the Board from condemning a captive-audience speech, if the speech itself does not contain a threat of reprisal or force or promise of benefit, simply because employees are required to attend.

2. Captive-audience speeches do not interfere with Section 7 Rights

Even apart from Section 8(c), captive-audience speeches are lawful because they do not interfere with the exercise of employees' Section 7 rights, properly understood. Section 7 of the Act guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual [*39] aid or protection," as well as "the right to refrain from any or all of such activities."27 Among other things, Section 7 guarantees employees the right to express their own views concerning unionization. But requiring employees to attend a captive-audience speech does not interfere with those Section 7 rights. To the contrary, the Act protects employees who express their views concerning unionization during a captive-audience speech to the same extent as in any other setting.28

The Board has held that an employer interferes with employee Section 7 rights when it compels employees to express opposition to unionization by, for example, including an employee in a campaign video that reasonably indicates that the employee is against the union without the employee's consent,29 directing an employee to wear a "Vote No" t-shirt,30 or requiring employees to pose for photographs while holding "Vote No" signs prepared by and given to the employees by the employer.31 But requiring employees to attend a meeting at which the employer expresses its views about unionization cannot reasonably be likened to these unlawful actions. To the contrary, mere attendance at a captive-audience meeting does not suggest that the employees in the audience hold any position on unions, much less compel them to express a position, any more than mere attendance at any meeting indicates that the listener necessarily agrees with the speaker.32 That is especially true when, as is the case with captive-audience speeches, attendance is mandatory.

Nor is attendance at a captive-audience speech remotely comparable to situations where employers distribute campaign paraphernalia in a manner that forces employees to make an observable choice whether or not to display it.33 The Board has repeatedly made clear that the strictures applicable to the distribution of paraphernalia intended to be displayed by an employee do not apply to the distribution of literature that is not intended to be displayed by employees.34 Employers may distribute literature directly to individual employees, in keeping with the established principle that "employers are entitled to distribute campaign literature during a campaign."35 Such distributions do not coerce employees in the exercise of their Section 7 rights even if the employee has not consented in advance, as the Board has long held.36 Nor does an employer representative "violate[] Section 8(a)(1) by injecting himself into a conversation [among employees about the union] in order to express an 8(c) opinion."37 There is no meaningful difference, for Section 7 purposes, between the distribution of employer campaign literature or the interruption of a prounion conversation to present the employer's side and attendance at a captive-audience speech. All "require" the employee to receive a presentation of the employer's position on unionization and none involve the distribution of anything that employees are expected to display.38 It cannot be the case that requiring employees to attend a captive-audience speech unlawfully interferes [*40] with Section 7 rights when requiring employees to receive campaign literature containing the same message, or to pause their own union-related conversation to hear the employer's side, does not.

The majority does not dispute that an employer has the right to require employees to attend meetings on safety, training on new equipment or work processes, or the like during working time. As the Board recognized long ago, "[t]he Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. Working time is for work."39 Absent any collectively-bargained agreement to the contrary, an employer has the right to determine what work employees will be required to perform during working time.40 Nor can it reasonably be disputed that attending a mandatory meeting during regular working hours, regardless of the subject, is part of an employee's "work."41 It follows that, during working time, an employer may lawfully require employees to attend meetings about unionization as well.

This is true even though unions do not have the same ability to compel employees to attend their meetings. As the Supreme Court has held, the Act "does not command that labor organizations as a matter of abstract law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communication simply because the employer is using it."42 Consistent with that principle, an employer's use of captive-audience speeches may not be restricted on the premise that the method of communication is not available to unions or to employees.

In sum, the right of employees to form, join, or assist unions is not unlawfully infringed when they are required to attend a captive-audience speech at which the employer presents its views regarding unionization. Accordingly, the Board does not have the power to prohibit them.43

3. Response to the majority

The majority contends that captive-audience speeches interfere with employee Section 7 rights for several reasons, but none of them withstand the slightest scrutiny. To begin, the majority implies that the Board's decision in Babcock was poorly reasoned because it did not provide a detailed explanation for the holding that "the language of Section 8(c) of the amended Act, and its legislative history, make it clear that the doctrine of the Clark Bros. case no longer exists as a basis for finding unfair labor practices" when employees are required to attend a captive-audience speech.44 But this ignores the fact that Babcock was decided by a unanimous panel that included Member Houston, who was part of the Clark Brothers majority.45 It is absurd to suppose that he would have repudiated a decision he had authored only a few years earlier unless he was absolutely sure that the intervening Taft-Hartley Act compelled it. Although the other member of the Clark Brothers majority, Chairman Herzog, chose not to participate in Babcock, he surely would have protested the overruling [*41] of Clark Brothers if he thought he had any basis for doing so.46 As the Board's "contemporaneous construction" of Section 8(c), Babcock "is entitled to very great respect."47 For these reasons, the majority errs in failing to give the considered judgment of the Babcock Board the weight it is due.

Nor is it the case that the Board has never examined the issue of mandatory attendance at meetings that implicate Section 7 activity between the issuance of Babcock and today's decision. To the contrary, the Board noted in Livingston Shirt Co. that there is nothing in the Act "which even hints at any congressional intent to restrict an employer in the use of his own premises for the purpose of airing his views."48 As the Board there explained, no such restriction is needed because the "time-honored and traditional means by which unions have conducted their organizational campaigns . . . are fully adequate to accomplish unionization and accord employees their rights under the Act to freely choose a bargaining agent."49 Or as the Supreme Court would put it, "the remedy to be applied is more speech, not enforced silence."50

The Board has also repeatedly explained that an employer may compel employees to attend meetings on the employer's premises during normal working time, even when the meeting implicates Section 7 activity, because the employer is "at liberty to determine the use to which it wishe[s] to put the time for which it [is] paying the employees, and the employees [are] not free to make a choice in favor of working."51 Contrary to the majority, then, a captive-audience meeting is not an "extraordinary exercise of and demonstration of employer power over employees" but is instead a routine application of the longstanding rule that "working time is for work." My colleagues may wish that the world did not work that way, but the Act does not empower the Board to make it so.

My colleagues question whether attendance at a captive-audience speech constitutes "working time" though they studiously avoid taking a clear position on the issue. As noted above, Department of Labor wage and hour regulations (which my colleagues do not address) clearly define time spent at meetings as work and recognize no exception when the subject is unionization. My colleagues also do not acknowledge the Board's prior holdings that time spent at a meeting about changes in working conditions, or a meeting called for the purpose of informing employees that the employer was withdrawing recognition from the union, i.e., expressing its position on whether the employees were "unionized," is working time as well.52 If the majority is of the view that mandatory meetings are not "work" only when an employer discusses unionization with unrepresented employees, the burden is on them to say so and support it. This my colleagues have failed to do.

The majority implies that if mandatory meetings about unionization are "work" then an employer could necessarily also define as work "wearing an antiunion button, soliciting other employees to oppose the union, distributing the employer's campaign literature, [*42] or reporting on other employees' union activity." As I have already explained, requiring employees to support the employer's position on unionization is clearly distinguishable from requiring employees to receive information about it. Our precedent recognizes that distinction; the majority's decision does not.

The majority also raises the specter of endless captive-audience speeches if captive-audience speeches are lawful, positing that "[a]n employer would be free to require employees to attend captive-audience meetings for the entire workday, over a period as long as the employer wishes, until the employer was satisfied that employees had adopted its view as their own." As my colleagues admit, the law has permitted employers to do that for the last 75 years, yet they cannot cite a single case where it has ever happened.53

This should come as no surprise. After all, employers do have a business to run, and an employer that ceases operations for the purpose of holding captive-audience meetings "for the entire workday," day after day, won't stay in business for long. Such heavy-handed tactics are likely to backfire in any event, increasing support for the union among employees who resent being pushed around. Here, as in other contexts, I have confidence in the backbone of American workers.54

Further in this regard, it bears emphasis that Section 7 of the Act does not only protect the decision whether to be represented by a union: as noted above, it also protects employees' right to engage in "other concerted activities for mutual aid or protection." If an employer may not lawfully require employees to attend a meeting at which the employer states its position on unionization, as the majority posits, then there would appear to be no principled basis for not similarly prohibiting any mandatory meeting at which an employer states its position on any term or condition of employment—such as a new safety rule or work process—or, indeed, any subject that affects "employees' interests as employees."55 Under the majority's (faulty) reasoning, being required to attend a meeting about one of those subjects would interfere with the (supposed) Section 7 right of employees "to choose whether, when, and how to receive information" about that working condition too.

Nor is this merely a theoretical issue. Prior Board decisions have addressed claims that employees could not be compelled to attend a meeting to discuss a new work process or a meeting at which the employer notified employees that it was withdrawing recognition from the union.56 Similar claims have been advanced under Title VII with respect to mandatory implicit bias training.57 If the majority's reasoning for condemning captive-audience speeches were valid, then the Act would prohibit employers from requiring employees to attend meetings about any of those subjects as well.58

But the majority's reasoning is not valid: captive-audience meetings do not unlawfully impinge on an employee's Section 7 right to choose the degree to which they will participate in the debate concerning [*43] representation. As shown above, employees are not compelled to express a view on union representation simply because they are required to attend a meeting at which someone else expresses their views on that subject.59 Nor does the Act confer on employees an unbounded right to be "let alone with respect to the exercise of rights under the Act."60 To the contrary, longstanding precedent draws a clear line between efforts to compel employees to express support for the employer's campaign position, which are prohibited, and requiring employees to receive information about the employer's position, which is permitted regardless of whether employees wish to hear it.61 The majority's ban on captive-audience speeches impermissibly obliterates that line.

The majority's assertion that captive-audience meetings "can readily serve as a mechanism for employers to observe and surveil employees as the exercise of their Section 7 rights is addressed" provides no valid basis for their prohibition either. Section 8(c) guarantees employers and unions alike the right to discuss unionization with employees. To state the obvious, the ability of a speaker to observe how a listener responds is inherent in the communication process. Accordingly, it would nullify the right of free speech granted by Section 8(c) to hold that those communications may be prohibited on that basis.62 That is equally true whether the discussion is held one-on-one or in a meeting attended by many employees. Moreover, the same opportunity to observe employee reactions exists for posters placed on the wall of the workplace, the presentation of a campaign video, or the distribution of leaflets directly to individual employees. Those communications are lawful all the same,63 and it follows that captive-audience speeches may not be restricted on this basis either.

The majority's claim that employees' interpretation of what is said during a captive-audience speech will necessarily be colored by the fact that attendance is mandatory is wholly unpersuasive as well. That claim flies in the face of Section 8(c), which indisputably "limits the extent to which context can be used to impart sinister meanings to innocuous words."64 As discussed above, Section 8(c) prohibits the Board from condemning noncoercive communications simply because they are made in a meeting that employees are required to attend. The majority's arguments to the contrary are wholly unpersuasive.

After noting that Section 8(c) does not specifically address captive-audience meetings, the majority concludes that Section 8(c) does not apply to them on the premise that when an employer compels its employees to attend a meeting, it is not "expressing" or "disseminating" any "views, argument, or opinion" in the "ordinary, contemporary, common meaning," of those words. But this analysis disregards the text of Section 8(c), which, as noted above, prohibits the Board from finding that the expression of any views, argument or opinion, "or the dissemination thereof" is an unfair labor practice if "such expression contains no threat [*44] of reprisal or force or promise of benefit." A captive-audience speech is, by its very nature, "the dissemination" of the employer's views, and Section 8(c) prohibits the Board from finding that "dissemination" to be an unfair labor practice unless "such expression" contains a "threat of reprisal or force or promise of benefit."65 The majority's textual analysis fails to grapple with the ordinary meaning of those terms in any meaningful way.

To be sure, the Supreme Court stated in Thomas v. Collins that the First Amendment 's protection for an employer's attempts to persuade employees not to support a union do not apply "[w]hen to this persuasion other things are added which bring about coercion, or give it that character."66 But this holding provides no support for the majority's view that Section 8(c) therefore does not apply to captive-audience speeches because the requirement to attend is coercive even if the content of the speech is not. First, Thomas v. Collins predates the enactment of Section 8(c) and thus says nothing about how that provision is to be interpreted. And the Supreme Court has subsequently made clear that Section 8(c) not only "implements the First Amendment," it "also manifest[s] a 'congressional intent to encourage free debate on issues dividing labor and management.'"67 The majority's cramped reading of Section 8(c) stands that policy on its head. Second, requiring employees to attend meetings during working time is not coercive within the meaning of Section 8(a)(1) of the Act in any event, for the reasons stated above.

The majority's argument that it may lawfully prohibit captive-audience speeches because the required attendance is a "threat" outside the protection of Section 8(c) fails for another reason as well. As the majority emphatically notes, their holding is limited to required attendance at meetings about unionization and applies even if the discussion itself was noncoercive. Requiring employees to attend a meeting that addresses any other subject on pain of discipline (a "threat," in the majority's parlance) is, and remains, lawful. As such, it is not the "threat" that sets these different meetings apart, but the subject matter. The fact that a meeting non-coercively addressed unionization is not only used as "evidence of an unfair labor practice," under the majority's holding today, it is an essential element of the unfair labor practice finding. And Section 8(c), by its terms, plainly prohibits that.68

The majority's treatment of the legislative history of Section 8(c) is unpersuasive as well.69 My colleagues acknowledge, as they must, that the only reference to Clark Brothers in the legislative history is the statement in the Senate Labor Committee report disapproving it as "too restrictive."70 They also correctly observe that Clark Brothers held that the captive-audience speech at issue in that case was unlawful. But my colleagues go too far when they infer that the Senate Report disapproved of Clark Brothers simply because the speech was made on working time and not because attendance was compelled. In Clark Brothers, the Board observed that [*45] "the employees were compelled by the respondent to assemble at the plant during working time to listen to [anti-Union] campaign speeches of the respondent's officials." 70 NLRB at 804. The Board further observed that "[t]he only way the employees could have avoided hearing the speeches would have been for them to leave the premises, which they were not at liberty to do during working hours." Id. The Board concluded that "the conduct of the respondent in compelling its employees to listen to a speech on self-organization under the circumstances hereinabove outlined . . . independently constitutes interference, restraint, and coercion within the meaning of the Act." Id. It is clear, then, that the Board found the conduct unlawful based on the totality of the circumstances, not for two independently unlawful reasons, as my colleagues contend. And it was this overall holding—i.e., finding the speech unlawful because it "was made in the plant on working time"—of which the Senate disapproved.

To be sure, the House Report for the Taft-Hartley Act does not specifically address captive-audience speeches. It does, however, state that the House version of Section 8(c) was intended to prohibit the Board "from using as evidence against an employer, an employee, or a union any statement that by its own terms does not threaten force or economic reprisal."71 The majority's captive-audience speech ban certainly finds no support there.

For its part, the Conference Committee Report affirms that the "purpose [of Section 8(c) as enacted] is to protect the right of free speech when what the employer says or writes is not of a threatening nature or does not promise a prohibited favorable discrimination."72 Prohibiting captive-audience speeches when "what the employer says" in the speech contains no threat or promise of benefit hardly furthers that purpose either.

In these circumstances, my colleagues go too far when they infer from the fact that the House and Conference Committee reports do not specifically address captive-audience speeches that Congress did not intend that Section 8(c) address them. After all, the driving consideration behind Section 8(c) was to reject prior Board decisions that had gone too far in restricting employer speech. The Senate Report's condemnation of Clark Brothers is consistent with that purpose. And the specific reference to captive-audience speeches in the Senate Report outweighs the fact that the House and Conference Reports do not specifically address them under established interpretive principles.73

In sum, taking into account the fact that, as noted above, the only mention of Clark Brothers in the legislative history is its condemnation as "too restrictive," the related rejection of Monumental Life Ins. Co. as improperly relying on context to "impart sinister meanings to innocuous words,"74 and the considered views of the Babcock Board on the subject, the most reasonable interpretation of the legislative history as a whole is that Congress intended to prevent the Board from condemning captive-audience speeches on the basis that attendance [*46] was mandatory as well.

1. The Majority's Captive-Audience Speech Ban is Also Impermissible on First Amendment Constitutional Avoidance Grounds

Even if the majority's prohibition of captive-audience speeches were an otherwise permissible interpretation of the Act, which it is not, that interpretation would still be precluded on First Amendment constitutional avoidance grounds. This is so because the majority's decision today, by its terms, singles out captive-audience speeches about unionization for prohibition while permitting mandatory meetings on other subjects. On its face, then, the prohibition "target[s] speech based on its communicative content—that is, it applies to particular speech because of the topic discussed or the idea or message expressed."75 As such, it plainly constitutes a content-based regulation of speech.76 Content-based restrictions on speech, in turn, "are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests."77

The Eleventh Circuit recently applied this principle in Honeyfund v. Governor, State of Florida. The Florida law at issue in that case prohibited employers from holding any mandatory employee meeting that endorsed belief in certain topics related to race, color, sex, or national origin.78 The court found that the Florida law was unconstitutional on two independent bases: (1) it was a content-based regulation of speech; and (2) it also discriminated on the basis of viewpoint.79 Here, the majority prohibits mandatory meetings in which an employer "expresses its views on unionization." Even assuming that this prohibition does not discriminate on the basis of viewpoint, it is plainly a content-based speech restriction for the same reasons that the Florida law was.80

My colleagues disagree but their reasons are unpersuasive. According to the majority, requiring employees to attend a captive-audience speech or face job consequences is a threat of reprisal that the First Amendment does not protect. But this ignores the fact that their decision today expressly permits compelled attendance at meetings about any other subject. The majority contends that this is a function of the Act's scope, but under their interpretation of the Act that is simply not true as I have already explained. In short, the majority is either wrong in their interpretation of the Act or wrong under the First Amendment.

Accordingly, the majority's ban on captive-audience speeches is nothing like the permissible content-neutral speech regulation at issue in Hill v. Colorado.81 There, the Supreme Court upheld a Colorado law that limited the ability of protesters to approach health facility patrons within 100 feet of the facility. The Court held that the Colorado law was a permissible, content-neutral speech regulation because it applied equally to all protests regardless of the subject. In so holding, moreover, the Court contrasted its prior decision in Carey v. Brown regarding an Illinois law that generally [*47] prohibited residential picketing but contained an exemption for peaceful picketing a place of employment involved in a labor dispute. In Carey v. Brown, the Court held that the Illinois law was unconstitutional because it impermissibly discriminated based on the content of the picketers' messages that is, between labor-related picketing and picketing related to other subjects.82 That is precisely what we have here: the majority's ban on captive-audience speeches prohibits meetings where the subject is unionization while permitting mandatory meetings about other subjects.

For the purpose of the First Amendment analysis, it is immaterial that the majority's ban only applies to mandatory meetings. As the Honeyfund court aptly noted in rejecting the same voluntary versus mandatory attendance argument advanced by the majority here, "another way of putting it would be that the Act's prohibitions apply only when an employer wants to communicate a message badly enough to make meeting attendance mandatory. Stripping this argument down to the essentials thus reveals its infirmity."83 Nor does it matter that employers remain free to present their message by means other than captive-audience speeches. "The First Amendment protects speech itself, and lawmakers may no more silence unwanted speech by burdening its utterance than by censoring its content."84 The fact that other avenues of expression exist does not excuse the "constitutional problem posed by speech bans."85

The majority gains no ground by citing the "right to be let alone." Insofar as the First Amendment itself guarantees a right to be "let alone," that right only applies to restrictions imposed by the government.86 It has no application to actions by private entities, like the Respondent, or to any other private employer. When used in the broader sense employed by the majority, this "right" is more accurately characterized as an "interest" that the government can choose to protect in certain situations.87 As explained above, Congress has not protected that interest by proscribing captive-audience speeches. And the Board is without power to go beyond the limits Congress has set. Moreover, governmental efforts to protect the "right to be let alone," or any other interest, through content-based speech restrictions, are presumptively unconstitutional for the reasons stated above. As shown, the majority's ban on mandatory unionization meetings fails that test.88

Under these circumstances, the Board is required to apply the doctrine of constitutional avoidance, under which the Act must be construed so as to avoid "serious constitutional problems . . . unless such construction is plainly contrary to the intent of Congress."89 In other words, even if the Act could be read to prohibit captive-audience speeches, "must it be so read?"90 Applying that standard here, the answer is clear: The Board is not required to interpret the Act to prohibit captive-audience speeches.

The Act unquestionably could be read in a way that permits captive-audience speeches, for all the reasons [*48] stated above. The legislative history of Section 8 (c) confirms that Congress plainly intended that it should be read that way. At the very least, my colleagues cannot reasonably argue that interpreting the Act to permit captive-audience speeches is "plainly contrary to the intent of Congress."91 Nor is there any "affirmative intention of the Congress clearly expressed" to prohibit captive-audience speeches.92 Far from it. In these circumstances, the doctrine of constitutional avoidance compels the Board to interpret the Act in a way that avoids the Constitutional issue, by finding that captive-audience speeches are lawful.

The Board recently applied this principle to union speech in Lippert Components.93 There, a majority of the Board held that Section 8(b)(4) of the Act did not prohibit a union from displaying stationary banners and an inflatable rat in support of its secondary boycott activities by applying the doctrine of constitutional avoidance.94 I participated in Lippert Components, and I adhere to the views stated in that case. It should go without saying that the Board should accord employer Constitutional rights the same respect that it has shown for union Constitutional rights in the past.

If anything, the case for applying constitutional avoidance is even stronger here than it was in Lippert Components. There, the absence of any indication in the legislative history that Congress intended for Section 8(b)(4) to apply to the disputed conduct was the basis for the Board's determination.95 Here, in contrast, the legislative history affirmatively shows that Congress did not intend that the Clark Brothers prohibition of captive-audience speeches should survive the enactment of Section 8(c). There is no valid basis for refusing to apply constitutional avoidance principles under these circumstances. For this reason as well, the majority's prohibition of captive-audience speeches cannot stand.

BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, RING, WILCOX, AND PROUTY

*1 This case is before the National Labor Relations Board on remand from the United States Court of Appeals for the District of Columbia Circuit.¹ The principal issue is whether the Board should retain the revised access standard for off-duty employees of an onsite contractor adopted in the underlying decision in this case, reported at 368 NLRB No. 46 (2019) ( Bexar County I), modify it, or abandon it altogether. Having accepted the court’s opinion as the law of the case, we have concluded, in balancing the competing rights and interests at stake, that the policies and purposes of the Act would be best effectuated by abandoning the revised access standard adopted in Bexar County I and by returning to our previous court-approved test announced in New York New York Hotel & Casino, 356 NLRB 907 (2011), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 568 U.S. 1244 (2013).² Under the New York New York test, a property owner may lawfully exclude from its property off-duty employees who regularly work on the property for an onsite contractor and who seek to engage in Section 7 activity on the property only where the property owner is able to demonstrate that the contractor employees’ Section 7 activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline.³ Accordingly, having returned to the test set forth in New York New York, and for the reasons discussed below, we affirm the judge’s finding that the Respondent violated Section 8(a)(1) by barring the off-duty San Antonio Symphony employees from accessing the Respondent’s property to engage in Section 7 activity.⁴

1. INTRODUCTION

The right of employees to engage in Section 7 activity at their workplace is critical for them to realize the protections afforded under the Act. The workplace is where they see their coworkers. It is where they are most affected by their employer’s decisions. It is where they are most likely to be both motivated to and able to effectively participate in concerted actions designed to improve their working conditions. The Act’s promise to employees that they are entitled to organize, bargain collectively, and engage in other concerted activities for their mutual aid or protection rings hollow if employees--while off the clock--cannot engage in protected conduct at the very place where they and their coworkers work. A law designed to empower employees to improve working conditions at their workplaces must provide employees with rights at those workplaces.

*2 The Board in Bexar County I essentially stripped off-duty contractor employees whose employer does not own the property where they work from having Section 7 rights at their workplace. This is despite the seemingly large and increasing percentage of employees in the American workforce employed by onsite contractors.⁵ And yet without the opportunity to exercise their Section 7 rights at their workplace, the Act’s promise will be an empty one for the many contractor employees who work at a property not owned by their employer.

On review, the D.C. Circuit held that components of the revised access standard in Bexar County I were arbitrary and other aspects of it were arbitrarily applied. The court remanded the case to the Board, noting that it could proceed with a version of the access standard the Board sought to apply in Bexar County I or develop a new test.

For the reasons explained below, we see no reason to attempt to rehabilitate a standard that fundamentally fails off-duty contractor employees by almost always denying them their right to engage in Section 7 activities at their workplace. Instead, we choose to return to the court-approved New York New York test that properly accommodates contractor employees’ rights under federal labor law with a property owner’s state law property rights and legitimate managerial interests.

1. FACTS⁶

The San Antonio Symphony leases performance space from the Tobin Center for the Performing Arts (the Tobin Center), which is owned and operated by the Respondent. The Symphony, along with Ballet San Antonio and Opera San Antonio, are the Tobin Center’s three principal resident companies. The Symphony uses the Tobin Center pursuant to a “Use Agreement,” by which it has a licensor-licensee relationship with the Respondent. Section 4(1) of the Use Agreement’s Terms and Conditions provides that the Symphony is required to cause its employees “to abide by all rules and regulations” that may be adopted by the Respondent and Section 4(5) permits the Respondent “to refuse admission to or cause to be removed” from its property “any disorderly or undesirable person” as determined by the Respondent in its reasonable discretion. The Use Agreement also specifies that, in return for the use fee that it pays the Respondent, the Symphony has the right to use the Tobin Center for 22 weeks each year for performances and rehearsals.

The Symphony is also a party to a collective-bargaining agreement with the Union. Under the collective-bargaining agreement, the Symphony employees are employed for 30 weeks within a 39-week performance season from September to June, except for when their work is reduced by forced furloughs. Because the Symphony employees only use the Tobin Center for 22 of their 30 workweeks each year, the Symphony employees also occasionally perform at other venues around San Antonio. Nonetheless, seventy-nine percent of the Symphony employees’ rehearsals and performances during the 2016-2017 performance season were at the Tobin Center. During the performance season, the Symphony employees also use the Tobin Center’s break room for breaks, lunches, and union meetings. Some Symphony employees store large instruments at the Tobin Center. In addition, the Symphony maintains a library at the Tobin Center, which is staffed by a union member.

*3 On the evening of February 17, 2017, about a dozen Symphony employees sought to peacefully leaflet on the sidewalk in front of the main entrance to the Tobin Center. The Symphony employees had been distressed to learn that Ballet San Antonio had opted to use recorded music, rather than live music, for its production of Tchaikovsky’s Sleeping Beauty. The use of recorded music denies the Symphony employees the opportunity to work at the performance by playing the score. Because of financial difficulties, the Symphony had already had to furlough the Symphony employees for 3 weeks during the 2016-2017 season.

To raise awareness among Ballet San Antonio’s patrons about the use of recorded instead of live music, the Union decided to leaflet before the performances. The leaflet stated:

You will not hear a live orchestra performing with the professional dancers of Ballet San Antonio. Instead, Ballet San Antonio will waste the world class acoustics of the Tobin Center by playing a recording of Tchaikovsky’s score over loudspeakers. You’ve paid full price for half of the product. San Antonio deserves better! DEMAND LIVE MUSIC!

Although there is no plausible claim, and no evidence, that the Symphony employees were or would have been in any way disruptive or harassing to Ballet San Antonio’s patrons, the Respondent’s event staff and San Antonio police officers at the Respondent’s direction immediately informed the Symphony employees that they could not distribute the leaflets anywhere on the Respondent’s property, including the sidewalks. The Symphony employees were forced to relocate across the street off the Tobin Center grounds onto a public sidewalk where there were fewer patrons.

1. PRIOR BOARD AND COURT PROCEEDINGS

1. The Board’s 2011 New York New York Decision

In 2011, the Board in New York New York considered whether off-duty food service employees had the right to engage in organizational leafleting of customers outside their employer’s place of business--not on their employer’s property, but in the public areas of a hotel-casino for which they and their employer provided services integral to the property owner’s business.⁷ Informed by amicus briefing, oral argument, and court guidance, the New York New York Board acknowledged that the case could not be decided by rote application of Republic Aviation, in which the Supreme Court recognized the statutory right of employees to engage in non-disruptive Section 7 activity at work on property owned by their employer.⁸ In evaluating the issue in light of principles set by the Supreme Court, the Board also noted the Court’s observation that “the Act ‘confers rights only on employees, not on unions or their nonemployee organizers,’ whose rights are derived from the right of employees to learn about the advantages of self-organization from others” and thus are given limited accommodation.⁹

*4 The Board concluded that the contractor employees plainly fell into a different category than union organizers because “[i]n distributing handbills to support their own organizing efforts, [the employees]--who indisputably are covered by the Act, as protected employees under Section 2(3)--were exercising their own Section 7 rights.”¹⁰ Further, unlike union organizers, the contractor employees were not strangers to the property because they worked there regularly.¹¹ The Board thus concluded “that the statutorily-recognized interests of the [contractor] employees . . . are much more closely aligned to those of [the property owner’s] own employees” than to the interests of nonemployee union organizers.¹²

At the same time, the Board recognized that the contractor employees’ lack of a direct employment relationship with the property owner could necessitate a different accommodation than for the property owner’s own off-duty employees.¹³ The Board noted that the property owner had the right to control access to and use of its property.¹⁴ The Board also observed that the employees’ “handbilling did not interfere with operations or discipline [nor] adversely affect the ability of customers to enter, leave, or fully use the facility . . . .”¹⁵ The Board then considered whether there were any ways in which the “absence of an employment relationship” affected the evaluation of the property owner’s interests.¹⁶ It found that “the property owner generally has the legal right and practical ability to fully protect its interests through its contractual and working relationship with the contractor,”¹⁷ and would have “anticipated” the possibility that regularly-present contractor employees might choose the property as a venue for Section 7 activity;¹⁸ “but the contractors’ employees have no parallel ability to protect their statutory rights and legitimate interests in and around their workplace without [the Board’s] intervention.”¹⁹

The New York New York Board “address[ed] only the situation where . . . a property owner seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner’s business, who seek to engage in organizational handbilling directed at potential customers of the employer and the property owner.”²⁰ It concluded that, in those circumstances:

*5 [T]he property owner may lawfully exclude [contractor] employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board’s case law).²¹

1. The D.C. Circuit’s Approval of New York New York

The D.C. Circuit enforced the Board’s New York New York decision, noting that “the governing statute and Supreme Court precedent grant the Board discretion over how to treat employees of onsite contractors for [Section 7] purposes.”²² The court found that the New York New York Board had “adequately considered and weighed the respective interests based on the principles from the Supreme Court’s decisions” as well as “the policy implications of any accommodation between the § 7 rights of [the contractor’s] employees and the rights of [the property owner] to control the use of its premises, and to manage its business and property.”²³ The court also explicitly agreed with the Board that employee communications directed at customers were entitled to the same protections under Section 7 as communications aimed at fellow employees.²⁴

Until Bexar County I, the Board had consistently followed its New York New York precedent.²⁵ No intervening decision of the D.C. Circuit has cast doubt on its decision upholding the Board,²⁶ nor has any federal appellate court rejected the Board’s view.

1. The Board’s Decision in Bexar County I

In Bexar County I, the Board acknowledged that the New York New York test--which had been approved by the D.C. Circuit--controlled this case.²⁷ Nonetheless, the Board overruled New York New York and announced a new standard to govern off-duty contractor employees’ access to the property where they regularly work (but that is not owned by their employer) to engage in Section 7 activity.²⁸ The Board asserted--contrary to the D.C. Circuit’s opinion upholding the Board’s decision--that the New York New York Board impermissibly gave too little weight to the property owner’s property rights and too much weight to the Section 7 rights of the employees.²⁹ The Board accused the New York New York Board of “merely paying lip service” to the judicially-required distinction, which the Supreme Court had described as being one “of substance,” “between the access rights of employees and those of nonemployees.”³⁰ From this premise, the Board concluded that: (1) “[o]ff-duty employees of a contractor are trespassers”; and (2) therefore, they “are entitled to access for Section 7 purposes only if the property owner cannot show that they have one or more reasonable alternative nontrespassory channels of communicating with their target audience.”³¹

*6 The Bexar County I Board went on to describe a two-step standard.³² Under the first step, only contractor employees who work both ““regularly” and “exclusively” on the property are deemed to have a sufficient connection to the property to be afforded greater Section 7 access rights than nonemployees.³³ As to regularity, the Board determined that contractor employees work “regularly” on the property owner’s property only if the contractor regularly conducts business or performs services there.³⁴ The Board gave the example of a contactor employee who stocked vending machines once a week on a property as working “regularly” on the property.³⁵ On the other hand, seasonal contractor employees who work only part of the year on the property would potentially lack the necessary regularity.³⁶ In addition, any work that contractor employees perform for that contractor must be exclusively on that property--that is, they cannot work elsewhere for the contractor that employs them on that property.³⁷

In addition, under the second step of the Bexar County I standard, even if contractor employees work both regularly and exclusively on the property, the property owner is free to exclude them--even from areas open to the public--if it can show that the contractor employees “have one or more reasonable nontrespassory alternative means to communicate their message.”³⁸ This does not require showing that an “alternative means” is substantially equivalent to the means denied to employees, as measured by cost (in time and money) to the contactor employees and by effectiveness (the likelihood of reaching the actual target audience, in a meaningful way, at a meaningful time).³⁹ Moreover, the property owner is not required to prove that permitting the contractor employees to engage in Section 7 activity on the property would interfere, in any way, with its or the contractor’s use of the property or that excluding the contractor employees is justified by a legitimate business reason, such as the need to maintain production and discipline.⁴⁰

In dissent, then-Member McFerran argued that, in contravention of Supreme Court and D.C. Circuit decisions, the Board’s new standard placed a property owner’s right to exclude above the labor law rights of employees in all but the rarest circumstances, which removes important Section 7 rights from a segment of the workforce that may need them the most.⁴¹ She asserted that the Board failed to offer an adequate rationale for adopting such a restrictive standard that essentially grants off-duty contractor employees the minimal access rights afforded to union organizers and strips important labor-law rights from a significant segment of American workers who work on property owned by someone other than their employer.⁴²

*7 About four months after the issuance of its Bexar County I decision, the Board denied the Union’s motion for reconsideration, rejecting the Union’s contention that the Board’s new access standard is “legally infirm” by barring many off-duty contractor employees from exercising their Section 7 rights.⁴³ In dissent, then-Member McFerran stated that, for the reasons explained in her dissent from the Bexar County I decision, she believed that the Union had demonstrated “material error” and would have granted the Union’s motion for reconsideration.⁴⁴

1. The D.C. Circuit’s Grant of Review of Bexar County I

In granting the Union’s petition for review, the D.C. Circuit held that the first step of the Board’s new access standard was arbitrary and that the Board’s application of the second step was also arbitrary.⁴⁵ As to the first step of the new access standard, the court recognized that the Board, as a conceptual matter, properly sought to identify those contractor employees with a sufficiently strong connection to the property to be granted off-duty access rights.⁴⁶ However, the court determined that the Board’s implementation of that inquiry was arbitrary.⁴⁷ The court noted that the Board essentially measured regularity by the frequency an employee works on a property but then failed to explain its contention that a vending machine stocker who worked at the property less frequently than the Symphony employees would still satisfy the regularity requirement.⁴⁸ In addition, the court stated that the Board failed to explain how working exclusively on a property is necessary to show a sufficient connection to the property to gain access rights.⁴⁹ The court reasoned that the Board’s exclusivity requirement would permit denial of access rights to contractor employees who have a substantial presence on the property but occasionally work at another site for the same contractor, and yet, conversely, require access for contractor employees who work only marginally, but exclusively for one contractor, on the property owner’s property.⁵⁰ Thus, the court found the implementation of the Board’s exclusivity and regularity conditions to be arbitrary, and, accordingly, rejected the first step of the Board’s test.

The court also rejected the Board’s application of the second step of its new access standard.⁵¹ The court recognized that the Board purportedly placed the burden on the property owner to show that the contractor employees had a reasonable alternative nontrespassory means of communication in order to differentiate their access rights from those of nonemployees.⁵² The court found, however, that the Board failed to apply this burden shifting in its decision.⁵³ The court noted that, because this step of the new access standard did not exist when the case was originally before the administrative law judge and the Board did not remand the case, neither the Symphony employees nor the Union had an opportunity to develop arguments or evidence as to whether the Respondent satisfied its burden of showing the reasonableness of any alternative means.⁵⁴ In striking down parts of the new access standard and finding it arbitrarily applied, the court permitted the Board on remand to “decide whether to proceed with a version of the test it announced and sought to apply in this case or to develop a new test altogether.”⁵⁵

1. THE POSITIONS OF THE PARTIES

*8 Subsequent to the D.C. Circuit’s opinion, the Board notified the parties to this proceeding that it had accepted the court’s remand and invited them to file statements of position. As discussed below, the General Counsel, the Union, and the Respondent each filed statements of position.

1. The General Counsel

The General Counsel urges the Board to return to the New York New York test for determining the Section 7 access rights of off-duty contractor employees and find that the Respondent violated Section 8(a)(1) when it denied the Symphony employees access to its property. The General Counsel maintains that New York New York appropriately recognized that contractor employees’ fundamental Section 7 rights are no less than other statutory employees’, and that their regular worksite is the place where they can most effectively communicate their message to fellow employees, their employer, and the general public. The General Counsel asserts that contractor employees are a growing segment of the workforce and yet they are particularly vulnerable to interference with their Section 7 rights and subject to other employment law violations, which means they have an especially strong need to be able to exercise their statutory rights at their workplace. In addition, the General Counsel rejects the relevance of contractor employees working exclusively on the property or having reasonable alternative nontrespassory means of communicating their message.

1. The Union

The Union also urges the Board to return to the New York New York test and find that the Respondent violated Section 8(a)(1). The Union notes that the D.C. Circuit in New York New York had approved of the Board’s consideration and weighing of the respective interests at issue and asserts that the New York New York Board properly found that off-duty contractor employees had a sufficient connection to the property owner’s property to be afforded Section 7 access rights, without considering whether alternative nontrespassory means of communication existed. The Union argues for the Board to conclude, under the New York New York test, that the Respondent unlawfully barred the Symphony employees from leafleting on its property in an area open to the public, which did not significantly interfere with the Respondent’s use of its property.

1. The Respondent

The Respondent urges the Board to retain the Bexar County I standard and remand the case to the judge so that the Board can apply it properly to the facts of this case. As to the first step of that standard, the Respondent argues that the “regularly and exclusively” requirements are essential to ensure that contractor employees have a strong enough relationship to the property to permit their interference with the property owner’s property rights. In particular, the Respondent contends that the Board should find regularity of employment when there is a continuous pattern of work at the property--such as would exist for schoolteachers--because that indicates that the property is where employees commonly meet and interact. The Respondent also claims that, without the exclusivity requirement, a property owner would have to grant access rights to contractor employees without any consideration of the strength of their relationship to the property. The Respondent posits that, if the Board modifies the exclusivity requirement in light of the D.C. Circuit decision, the Board should still require the contractor employee “to perform substantially all of their work on the property.” The Respondent asserts that, if the Board makes any revisions to the first step of the access standard, the Board should remand this case to the judge to apply that revised standard and that, at the very least, the Board should remand this case to allow it to show, under the second step of the access standard, that the Symphony employees had reasonable alternative nontrespassory means of communicating their message to the public.

1. DISCUSSION

*9 As noted above, the D.C. Circuit remanded this case back to the Board because it found the Board’s decision in Bexar County I arbitrary, both on its own terms and as applied in this case.⁵⁶ In evaluating the competing the rights and interests at stake, we agree with the court’s assessment.

The Supreme Court has long recognized the statutory right of employees to engage in Section 7 activity at their workplace on property owned by their employer.⁵⁷ This is the place where employees see and interact with each other and where they provide their labor for the benefit of their employer. As the Supreme Court has observed, the workplace is “a particularly appropriate place for the distribution of § 7 material, because it ‘is the one place where [employees] clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.”’⁵⁸ Employees are well suited to discuss working conditions while engaged in even the most prosaic of off-duty activities at their workplace, whether walking in a parking lot to their jobsite or eating lunch in an employee cafeteria. We see no reason why contractor employees--just because their employer does not own the property where they regularly work--should not enjoy a similar opportunity to exercise their statutory rights at the place where they regularly work.

The Supreme Court has required the Board to accommodate Section 7 rights with private property rights so that there is “as little destruction of one as is consistent with the maintenance of the other.”⁵⁹ In other words, the fundamental tenet of property law that property owners have a right to exclude does not exist in a legal vacuum where no other countervailing rights exist. In the context of the Act, Supreme Court precedent recognizes that federal labor law routinely requires employers to yield to some degree their property rights protected under state law.⁶⁰ Although property owners have a legal right to protect their property from trespassers, it would be contrary to the Act to permit a property owner’s property rights to be used to subvert its own employees’ Section 7 activity by denying them access to their workplace while off-duty.⁶¹ Denying other statutory employees who work on that property--even those who are not directly employed by the property owner--from being able to exercise their Section 7 rights at their workplace while off-duty is just as harmful.

1. The Bexar County I Standard Undermines Contractor Employees’ Section 7 Rights

Initially, we note our agreement with the D.C. Circuit’s conclusion that Bexar County I “is arbitrary in the way that it implements its new standard for determining when a property owner may prohibit an onsite contractor’s employees from conducting labor organizing activity on the premises.”⁶² It enables property owners to severely restrict off-duty contractor employees’ access to its property to engage in Section 7 activity for reasons completely unconnected to the employer’s interest in protecting its property.⁶³ The Board’s decision contravenes the explicit rights afforded to employees under Section 7 and could even create a perverse incentive for employers to structure their work relationships to avoid directly hiring the employees who work on its property in order to deny them the opportunity to exercise their statutory rights. It does so without any factual or legal support for its contention that a property owner is effectively powerless to protect its property and operational interests by any means other than excluding off-duty contractor employees from its property. It disregards the numerous Board cases showing how businesses exert authority over contractor employees.⁶⁴ And it fails to explain how the restrictions imposed as part of its newly announced test are necessary for reaching a proper accommodation of rights.

*10 Part of the Board’s task in devising an access standard for off-duty contractor employees is to ensure that it only reaches those contractor employees with a sufficient connection to the property to merit Section 7 access rights. In Bexar County I, the Board limited access not only to those contractor employees who regularly work on the property but also to those who exclusively work there. As the D.C. Circuit observed, even as to the regularity requirement, the Board defined the matter far too narrowly.⁶⁵ The Board characterized essentially all seasonal employees--arguably schoolteachers included--as not working on a property regularly because they are not present for constant or definite intervals.⁶⁶ It is axiomatic that some seasonal employees, even if not present at the property throughout the year, are not strangers to the property where they work.⁶⁷

In addition, the D.C. Circuit recognized that the exclusivity requirement adopted in Bexar County I is “an ill-suited proxy” for determining whether contractor employees are sufficiently connected to a property.⁶⁸ It is simultaneously both over- and underinclusive.⁶⁹ It denies access to those who work virtually their entire workweek at a property owner’s property yet occasionally work at a different site for the same contractor. At the same time, it would grant access to contractor employees who work only a fraction of their workweek for a particular contractor but all of the work for that contractor occurs on the property.⁷⁰ The accommodation of rights reached by the Board in Bexar County I was arbitrary because it bears little logical connection to preventing intrusion of the property owner’s property rights while failing to maintain Section 7 access rights for a large universe of contractor employees--including those whose connection to the property where they work is self-evident.⁷¹

Even if the Board finds that contractor employees have a sufficient connection to the property because they work there regularly and exclusively, the Board in Bexar County I provided that they could still be denied access if the property owner is able to demonstrate that they have access to a reasonable alternative nontrespassory channel of communication.⁷² The question of whether nontrespassory channels of communication exist should not be relevant where the property owner permits--and in fact expects--these same employees to regularly enter its property to work for its contractor. The contractor employees are simply not in the same relationship to the property as trespassers who are strangers or outsiders to it, such as nonemployee union organizers.⁷³ Moreover, the Board defined alternative nontrespassory channels of communication about as broadly as possible, including the use of social and traditional media.⁷⁴ Of course, these outlets are available but provide no guarantee that the contractor employees are able to reach the particular subset of the public they may want to reach, such as the patrons or customers of the property owner.⁷⁵ Further, the Board did not require that the property owner show any legitimate business justification for requiring the contractor employees to resort to nontrespassory forums--for example, by showing that the contractor employees’ Section 7 activity would interfere with the use of the owner’s property--instead of being able to communicate their message at their workplace.

*11 Accordingly, we find the access standard established in Bexar County I fails to ensure a proper accommodation between the contractor employees’ Section 7 rights and the property owner’s property rights.⁷⁶ In our view--as well as the D.C. Circuit’s--it is flawed in multiple ways. The D.C. Circuit directed the Board, on remand, to “proceed with a version of the test it announced and sought to apply in this case or to develop a new test altogether.”⁷⁷ In light of the D.C. Circuit opinion and our own reevaluation of the issue, we decline to proceed with a version of the test announced in Bexar County I.

1. A Proper Accommodation Between Off-Duty Contractor Employees’ Section 7 Rights and a Property Owner’s Private Property Rights

In 2011, informed by amicus briefing, oral argument, and court guidance, the Board in New York New York established a different access standard to accommodate off-duty contractor employees’ Section 7 rights and property owners’ private property rights.⁷⁸ The Board held that a “property owner may lawfully exclude [off-duty contractor] employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board’s case law).”⁷⁹ As noted above, the D.C. Circuit upheld that test, and no court has questioned it.⁸⁰ For the reasons explained below, we agree with the balancing of the respective rights and interests by the New York New York Board.⁸¹ Accordingly, we return to the New York New York access test for off-duty contractor employees.⁸²

An underlying principle central to this case is that Section 7 only confers rights directly to employees, not to unions or their nonemployee organizers.⁸³ The off-duty employees who work for a contractor of a property owner do not fit neatly into these categories.⁸⁴ They are neither employees of the property owner nor are they nonemployees with no relationship to the property owner’s property where they work.⁸⁵ Under the Supreme Court’s decision in Republic Aviation, an employer cannot bar its own off-duty employees from exercising their Section 7 right to distribute union literature in nonwork areas of its property.⁸⁶ Importantly, as noted above, in seeking to engage in Section 7 activity at their workplace, off-duty contractor employees--like the employees in Republic Aviation--are exercising their own Section 7 rights, not those derived from other employees.⁸⁷ Moreover, contractor employees who work regularly on the property owner’s property are anything but strangers or outsiders to that property.⁸⁸ Thus, the New York New York Board properly determined that the statutorily-recognized rights and interests of contractor employees who regularly work on the property and seek to engage in Section 7 activity while there are much more closely aligned to those of the property owner’s own employees than to nonemployee union organizers whose Section 7 access rights derive from the rights of employees who work on the property.⁸⁹

*12 Nonetheless, we recognize that a property owner generally has the right to control access to and use of its property.⁹⁰ Because the contractor employees lack a direct employment relationship with the property owner, the property owner’s property rights may need to be accommodated differently because it is the employees of a contractor who seek to engage in Section 7 activity on its property rather than its own employees.⁹¹ In contrast to its own direct hires, the property owner may not have invited the contractor employees onto its property and it might not have the same control over the contractor employees’ conduct while on its property.⁹²

However, contractor employees are not strangers or outsiders to the property like nonemployee union organizers.⁹³ Through the voluntary and mutually beneficial relationship between the property owner and the contractor, the property owner still has the legal right and practical ability to fully protect its interests through its contractual and working relationship with the contractor without barring off-duty contractor employees from accessing the property and depriving them of their Section 7 rights.⁹⁴ The property owner can also reasonably expect that contractor employees regularly employed on its property may seek to engage in Section 7 activity at their workplace.⁹⁵ Nothing prevents the property owner from negotiating contractual terms sufficient to protect its interests in relation to the contractor employees so that it can quickly and effectively intervene if necessary.⁹⁶

For instance, the contractor could agree to use its employment authority to enforce the property owner’s rules to protect against disruptions to the property owner’s operations.⁹⁷ Moreover, even without an express contractual commitment, the property owner and the contractor share an economic interest in ensuring that the contractor employees do nothing that might interfere with the property owner’s operations.⁹⁸ Property owners are often able to direct the contractor’s managers and supervisors to take action to protect their operational and property interests, such as when they observe misconduct or to direct the removal of unruly employees from the premises.⁹⁹ Also available to the property owner--in addition to its property rights--is its right to exercise its legitimate managerial interests in preventing improper interference with the use of its property.¹⁰⁰

Thus, in contrast to situations where the interests of property owners are infringed by nonemployee trespassers, property owners are able to protect their property and operational interests against improper infringement by contractor employees without having to resort to state trespass laws.¹⁰¹ The contractor employees, however, have no reasonable alternative for exercising their Section 7 rights at their workplace if the property owner can summarily deny them access while off-duty.¹⁰² There is simply no other place that would be anywhere close to as effective for the contractor employees to engage in Section 7 activity than the place where they and their coworkers work.¹⁰³ In fact, the property owner’s property may be the only place that the contractor employees can effectively reach a small, specific subset of the general public that patronizes the business where they work, which may be the only people to whom the contractor employees want to share their message about their working conditions.¹⁰⁴

*13 In accommodating these competing interests, to cause as little destruction to the contractor employees’ Section 7 rights as possible, the Board in New York New York did not hold that a property owner may never exclude employees who seek to engage in Section 7 activity on its property.¹⁰⁵ It placed a reasonable condition on the property owner’s right to exclude.¹⁰⁶ The contractor employees are not in the same position vis-à-vis the property owner as the property owner’s own employees.¹⁰⁷ For that reason, under the New York New York test, the property owner can still exclude off-duty contractor employees from its property where the property owner is able to demonstrate that the contractor employees’ Section 7 activity would significantly interfere with its use of the property or where the exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline.¹⁰⁸

We believe that this accommodation appropriately balances the competing rights at issue here.¹⁰⁹ It ensures that property owners--even after utilizing their contractual and working relationship with the contractor to protect their property rights--do not have to permit significant interference with their property for Section 7 activity.¹¹⁰ But in the absence of that significant interference, or another legitimate business reason of the property owner, it ensures that off-duty contractor employees--like all other statutory employees--are able to realize the rights granted to them under Section 7 of the Act.¹¹¹

1. Retroactive Application of the Board’s Return to the New York New York Test

When the Board announces a new standard, a threshold question is whether the new standard may appropriately be applied retroactively, or whether it should be applied only in future cases. In this regard, “[t]he Board’s usual practice is to apply new policies and standards retroactively ‘to all pending cases in whatever stage.”’¹¹² Only when it would create a “manifest injustice” would the Board not apply a new rule retroactively.¹¹³ The Supreme Court has indicated that “the propriety of retroactive application is determined by balancing any ill effects of retroactivity against ‘the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.”’¹¹⁴

In order to protect contractor employees’ Section 7 rights, we believe that it is appropriate for us to apply the New York New York test to this case and to all pending cases. It would cause no “manifest injustice” to the Respondent here. The New York New York test had been the current Board case law--and had been enforced by the D.C. Circuit--for several years by the time the Respondent barred the Symphony employees from leafleting on the Respondent’s property. There can be no mischief attributed to the Board or surprise to the Respondent for the Board to apply its then-existing precedent to find the Respondent’s conduct unlawful. Moreover, because Bexar County I denied contractor employees their Section 7 access rights except in the rarest of circumstances, it is unlikely that there are many pending cases alleging a denial-of-access violation because the General Counsel would not have issued a complaint while Bexar County I was current Board case law. However, to the extent there are pending cases, as discussed above, it is critical for the Board to analyze those cases under the New York New York test to ensure that the Board properly accommodates the competing rights and interests. If it does not significantly interfere with the property owner’s use of its property or the property owner does not have another legitimate business reason for doing so, denying off-duty contractor employees access to their workplace to engage in Section 7 activity would impermissibly impede the contractor employees’ statutory rights.

1. Application of the New York New York Test to the Symphony Employees

*14 Applying the New York New York test here, we affirm the judge’s finding that the Respondent violated Section 8(a)(1) by excluding the Symphony employees from the Respondent’s property to distribute union leaflets to the Respondent’s patrons about an issue affecting the Symphony employees’ terms and conditions of employment, specifically their number of hours of work. For the reasons stated by the judge, we agree that the Symphony employees worked regularly on the Respondent’s property. During the Symphony’s 39-week season, the Symphony employees perform most of their performances and rehearsals for their employer at the Tobin Center.¹¹⁵ The Symphony employees also use the Respondent’s property, including its breakroom, to hold breaks and union meetings, to store large instruments, and to house a library staffed by a union member.¹¹⁶

In addition, the Respondent has not demonstrated that the leafleting significantly interfered with the Respondent’s use of its property or that excluding the Symphony employees was justified by some other legitimate business reason, such as the need to maintain operations or discipline. In fact, the outdoor plaza on the Respondent’s property where the Symphony employees sought to leaflet was open to the public at all times and the Symphony employees in no way prevented the Respondent’s patrons from also using that space or entering the interior of the Tobin Center. There was no need, as the Respondent claims, to prevent its patrons from having to “wade through” the Symphony employees given the broad expanse of the sidewalk in front of the Tobin Center and limited number of Symphony employees leafleting. The judge also properly rejected the Respondent’s contention that the Symphony employees were harming its business operations by advocating a boycott of the Tobin Center. In fact, the Symphony employees were encouraging the Respondent’s patrons to demand a better experience so that the Tobin Center and its resident companies would attract more patrons, be more successful, and provide more work opportunities for the Symphony employees. There was also no evidence that the leafleting posed a security threat to the Respondent or created a litter problem on the Tobin Center grounds.

Moreover, as the judge recognized, there is nothing factually that would materially distinguish this case from New York New York. First, even though the Symphony--the Symphony employees’ employer--was a licensee of the Respondent, not an onsite contractor, the Board in Bexar County I properly noted that, “[f]or purposes of an analysis under the Act, a licensee is indistin-guishable from an onsite contractor.”¹¹⁷ The critical question, regardless of the employer’s precise status as a contractor or a licensor, is whether the contractor or licensor employees have a sufficient connection to a property to afford them off-duty access, despite the potential impact on the property owner’s general property right to exclude. Importantly, when the employees work for a contractor or licensor of the Respondent, unlike nonemployees, the property owner has an agreement with the contractor or licensor governing the latter’s use of the property, thereby providing the property owner an opportunity to protect its rights and interests. In this case, the Respondent had a Use Agreement with the Symphony under which the Symphony employees had a contractual right to access the Respondent’s property while on duty. At the same time, the judge correctly recognized that the Use Agreement also gave the Respondent control over Symphony employees who were on its property even while off duty, which was comparable to the control of the property owner in New York New York under its contractual agreement with the contractor.¹¹⁸ Moreover, in contrast to a stranger trespassing onto its property, the licensing relationship is highly useful to the property owner. Notwithstanding whatever impact it has on its property rights, in the same way that an onsite contractor has a mutually beneficial relationship with a property owner, the Symphony’s license with the Respondent provides a distinct value to the Respondent by drawing in patrons to its property--which allows it to fulfill its very purpose as a performing arts venue--and also by the Symphony compensating the Respondent for the use of its facility.

*15 Second, even though the Symphony employees’ leafleting was not part of an organizing campaign, they had a Section 7 right to inform the public about Ballet San Antonio’s use of recorded instead of live music, which directly affected the Symphony employees’ working conditions. The Supreme Court in Eastex held that employees can “seek to improve terms and conditions of employment or otherwise improve their lot as employees through channels outside the immediate employee-employer relationship.”¹¹⁹ In fact, the Supreme Court has rejected the argument “that the employees’ interest in distributing literature that deals with matters affecting them as employees, but not with self-organization or collective bargaining, is so removed from the central concerns of the Act as to justify application of a different rule than in Republic Aviation” (which permits off-duty employees to leaflet on their employer’s property).¹²⁰ Although the Symphony employees’ leafleting was not part of an organizing campaign, unlike the handbilling by the New York New York contractor employees, the judge rightfully noted that the Symphony employees’ conduct is entitled to just as much protection under Section 7, in accordance with the Supreme Court’s Eastex decision.

Third, in contrast to the contractor employees in New York New York who leafleted the customers of their own employer, the Symphony employees’ leafleting was aimed at patrons of the Respondent who were attending a performance by Ballet San Antonio. In Simon DeBartolo Group, applying the New York New York test, the Board found that a property owner unlawfully barred contractor employees from handbilling directed at the property owner’s customers. As the Board noted in Simon DeBartolo Group, by quoting from New York New York, “what matters here is less the intended audience of the [contractor] employees than that the [contractor] employees were exercising their own rights under Section 7.”¹²¹ Furthermore, as the New York New York Board explained, having customers as the contactor employees’ intended audience for their communications strengthened rather than weakened their statutory claim to access.¹²² By leafleting at their workplace, the contractor employees “were uniquely able to identify and communicate with the relevant subset of [the property owner’s] customers.”¹²³ Here as well, the Symphony employees sought to exercise their Section 7 rights by identifying and communicating with the relevant subset of the Respondent’s patrons who they thought would be best positioned to advocate for the change the Symphony employees wanted. The Respondent’s patrons who attend Ballet San Antonio performances--either intermittently or as season-ticket holders--would be more likely than other members of the public to find a receptive ear in the Ballet San Antonio’s management if they were to urge them to use live music performed by Symphony employees for future productions.

1. CONCLUSION

*16 Accordingly, we affirm the judge’s finding that, under the New York New York test, which we return to today as a proper accommodation of off-duty contractor employees’ Section 7 rights and a property owner’s private property rights, the Respondent violated Section 8(a)(1) by preventing the Symphony employees from distributing flyers on the sidewalk in front of the Tobin Center on the Respondent’s property about Ballet San Antonio’s use of recorded music, which deprived the Symphony employees of the work of performing that music live. The Symphony employees work regularly at the Tobin Center, and the Respondent has not demonstrated that the leafleting would have significantly interfered with the use of its property or that it had another legitimate business reason for denying them access.

ORDER

The National Labor Relations Board orders that the Respondent, Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts, San Antonio, Texas, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Prohibiting and/or preventing off-duty employees who are regularly employed at the Tobin Center, including employees of the San Antonio Symphony, from leafleting in nonworking areas open to the public of the Tobin Center property when that leafleting relates to wages, hours, or other terms and conditions of employment.

(b) 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.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Post at its San Antonio, Texas facility copies of the attached notice marked “Appendix.”¹²⁴ Copies of the notice, on forms provided by the Regional Director for Region 16, 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, notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. The Respondent shall take reasonable steps 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 February 17, 2017.

(b) Within 21 days after service by the Region, file with the Regional Director for Region 16 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.

*17 Dated, Washington, D.C. December 16, 2022

Lauren McFerran

Chairman

Gwynne A. Wilcox

Member

David M. Prouty

Member

MEMBERS KAPLAN AND RING, dissenting.

The question presented in this case is the extent to which musicians employed by the San Antonio Symphony were entitled, while off duty, to access the premises of the Respondent Tobin Center for the purpose of leafletting patrons of Ballet San Antonio. In the underlying decision in this case, 368 NLRB No. 46 (2019) (Bexar I), the Board found that the Respondent did not violate Section 8(a)(1) of the Act by prohibiting the off-duty Symphony employees from leafletting on its private property under the circumstances of this case.

In addressing this issue, the Board was guided by the Supreme Court’s holding in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), which reaffirmed the Court’s earlier precedent establishing that there was “a distinction ‘of substance”D’ between employees and nonemployees.¹ Based on that distinction, the Court held that whereas the Board acted properly in determining access issues concerning employees by balancing property owners’ rights and the rights of their employees to engage in conduct protected by the Act, no such balancing is appropriate where nonemployees are concerned except in “the rare case” where no reasonable alternative means for communication exist.²

With the Court’s distinction between employees and nonemployees in mind, the Board in Bexar I determined that although off-duty employees of onsite contractors, who are not employed by the property owner (“off-duty contractor employees”) were not entitled to the same access rights as employees of the property owner, they were also not strangers to the property to the degree that nonemployee union organizers were. Accordingly, the Board concluded that, under Lechmere, off-duty contractor employees who had a regular presence on the property, and worked exclusively on the property, would have a sufficient connection to the property to warrant a limited intrusion on property owners’ rights. The Board further concluded, however, that even when off-duty contractor employees have a sufficient connection to the property under the ““regular and exclusive” test, the property owners’ property rights need not give way to the Section 7 access rights of the off-duty contractor employees if the latter have reasonable alternative nontrespassory means of communicating their message.³ In this regard, the Board placed the burden of proof on the property owner to establish that reasonable alternative means of communication existed for the off-duty contractor employees to exercise their Section 7 rights in order to justify excluding them from the property.⁴ In contrast, when “stranger” nonemployees seek access to private property to engage in Section 7 activity, the General Counsel bears the burden of proof to show that no reasonable alternative means of communication exist.

Because the standard adopted in Bexar I was at odds with the Board’s 2011 decision in New York New York Hotel & Casino,⁵ the Board overruled that decision. Applying its newly announced standard retroactively, the Board found that employees of the Symphony worked neither regularly nor exclusively on the Tobin Center’s property, and even assuming they did, they had reasonable alternative nontrespassory means of communicating their message. Accordingly, the Board concluded that the Tobin Center lawfully excluded from its property Symphony employees who sought access to engage in Section 7 activity.

Upon review, the United States Court of Appeals for the District of Columbia Circuit declined to enforce the Board’s decision, finding that the Board had failed to present an adequate explanation for requiring off-duty contractor employees to have a “regular” presence on the property or to work “exclusively” on the property in order to justify interfering with property owners’ rights. The court also criticized the Board for failing to require the Respondent to meet its burden to establish that reasonable alternative means of communication were available to the musicians.

The case is now back before the Board. Rather than addressing the court’s specific concerns, however, our colleagues have in effect abandoned all effort to reach an appropriate accommodation between the competing Section 7 and property rights at stake in this matter, instead definitively prioritizing off-duty contractor employees’ Section 7 rights above the rights of property owners. Because our colleagues’ new standard fails to reflect a proper mutual accommodation of these rights as the Supreme Court has required, we respectfully dissent.

1. THE SUPREME COURT’S MANDATE IN LECHMERE

As recognized by the Board in Bexar I, property owners “enjoy certain fundamental property rights derived from the common law and protected by the Fifth and Fourteenth Amendments to the United States Constitution.”⁶ Among those rights is the right to exclude, which the Supreme Court has characterized as “one of the essential sticks in the bundle of property rights.”⁷

Mindful of these inherent rights, the Supreme Court articulated three guiding principles in Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992), for determining the extent to which property owners are required to permit access to their private property by individuals seeking to engage in Section 7 activity. First, the Court found that employees’ Section 7 rights are not absolute. Instead, when Section 7 rights conflict with a property owner’s property rights, an accommodation between the two “must be obtained with as little destruction of one as is consistent with the maintenance of the other.”⁸ Second, in determining that accommodation, the Court drew a distinction “of substance” between the union activities of employees versus those of nonemployees.⁹ Third, nonemployees are not entitled to access private property to engage in Section 7 activity unless they have no reasonable alternative means of communicating their message.¹⁰ In other words, where nonemployees are concerned, no invasion of private property rights is required in order to accommodate Section 7 rights except in limited circumstances.

This distinction between employees and nonemployees is clear from the terms of the National Labor Relations Act (NLRA). As the Supreme Court explained in Lechmere, Section 7 provides that employees have the right to self-organization, and Section 8(a)(1) makes it an unfair labor practice to infringe on employees’ exercise of their Section 7 rights. “By its plain terms,” the Court pointed out, “the NLRA confers rights only on employees, not on ... nonemployee[s].”¹¹ Such a substantial distinction necessarily places the union activities of employees and nonemployees at opposite ends of a spectrum.¹²

With this distinction in mind, “[i]n cases involving employee activities,” the Supreme Court has approved the Board’s efforts to “‘balance the conflicting interests of employees to receive information on self-organization on the company’s property from fellow employees during nonworking time, with the employer’s right to control the use of his property.”’¹³ By contrast, “[i]n cases involving nonemployee activities ... the Board [i]s not permitted to engage in that same balancing.”¹⁴ Rather, as the Supreme Court explained, the matter is “straightforward: § 7 simply does not protect nonemployee union organizers except in the rare case where ‘the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels.”’¹⁵ Indeed, the Court has made clear “that nonemployee organizers cannot claim even a limited right of access to a nonconsenting employer’s property until ‘after the requisite need for access to the employer’s property has been shown.”’¹⁶ Accordingly, although the Court has “‘indicate[d] that an employer may not always bar nonemployee union organizers from his property, his right to do so remains the general rule”’;¹⁷ it is only in limited circumstances that property rights are “required to yield” to the organizing activities of nonemployees.¹⁸

We recognize that Lechmere does not directly control this case. However, the Board cannot ignore the Supreme Court’s holding in Lechmere that the Act draws a sharp distinction between the access rights of employees and those of nonemployees and requires that property rights yield to nonemployees’ organizing rights only in limited circumstances. The Board must heed the Court’s teaching in determining the access rights of off-duty contractor employees, who are not employees of the property owner, even though they are also not utter strangers to the property like nonemployee union organizers. And in all cases involving access issues, the Board must heed the Supreme Court’s “admonition that accommodation between employees’ § 7 rights and employers’ property rights ‘must be obtained with as little destruction of one as is consistent with the maintenance of the other.”’¹⁹

Consistent with these principles, less “destruction” of the property owner’s rights is warranted under Lechmere for off-duty contractor employees than for the property owner’s own employees by virtue of the former’s status as nonemployees of the property owner. This was the principle guiding our decision in Bexar I and, although the D.C. Circuit took issue with the adequacy of the Board’s justification in Bexar I for the specific standard set forth therein, it did not disagree with that fundamental principle.²⁰

1. THE MAJORITY’S POSITION IGNORES THE FUNDAMENTAL LOLDING IN LECHMERE

Today, as it did in 2011, the Board majority contravenes Lechmere’s guiding principles as to the Section 7 rights of nonemployees of a property owner in its treatment of off-duty employees of an onsite contractor. The majority returns to New York New York, supra, where the Board held that off-duty contractor employees who worked regularly in a restaurant on the hotel and casino’s property had the right to access the owner’s property to engage in Section 7 activity unless the property owner could show that such activity would significantly interfere with the use of its property or could be restricted for another legitimate business reason, “including, but not limited to, the need to maintain production and discipline.”²¹ The New York New York Board acknowledged that the off-duty contractor employees were equivalent neither to the property owner’s own employees nor to nonemployee union organizers, and claimed to be “mindful of the Supreme Court’s admonition that the ‘distinction between rules of law applicable to employees and those applicable to nonemployees’ is ‘one of substance.”’²² Nevertheless, the Board granted these nonemployees of the property owner the same Section 7 access rights as the property owner’s own employees, subject to a nominal, and thus meaningless, exception.²³ Today, the majority continues to recognize the substantial distinction between these individuals in name only.

Simply put, the majority’s decision cannot be reconciled with Supreme Court precedent. The Court has recognized that “‘[t]he locus of the accommodation [between § 7 rights and private property rights] may fall at differing points along the spectrum depending on the nature and strength of the respective § 7 rights and private property rights asserted in any given context.”’²⁴ However, it is not the case that such an accommodation requires a balancing of Section 7 rights and private property rights. Based on the distinction of substance between employees and nonemployees, the Court in Lechmere held that “[s]o long as nonemployee union organizers have reasonable access to employees outside an employer’s property, the requisite accommodation has taken place. It is only where such access is infeasible that it becomes necessary and proper to ... balanc[e] the employees’ and employers’ rights.”²⁵ Although we agree with Bexar I that under certain circumstances, contractor employees have greater Section 7 access rights than do nonemployee union organizers, it is still the case that they are nonemployees of the property owner, and their Section 7 access rights are weaker than those of the property owner’s own employees. Under Lechmere, then, the Bexar I Board reasonably concluded that “the requisite accommodation” of contractor employees’ Section 7 rights “has taken place” if reasonable nontrespassory means are available to them for the exercise of those rights, and where that is the case, no invasion of private property rights is necessary to achieve the requisite accommodation.²⁶ In any event, because the “nature and strength” of the contractor employees’ Section 7 rights are diminished when they seek access to premises that their employer does not own, the extent to which the contractor employees must be permitted to infringe upon private property rights is inherently more restricted.²⁷ By returning to New York New York, however, the majority effectively gives contractor employees the same rights as the property owners’ own employees and, more problematically here, ignores the Court’s directive that the yielding of private property rights to accommodate nonemployees is only necessary in certain contexts. By effectively equating contractor employees with property owners’ employees, the majority wrongfully promotes the near total deprivation of private property owners’ right to exclude nonemployees.²⁸

1. THE MAJORITY’S ARGUMENTS THAT THEIR DECISION IS NOT IN CONFLICT WITH LECHMERE ARE UNAVAILING

It is clear that the standard espoused today fails to apply the Supreme Court’s mandate that property owners’ rights and Section 7 rights must both be accommodated,²⁹ despite our colleagues’ assertions to the contrary. For example, the majority asserts that contractor employees’ rights are “much more closely aligned to those of the property owner’s own employees than to nonemployee union organizers whose Section 7 access rights derive from the rights of employees who work on the property.” But even assuming that this is so, it is equally true that the property owner’s interest in excluding off-duty contractor employees is more similar to property owners’ interests in excluding nonemployees than to its interests relative to its own employees. As we detailed in Bexar I, the property owner

*18 may not have the same confidence in the integrity and self-discipline of contractor employees that it has in its own employees, and it may reasonably be concerned about the security of its property and the safety of persons rightfully thereon when contractor employees are off duty and not being supervised by the onsite contractor. Indeed, the property owner may have little, if any, idea who the contractor employees are. Although contractor employees, unlike nonemployees, are not complete strangers to the property, their diminished contact with the owner and its property should reasonably correspond to lesser rights of access to the property when off duty than the property owner’s own employees enjoy.³⁰

Indeed, our colleagues acknowledge, as they must, that the property owner “may not have invited the contractor employees onto its property and . . . might not have the same control over the contractor employees’ conduct while on its property” as compared to the owner’s own employees. Nevertheless, they conclude that, for all intents and purposes, property owners do not have any greater right to exclude contractor employees than their own employees.

Our colleagues attempt to minimize this significant fact by asserting that, “[t]hrough the voluntary and mutually beneficial relationship between the property owner and the contractor, the property owner still has the legal right and practical ability to fully protect its interests through its contractual and working relationship with the contractor.”³¹ But, of course, the fact that the parties may enter into such a contract does not establish that property owners’ rights are in any way diminished in the absence of such a contract. Moreover, any contractual provision regulating off-duty access by employees of the contractor, and the exercise of any right by the property owner under such provisions, presumably must conform to the standards set forth in the majority opinion. As shown, those standards effectively grant off-duty contractor employees the same rights as employees of the property owner.

CONCLUSION

In Bexar I, the Board recognized that the reasoning behind the holding in New York New York and Simon DeBartolo did not properly balance off-duty contractor employees’ Section 7 access rights with the rights of private property and did not constitute “an accommodation that causes as little destruction to private property rights as is consistent with maintaining employees’ Section 7 rights.”³² Although the D.C. Circuit did not enforce that decision, the court acknowledged that, “[a]s a conceptual matter,” the Board had properly sought “to identify those contractor employees with a sufficiently strong connection to the property to warrant the grant of [off-duty] access rights.”³³ And, in remanding the case, the court recognized the viability of the Bexar I test and left open the possibility that the defects with its terms and application were curable. Our colleagues, however, claim that “Bexar I essentially stripped off-duty contractor employees whose employer does not own the property where they work from having Section 7 rights at their workplace” and, accordingly, abandon the test in its entirety. These accusations are wholly unfounded and somewhat ironic considering the extent to which our colleagues are willing to strip property owners of their rights today. Their decision does not reasonably accommodate the competing rights at issue as is required by the Supreme Court. Instead, they swing the pendulum so far to the other side as to preclude property owners from exercising any real control over their property as it pertains to off-duty individuals whom they do not employ. Because their decision today fails to give any real acknowledgement of the rights of property owners, we dissent and decline to apply it here.³⁴

BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, PROUTY, AND WILCOX

On January 31, 2023, Administrative Law Judge John T. Giannopoulos issued the attached decision. Siren Retail Corp. d/b/a Starbucks (the Respondent), the General Counsel, and Workers United (the Charging Party) each filed exceptions and a supporting brief. The Respondent filed answering briefs in response to the General Counsel and the Charging Party, and the Charging Party filed an answering brief in response to the Respondent. The Respondent and the Charging Party each filed a reply brief.

The National Labor Relations Board1 has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order.2

The issues in this case primarily arise out of various statements that the Respondent's managers made to employees during mandatory meetings that the Respondent convened to discuss unionization following the Charging Party's filing of a petition for a representation election.3 We affirm the judge's findings, for the reasons he states, that the Respondent violated Section 8(a)(1) of the National Labor Relations Act by threatening employees that unionization would cause them to lose the current benefit of Term Limited Assignments and would cause the Respondent to prioritize giving benefits to employees at its nonunionized stores over giving benefits to employees at its unionized stores.4 We also affirm the judge's finding that the Respondent violated Section 8(a)(1) by implying that collective bargaining could not redress the employees' current inability to receive tips from customers' credit card payments. Such statements, which suggest that a union cannot help employees get better compensation for their work, unlawfully threaten employees that unionization would be futile. See, e.g., Bucyrus Foodland North & Bucyrus Foodland South, 247 NLRB 284, 286 (1980), enfd. in rel. part sub nom. NLRB v. Frederick's Foodland, Inc., 655 F.2d 88 (6th Cir. 1981).5 We further affirm the judge's findings that the social media posts of one of the Respondent's supervisors that threatened that unionization would cause the loss of certain employee benefits were attributable to the Respondent and violated Section 8(a)(1).6

We also adopt the judge's finding that the Respondent did not violate Section 8(a)(1) based on its managers' statements concerning the impact unionization would have on the employees' ability to address issues individually with the Respondent. However, in reviewing [*2] the judge's finding, we have decided to prospectively overrule Tri-Cast, Inc., 274 NLRB 377 (1985) —which the judge relied on—and adopt, for future cases only, a test consistent with the Board's pre-Tri-Cast approach. As discussed in greater detail in Section I, below, in Tri-Cast and its progeny, the Board erred in deeming categorically lawful nearly any employer statement to employees touching on the impact that unionization would have on the relationship between individual employees and their employer. As we will explain, the purposes of the Act are better served if the content and context of such statements are analyzed on a case-by-case basis, applying the principles reflected in the Supreme Court's decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), which also involved an employer's prediction of adverse consequences from unionization. Thus, to be deemed lawful, employer predictions about the negative impacts of unionization on employees' ability to address issues individually with their employer "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, 395 U.S. at 618.

Finally, and contrary to the judge, we find in Section II, below, that the Respondent violated Section 8(a)(1) by its managers' statements concerning the employees' union membership and strike obligations if a majority of them chose to unionize.

I.

At one of the Respondent's mandatory meetings that it had convened to address unionization, a manager told the employees:

If you want a union to represent you—uh—you want to give your right to speak to leadership through a union, you're going to check off "yes" for the election. If you want to maintain a direct relationship with leadership, you'll check off "no."

She also said:

[A] representation of a union is the rules of employment will then be grounded in a contract. And if it's not in that contract, it's not a conversation in my opinion that's going to happen with leadership. We'll be bound by the contract. So the union will be bound. And Starbucks will be bound. So I want to be clear on that. That a third party comes in and speaks for you. And everything will be grounded, from my experience and my opinion through the lens of that contract.

In Tri-Cast, decided in 1985, the Board reversed precedent to hold that an employer's campaign statements like these are lawful. The Tri-Cast holding has since been applied broadly as a categorical rule to immunize nearly all employer statements concerning the relationship between individual employees and their employer. In view of Tri-Cast and its progeny, the judge in this case found the statements at issue lawful. The General Counsel asks that we overrule Tri-Cast and find unlawful campaign statements of this sort that threaten employees with the loss of an existing benefit, i.e., an established practice of permitting employees to address issues individually with their employer. In turn, she urges the Board to find that the Respondent's statements in this case violated Section 8(a)(1). The Respondent disagrees, arguing that Tri-Cast and its progeny [*3] are well reasoned. For the reasons explained below, we overrule the categorical rule established in Tri-Cast and the cases that have applied it. We replace it with the case-specific approach the Board used in the years immediately preceding Tri-Cast and which the Board generally uses when analyzing whether allegedly threatening statements violate Section 8(a)(1) of the Act.7 However, in view of employers' longstanding reliance on Tri-Cast's categorical rule, we will apply the newly reinstated approach only prospectively.

1. Legal Background

We start with the text of the statute. Section 9(a) of the Act grants a union chosen by the majority of a unit of employees the authority to serve as the employees' "exclusive representative[]" for the purposes of collective bargaining.8 But Section 9(a) also contains a proviso qualifying that exclusive representation. The proviso states that:

[A]ny individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.

29 U.S.C. § 159(a) (emphasis added in part). The proviso assures that, even when they are represented by a union, individual employees or groups of employees are permitted to "present grievances" directly to their employer without going through the union, and employers retain the corresponding ability to address such grievances directly with those individuals or groups. Id.

The version of Section 9(a) in effect prior to the enactment of the Taft-Hartley Act of 1947 provided that individual employees could "present" their grievances to their employer, 29 U.S.C. § 159(a) (1935), but the Board had interpreted this language narrowly to mean that, while employees could communicate their grievances to their employer, they had to go through their union to resolve them, Hughes Tool Co., 56 NLRB 981, 982-983 (1944), enfd. 147 F.2d 69 (5th Cir. 1945). The Taft-Hartley Act "amended Section 9(a) . . . to specifically authorize employers to settle grievances presented by individual employees or groups of employees, so long as the settlement is not inconsistent with any collective bargaining contract in effect." H.R. Rep. No. 80-510, at 46 (1947) (Conf. Rep.), reprinted in 1 NLRB, Legislative History of the Labor-Management Relations Act, 1947, at 550. As the Supreme Court has explained, "[t]he intendment of the proviso is to permit employees to present grievances and to authorize the employer to entertain them without opening itself to liability for dealing directly with employees in derogation of the duty to bargain only with the exclusive bargaining representative." Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 61 fn. 12 (1975).

In the 1960s and early 1970s, the Board was inconsistent in its treatment of employer statements concerning the impact of unionization on employees' ability to address issues individually with their employer. In some cases, the Board found—often with the approval of the federal courts of [*4] appeals—that statements were unlawful threats where employees were told that, if they chose a union, they would lose the benefit of their existing ability to address issues individually with their employer.9 But in other cases, the Board found that substantially similar statements were lawful predictions that unionization would require employees to go through their chosen unions to address individual issues.10

By the late 1970s and early 1980s, however, the Board began—with the approval of the Fourth, Sixth, Seventh, Eighth, and Ninth Circuits—to consistently find unlawful employer statements that effectively threatened employees with the loss of their Section 9(a) ability to address issues individually with their employer.11 In those cases, the Board recognized that "an employer may explain that with union representation the union will be a participant in employer-employee relations generally," but also recognized that "an employer cannot threaten to retaliate against its employees' selection of a union representative by cutting off the employees' Section 9(a) right to deal directly with management." Greensboro News Co., 257 NLRB at 701.

At the same time as it was consistently remedying employer threats to abridge employees' ability to raise individualized grievances under the proviso to Section 9(a), the Board decided Midland National Life Insurance Co., 263 NLRB 127 (1982), a representation case that addressed factual misrepresentations made during a union campaign. There, the Board concluded that it would "no longer probe into the truth or falsity of the parties' campaign statements" and, accordingly, would "not set elections aside on the basis of misleading campaign statements." Midland, 263 NLRB at 133. But the Board also made clear that it would still "continue to protect against other campaign conduct, such as threats, promises, or the like, which interferes with employee free choice." Id.

The Board subsequently confirmed that the rule from Midland "applied to misleading campaign statements generally," such that "there [was] no basis for treating misrepresentations of law differently" than misrepresentations of fact. Furr's Inc., 265 NLRB 1300, 1300 fn. 10 (1982). But Midland and its extension to misrepresentations of law in Furr's were not initially understood as upsetting the consistent approach that had emerged for assessing employer campaign statements concerning unionization's impact on employees' ability to address issues individually with their employer. The Board in those cases had not held that employer statements of this sort violated the law merely because they misrepresented the right of employees to individually present grievances under Section 9(a) 's proviso. Rather, the Board had held that these statements violated the law because the employer's purported misrepresentation was for all intents and purposes a threat: that the employer would deprive employees of an existing beneficial practice if they chose to unionize, when, in fact, the law would not permit that action. See, e.g., Greensboro News Co., 257 NLRB at 701 fn. 5 ("Because we find that the statement constitutes a threat, [*5] we find it unnecessary to pass on the . . . finding that the statement constitutes a misrepresentation."); Associated Roofing & Sheet Metal Co., 255 NLRB at 1350 (same); Ducane Heating Corp., 254 NLRB at 112 fn. 2 (same).

Indeed, on the same day that the Board confirmed in Furr's that the Midland rule applied to misrepresentations of law, the Board still found that an employer engaged in objectionable conduct by sending a letter to employees stating that "[i]f a union is certified, you will have to deal through Union representatives and may not be permitted to go directly to [the employer] about particular problems that you may have." Mead Nursing Home, Inc., 265 NLRB at 1115-1116. The Board was able to reconcile this finding with Midland and Furr's because the employer's statement in Mead Nursing Home, regardless of whether it was a misrepresentation of the law, "constitute[d] a retaliatory threat to terminate unilaterally an existing benefit of employees to deal directly with the Employer if the Union were selected." Id. at 1116 (internal footnotes omitted); see also Fiber Industries, 267 NLRB 840, 841 (1983) (assessing post-Midland whether, based on its content and broader context, an employer's campaign statement that "in a unionized plant individuals cannot come directly to supervisors to solve job related problems or to receive action or needed improvements" was an "objectionable threat to eliminate a benefit granted employees").

Moreover, just two weeks after the Board decided Midland, it issued its decision in Eagle Comtronics, Inc., 263 NLRB 515 (1982). At issue in Eagle Comtronics was an employer's statement to its employees that, in the case of an economic strike, strikers "could be replaced with applications on file." Id. at 515. The Board found that the statement was lawful because it "truthfully inform[ed] employees that they are subject to permanent replacement in the event of an economic strike," even if it failed to "fully detail[] the protections" enumerated for economic strikers in Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1969). Id. at 515-516.12 But, critically, the Board acknowledged that an employer's statement on job status after an economic strike must "not threaten that, as a result of a strike, employees will be deprived of their rights in a manner inconsistent with those detailed in Laidlaw." Id. at 516. In other words, an employer's statement on job status after an economic strike must be "consistent with the law" in order to "[]not be characterized as restraining or coercing employees in the exercise of their rights under the Act." Id. Accordingly, while Eagle Comtronics permits employers to make statements about striker replacements without fully detailing the protections provided by law, it also provides that an employer may not make statements that are inconsistent with the law, which effectively threaten to deprive employees of their existing rights as a consequence of striking.

In the years since Midland and Eagle Comtronics were decided in 1982, the Board has regularly and uncontroversially applied Eagle Comtronics many times, often finding employers' legally inaccurate strike-related statements to unlawfully threaten employees [*6] based on their content and context.13 This precedent confirms that Midland did not demand a fundamental change to the Board's approach of proscribing employers' coercive campaign statements that implicate employees' protections under the Act.

Even so, in Tri-Cast and its progeny—all decided after Eagle Comtronics—the Board took a different approach when addressing statements concerning employees' ability to address issues individually with their employer after unionization. The Tri-Cast Board considered whether an employer's campaign statement to employees was objectionable election misconduct that warranted setting aside a representation election. 274 NLRB at 377. The statement was as follows: "We have been able to work on an informal and person-to-person basis. If the union comes in this will change. We will have to run things by the book, with a stranger, and will not be able to handle personal requests as we have been doing." Id. The Board reversed the Regional Director's determination that this statement was objectionable because it threatened to curtail employees' ability to address issues individually with their employer, which, as noted, is a practice explicitly authorized by Section 9(a) 's proviso.

The Tri-Cast Board made the general observations that "[t]here is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and the employer will not be as before" and that Section 9(a) "contemplates a change in the manner in which employer and employee deal with each other." Id. It further observed that "[t]his is especially so" when "a collective-bargaining agreement is negotiated" and that when an employer tells its employees about such changes during an election campaign it "cannot be characterized as an objectionable retaliatory threat to deprive employees of their rights, but rather is nothing more or less than permissible campaign conduct." Id. It also called it a "'fact of industrial life' that when a union represents employees they will deal with the employer indirectly, through a shop steward." Id. (quoting NLRB v. Sacramento Clinical Laboratory, 623 F.2d 110, 112 (9th Cir. 1980) ).

Although the employer's statement definitively told employees that, as a consequence of unionization, the employer would "not be able to handle personal requests as we have been doing," the Tri-Cast Board characterized that specific statement as "simply explicat[ing] one of the changes which occur between employers and employees when a statutory representative is selected." Id. To the extent that the employer inaccurately stated that unionization would legally require it to discontinue a beneficial practice explicitly authorized by Section 9(a) 's proviso, the Tri-Cast Board deemed that unproblematic, because the Board in Midland had held that it would "no longer probe into the truth or falsity of the parties' campaign statements." Id. at 378 (quoting Midland, 263 NLRB at 133 ).

In finding the employer's statement not objectionable, the Tri-Cast Board specifically reversed [*7] three prior decisions that had deemed similar statements objectionable. Id. at 377 & fn. 5 (overruling Greensboro News Co., 257 NLRB 701 (1981); Armstrong Cork Co., 250 NLRB 1282 (1980); LOF Glass, Inc., 249 NLRB 428 (1980) ). As noted, those expressly overruled cases—and many others that the Board in Tri-Cast did not cite, see supra fn. 11 —found that statements like the one at issue in Tri-Cast "could reasonably be construed as a threat to deprive employees of their right" under Section 9(a) to address issues individually with their employer. Greensboro News Co., 257 NLRB at 701. The Board in those cases had made the same general observation that the Tri-Cast Board did, noting that "an employer may explain that with union representation the union will be a participant in employer-employee relations generally." Id. But in these pre-Tri-Cast cases, the Board did not view an employer's specific statement that employees would no longer be able to address individual grievances with the employer after unionization as a lawful general statement. Instead, as noted, the Board held that "an employer cannot threaten to retaliate against its employees' selection of a union representative by cutting off the employees' Section 9(a) right to deal directly with management." Id.

Following the categorical rule of Tri-Cast and its progeny, and notwithstanding the clear statutory protections of Section 9(a), the Board, in both representation cases and unfair labor practice cases, has since repeatedly found lawful employer statements that unionization would eliminate employees' ability to address workplace issues individually with their employer—notwithstanding that some of these statements could be understood to threaten employees with a loss of an established benefit, when viewed from the perspective of a reasonable employee.14 There have been criticisms of this approach over the years, including Member Block's concurring opinion in Dish Network Corp., 358 NLRB 174 (2012).15 Member Block encouraged "reexamining Tri-Cast in an appropriate future case" in view of her conclusion that Tri-Cast is "at odds with the Board's overall treatment of employer predictions about the outcome of unionization." 358 NLRB at 176-177. Specifically, she pointed out that under the Supreme Court's decision in Gissel, such predictions "'must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control.'" Id. at 175-176 (quoting Gissel, 395 U.S. at 618 ). Member Block also noted that Eagle Comtronics, unlike Tri-Cast, was implicitly consistent with Gissel in that it allows employers to make statements about striker replacements but also requires employers' statements to be objectively based—i.e., it "provides an important qualification [that] the employer may not threaten to deprive employees of existing rights as a consequence for striking." Id. at 176. In Member Block's view, "the Tri-Cast Board erred in not applying a similar qualification" and, consequently, "Tri-Cast ha[d] proven to be a blunt instrument, applied in such a broad fashion that almost any statement involving employees' ability to pursue grievances individually [*8] is permissible." Id.

1. Analysis

The Board's administrative process is one of "constant . . . trial and error" informed by our "[c]umulative experience" administering labor-management relations. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975) (quoting NLRB v. Seven-Up Bottling Co. of Miami, Inc., 344 U.S. 344, 349 (1953) ). Consistent with that process, informed by our experience and our careful consideration of this issue, we overrule Tri-Cast. Even if it constitutes a permissible construction of the Act, Tri-Cast was poorly reasoned when it was decided, and its later application has categorically immunized employer campaign statements that, based on their content and context, could reasonably be understood to threaten employees with the loss of an established workplace benefit. As a consequence, Tri-Cast inhibits, rather than promotes, employees' freedom to exercise the organizational rights guaranteed by Section 7 of the Act. The case-specific approach that we return to today is more carefully calibrated to ensure that employer campaign statements are nonthreatening. That approach is also more consistent with the Supreme Court's decision in Gissel and better protects employees' Section 7 rights without infringing on employers' speech protected under Section 8(c) of the Act, which only shields statements that "contain[] no threat of reprisal or force or promise of benefit." 29 U.S.C. § 158(c).

As a preliminary matter, we take no issue with the general observations that the Tri-Cast Board made. Generally speaking, "[t]here is no threat, either explicit or implicit," in an employer statement that merely says to employees that "when they select a union to represent them, the relationship that existed between the employees and the employer will not be as before." Tri-Cast, 274 NLRB at 377 (emphasis added). In light of the Act's collective-bargaining provisions, this is an objectively true statement, of course. Most obviously, and as Section 9(a) sets out, after employees choose a union, the union will be their exclusive representative for purposes of collective bargaining, and bargaining may culminate in a collective-bargaining agreement that defines terms and conditions of employment. Accordingly, we do not disagree that Section 9(a), to this extent, "contemplates a change in the manner in which employer and employee deal with each other." Id.

We fundamentally disagree, however, that the specific employer campaign statement at issue in Tri-Cast was such a statement, and we further disagree that, as a categorical matter, all employer statements on the general subject of employees' ability to address issues individually with the employer after unionization are always lawful. The specific statement at issue in Tri-Cast was, in most relevant part, that "[i]f the union comes in" the employer "will not be able to handle personal requests as we [i.e., the employer] have been doing." Id. The Tri-Cast Board offered no compelling rationale as to why this specific statement (or others like it) was not contrary to the guarantee of the Section 9(a) proviso and did not threaten employees that, as a consequence of unionization, they would lose an existing [*9] benefit. Instead, Tri-Cast made the conclusory assertion that this statement "simply explicates one of the changes which occur between employers and employees when a statutory representative is selected" and the equally conclusory assertion that it "cannot be characterized as an objectionable retaliatory threat to deprive employees of their rights, but rather is nothing more or less than permissible campaign conduct." Id. What is particularly confounding about these assertions is that the specific statement at issue in Tri-Cast (and others like it) does not explicate "one of the changes" that comes from unionization under the Act. To the contrary, Section 9(a) 's proviso ensures precisely the opposite: that an employer being "able to handle personal requests"—as the employer's statement colloquially put it in Tri-Cast—is precisely one of the things that does not inevitably change upon unionization.

Because the Tri-Cast Board described the statement at issue so generally, it failed to address, much less refute, the rationale of the consistent line of cases in the preceding years explaining that employer statements concerning the impact of unionization on the employer-employee relationship can be unlawfully coercive if they amount to a threat to eliminate a beneficial practice. Instead, the Tri-Cast Board cited the three decisions relied upon in the underlying Regional Director's report—without noting the many others (including those enforced by reviewing courts), see supra fn. 11 —and, without further elaboration, overruled those three cases. Id. at 377 fn. 5 (expressly overruling Greensboro News Co., 257 NLRB 701 (1981); Armstrong Cork Co., 250 NLRB 1282 (1980); LOF Glass, Inc., 249 NLRB 428 (1980) ). Those cases acknowledged, consistent with Tri-Cast's general observations, that "an employer may explain that with union representation the union will be a participant in employer-employee relations generally." Greensboro News Co., 257 NLRB at 701. But, instead of treating all statements touching on the employer-employee relationship as if they were the same, the pre-Tri-Cast cases looked at the specific content and context of the particular statement at issue to assess whether it "was an improper threat by the Employer to terminate the existing beneficial situation." Id.16 In other words, prior to Tri-Cast, the Board asked whether a statement concerning unionization's impact on the employer-employee relationship threatened the loss of a beneficial practice and, if so, properly deemed such a statement an unlawful threat that interfered with employees' free exercise of their organizational rights. The Tri-Cast Board failed to persuasively explain why this approach should be rejected.

Although the Tri-Cast Board cited Midland in an attempt to buttress its reasoning, its treatment of Midland was misleadingly superficial. Relying on Midland's holding that the Board would "no longer probe into the truth or falsity of the parties' campaign statements," the Tri-Cast Board said its own analysis would thus not change even if the employer's statement were understood "to have misrepresented [*10] employee rights." 274 NLRB at 378. However, as noted above, the Board in Midland made clear that it would continue to prohibit "campaign conduct, such as threats, promises, or the like, which interferes with employee free choice." 263 NLRB at 133. Thus, even if a misrepresentation is not per se unlawful, a statement that incorporates a misrepresentation may still constitute an unlawful threat. And that was precisely the rationale of the cases that, without any reasoned explanation, Tri-Cast overruled. See, e.g., Greensboro News Co., 257 NLRB at 701 fn. 5 ("Because we find that the statement constitutes a threat, we find it unnecessary to pass on the . . . finding that the statement constitutes a misrepresentation."). In short, contrary to the apparent suggestion of Tri-Cast, Midland does not somehow require the preposterous outcome that the Board immunize employer threats simply because they are premised on a misrepresentation of the Act and its effects on employees.

The Tri-Cast Board also cited Eagle Comtronics following its conclusory assertion that the statement at issue was "nothing more or less than permissible campaign conduct." 274 NLRB at 377 & fn. 5. But that citation is in-apposite because the reasoning of Eagle Comtronics actually supports the rationale of the cases that Tri-Cast overruled. Specifically, in Eagle Comtronics, the Board reasoned that if an employer's statements concerning employees' job status after a strike are not "consistent with the law," then they may "be characterized as restraining or coercing employees in the exercise of their rights under the Act." Eagle Comtronics, 263 NLRB at 516. In other words, Eagle Comtronics confirms the general proposition—wrongly rejected by Tri-Cast—that a statement that misrepresents the law can still be unlawful if, depending on its content and context, it threatens interference with employees' Section 7 rights.

Perhaps most fundamentally, Tri-Cast, unlike Eagle Comtronics, is at odds with the law's general treatment of employer predictions about the potential adverse impacts of unionization. In Gissel, the Supreme Court described it as "obvious" that any balancing of an employer's speech rights and employees' Section 7 rights "must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." 395 U.S. at 617. Accordingly, the Supreme Court instructed that if an employer "make[s] a prediction as to the precise effects he believes unionization will have on his company," then "the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to the demonstrably probable consequences beyond his control." Id. at 618. Thus, "[i]f there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation [*11] and coercion." Id. (emphasis added).

Under this generally applicable framework, when an employer makes a statement explicitly or implicitly based on what the Act allows or requires, the statement must be measured against what the Act actually allows or requires. A statement that inaccurately conveys what the Act allows or requires is not "carefully phrased on the basis of objective fact" and, as such, may be "a threat of retaliation based on misrepresentation and coercion" depending on its content and context. Id. Employer statements that broadly predict that unionization will necessarily foreclose employees' ability to address issues individually with their employer are not reasonable predictions about the legal consequences of unionization that follow from the Act. Put somewhat differently, the Act does not compel employers to end all direct interaction with individual employees over workplace issues if employees choose union representation. Section 9(a) explicitly provides otherwise. Thus, when an employer's statement, based on its content and context, contradicts Section 9(a) by asserting that an existing practice of permitting individual employees to address their issues with management must end if employees choose union representation, that statement amounts to an unlawful threat of retaliation that an employer may end existing practices "solely on his own initiative." Id.

As noted, experience under Tri-Cast shows that it has been broadly applied to immunize employer statements that, when subjected to normal Section 8(a)(1) scrutiny under Gissel, could have a reasonable tendency to coerce employees. See supra fn. 14. There is no compelling reason to accept this result. To the contrary, Gissel makes clear that employers must carefully phrase their predictions about the consequences of unionization on the basis of objective facts. Despite not expressly citing Gissel, the Board in Eagle Comtronics implicitly followed its instructions in the context of employer statements about strikers' job status rights. As a consequence, Eagle Comtronics has been a useful and uncontroversial tool for distinguishing employer statements on that topic that are not unlawfully threatening17 from those that are.18 By bringing scrutiny of employer statements concerning the employer-employee relationship into compliance with Gissel's instructions, we will henceforth have a similarly sensible tool for those types of statements too. Accordingly, we adopt an approach for assessing the lawfulness of employer statements concerning the impact of unionization on the relationship between individual employees and their employer that is grounded in Gissel, informed by Eagle Comtronics, and consistent with the pre-Tri-Cast approach.19

Adopting this approach promotes the policy of the Act in a manner that Tri-Cast does not. The Act declares it "to be the policy of the United States" to "encourag[e] the practice and procedure of collective bargaining" and to "protect[] the exercise by workers of full freedom of association, [*12] self-organization, and designation of representatives of their own choosing." 29 U.S.C. § 151. Tri-Cast's approach—to effectively give employers carte blanche to misrepresent their obligations under the Act in order to deter employees from exercising their right to organize—is anathema to this policy. The generally applicable threat analysis that we reinstate—which, consistent with the Supreme Court's decision in Gissel, reasonably requires employers to ground their predictions concerning the consequences of unionization in objective fact—better protects employee self-organization and thereby advances the Act's goal of encouraging collective bargaining.

Under the approach we reinstate today, statements concerning the consequences of unionization on the relationship between individual employees and their employer, including the ability of employees to address issues individually with their employer, are to be treated the same as all other employer statements concerning the consequences of unionization. Consequently, employers retain robust protection under Section 8(c) to express their views to employees about unionization. However, to be protected under Section 8(c), all such employer predictions must be grounded in objective fact. That familiar requirement is rooted in Supreme Court precedent and fair to employers. As the Supreme Court has recognized:

[A]n employer, who has control over that relationship and therefore knows it best, cannot be heard to complain that he is without an adequate guide for his behavior. He can easily make his views known without engaging in brinkmanship when it becomes all too easy to overstep and tumble over the brink. At the least he can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees.

Gissel, 395 U.S. at 620 (cleaned up; emphasis added).

1. Prospective Application

The Board's usual practice is to apply new policies and standards retroactively to all pending cases, including the case in which the new rule is announced, unless doing so would amount to a manifest injustice. SNE Enterprises, Inc., 344 NLRB 673, 673 (2005). To determine whether retroactive application amounts to a manifest injustice, we consider the reliance of the parties on preexisting law, the effect of retroactivity on accomplishment of the purposes of the Act, and any particular injustice arising from retroactive application. Id. Here, on balance and in the circumstances of this particular case, prospective application only is warranted.

First, we recognize the reliance interest of the parties on preexisting law. In 1985, the Tri-Cast Board announced what was almost immediately understood as a broad categorical rule covering a wide swath of employer campaign statements. Accordingly, for nearly 40 years, Tri-Cast's broad rule has been in effect. Employers thus reasonably came to rely on the fact that predictions specifically about unionization's consequences for the employer-employee relationship were lawful, however anomalous that may have been under [*13] the standard that governed their other predictions. Accordingly, there are relatively strong employer reliance interests weighing against retroactive application.

On the other hand, employees have a strong interest in the Board applying the reinstated pre-Tri-Cast approach that follows Gissel's instructions and that more effectively accomplishes the Act's purposes. As noted, Tri-Cast is contrary to the Act's express policies, whereas the Gissel-compliant approach we reinstate effectively promotes those policies. Retroactive application would thus help accomplish the Act's purposes.

Third, and last, we would find some injustice in applying the reinstated pre-Tri-Cast approach in this case because the Respondent would likely be judged to have committed an unfair labor practice based on speech that was clearly lawful at the time of utterance.

After carefully considering the particular circumstances of this case, we conclude that, on balance, it would amount to a manifest injustice to apply the new standard in this case, and prospective application is the more appropriate course. Although the issue is close, we think that future application of the standard we reinstate today will sufficiently promote the policies of the Act while giving appropriate weight to the reasonable reliance employers have previously placed on Tri-Cast's categorical rule and avoiding unjust results.

1. Response to the Dissent

We respectfully disagree with the arguments raised by our dissenting colleague and explain below the following errors in his analysis.

First, the dissent contends that because Tri-Cast was a representation case and this is an unfair labor practice case, the Board has no authority to address Tri-Cast and our overruling of Tri-Cast and its progeny is somehow mere "dicta" without precedential effect. This contention is unfounded. In the nearly 40 years since Tri-Cast was decided, the Board has never hesitated to apply Tri-Cast's categorical rule across both representation and unfair labor practice cases, indistinguishably. We have collected more than a dozen cases to prove the point. See supra fn. 14. Indeed, less than 2 weeks after it decided Tri-Cast, the very same Board applied Tri-Cast's rule in a consolidated representation and unfair labor practice case to jointly resolve both an election objection and an unfair labor practice allegation. Michael's Markets, 274 NLRB at 826-827. Even our dissenting colleague—when he was in the majority just a few years ago—applied Tri-Cast's rule to decide unfair labor practice allegations. See, e.g., Holy Cross Health d/b/a Holy Cross Hospital, 370 NLRB No. 16, slip op. at 1 fn. 3; Stern Produce Co., 368 NLRB No. 31, slip op. at 4.20 Tri-Cast provides a categorical rule for assessing whether an employer's statement amounts to a threat, regardless of whether the alleged threat is scrutinized as potential objectionable campaign conduct or as an alleged unfair labor practice. Michael's Markets, cited above, clearly demonstrates as much. So does Ben Venue Laboratories, 317 NLRB at 900. In that consolidated representation and unfair labor [*14] practice case, the Board also assessed whether an employer's statement constituted both objectionable campaign conduct and an unfair labor practice. After citing Tri-Cast and a handful of cases citing that decision, the Board explained that it had assessed the employer's statement "in light of th[o]se cases," had "conclude[d] that it did not constitute an unlawful threat," and "[a]ccordingly . . . dismiss[ed] the complaint allegation and overrule[d] the election objection relating to this conduct." Id. Insofar as Tri-Cast has been applied repeatedly in unfair labor practice cases, including by the judge in this case, it obviously can be overruled in this unfair labor practice case.

Second, our dissenting colleague offers another supposed reason why today's decision is mere dicta: because we overrule Tri-Cast prospectively and accordingly have found the Respondent's statements here to be lawful under Tri-Cast. Contrary to our colleague's implication, the Board is not required to adopt new legal rules retroactively in order for them to be valid. As our dissenting colleague knows, in cases where the Board overrules precedent, it almost invariably examines, pursuant to the same long-established criteria we have considered in this case, see SNE Enterprises, 344 NLRB at 673 (citing, inter alia, SEC v. Chenery Corp., 332 U.S. 194, 203 (1947) ), whether the overruling will have retroactive or prospective effect. Accepting the dissent's premise would require us to reject the analysis that the Board has consistently and uncontroversially brought to bear in precedent-shifting cases. See, e.g., Piedmont Gardens, 362 NLRB 1135, 1140-1151 (2015) (overruling precedent prospectively only over two vigorous dissents, neither of which suggested the Board could not change precedent prospectively), enfd. sub nom. American Baptist Homes of the West v. NLRB, 858 F.3d 612 (D.C. Cir. 2017). Our dissenting colleague does not explain how, under his understanding of the law, the agency could ever overturn precedent but decide that the equities merited doing so only on a prospective basis.21

Third, the dissent advances yet another baseless claim that today's decision is dicta: because the standard we reintroduce will be applied to "other unidentified statements" not currently before the Board (emphasis in original). Of course our standard will be applied to assess other future statements not presently before the Board. To say so is just to acknowledge that we are adopting a general standard that necessarily will apply to specific cases going forward. Those cases will turn on the new general standard being applied to their specific facts. Our colleague does not explain how the Board could ever set a standard through adjudication that was not "dicta," as he understands it. Under our colleague's reasoning, Tri-Cast itself would be "dicta." When the Tri-Cast standard was announced, it was clearly intended to be applied to "other unidentified statements" not then before the Board. Two weeks later, the Board was applying the Tri-Cast standard in Michael's Markets to a statement similar to—but hardly identical with—the statement at issue in Tri-Cast. Such is the [*15] nature of precedent and analogical reasoning.

Fourth, the dissent contends that we "have failed to provide any reasoned explanation for why it was necessary, in the instant case, to revisit [Tri-Cast]." There is no basis for that claim. Here, the judge squarely relied on Tri-Cast to resolve the relevant issue. The General Counsel argued on exceptions that the Board should overrule Tri-Cast; the Respondent offered counter-arguments. In reaching our decision, we have explained, at some length, why overruling Tri-Cast is consistent with Supreme Court precedent (Gissel), our own precedent (most notably, Eagle Comtronics), and the policy of the Act (Section 1 ). In revisiting Tri-Cast, we address the issue squarely presented to the Board. Our dissenting colleague is free to disagree with our decision, to be sure, but we have hardly reached out to decide an issue not presented or failed to explain the basis for our decision.22

Finally, we respond to the dissent's view on the merits. At bottom, our dissenting colleague disagrees with us as a matter of policy as to the proper framework for assessing the coercive tendency that a certain type of employer statement could have on employees' free exercise of their Section 7 rights. He is entitled to his contrary view, but we are not persuaded by it.

Our dissenting colleague contends that we have characterized a number of Board decisions as being "wrongly decided under Tri-Cast," and he proceeds to offer his preferred analysis of the employer statements from some of those cases. Here, however, we need not decide how prior cases would have come out under the standard we adopt today, which rejects the categorical rule of Tri-Cast, for the reasons carefully explained. Had our new standard been in place when the prior cases were decided, each case would have turned on its particular facts, not on the general subject matter of the employer's statement. It may be that some, or even most, of the prior cases would have been decided differently under today's standard, while in others the result would have been the same. That fact is immaterial. Today's decision is based on the demonstrable flaws of the Tri-Cast standard, not on our disagreement with the result in any individual prior case.

In turn, we reject the dissent's remarkable assertion that "it is fair to say that," under Tri-Cast, "the Board has generally distinguished objectively fact-based predictions about the changed employee-employer relationship from unlawful threats." Our dissenting colleague fails to cite a single case from the last 40 years in which, under Tri-Cast, an employer's statement was found to be a threat. The absence of such cases confirms that Tri-Cast has been applied categorically, immunizing a broad swath of potentially coercive statements. By contrast, Eagle Comtronics—on which, as noted, we rely in replacing Tri-Cast—reflects a preferable approach, focused on the facts of a particular case, and so allows for noncoercive statements to continue to be deemed lawful while requiring those that are coercive to be found unlawful. See supra fns. 13 & 17[*16] .

The dissent also misunderstands our position on the proviso to Section 9(a) of the Act. Recall that the proviso says in key part that "any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative." 29 U.S.C. § 159(a) (emphasis added).

To begin, our dissenting colleague asserts that our position is that the Section 9(a) proviso "establishes a substantive right for represented employees to have their grievances heard by their employer." Of course, because the proviso itself expressly refers to "the right . . . to present grievances," our colleague's quarrel might seem to be with Congress, not us. But our position is not that the Section 9(a) proviso grants employees a right as Section 7 does. Rather, the proviso reflects the clear intent of Congress to ensure that when employees choose union representation, they will not automatically lose the ability to present grievances to the employer without the union's intervention. Thus, to repeat what we said earlier: Section 9(a) makes clear that after employees choose representation, an employer may maintain, under specified circumstances, its pre-unionization practice of addressing employees' grievances individually without engaging in unlawful direct dealing in violation of Section 8(a)(5). Emporium Capwell Co., 420 U.S. at 61 fn. 12. The Act does not require an employer to adopt such a practice, but it permits such a practice. When such a practice exists, the proviso to Section 9(a) ensures that the practice can continue after unionization. When an employer tells employees otherwise—when it tells employees that it will be required to abandon the practice if they choose union representation—then the employer is unlawfully threatening employees with the loss of a benefit.23

Next, the dissent mistakenly asserts that, under today's decision, we "requir[e]" an employer "to tell its employees of their rights under the Act" to avoid making an unlawful threat. However, the standard adopted today ensures that an employer may not threaten employees with the loss of a beneficial practice if they choose union representation. As explained, determining whether a statement amounts to such a threat will depend on its content and context. An employer need not explain to employees how the Section 9(a) proviso operates—just as under Eagle Comtronics, supra, an employer "may address the subject of striker replacement without fully detailing the protections enumerated in [Board case law] so long as it does not threaten that, as a result of a strike, employees will be deprived of their rights in a manner inconsistent with those detailed in [Board case law]." 263 NLRB at 516. Consistent with the Supreme Court's Gissel decision, however, the employer's statement must be based on objective fact—and a statement (for example) that the Act requires the employer to eliminate any practice of individual grievance resolution if employees choose union representation is not based on objective fact, because the Section 9(a) proviso [*17] expressly says otherwise. To repeat the observation of the Gissel Court, in this area, as in others, an employer "can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees." 395 U.S. at 620.

For all these reasons, we cannot agree with our dissenting colleague's position here.

II.

We now turn to the remaining issue in this case. At one of the mandatory meetings that the Respondent convened to address its employees about unionization, an employee inquired about "walkouts" to pressure the Respondent to comply with the terms of a contract or to bargain a contract modification. A manager facilitating the meeting responded by saying "for that all union partners would have to strike"; a second manager added "there is no opt-out in the State of Washington. Everyone will be union, if you go union, and the contract is ratified"; and the first continued "the strike would be a simple majority as well." The judge found that these statements were lawful because they were not coercive even if they misstated the law.24 We disagree.

Consistent with Midland, 263 NLRB at 133, and with the Supreme Court's decision in Gissel, we do not deem these statements unlawful simply because they misrepresented the law—which they did. See Machinists Local Lodge 1414 (Neufeld Porsche-Audi, Inc.), 270 NLRB 1330, 1333 (1984) ("[Section 7 ] encompasses not only the right to refrain from strikes, but also the right to resign union membership."). Rather these misrepresentations are unlawful because they lacked an objective basis in the Act and had a reasonable tendency to coerce economically dependent employees to refrain from choosing union representation.

Employees hearing these statements could reasonably conclude (1) that if a simple majority of their coworkers voted to unionize, they would be required to join the union (making them subject to union discipline and the financial obligations of membership), and (2) that if a simple majority of the employees voted to strike, they would be required to take part in the strike. These false statements—having no support in the Act at all—would thus tend to discourage employees from voting for the union, if they desired representation, but did not wish to become union members or to join a strike. Because joining a strike would mean foregoing wages and other benefits, moreover, these statements amount to a threat of economic harm: if there were a strike, employees would have to participate and, as a consequence, forfeit pay and other benefits. We thus disagree with the judge's analysis that these statements were not coercive because they were made in response to a "narrow hypothetical" concerning a strike to create pressure for a contract modification. We thus conclude that these statements violated Section 8(a)(1) of the Act.25

AMENDED CONCLUSIONS OF LAW

1. Siren Retail Corp. d/b/a Starbucks, the Respondent, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Workers United, affiliated with the Service Employees International Union, is a labor organization within the meaning of Section 2(5) of the Act.[*18]
3. The Respondent violated Section 8(a)(1) of the Act by threatening employees that existing benefits will be reduced if they select union representation.
4. The Respondent violated Section 8(a)(1) of the Act by threatening employees that they will lose existing benefits if they select union representation.
5. The Respondent violated Section 8(a)(1) of the Act by threatening employees that it would be futile for them to select union representation.
6. The Respondent violated Section 8(a)(1) of the Act by threatening employees that, if they select union representation, the company will prioritize non-union stores and union-represented stores will not receive added benefits.
7. The Respondent violated Section 8(a)(1) of the Act by threatening employees about their union membership and strike obligations if they select union representation.
8. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

ORDER

The Respondent, Siren Retail Corp. d/b/a Starbucks, Seattle, Washington, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening employees that existing benefits will be reduced if they select union representation.

(b) Threatening employees that they will lose existing benefits if they select union representation.

(c) Threatening employees that selecting union representation would be futile.

(d) Threatening employees that, if they select union representation, the company will prioritize non-union stores and union-represented stores will not receive added benefits.

(e) Threatening employees that, if they select union representation, they would have to be union members and that, if there were a strike, they would have to participate in the strike.

(f) 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.

2. Take the following affirmative actions necessary to effectuate the policies of the Act.

(a) Direct its supervisor Elijah De La Vega to delete the February 14, 2022 Facebook posts—"if union vote is passed, TLA opportunities would be on the table. As they wouldn't be considered a part of the theoretical union. Since they are two different entities, we can't share partners anymore for legality reasons" and "Nothing will be guaranteed and everything will be on the table. Some might lose their free ASU others their healthcare. And much else. Even negotiating higher wages wouldn't be guaranteed."—and take appropriate steps to ensure De La Vega complies with this directive.

(b) Post at its Seattle, Washington facility copies of the attached notice marked "Appendix."26 Copies of the notice, on forms provided by the Regional Director for Region 19, 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, notices shall be distributed electronically, such as by [*19] 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 February 14, 2022.

(c) Within 21 days after service by the Region, file with the Regional Director for Region 19 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.

Dated, Washington, D.C. November 8, 2024

______________________________________

Lauren McFerran,            Chairman

_______________________________________

David M. Prouty,             Member

_______________________________________

Gwynne A. Wilcox,             Member

(SEAL)     NATIONAL LABOR RELATIONS BOARD

MEMBER KAPLAN, concurring in part and dissenting in part.

At issue in this unfair labor practice case is a determination whether certain statements made by the Respondent in reaction to the employees' union organizing activities violate Section 8(a)(1) of the Act. For the reasons explained below, I agree with my colleagues' findings that some of the Respondent's statements violated Section 8(a)(1) of the Act, and I disagree with their findings that certain other statements were unlawful. Of particular importance, however, is the fact that my colleagues and I all adopt the judge's finding that the managers' statements concerning the effect that unionization would have on the employees' ability to address issues individually with the Respondent did not constitute unlawful threats under Section 8(a)(1) of the Act.

Yet, even though we all agree with regard to the dismissal of that complaint allegation, my colleagues have nevertheless written a lengthy decision explaining why they are overruling "Tri-Cast and its progeny" and, further, why they believe that this case presents them with the opportunity to do so. As I will explain, however, their reasoning is based in abstraction and fails to engage with the actual facts and law presented in this case.

To begin, although my colleagues assert that they are overruling Tri-Cast, Inc., 274 NLRB 311 (1985), in this case, they are not. The only issue presented in Tri-Cast, which was a representation case, was whether or not a certain statement rose to the level of objectionable conduct sufficient to warrant setting aside the results of a representation election. The case currently before the Board, however, does not present the question of whether or not the statements at issue constituted objectionable conduct. Rather, the case before us presents the issue of whether those statements constitute an unfair labor practice under Section 8(a)(1).

It is settled law pursuant to Pergament United Sales, 296 NRB 333 (1989), that the Board cannot reach an [*20] issue not alleged in the complaint unless two factors are satisfied: the issue is closely connected to the subject matter of the complaint and the issue has been fully litigated. See, e.g., Dalton Schools d/b/a The Dalton School, 364 NLRB 132, 133 (2016) (declining to reach the issue of whether the respondent engaged in an unlawful interrogation because the issue failed to satisfy the Pergament test). There is no question that, if my colleagues were to attempt to find that the statement at issue did, or did not, constitute objectionable conduct, they would not be able to do so because that issue would not satisfy the requirements of Pergament. Indeed, I am not aware of any case in which the Board has addressed whether or not conduct rose to the level of objectionable conduct where, as here, no election had been held.1

It is not clear to me on what basis my colleagues believe that, even though they do not have the ability under Pergament to make any finding regarding objectionable conduct in the instant case, they have the ability to overrule Tri-Cast and thus effectively find that the conduct at issue in this case would now constitute objectionable conduct.2 To my knowledge, the Board has never held that it has the ability to make law, let alone overrule precedent, based on an issue that is inarguably not before it.3 Nor am I aware of any case in which the Board has overruled law pertaining to representation cases through the vehicle of an unfair labor practice case, or vice versa.

My colleagues cannot challenge the validity of these points. Rather, they attempt to justify using this unfair labor practice case to overrule law pertaining to representation cases, which involve an entirely different section of the Act, by asserting that "[i]n representation cases . . . conduct that is or could be separately deemed an unfair labor practice almost always constitutes objectionable conduct that may warrant setting aside the election." Similarly, they contend that "[i]n the nearly 40 years since Tri-Cast was decided, the Board has never hesitated to apply Tri-Cast's categorical rule across both representation and unfair labor practice cases." Even assuming that those statements are true, my colleagues have skipped a logical step. My colleagues refuse to concede, as they must, that the Board does not use the same analysis for determining whether a statement constitutes an unlawful threat and thereby violates Section 8(a)(1) of the Act and for determining whether a statement constitutes objectionable conduct in determining whether to uphold election results. Accordingly, just because violations of Section 8(a)(1) often strongly support a determination that objectionable conduct has occurred, that does not turn the instant unfair labor practice case into a representation case presenting the issue of whether certain statements constitute objectionable conduct. And because that issue is inarguably not before us, my colleagues cannot use this case to change the law pertaining to what constitutes objectionable conduct.

Still unpersuaded, my colleagues assert [*21] that they "have collected more than a dozen cases to prove the point." But, to the extent that they are citing unfair labor practice cases that have applied the rationale in Tri-Cast, those cases do not establish that the decision whether or not to overrule Tri-Cast is before us.4 Instead, what is arguably before the Board is whether the Board should continue to apply the Tri-Cast rationale in determining whether or not statements constitute unlawful threats under Section 8(a)(1).5

Finally, I note an additional reason why my colleagues are not overruling Tri-Cast: the Board's holding in Tri-Cast had two separate bases. Specifically, the Board found that the statement at issue "[could] not be characterized as an objectionable retaliatory threat"6 and that "the Regional Director's finding of an objectionable misrepresentation cannot stand" in light of Midland National Life Insurance Co., 263 NLRB 127 (1982) (emphasis added). The decision in Midland flowed directly from the Supreme Court's decision in NLRB v. A.J. Tower, Co., in which the Supreme Court held that, in establishing "the proceedings necessary to insure the free and fair choice of bargaining representatives by employee," the Board was required to weigh multiple factors. Midland, 263 NLRB at 131 (citing NLRB v. A.J. Tower, Co., 329 U.S. 324, 330 (1946) ). As the Board stated:

[T]he Board must weigh and accommodate not only the principle of majority rule, but several other conflicting factors, such as preserving the secrecy of the ballot, insuring the certainty and finality of election results, and minimizing unwarranted and dilatory claims by those opposed to the election results.

Id. (citing A.J. Tower, 329 U.S. at 331 ). Because such a wide range of interests were at stake, the Board rejected prior cases that had required that the Board undertake an inquiry into the truth or falsity of election campaign misstatements. Rather, it concluded that the proper standard was that, in determining whether misstatements constituted objectionable conduct, the Board should not rely on the "substance of the representation" but rather on whether the representation was made in a "deceptive manner." Id. at 131. The Board concluded that, because employees would be capable of evaluating statements made in the context of a campaign, this standard would promote "definite [election] results [that] are both predictable and speedy," reduce "[t]he incentive for protracted litigation" over election results, and reduce "the possibility of disagreement between the Board and the courts."7 Id. at 131-132. For these reasons, the Board concluded that "we will no longer probe into the truth or falsity of the parties' campaign statements, and that we will not set elections aside on the basis of misleading campaign statements." Id. at 133.8 Thus, the Board expressly decided Tri-Cast in light of the high standard applicable for finding conduct objectionable under Midland. The instant case, by contrast, has nothing to do with the Board's Midland precedent.

In addition to the fact that the factors to be weighed in determining objectionable conduct are entirely absent in determinations whether statements [*22] violate Section 8(a)(1), there is another obvious reason why the Board would create a lower standard for Section 8(a)(1) violations. The ramifications for finding violations in the two contexts are very different. The remedy imposed by the Board for objectionable conduct involving coercive statements results in overruling employees' choice whether or not to be represented as expressed through a secret ballot election. In the case of Section 8(a)(1) violations, in contrast, the remedies ordered are far more limited, ultimately centering on a cease-and-desist order and a notification to employees of the violation, including a statement that such conduct will not happen again.9 Consistent with this difference, the Board in Midland cited the Supreme Court for its understanding that it was acceptable to allow parties to make misrepresentations to employees based on the principle that "a Board rule governing a representation proceeding need not be an 'absolute guarantee' that the election will, without exception, reflect the choice of a majority of the voting employees." Midland, 263 NLRB at 131 (citing A.J. Tower, 329 U.S. at 332, 333 ).

In a future appropriate case, three members of the Board may choose to overrule the holding in Tri-Cast that the statement at issue in that case did not constitute objectionable conduct. Or, in the absence of a case presenting the issue, three Board members could engage in rulemaking to make that change to the law. What the majority of the Board may not do, however, is reverse long-standing Board precedent that involves an entirely different area of the law than what is before the Board in the instant case.10

THE RESPONDENT'S ALLEGED SECTION 8(a)(1) VIOLATIONS

Allegations Where I Join My Colleagues in Finding Violations

I agree with my colleagues' conclusion that the Respondent violated Section 8(a)(1) by threatening employees when their managers made certain statements about the effects of unionization in meetings on March 11 and 22, 2022, and in postings on Facebook. Specifically, I join my colleagues in finding that the Respondent unlawfully threatened employees that unionization would cause them to lose the current benefit of Term Limited Assignments (TLAs), but only to the extent that a manager stated that TLAs would be "off the table." By that statement, employees would reasonably understand that the Respondent would refuse to bargain over a mandatory bargaining subject concerning temporary work assignments.11

I also agree that the Respondent violated Section 8(a)(1) when its manager told employees that the Respondent would "prioritize, frankly, ununionized stores over unionized stores" if employees voted to unionize, particularly after telling them that "for unionized stores to get a super great deal, it's going to be hounding, I think, for Starbucks to move all those billions of dollars that go to partners over to their legal department that's constantly negotiating contracts." I further agree that the Respondent, by one of its manager's Facebook posts, unlawfully threatened that unionization would cause the loss of certain employee [*23] benefits, but only to the extent that the manager stated, "we can't share partners anymore for legality reasons." Additionally, I join my colleagues in affirming the judge's dismissal of the allegation that the Respondent unlawfully held mandatory or "effectively mandatory" captive-audience meetings to discourage union activity.12

Finally, I join my colleagues in finding that the Respondent did not violate Section 8(a)(1) when its manager told employees, in pertinent part, that a "yes" vote would give their "right to speak to leadership [to] a union" and "[t]hat a third party comes in and speaks for" them upon selection of a union. Despite our unanimous decision on this issue, my colleagues have found it necessary to speculate at length, in dicta, whether different statements not presently before the Board should be found to violate the Act. As will be discussed below, such speculation has no precedential value because it has no bearing on the issues presently before the Board.

Allegations Where I Do Not Join My Colleagues in Finding Violations

I disagree with my colleagues that the Respondent otherwise violated Section 8(a)(1) as alleged. Unlike my colleagues, I would affirm the judge's finding, for the reasons he stated, that the Respondent did not violate Section 8(a)(1) when its manager responded to an employee question about walkouts by saying that all union partners would have to strike and that there is no opting out in the State of Washington.

Further, contrary to my colleagues' conclusion, I would reverse the judge's finding that the Respondent's store operations manager unlawfully gave employees the impression that selecting the Union would be futile because it would not result in a change in credit-card processing technology, which employees believed reduced their potential tips. In this respect, the manager told employees:

[If] credit card tips ... could just be switched on—that would be amazing. That server, that code, doesn't exist yet. And, um, contract negotiations isn't going to create the code. We use registers that are used in every other Starbucks. What updates on ours will impact every other Starbucks. When we talk about like mobile—you know when you go to [the credit-card processing technology] like Square, or whatnot, like that front end, credit card, those registers flip, so that a customer can make a personal choice as to how much to tip. Our equipment doesn't do that. And negotiations is going to have a hard time in us getting brand new equipment in here, plus server code. It's just honest.

To begin, the statements that my colleagues view as threats are not alleged to have been false or inaccurate. Furthermore, contrary to my colleagues' suggestions, nothing in the statement suggested that the Union could not "help employees get better compensation for their work." The Respondent did not suggest that it would refuse to bargain about tips, nor did it suggest that it was unwilling to bargain over higher wages to compensate for the unavailable technology.

Finally, and perhaps most significantly, because the selection of banking or credit [*24] card-processing technology is not a mandatory subject of bargaining, nothing in this statement can be construed as a threat that the Respondent would unlawfully refuse to bargain.13 Because it is not a statement of futility to refuse to bargain over a permissive subject of bargaining, if employees had an expectation that such bargaining was required, they were wrong.

In addition to dismissing the allegation(s) that the statements above were unlawful, I would also dismiss the allegation that the Respondent's manager unlawfully threatened that bargaining would be futile by stating that negotiations at the Respondent's Buffalo, New York store had been ongoing for 12 to 18 months without a contract. My colleagues do not dispute that this statement accurately characterized the status of bargaining at the Buffalo store. Unlike my colleagues, I conclude that because these factual statements did not threaten action by the Respondent nor imply that the length of negotiations was attributable to any one party's intransigence, the General Counsel did not establish a violation of Section 8(a)(1).14

INSOFAR AS MY COLLEAGUES' DECISION CONTAINS SPECULATION THAT IS NOT RELEVANT TO DECIDING THE CASE BEFORE US, SUCH SPECULATION IS NOT BINDING PRECEDENT

As mentioned above, my colleagues and I unanimously decided, based on a shared rationale, that the statements at issue in this case addressing the potential changes to the relationship between the employees and the Respondent do not violate the Act. That, of course, should be the end of the matter. Instead, my colleagues seek to address an entirely different question, neither pled in the complaint nor at issue in the case before us: whether to change the standard used to determine whether other unidentified statements, but not the statements currently before the Board, would violate Section 8(a)(1). Insofar as my colleagues' language purporting to overrule Tri-Cast is entirely irrelevant to their determination whether the language before us violates the Act, it is not only dicta but it is clearly contrary to the provisions of the Administrative Procedure Act given that, to decide the instant case, the question whether other statements not before us are unlawful is entirely irrelevant.

Indeed, as Chairman McFerran recognized in an earlier case, the Board's scope to change the law through its quasi-judicial process is not unlimited. As part of the dissent in Hy-Brand Industrial Contractors, then-Member McFerran found that the Board there "fail[ed] to engage in the reasoned decisionmaking required of administrative agencies by the Administrative Procedure Act" when it engages in overreach. Id., 365 NLRB 1554, 1588 (2017) (Members Pearce and McFerran, dissenting) (overruled on procedural grounds, 366 NLRB No. 26 (2018) ). In Hy-Brand, the dissent concluded that the following aspects of that case demonstrated the majority decision's failure to comply with the Administrative Procedure Act. First, the case could be "easily decided without reaching the [] issue . . . ." That is undeniably true here. Second, the change in the joint-employer standard there "ma[d]e no difference" with [*25] regard to determining whether the respondent was a joint employer. Again, undeniably true here. Third, the dissent criticized the majority for "breaking with established practice" by failing "to give notice that it was considering a change in the law" and failing "to provide interested persons with an opportunity to file briefs on the issue." That is true here as well.15

Based on these factors, the dissent in Hy-Brand concluded that the decision there was "arbitrary" and could not be reconciled with the requirements of the Administrative Procedure Act. See id. at 1589, 1598 fn. 55. But if then-Member McFerran found that to be true in Hy-Brand, I cannot discern any reasoned basis for deciding that the majority's attempt to overrule the absence of threat analysis here does not also violate the Administrative Procedure Act. In particular, I note that the precedent at issue in Hy-Brand had been in place for two years. The analysis that my colleagues seek to overrule here, by contrast, has been in place for approximately 40 years. Nevertheless, my colleagues have failed to provide any reasoned explanation for why it was necessary, in the instant case, to revisit that analysis. Which is not surprising, because none exists.16

Of course, the current majority has not been afraid to overreach the bounds of the case before them to reverse other precedent similarly at odds with then-Member McFerran's criticism of Hy-Brand. See, e.g., American Federation of Children, 372 NLRB No. 137, slip op. at 14 (2023) (reaching broader question not necessary to decide the case as an "alternate holding"); Miller Plastic Products, Inc., 372 NLRB No. 134, slip op. at 3 fn. 10 (2023) (same).17 In those cases, at least, my colleagues attempted to defend their position as an "alternate holding." That justification, however, is not available to my colleagues today. There is nothing in their prejudgment that they will find certain statements not currently before us violate Section 8(a)(1) that is necessary or relevant to deciding the case presently before us. Accordingly, my colleagues' comments suggesting such prejudgment are clearly nothing more than dicta and are without precedential value.18

My colleagues refuse to accept this fact, asserting that I do "not explain how, under [my] understanding of the law, the agency could ever overturn precedent but decide that the equities merited doing so only on a prospective basis." Allow me to explain. As my colleagues conceded, the Board decides to apply a change in law prospectively because applying the new policies and standards retroactively would "amount to a manifest injustice." In other words, the Board decides not to find a violation based on the new law because it would be unfair to the parties. But that is not the case here. My colleagues are not finding that applying the new standard here would constitute a manifest injustice because, if the new standard applied, the Respondent's statement would then be unlawful. Instead, they are deciding to apply the change in law prospectively because, in their view, "the Respondent would likely be judged to have committed an unfair labor practice based on speech that was clearly [*26] lawful at the time of utterance."19 I am not aware of any case establishing that it was appropriate to change the law prospectively without actually applying the law to the present case and determining that such application would create a manifest injustice.20 Accordingly, because my colleagues are not finding that their proposed change in law would affect the outcome of this case, that proposed change in law is dicta.21

My colleagues also assert that my fundamental criticism with their holding today is that I "disagree with [them] as a matter of policy as to the proper framework for assessing the coercive tendency that a certain type of employer statement could have on employees' free exercise of their Section 7 rights." Although it is true that I disagree with their current standard for evaluating whether statements are coercive, that is not my fundamental criticism of their decision. Rather, to be clear, my fundamental disagreement is two-fold. First, my colleagues are attempting to overrule a representation case, which presents the question of whether conduct is objectionable, through an unfair labor practice case that does not present that question. Second, my colleagues are attempting to use this case to change the law even though they have not shown that the change in law would have any effect whatsoever on the facts presented in the case before us. Accordingly, because their alleged change in law is entirely irrelevant to deciding the case before us, it is non-precedential dicta.

MY COLLEAGUES' DICTA FAILS TO PROVIDE A REASONED BASIS FOR JETTISONING THE LONGSTANDING TRI-CAST "ABSENCE OF THREAT" ANALYSIS

Assuming that, in a future appropriate case, my colleagues are able to reach the issue and overturn Tri-Cast, I will explain here, also in dicta, why they do not have a reasonable basis for doing so. My colleagues and I agree that, when employees vote to be represented by a union, they are selecting an exclusive representative to bargain with the employer on their behalf about their terms and conditions of employment. As a result, employees' choice to be represented by a union necessarily, and dramatically, transforms the relationship they have with their employer. In particular, the employer's previous authority to unilaterally and directly deal with those employees on all matters related to their employment is significantly constrained.

My colleagues, however, conclude that when an employer makes statements that do not entirely accurately characterize the scope of this change, the Board should find that such statements violate Section 8(a)(1). Their reasoning is based on two fundamental principles. First, they contend that cases that have failed to find that such statements violate Section 8(a)(1) do not comport with Gissel, above, which distinguishes an employer's lawful, objectively fact-based statements about its beliefs from unlawful threats. They further argue that, to the extent that the Board has relied on the theory in Tri-Cast to determine Section 8(a)(1) allegations, that theory has served to "categorically [*27] immunize[] employer campaign statements that . . . threaten employees with the loss of an established workplace benefit," specifically the "ability" to bring some personal grievances directly to the employer within the limitations established in the proviso to Section 9(a) of the Act.

As I explain below, however, the "absence of threat" rationale set forth in Tri-Cast properly draws the line between an employer's unlawful threats and its lawful statements about changes brought on by unionization and is consistent with the Act and Supreme Court precedent. In finding otherwise, my colleagues rely on inaccurate characterizations of Tri-Cast and its progeny and a misunderstanding of the proviso to Section 9(a) as describing an "ability" or "statutory protections" afforded represented employees to have their grievances settled directly by their employer. As discussed further below, my colleagues concede that that "ability" is not a substantive or enforceable right guaranteeing that an employer must entertain any such grievances.22 Finally, my colleagues say that they will return to a case-by-case approach. Of course, the proper standard to use in determining whether a Section 8(a)(1) violation has occurred has almost always been a case-by-case approach. But, contrary to their assertion, it appears that they want to put in place a categorial rule; specifically, that to be deemed lawful, employer predictions about the changing employer-employee relationship must recite almost verbatim even barely relevant and often misleading legal principles.

1. To begin, any rule pertaining to whether the type of statements at issue violated Section 8(a)(1) must protect objectively reasonable employer predictions about the effect of unionization.

When employer speech is alleged to violate Section 8(a)(1) of the Act, the Board's analysis must adhere to Section 8(c) 's provision that "[t]he expressing of any views, argument, or opinion" by an employer is not an unfair labor practice if the expression "contains no threat of reprisal or force or promise of benefit." The Supreme Court has characterized Section 8(c) as "favoring uninhibited, robust, and wide-open debate in labor disputes," stressing that "freewheeling use of the written and spoken word . . . has been expressly fostered by Congress and approved by the NLRB." Letter Carriers v. Austin, 418 U.S. 264, 272-273 (1974). Section 8(c) therefore recognizes an employer's right of free speech under the First Amendment as explained in Gissel, 395 U.S. at 617:

[A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a threat of reprisal or force or promise of benefit. He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control ....

Id. at 618 (internal quotations omitted).

Certain employer statements, namely those [*28] about the changed employer-employee relationship after unionization, are also evaluated with consideration of Section 9(a) of the Act, which provides:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment[.]

In addition, the proviso to Section 9(a) affirms that it is not necessarily an unfair labor practice for an employer to hear the grievances of its represented employees within certain constraints:

[A]ny individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment.

Specifically, Section 9(a) and its proviso affirm that when employees select a union as their bargaining representative they may still individually present their grievances to their employer for adjustment, but any action taken on such grievances must be consistent with a collective-bargaining agreement in effect and the exclusive bargaining representative must be given an opportunity to be present at such adjustment. In terms of the role of 9(a), the Board in Tri-Cast generally explained:

Section 9(a) [] contemplates a change in the manner in which employer and employee deal with each other. For an employer to tell its employees about this change during the course of an election campaign cannot be characterized as an objectionable retaliatory threat to deprive employees of their rights, but rather is nothing more or less than permissible campaign conduct. As the Ninth Circuit has observed, '[I]t is a 'fact of industrial life' that when a union represents employees they will deal with the employer indirectly, through a shop steward.' NLRB v. Sacramento Clinical Laboratory, 623 F.2d 110, 112 (9th Cir. 1980).

274 NLRB at 377. Accordingly, in concluding that the employer statement did not constitute objectionable conduct, the Tri-Cast Board reasoned that the "[e]mployer's statement, crafted in layman's terms, simply explicates one of the changes which occur between employers and employees when a statutory representative is selected" and that, therefore, "[t]here is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and the employer will not be as before." Id.23

Contrary to my colleagues' assertions, the "absence of threat" rationale in Tri-Cast is consistent with both Section 8(c) and Gissel in drawing a distinction between lawful, objectively fact-based predictions and unlawful threats, [*29] as the employer there accurately described the changed employee-employer relationship upon employees' selection of an exclusive bargaining representative under Section 9(a). Because it is a matter of fact that the employer will have to comply with significant statutory and contractual requirements brought on by union representation, the employer did not threaten its employees by stating that, with a union, it could not "handle personal requests as [it] ha[d] been doing." In this respect, the "absence of threat" analysis in Tri-Cast recognized that, although an employer has absolute authority to change its unrepresented employees' terms of employment and adjust grievances however it so chooses (subject only to state and federal law), an employer's ability to make any such changes unilaterally upon the request of employees once they have an exclusive bargaining representative is severely limited. The proviso to Section 9(a), which my colleagues repeatedly invoke, is not to the contrary.24 Because a vote to unionize is a vote to bring in an exclusive representative for the employees in dealing with the employer, the existing relationship, and the employer's exclusive manner of dealing with its employees directly, cannot continue as before. By stating as much, an employer does not, as my colleagues claim, threaten to unilaterally take away a "benefit" in retaliation for employees' choice to unionize.25

2. My colleagues' decision mischaracterizes the "absence of threat" rationale set forth in Tri-Cast as well as the long line of cases applying that rationale.

My colleagues assert that the Tri-Cast "absence of threat" analysis created a "categorical rule" that disregards "the clear statutory protections of Section 9(a) " and led the Board to "repeatedly f[ind] lawful employer statements that unionization would eliminate employees' ability to address workplace issues individually with their employer—notwithstanding that some of these statements could be understood to threaten employees with a loss of an established benefit, when viewed from the perspective of a reasonable employee." Building upon that assumption, my colleagues assert that the "absence of threat" rationale in Tri-Cast must be "replace[d] . . . with [a] case-specific approach" to reviewing allegedly threatening statements.

Ultimately, my colleagues are taking issue with a straw man of their own making. They claim that, under Tri-Cast, "as a categorical matter, all employer statements on the general subject of employees' ability to address issues individually with the employer after unionization are always lawful." Tri-Cast says nothing of the sort. Nor do the cases applying its rationale. In fact, the "absence of threat" principle set forth in Tri-Cast is that "[t]here is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between the employees and the employer will not be as before." Id. My colleagues do not, nor can they, disagree with this general principle.

The majority [*30] also relies upon several Board decisions that they assert were wrongly decided under Tri-Cast. In doing so, however, they fail to accurately characterize those cases. For example, the majority points to Holy Cross Health d/b/a Holy Cross Hospital, 370 NLRB No. 16 (2020), as a case in which the Board "found lawful employer statements that unionization would entirely eliminate employees' ability to address workplace issues individually with their employer." My colleagues' characterization is nonsense. The respondent there actually stated that "the presence of a union might limit employee access to management by requiring that union representatives be present for such meetings." Id., slip op. at 7. And as the Board there found, the employer's "statements that union representation might limit direct access to management... are not threats; rather, they factually advise that representation will change employees' relationship with their employer." Id., slip op. at 1. After all, the proviso to Section 9(a) expressly states that a union representative must at least have the opportunity be present for any adjustment, essentially as the employer said.26 Importantly too, the Holy Cross Hospital Board distinguished the employer's lawful, factual statements about the changed relationship from its unlawful "statements indicating that the [r]espondent's leave policies might become less generous and its shift scheduling less flexible" should the union come on the scene. Id. at 1 fn. 3. The Board made clear that these statements, which were "unaccompanied by any qualification that changes to leave policies and shift scheduling would be collectively bargained," "threatened adverse changes to specific terms and conditions of employment," whereas "the statements at issue in Tri-Cast. . . did not." Id. Such a distinction is accurate, analytically sound, and provides crucial clarity and guidance of the sort my colleagues would eradicate if they were to overrule Tri-Cast in a future appropriate case.27

My colleagues also target Office Depot, 330 NLRB 640 (2000), in which the Board reversed the judge's finding that the respondent violated Section 8(a)(1) by telling employees that "we wouldn't be able to communicate with management in the same way that we are right now because there would be a representative from the union that would be the middle person." Id. at 642 (emphasis added). Considering the specific language presented to employees, the Board correctly explained that "Section 9(a) contemplates a change in the manner in which employer and employee deal with each other, and an employer's reference to this change cannot be characterized as a retaliatory threat to deprive employees of their rights." Id. Similarly, in Stern Produce Co., 368 NLRB No. 31 (2019), the respondent told its employees "that if they chose the Union to represent them, they would no longer have direct dealings with the Respondent's owner and would have to wait until the Union negotiated with him." Id., slip op. at 4. The Board found that the respondent had "accurately described the precise effect of unionization, conveying that employees would deal with [*31] the [r]espondent through the [u]nion rather than directly with the [r]espondent's owner." Id. The accuracy of the statement established its lawfulness. And of course, the Board was correct in its assessment—Section 8(a)(5) prohibits direct dealing with employees after they have selected an exclusive bargaining representative.28

Other cases my colleagues discuss in their decision suggest that the breadth of the changes they would make in a future appropriate case are far broader than they have made clear. Their discussion of Hendrickson USA, LLC, 366 NLRB No. 7, slip op. at 1 fn. 2 (2018), enf. denied on other grounds 932 F.3d 465 (6th Cir. 2019), for instance, suggests that employers' negative statements about predictable effects of unionization should almost always be found unlawful. In that decision, the Board dismissed an allegation that the employer unlawfully "told employees that signing union authorization cards or electing the union would negatively impact their ability to individually represent themselves." Id. The Hendrickson USA Board, with two members (including then-Member McFerran) not passing on whether Tri-Cast was correctly decided, adopted the judge's application of Tri-Cast to find that the respondent had not threatened employees with the loss of any benefit. 366 NLRB No. 7, slip op. at 1 fn. 2, 6-7. My colleagues' current position that the language in Hendrickson USA was threatening indicates that, in their view, employers' negative predictions about unionization should almost always be considered unlawful. Not only does this create the exact type of per se rule that they allege Tri-Cast created, but it entirely ignores employer speech rights under Section 8(c) and congressional intent to encourage "robust [] and wide-open debate in labor disputes," as the Court described in Letter Carriers, above.29

Cases like the above are illustrative of decisions applying the "absence of threat" rationale in Tri-Cast that affirm the right of an employer to state that, if employees select a bargaining representative, they will indeed have an exclusive representative in their dealings with the employer, and that will necessarily change the way employers and employees deal with each other. As noted above, this is of course what the employees are seeking when they select a representative. And while the majority claims to accept Tri-Cast's general principle that statements about that change are lawful, they simultaneously, and inconsistently, criticize these cases. In asserting, in dicta, that Tri-Cast should be overruled based on their view that the decision "inhibits, rather than promotes, employees' freedom to exercise the organizational rights guaranteed by Section 7 of the Act," my colleagues ignore the fact that unionization is about selecting an exclusive representative; that except in very limited circumstances, the represented employee does lose the ability to be their own representative in matters related to their terms and conditions of employment; and that an employer's previously unchecked authority will indeed be checked by the selection of the union. So long as an employer's [*32] statements are predicated on the fact that the employees will from now on have an exclusive representative when dealing with the employer, the statement that the employee-employer relationship will change and that the employer could no longer deal with employees or resolve their grievances in ways it could do in the past does not indicate a threat of retaliatory action by the employer to take away a "benefit" that the employer is not obligated to provide in the first place. Such changes may not be welcomed by the employer whose authority will be diluted by a union, but, again, the fact that the employer describes such changes in the negative does not transform them into threats.

Further, my colleagues' criticisms of Tri-Cast and the above cases reveal a fundamental flaw in their analysis: Although my colleagues indicate that they would apply a case-by-case Gissel analysis to cases presenting the question of whether such statements violate Section 8(a)(1) going forward, it is clear to me then that, under Gissel, the cases applying the "absence of threat" rationale set forth in Tri-Cast would have turned out the same. Under either standard, accurate predictions about the effects of unionization are not unlawful threats. Many of the cases discussed above, and on which my colleagues rely in arguing that the "absence of threat" rationale in Tri-Cast should be overturned, involve just that: statements that the Board either expressly or implicitly found to have been accurate predictions of the effects of unionization. For that reason, I believe that my colleagues are not simply attacking the "absence of threat" rationale in Tri-Cast, but are questioning the very bases for distinguishing objective, fact-based predictions from unlawful threats.

3. My colleagues misstate the significance of the proviso to Section 9(a) in determining whether an employer's prediction about unionization is an unlawful threat.

My colleagues' near-complete reliance on the proviso to Section 9(a) is a red herring: As explained above, the employer's statement in Tri-Cast did not contravene the proviso. Further, the proviso neither establishes a substantive right for represented employees to have their grievances heard by their employer30 nor establishes a "benefit" of permitting grievance adjustments affecting employment terms without providing the exclusive bargaining representative notice and opportunity to bargain.

I recognize that, in my colleagues' view, an employer who tells employees that it will no longer handle any grievances whatsoever upon their selection of an exclusive bargaining representative does not account for the narrowly circumscribed path opened for an employer by the proviso. An employer can, under some circumstances, handle grievances of its represented employees if it so chooses. But because the employer is not obligated to do so, my colleagues' description of the proviso as establishing a "clear statutory protection[]" for employees is simply wrong. Accordingly, neither Tri-Cast itself nor the decisions discussed [*33] above involved statements contrary to the proviso.

More broadly, however, an employer does not categorically threaten employees when it misstates its own ability to unilaterally handle requests or grievances by failing to expressly account for the proviso, subject to the employer's willingness to hear a represented employee's grievance.31 First, the Section 9(a) proviso does not describe a right. In the words of the Second Circuit:

Despite Congress' use of the word 'right', which seems to import an indefeasible right mirrored in a duty on the part of the employer, we are convinced that the proviso was designed merely to confer upon the employee the privilege to approach his employer on personal grievances when his union reacts with hostility or apathy. Prior to the adoption of this proviso in section 9(a), the employer had cause to fear that his processing of an individual's grievance without consulting the bargaining representative would be an unfair labor practice; section 9(a) made the union the exclusive representative of the employees in the bargaining unit, and section 8(a)(5) made a refusal to bargain with the exclusive representative an unfair labor practice. The proviso was apparently designed to safeguard from charges of violation of the act the employer who voluntarily processed employee grievances at the behest of the individual employee, and to reduce what many had deemed the unlimited power of the union to control the processing of grievances.32

Second, Gissel, which my colleagues would apply instead of Tri-Cast, does not require an employer to display a precise, encyclopedic knowledge of Board law such as a seasoned NLRB attorney might have. And the Board decision in Eagle Comtronics expressly affirms that an employer is not obligated to tell its employees of their rights under the Act. By implicitly requiring an employer to have and share such precise knowledge before it addresses its employees, my colleagues flatly contravene Gissel and Eagle Comtronics and turn the robust sharing of views and opinions about unionization that Congress envisioned on its head.

Moreover, my colleagues err by suggesting that employers may rely on the Section 9(a) proviso when adjusting represented employees' grievances without intervention of their exclusive bargaining representative. They take the view that an employer can still adjust represented employees' grievances without intervention of their union, subject to the proviso's requirements, and therefore an employer who says that it cannot do so threatens to take away a "benefit." This claim is deeply flawed for several reasons: first, the proviso as written is inconsistent with requirements of Section 9(a) and 8(a)(5) affirming the role of the exclusive bargaining representative; and specifically, despite the proviso, the union will invariably have the opportunity to intervene in the adjustment of grievances and cannot be excluded from the process assuming that the adjustment involves the grievant's employment terms. In this respect the proviso does [*34] not provide the vaunted benefit as my colleagues perceive it.33

To begin, the proviso's only constraints on the employer who adjusts represented employees' grievances directly and "without the intervention of the bargaining representative" is that "the adjustment is not inconsistent with the terms of a collective-bargaining contract" and that "the bargaining representative has been given opportunity to be present." Under this language, the employer need not give the bargaining representative notice and opportunity to bargain, notwithstanding whether the grievance or complaint affects mandatory subjects of bargaining.34 The precise "benefit" for employees, as my colleagues see it, is that the employer may preclude union intervention and adjust the grievance directly with the employee or employees. This would be true even if the employer set wildly new and different employment terms for an employee or a group of employees despite union objections and without offering an opportunity to bargain. That is what the proviso suggests. My colleagues' implication that an employer may rely on it is reckless; I'm sure that they would agree that an employer who enters into a bilateral agreement with employees and changes certain terms and conditions of employment prior to execution of a collective-bargaining agreement and without giving the union notice and opportunity to bargain violates Section 8(a)(5). E.g., NLRB v. Katz, 369 U.S. 736, 747 (1962) (holding that an "employer may not unilaterally change the terms and conditions of employment of represented employees without providing their representative with prior notice and an opportunity to bargain over such changes."). According to my colleagues, however, this ability to adjust employee grievances and presumably change a grievant's terms and conditions of employment "without the intervention" of the union is the "benefit" that an employer "threatens" to take away when it tells employees that it will not continue to resolve complaints or grievances with them directly. Given Sections 9(a) and 8(a)(5) (and the opinion in Douds, 173 F.2d at 769 ), it is not accurate to claim that an employer retains its prior ability to resolve grievances affecting employment terms directly with represented employees and be shielded from liability by the Section 9(a) proviso. Further, because any adjustment to mandatory bargaining subjects must require the opportunity to bargain, not merely to be present, the proviso's "benefit" of adjusting complaints or grievances without union intervention is, for all practical purposes, nonexistent.

Further, nothing in the proviso prevents a union from filing Board charges or pursuing grievances over changes to an employee's employment terms as a result of resolving a complaint or grievance without union agreement. In this respect, the first proviso to Section 9(a) says that the employer may adjust grievances with employees "as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract." A tall order, largely unrealistic in practice, that gives no protection [*35] to an employer unless the employer accedes to the union's interpretation of the contract and, if applicable, the requirements of a contractual grievance procedure. In this respect, Section 9(a) does not indicate how disputes about the consistency of the adjustment with the collective-bargaining agreement is to be resolved.35 But as my colleagues are well aware, disputes over contract interpretation are among the most common to come before the Board. An employer relying on the proviso to adjust grievances affecting employment terms without obtaining union agreement with the adjustment simply invites Section 8(a)(5) charges or grievances filed by the union over a lack of opportunity to bargain, contract interpretation with regard to the adjustment, and/or adherence to a contractual grievance process. For these reasons, it is not true that the proviso gives the employer a green light to resolve grievances of its represented employees "without the intervention" of their exclusive bargaining representative. When the employer says it will not or cannot hear grievances or resolve complaints directly once employees vote in the union, it is not the employer who would take away the "benefit" of dealing with their employer without the union, but the operation of the Act.

As it is neither unlawful nor objectionable for an employer to refuse to hear employee grievances despite the proviso, e.g., Emporium Capwell, it follows that it is neither unlawful nor objectionable for an employer to say so, e.g., Gissel. And under, e.g., Midland and Eagle Comtronics, it is neither objectionable nor unlawful for an employer to misstate the law or my colleague's misperceptions about it to employees—even if my colleagues were correct about the employer's options or obligations, which they are not.

As should be clear from the above, an employer who is familiar with the body of Board law applying Section 8(a)(5) and understands that a union is the exclusive representative of its employees would have good reason to believe, based on the objective, fact-based understanding of Board decisions, that it could not unilaterally resolve grievances without the participation of the exclusive bargaining representative, as doing so may amount to direct dealing or effect unilateral changes to terms and conditions of employment and subject an employer to 8(a)(5) liability notwithstanding my colleagues' interpretation of the proviso. Needless to say, the boundary between lawful resolution of grievances and unlawful Section 8(a)(5) conduct is not precise in the proviso or in the cases addressing it and would not be clear even to the reasonably informed employer who actually knew that the proviso existed. Therefore, to avoid potential liability, an employer may very reasonably refuse to put its faith in the proviso. In light of the above, my colleagues' position that an employer's failure to account for the proviso when explaining changes resulting from unionization is a threat to strip employees of a "benefit" is wholly contrary to Gissel, Section 8(c), and Eagle Comtronics[*36] , and puts far too heavy a burden on the robust exchange of opinions Congress sought the Act to encourage.

CONCLUSION

This case would make Shakespeare proud. It is truly a decision full of sound and fury that signifies nothing. My colleagues assert that they are overruling Tri-Cast, but they are doing no such thing. In order to overrule that case, my colleagues will need to decide a case that presents the question of whether the Board, in Tri-Cast, correctly found that the statement at issue in that case constituted objectionable conduct. That question is unquestionably not at issue in this case.

Arguably, my colleagues could be attempting to overrule past cases in which the Board applied the reasoning in Tri-Cast in determining whether statements violated Section 8(a)(1) of the Act, but there is no reason whatsoever to reach that issue either. Because my colleagues are finding the statement at issue in the instant case to be lawful, they are not changing the law as an "alternate theory" for their conclusion. Nor are they asserting that, were they to apply their new standard here, the statements at issue in this case would be found unlawful. Rather, they are stating that they are overruling extant precedent on a prospective basis, even though they fail to establish that application of their new standard would have any effect, let alone create a manifest injustice, if applied to the case actually before us. This has never been, and should never be, how the Board operates when exercising its quasi-judicial function. Rather, the Board is tasked with deciding cases based on the facts before us. Should my colleagues wish to change the law in the absence of an appropriate case, they are required to follow the procedures set forth in the Administrative Procedure Act.

Finally, even if my colleagues were able to reach and overrule the "absence of threat" Tri-Cast rationale as applied to unfair labor practice cases, I have explained in dicta why that analysis appropriately distinguishes noncoercive statements about some of the effects of unionization from threats. Overruling Tri-Cast in a future appropriate case would therefore be inconsistent with Section 8(c) and would contravene the bedrock decisions in Gissel, Midland, and Eagle Comtronics. Moreover, their decision is premised on their misunderstanding of the significance of the proviso to Section 9(a), so that the loss of the "right" or "benefit" to which they refer is, simply put, neither a right nor a meaningful "benefit" in the sense that they assert.

As discussed above, I dissent from my colleagues' findings that certain conduct currently before us violated Section 8(a)(1). I further dissent, for the reasons set forth above, to their attempt both to use a case not presenting the relevant issues to overrule precedent and to create new law through dicta without actually determining whether that new law would affect the outcome of the case currently before us. Because my colleagues cannot overrule Tri-Cast, a representation case, in the unfair labor practice case before us, it is clear to me that [*37] that case remains good law.

Dated, Washington, D.C. November 8, 2024

______________________________________

Marvin E. Kaplan,             Member

NATIONAL LABOR RELATIONS BOARD

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 existing benefits will be reduced if you select union representation.

WE WILL NOT threaten you that you will lose existing benefits if you select union representation.

WE WILL NOT threaten you that selecting union representation would be futile.

WE WILL NOT threaten you that, if you select union representation, we will prioritize nonunion stores and union-represented stores will not receive added benefits.

WE WILL NOT threaten you that, if you select union representation, you would have to be union members and that, if there were a strike, you would have to participate in the strike.

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 direct our supervisor Elijah De La Vega to delete the February 14, 2022 Facebook posts that threaten you with the reduction or loss of existing benefits, and WE WILL take appropriate steps to ensure De La Vega complies with this directive.

SIREN RETAIL CORP. D/B/A STARBUCKS

The Board's decision can be found at https://www.nlrb.gov/case/ 19-CA-290905 or by using the QR code below. 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

Sarah M. McBride, Esq., Alice J. Garfield, Esq., and Sarah K. Burke, Esq., for the General Counsel.

Ben Berger, Esq. and Gabe Frumkin, Esq. (Barnard Iglitzin & Lavitt, LLP), for the Charging Party.

Renea I. Saade, Esq., Noah J. Garber, Esq., and Jeffrey E. Dilger, Esq. (Littler Mendelson PC), for the Respondent.

DECISION

STATEMENT OF THE CASE

JOHN T. GIANNOPOULOS, Administrative Law Judge. This case was tried before me on September 14, 15, and 16, 2022, in Seattle, Washington.1 Based upon a charge filed by Workers United, affiliated with the Service Employees International Union (Union or Workers United), on May 18, a complaint and Notice of Hearing (complaint) issued alleging that Siren Retail Corp. d/b/a Starbucks (Siren Retail or Respondent) violated Section 8(a)(1) of the National Labor Relations Act (the Act) by making various threats to employees during a union election drive, and by holding captive audience meetings with employees to discourage union activity. Respondent denies the allegations.

Based upon the entire record, including my observation of witness demeanor, and after considering the briefs filed by [*38] the General Counsel, the Union, and Respondent, I make the following findings of fact and conclusions of law.2

1. JURISDICTION AND LABOR ORGANIZATION

Siren Retail is a corporation organized under the laws of the State of Washington, and is a subsidiary of Starbucks Corporation.3 (Tr. 360)4 Respondent operates destination establishments in a limited number of large metropolitan areas known as the Starbucks Reserve Roastery, where the company roasts coffee and sells food and beverages to the public including coffee, tea, alcoholic drinks, pastries, pizzas, and related items and merchandise. Siren Retail maintains one such store in Seattle, Washington, located at 1124 E. Pike Street (Seattle Roastery or Roastery). At the Seattle Roastery, Respondent derives gross revenues in excess of $500,000 and purchases and receives goods or services exceeding $50,000 directly from points located outside the State of Washington. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Sections 2(2), (6), and (7) of the Act. Respondent also admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. Accordingly, I find that this dispute affects commerce and the National Labor Relations Board (NLRB or the Board) has jurisdiction pursuant to Section 10(a) of the Act. Siren Retail Corp., 372 NLRB No. 10 (2022).

1. FACTS
2. Seattle's Starbucks Reserve Roastery

The Seattle Roastery is located in the Capitol Hill neighborhood of the city. Unlike regular Starbucks coffee shops, referred to as "core" stores, the Roastery is situated in a much larger building, and contains a roasting/manufacturing plant within the facility where patrons can watch as Respondent roasts and packages coffee to be sold throughout the country. The Roastery also employs many more workers than a regular Starbucks coffee shop. On any given day, up to 40 retail employees can be found working the various sales counters and bars which the Roastery uses to provide a distinctive retail experiences for patrons. (Tr. 42-48)

The Seattle Roastery has two floors with open seating. The centerpiece of the facility, on the main floor, is a large copper cask that is used as part of the roasting/manufacturing process. A glass barrier separates the manufacturing area from the rest of the facility. The main bar is located on the first floor near the entrance. Here, patrons can order coffee drinks to enjoy in the store, or to take home, an experience that is similar to a traditional Starbucks coffee shop. To the right of the entrance is the "mixology bar" where customers can enjoy specialty cocktails crafted using alcohol mixed with Starbucks coffee and tea. Just to the right of the mixology bar is the "Princi" bakery which sells oven baked pastries, pizzas, and related items. The first floor also contains a "lifestyle area," where shoppers can buy various coffee related merchandise, clothing, and items from local area artists. (Tr. 44-46)

Going downstairs Roastery customers will find the "experience bar," a craft coffee area where baristas make drinks with showmanship [*39] using different specialty brew methods. Also downstairs is the "library," which resembles a conference room with books, chairs, and a large table that seats between 20 to 25 people. The library has sliding doors made of wood and glass that allows the area to be closed off from customers for employee meetings when needed. (Tr. 44-45, 74-75, 146-148)

1. Retail employees at the Seattle Roastery

Just over 100 retail employees work at the Seattle Roastery. Just like other Starbucks retail employees, workers at the Roastery are referred to as "partners." Starbucks Coffee Co., 354 NLRB 876, 881 (2009) ("Starbucks stores are staffed by employees known as 'partners.'"). And, Roastery employees enjoy similar benefits and work arrangements available to all Starbucks employees, including free tuition to attend university online through a program between Arizona State University (ASU) and Starbucks, known as the "Starbucks College Achievement Plan." According to Starbucks, under this program, which was started in 2014, eligible partners in the United States can complete their college education for free; Starbucks provides them with 100% upfront tuition coverage for a first-time bachelor's degree through ASU's online program. Starbucks estimates that, as of January 2022, more than 20,000 partners throughout the country were taking online classes at ASU through the Starbucks College Achievement Plan, and more than 7,500 partners will have graduated through this program.5 (Tr. 36, 51, 62)

Roastery employees can also apply to participate in a program which allows them to work in other areas of the Starbucks organization, known as time or term limited assignments (TLAs). TLAs were described as "essentially a paid internship within Starbucks," where employees can "intern" in various job positions to get work experience in other areas of the overall company. (Tr. 61) For example, retail partners at the Roastery have worked under a TLA on the manufacturing side of the facility, which is owned by a different corporate subsidiary named Starbucks Manufacturing. TLAs ranges in duration from 3 to 6 months, and they can sometimes turn into a permanent position at the new location/job. Otherwise, employees go back to their old jobs, which remain open during this time. Both TLAs and the free ASU online university tuition were considered by Roastery employees to be important benefits. (Tr. 61-63, 104, 357-358)

During the relevant time period, Elijah De La Vega (De La Vega) and Tam Marpoe (Marpoe) were the associate managers at the Seattle Roastery. They reported to the store operations managers, which included Scott Underriter (Underriter) and Heather Kaufman (Kaufman).6 Mary Clare Barth (Barth) was Respondent's managing director responsible for overseeing all of the retail operations at the Seattle Roastery, including the partners and their various supervisors and managers. The supervisory/agency status of De Le Vega, Marpoe, Underriter, and Barth, while they were working in their various capacities at the Roastery, are not in dispute. As discussed later, Respondent disputes whether De La [*40] Vega was acting as Respondent's supervisor/agent at the time he made various Facebook posts. (Tr. 37, 50, 128-131, 135, 143, 157, 170, 234-235, 248, 351-352; GC 1(i) ¶4; J. 1)

1. Seattle Roastery Reserve retail employees unionize

On February 14, Respondent received a letter signed by Roastery partners, informing the company of their intentions to form a union. The letter, which is on Starbucks Workers United letterhead, is signed by fifteen employees and says the other baristas supporting the union drive wished to remain anonymous. That same day the Union filed a petition to represent a unit of the approximately 100 baristas, bakers, mixologists, and operation leads working at the Seattle Roastery. The parties contested whether the election should occur by mail-ballot, or if a manual election was appropriate; the Union wanted a mail-ballot election due to the state of Covid-19 pandemic and Respondent sought a manual election. The parties entered into a stipulated record and submitted written position statements to the Regional Director of NLRB Region 19 (Regional Director). On March 17, the Regional Director issued a Decision and Direction of Election finding that a mail-ballot election was appropriate.7 (R. 3; Tr. 360-361; J. 1)

The mail-ballot election was held between March 31 and April 21. On April 21 the ballots were opened and counted and a Tally of Ballots issued showing that a majority of employees had voted to unionize. Respondent filed objections to the election and on May 17, the Regional Director issued a decision overruling the objections and certifying the Union as the exclusive collective-bargaining representative of Respondent's employees in the following unit:

Included: All full-time and regular part-time baristas, operation leads, bakers, and mixologists employed by the Employer at its Reserve Roastery store located at 1124 Pike Street, Seattle, Washington.

Excluded: Office clericals, managers, and guards and supervisors as defined in the Act.

In order to test the propriety of the Regional Director's certification, Respondent refused to recognize and bargain with the Union. On November 30, the Board issued its ruling, affirming the certification and finding that Respondent has been refusing to bargain with the Union in violation of Section 8(a)(5) of the Act. See Siren Retail Corp., 372 NLRB No. 10 (2022).

1. Respondent holds meetings with Seattle Roastery employees about the union drive

After the petition was filed, Respondent told employees there would be specific times that partners could "sit down and get the facts" and talk about the "process." (Tr. 141-142) Thereafter, Respondent held a series of meetings with workers regarding the union. Throughout the union drive, Respondent maintained the position that it preferred to have a direct relationship with employees, without a union in place at the Roastery. (Tr. 70, 374)

During a four-week period between the filing of the petition and the start of the mail ballot election, Respondent held multiple meetings per week with employees about the union drive. It appears that each employee attended at [*41] least three such meetings and they occurred in groups of about 10 to 20 workers. Barth participated in 90% of these employee meetings, which occurred during worktime; partners were paid while they attended the meetings. (Tr. 36, 70, 89, 84, 74, 142, 147-148, 247, 353-354)

For partners, these meetings appeared on their work schedules as a block of time set aside for either a Siren Retail "promo set" or "training" session. A promo set is a common phrase used at Starbucks and generally involves meetings where participants to go over the launch of a new item or holiday offerings. For example, over the Christmas period the company has promo set meetings to review menu boards for the holidays. Or, the Roastery has promo set meetings to review and sample with employees new drinks or merchandise that is being offered. Training meetings are generally just another term used for a promo set meeting and the two terms were largely used interchangeably. (Tr. 71-72, 84, 113, 319-324; GC 11, 12)

Employees understood that they were required to attend whatever appeared on their work schedules, including meetings, and failing to show up for something on your schedule could potentially subject a partner to discipline. During one of the March meetings about the union drive, a partner asked whether the meetings were mandatory, and Kaufman answered "Yeah . . . We do have an obligation."8 ( GC 5(b) 40:24-40:46 ) (GC 9, p. 30). After the partner said that some workers did not want to be in the meetings, and were unsure if they were mandatory, Kaufman clarified her initial statement by saying that, if a meeting is on a work schedule more than 10 days in advance, employees are obligated to attend. If something has been added to a work schedule within 10 days, technically partners did not need to attend, but if they did, Kaufman said they would receive "predictability." (GC 5(b) 43:00-43:28) (GC 9, p. 31-32) Kaufman's clarification appears to be an acknowledgment of an employer's obligations, albeit using the wrong number of days, under a City of Seattle ordinance titled the "Secure Scheduling Ordinance," which went into effect in 2017. See SEATTLE, WASH. MUN. CODE § 14.22.005 (2022).9 This ordinance requires covered employers, such as Respondent, to post employee work schedules at least 14 days in advance and to respect an employee's right to decline to work any hours that were not included on their original schedules. Id. at §§ 14.22.040-14.22.045 And, absent certain exceptions, when an employer adds a shift to a schedule, or when a shift date or time is changed within this 14 day window, the employer is required to pay to the employee as compensation one additional hour of pay, at the employee's scheduled rate of pay. Id. at § 14.22.050. Employees refer to this additional hour of pay as "predictability pay." (Tr. 83) (Tr. 72-73, 83-84, 144, 255, 320)

For the first employee meeting about the union drive, Respondent offered workers predictability pay. However, the second and third meetings (on March 11 and March 22) were posted on employee work schedules three weeks in advance of the meetings.10 Regarding these meetings, even though they appeared on employee [*42] work schedules as a block of time set aside for a promo set or training session, many times partners did not know the actual topic that was going to be discussed during the meeting until just before the meetings actually occurred. Sometimes employees attended a promo set meeting one day, involving an actual new product launch, and the next day had a promo set meeting that, in reality, was a meeting about the union election. (Tr. 82-83, 247-249, 318, 321, 323)

At some of the meetings, Respondent had literature/talking points set out on a table that was available for employees to take if they wanted. The literature, which was provided to Respondent's managers during training that was given by the company's legal counsel, contained information about collective bargaining, negotiations, strikes, and voting, with citations and links to various websites, including the NLRB and the Department of Labor. Respondent did not read from the literature during the meetings, nor was it passed out to employees. Partners were simply told the information was available to take if they wanted. (Tr. 362-367, 387-388; R. 4)

There was differing testimony as to whether Respondent did, or did not, take attendance at these meetings.11 Regardless, the evidence shows that Respondent monitors the time of Roastery employees by having them clock in and out at the start and end of every shift and also during breaks. If employees stayed for a meeting that was scheduled during their shift, Respondent's records would show the employee as having been clocked-in during that time. (Tr. 79-82, 354, 369-370)

1. The March 11 meeting

Respondent held a meeting with employees on March 11 to discuss the union organizing drive and petition. At the time, everyone was still waiting for a determination regarding the date and manner of the union election. Keanna Jo "K.J." Lesser (Keanna) attended this meeting, which occurred in the Roastery library.12 Keanna had worked at the Seattle Roastery as a barista since August 2021, and previously was a barista at various Starbucks coffee shops in Florida.13 Keanna's March 11 work schedule shows that she was scheduled for a "promo set" meeting from 4:15 p.m. to 5:45 p.m. that day. Employees receive their work schedules three weeks in advance of their assigned work dates, and when Keanna got her schedule she did not know what would be discussed during the March 11 promo set meeting. It turned out to be a meeting about the union drive. This was the second such meeting that Keanna had attended; she recorded the March 11 meeting on her iPhone. (Tr. 181, 139-140, 144-146, 181, 321-322; GC 5(a); GC 7)

The March 11 meeting Keanna attended included about 20 to 25 of her coworkers. Present for Respondent was Barth, Kaufman, Underriter, and Marpoe. Everyone sat around the large table in the library. Keanna placed her iPhone on the table in plain view. The recording of the meeting made by Keanna is just over one hour and thirty minutes long. The General Counsel alleges that certain statements made by Respondent's officials during this meeting were unlawful. (Tr. 147-149, 156-157; GC 5(a) )

1. The relationship [*43] with management if workers unionize

The March 11 meeting started with Marpoe telling the gathered employees that she wanted to give them a road map and update of where they are in the NLRB election process, information and facts about Workers United, an overview of how unions work in general, and of collective bargaining. Marpoe told partners that they were encouraged to do their research. She directed them to the NLRB's website, and said there are also other links out there for them to understand about unions and that that means for them. ( GC 5(a) 0:00-0:57; GC 7, p. 2) (Tr. 156-157) Marpoe next told the employees that:

If you want a union to represent you—uh—you want to give your right to speak to leadership through a union, you're going to check off 'yes' for the election. If you want to maintain a direct relationship with leadership, you'll check off 'no.'" ( GC 5(a) 0:58-1:15 ) (GC 7, p. 2)

Marpoe then reminded employees that the vote will be by secret ballot, and they should vote for what is best for them, not based upon whatever promises that have been made or whether they are in a movement. She also told employees that, because they are now in the election process, signed union cards do not mean anything and, by law, they can vote 'yes' or 'no' in the election, regardless of whether they had signed a union card. (GC 5(a) 1:17-1:55) (GC 7, p. 2-3)

After some discussions about union cards, and the anticipated election date, Marpoe told the partners "I think what's at stake, is our culture." Marpoe said that she could not stress enough the openness, transparency, and connectivity she has had with partners and leadership and believes she can go to her peers and leaders, tell them how she is, what she thinks, and that she will be heard. Marpoe said "that culture, with a union, is not the same." She said that if partners unionized, "a third party comes in, and they speak for you." ( GC 5(a) 3:42-4:19 ) (GC 7, p. 3-4 )

Marpoe explained that she was in a union once when she worked at Macy's, and remembered a time when she needed more hours. She went to the person who hired her to say that she needed more hours, but was told that she needed to talk to her union representative. ( GC 5(a) 4:20-4:38 ) (GC 7, p. 4) Marpoe then said:

That's it. I could not have any other conversation with them [referring to the person who hired her]. And so that's—that is—a representation of a union is the rules of employment will then be grounded in a contract. And if it's not in that contract, it's not a conversation in my opinion that's going to happen with leadership. We'll be bound by the contract. So the union will be bound. And Starbucks will be bound. So I want to be clear on that. That a third party comes in and speaks for you. And everything will be grounded, from my experience and my opinion through the lens of that contract. ( GC 5(a) 4:38-5:20 ) (GC 7, p. 4-5) (Tr. 161)

Marpoe then discussed Workers United, saying that it has about 85,000 members and that union members pay dues. She then continued on discussing the topic of dues and her experiences at Macy's. ( GC 5(a) 5:20-6:28 ) (GC 7, p. 5)

1. The collective-bargaining process

After discussing the issues of dues, Marpoe returned to the topic of Workers United, saying that [*44] it represented American and Canadian workers in the textiles, gaming, pharmacy, and laundry industries, and that it is a division of a larger union, the Service Employees International Union. She then discussed the vote, saying that a vote for the union does not give workers any wages, benefits, or hours; it is simply a vote on whether to give the Workers United the right to collectively bargain with Starbucks. "It's just, are you willing to give your voice to a third party to speak for you, for collective bargaining purposes? That is the vote." ( GC 5(a) 7:13-7:23 ) (GC 7, p. 5-6) Marpoe then discussed collective bargaining saying:

For collective bargaining, it can, there is no timetable for when an agreement may or may not happen. It can take on average a year to eighteen months for any kind of agreement to be reached.

Currently the core store in Buffalo, New York, they have been 3 months into the process and nothing has been reached. So just be mindful of the fact that nothing overnight changes. And with regards to your wages, benefits, or hours, that is what's going to be negotiated in a contract, and everything is on the table. So your benefits, wages, and hours, could go up, could stay the same, or you could lose benefits.

And, also be mindful that, if a contract is ratified, it usually is on average in place for three years. So Starbucks can roll something out—benefit wise. I remember a couple of years ago, they gave us bean stock that paid out in May, just as a, like, hey thanks for all your hard work. Any of those things that aren't in the contract will not be afforded to that, those union members. It has to be in the contract for you to receive it. So I want to be clear on that process, that any promises that are being made that your wages, benefits, or hours are going to go up or get better, that's not a guarantee because Starbucks is going to come to the table with something and the union is going to come to the table with something. And there will be representation of course, on both sides, from the Roastery and from Starbucks, beyond just the lawyers, but it will be the lawyers ultimately coming to an agreement on a contract, that you will have to ratify or not ratify.

Neither side can be compelled to make an agreement or to give a concession. That is in the NLRB.gov law, you can go there and look at that. You can't be compelled to agree to something, neither you or Starbucks. As long as we're—as long as Starbucks and the Unions are bargaining in good faith, which means—good—a reasonable time, a reasonable place, and an open mind. Then the bargaining process can go on, for a very long time. ( GC 5(a) 7:24-10:00 ) (GC 7, p. 6-7)

Marpoe told the employees that they were gathered together to "just talk about it," that they should get the facts for themselves to decide what they want, that Starbucks wants everyone to vote and make this decision on their own, and that she was "here for the partners." After saying that the leadership team was there to hear from partners and listen to their perspectives, Marpoe opened the meeting up for questions. ( GC 5(a) 10:04-12:13 ) (GC 7, p. 8-9)

1. Time Limited Agreements (TLAs)

The meeting continued with employees [*45] asking questions about various subjects, including how unionization would affect the leadership working on the floor, and company-wide programs, like stock benefits, with Marpoe saying that her understanding was that "if it's not in the contract, you would not benefit from it," and then the issue becomes whether the union wants to renegotiate the contract, and the costs associated with renegotiating in order to try and add something new. But, she said, that if it is not negotiated in the contract, it will not be given by Starbucks. ( GC 5(a) 16:37-17:33 ) (GC 7, p. 12) (Tr. 168)

This discussion led to the issue of TLAs, with an employee asking if access to TLAs, lateral transfers within the company, or moving from store to store, would be impacted. Marpoe replied "it could be," and told them that hours, benefits, and wages "are going to get negotiated into that contract." So, Marpoe said, "if that is something that's important to partners," like transferring to a store back home to be with family, or to a store in another state because someone was going to school, "I don't know. I can't say. But that can be part of it. If it's not in the contract, it might be a different process." Marpoe then told the partners that at licensed stores, like core stores inside Safeway grocery stores, employees cannot transfer to a nonlicensed stores but have to apply instead. So, Marpoe said "if it's something that's important to partners and they want to get in that contract, that may also be part of the process." (GC 5(a) 17:36-18:45) (GC 7, p. 13-14) (Tr. 168-169)

Underriter then said that TLAs are "super complex." Kaufman followed upon saying the complexity with TLAs was that a partner "here" would be protected under the union, but your contract would only be union protected where you work. Kaufman then said that whether a unionized partner would be allowed to go from their home store to other stores "is a big question. And maybe all of that needs to be specifically outlined on what is okay for that to be done. But you know, current working knowledge is current TLAs, as more TLA opportunities, would that be then,"14 at this point, Marpoe interjected, saying:

Yeah, in my opinion. I'm speaking from my opinion. I think TLAs go off the table because you're still a union. And if you go there, you're still in a union, but you're in a non-union home. And I don't see how, in my opinion, either Starbucks or the union would allow you to not adhere to union rules in a contract because then, you know, we're talking a lot of stuff that goes on, like, you're doing things, you're paying your membership dues, but you're not actually in a union job, and you're not actually following the union rules. What does that say about the agreement? So in my opinion, TLAs are going to be sticky or gone. (GC 5(a) 19:28-20:14) (GC 7, p. 14-15) (Tr. 170)

Marpoe's comments were followed by a six second pause, nobody in the room said anything; Marpoe broke the silence by asking if anybody needed any chocolate, saying "I could use some right now." [ GC 5(a) 20:14-20:20 ) (GC 7, p. 15) (Tr. 171) This provoked laughter from some in the room. Marpoe then said, "I don't know about you, but this is not an easy conversation to have and I want to be open [*46] and honest. I don't want to sugarcoat anything. I don't know. Right. But I can tell you what, in my opinion, is probably going to happen. If it's not in that contract, it's not going to happen." ( GC 5(a) 20:23-20:40 ) (GC 7, p. 15)

At this point, Keanna replied saying that she believed Respondent's scare tactics were a little inappropriate. When asked by Barth for examples, Keanna pointed to the company saying that benefits will be off the table and said she was a little disappointed in the way things were being said to sway people one way. Kaufman thanked Keanna for her honesty, but told the group that she was just going to be honest "about where I'm at." She said that the most important thing Respondent can do is to make sure that everyone understood the permutations and that with any kind of negotiations, as with anything people do, there are no guarantees. Kaufman said that sometimes there is a misunderstanding that you cannot lose something that you value. Therefore, she said it is important to know that some benefits are more important than others to different people, and to acknowledge that those benefits could be at risk if there is "an ask for something that's really, really, really, important to the Union members—to the partners" that may outweigh some of the other things that are on the table in the "list of ethics."15 Kaufman said there was a lot to choose from, because the list of ethics was 50 pages long. For example, Kaufman said that if some partners are not at a stage in life where maternity leave is of value, that "can come off, if there's something else that you're getting" in the give and take of negotiations. Kaufman said that she did not think that "anybody is intentionally trying to scare" anyone but Respondent wants to make sure that everyone is "aware . . . of it," and employees should look at the resources, including NLRB.gov, case studies, and "other things you can look at" for the organization they are considering. ( GC 5(a) 20:45-23:20 ) ( GC 7, p. 15-17 ) (Tr. 172-173)

Kaufman acknowledged there are some personal feelings involved, that in other meetings everyone has been asked "what do you think" and stated she will share that willingly. She said, however, that it is more complex than it may seem, that Respondent is trying to share that there is more complexity involved, that some partners have more information than others, and there is a lot she wants to include for those partners who are still learning. Kaufman continued by saying that, because of the short time period involved, what Respondent is trying to do is get everyone up to speed and understand what is on the table, the importance of the decision, and "to just have the facts" in order to "make the decision that's right for you" because there is a lot to learn. In reply, Keanna complained that Respondent was saying "get the facts for yourself and decide for yourself," but at the same time was telling partners to "vote no." Barth replied saying "Well, that's the company position . . . that's the company's position, and—I don't think that that's—an unknown to anybody in this room." ( GC 5(a) 23:23-25:00 ) (GC 7, p. 17-18) (Tr. 173)

1. Tipping

Respondent's counsel admitted [*47] at the hearing that the issue of customers not being able to leave credit card tips at Starbucks locations across the country, including at the Seattle Roastery, was one of the issues in the unionization campaign. The issue of tipping was discussed a few times during the March 11 meeting. At one point during the meeting, a barista named Ean spoke, saying many workers believed there was a discrepancy between their pay and the amount of work they perform. He expressed that it was unfair for Respondent to say partners' relationship with management would change in a negative way if employees unionized, when their "main asking point" is that customers have the ability to tip partners in more ways, which would then increase worker pay without Starbucks having to pay for it. And, he said, tipping was something Starbucks could have implemented "way before now and chose not to," even though partners had been asking about this for a long time. Ean communicated his dismay that Respondent would say that, because workers are seeking these benefits they are going to have other benefits taken away or that their relationship with management would change, especially in light of the fact that everyone wants to increase their income at a time when inflation is high and wages are not keeping up with the cost of living. (GC 5(a) 28:56-30:30) (GC 7, p. 21-22) (Tr. 38-39, 176)

After discussing an unrelated question asked by another employee, Barth told Ean that she wanted to touch on one thing about tips, saying "it's a technology piece that is in the way, um—and it has—it has been for years." ( GC 5(a) 35:18-35:26 ) Barth said that tips have been a topic of conversation for some time, and the challenge for the company has always been on the back end; it was the technology piece that was the difficulty. Barth said everyone in the room wanted partners to make more, because they are incredibly valuable and they work their "butts off," but she believed there is a constraint to the technology that is preventing that from happening and she is not sure the union is going to change that. ( GC 5(a) 36:02— 36:41 ) (GC 7, p. 26-27) (Tr. 184-185)

Ean replied saying that Starbucks is a billion dollar company, that there are other companies that tip through mobile pay all the time, and that Starbucks has had a mobile app forever. Ean said the issues on the back end should have been resolved by now and there is no logical reason why a company with as much money and resources as Starbucks cannot figure out a mobile tip system and make it a priority when they are not even paying their baristas a living wage. Ean stated that the money on tips is not coming out of the company's pocket, and by doing nothing, Starbucks is making a choice regardless of what is on the back end holding things up. Barth replied saying that for the last three years this has been on their annual operating plan wish list because they know that the Roastery is more like a restaurant than it is a coffee shop; Ean said three years is a long time. ( GC 5(a) 36:42-37:47 ) (GC 7, p. 28) (Tr. 185-187)

Barth told the room that it was a question of resources, she was not defending it, but was [*48] just expressing how the topic comes to her. Ean noted that partners bus tables, and that in restaurants where people bus tables customers tip 25 percent most of the time, and "we don't get that." Ean said that "when it comes to our labor and what we make in wages, it's not adding up," and this is the reason why so many stores across the country, and not just the Roastery, are unionizing. Barth replied saying that "we've heard it loud and clear that wages and tips have been a big issue." ( GC 5(a) 37:56-38:42 ) (GC 7, p. 28-29) (Tr. 187)

The conversation about tipping went on, going back and forth, with a couple employees discussing their opinions on tips, their work, whether the Roastery is more like a restaurant or coffee shop when it comes to tipping and if Roastery employees should be paid more than partners at a Starbucks core store. The discussion then transitioned to wages, with an employee asking if Roastery employees will receive the same raise that Starbucks had recently given to workers at the core cafes. ( GC 5(a) 41:09-43:03 ) (GC 7, p. 29-33) (Tr. 192)

Barth replied saying that, as a general rule, everything that happens at the Starbucks core stores will happen on the Siren Retail side as well, but it might seem less impactful because Roastery employees are paid higher than the market rate to begin with. ( GC 5(a) 43:00-44:21 ) (GC 7, p. 34-35) After discussing the starting wage rates in general, including those at the Roastery and Starbucks core stores, Marpoe told the employees that if they voted for the union they would get whatever wages are negotiated into the contract, that is what you live with. Marpoe said that she cannot sugarcoat that things could go up, stay the same, or employees could lose some things that, for most people may not be important, but for some might be important. ( GC 5(a) 47:26-48:25 ) (GC 7, p. 37-38) (Tr. 195).

At this point, Kaufman said that it sucks having to be the person who is "just trying to share facts in terms of this is a big flipping decision with huge ramifications." And, as a manager, Kaufman stated that she is conditioned to look out for partners and tries to go to every one of these meetings because she wants to hear from partners and what matters to them, but that it is hard and is a lot of "heavy stuff." ( GC 5(a) 48:28-49:00 ) (GC 7, p. 38) (Tr. 195) Kaufman then told the employees:

I would say, like, hell yeah, if, you know, credit card tips could be, like, if that could just be switched on—that would be amazing. That server, that code, doesn't exist yet. And, um, contract negotiations isn't going to create the code. We use registers that are used in every other Starbucks. What updates on ours will impact every other Starbucks. When we talk about like mobile—you know when you go to like Square, or whatnot, like that front end, credit card, those registers flip, so that a customer can make a personal choice as to how much to tip. Our equipment doesn't do that. And negotiations is going to have a hard time in us getting brand new equipment in here, plus server code. It's just honest. ( GC 5(a) 49:03-50:04 ) (GC 7, p. 38-39) (Tr. 195-196)

After this comment, the room was silent for half of a minute, until Marpoe announced that she was going to make [*49] some coffee. ( GC 5(a) 50:04-50:34 ) (GC 7, p. 39) (Tr. 196)

1. Strikes

Over an hour into the meeting, the conversation turned to strikes. Leading into this discussion, there was a dialogue about whether employees could vote the union out, with Keanna saying that partners were not stuck with the union forever if they unionized and down the road they could vote the union out if they wanted. Marpoe said she believed it was only after the end of the first contract that the employees could have another vote. Underriter then said his understanding was that, if employees voted to unionize, they could not change the decision until one year from the date of the original vote. Underriter further said that, if the store voted to "deunionize" after one year while contract negotiations were still ongoing, "that gets sticky." He said there were different rulings from the NLRB as to whether that is allowed "so like that gets sticky if you're in negotiations." ( GC 5(a) 1:06:01-1:07:10 ) (GC 7, p. 49-51 ) (Tr. 204-205)

Kaufman then told employees that, once a contract is signed there is no getting out of the union until the contract ends. Then the NLRB would need to conduct a vote, similar to what was currently happening at the store, but in reverse; that would be the only way to deunionize. Kaufman further said that, if a contract is signed and partners wanted the agreement to be renegotiated before it ended, workers would contact their representatives; the representatives would go to the lawyers who would then attempt to bring Starbucks back to the negotiating table. However, she said there is no guarantee, but there are other rights to exercise. (GC 5(a) 1.07.31-1:07:44) (GC 7, p. 51) (Tr. 206)

At this point a barista named Justin asked about what he said was a common practice he had read about involving "scheduled walkouts, or those type of things," where a group of workers go to their leaders and communicate they are "walking out because of these terms are not met and will not work until these terms are met or renegotiated." In reply, Kaufman said: "Yup—and for that all union partners would have to strike." Marpoe then added "there is no opt-out in the State of Washington. Everyone will be union, if you go union, and the contract is ratified." And Kaufman finished by saying "the strike would be a simple majority as well." ( GC 5(a) 1:08:24-1:09:04) (Tr. 167, 206 - 207) (GC 7, p. 52).

In reply to these comments, the barista named Ean said that employees can choose not to strike, and explained that he was in a union at the University of Washington food services where a strike occurred, but he went to work instead and nothing happened. In reply, somebody said "Hmm." Marpoe then told employees they only had 15 minutes left and they moved on to another question. ( GC 5(a) 1.09.04-1:09:36 ) (GC 7, p. 52-53) (Tr. 177, 207-208)

2. The March 22 meeting

Respondent held another employee meeting on March 22. This meeting also occurred in the Roastery library and was attended by Keanna along with between 15 to 20 baristas. Kaufman and Barth were present for Respondent. (Tr. 246-247)

Keanna's work schedule for March 22 shows that she was scheduled for "SR Training" from 2:30 p.m. to 4:00 p.m. The previous [*50] day Keanna was also scheduled for an hour and a half "SR Training" meeting, which turned out to be an actual promo set meeting to sample new products that were being launched. On March 22, she learned about 10 minutes before the scheduled meeting that the "training" that day was actually going to be a meeting about the union. This was the last meeting that Keanna attended about the union election; she also recorded this meeting on her iPhone. (Tr. 247-249, 316-317, 323-325) ( GC 5(b), 9, 10, 12 )

The March 22 meeting started with Kaufman saying she appreciated everyone being present, acknowledging that it is "a lot," but given the timeline there was "just so much." Kaufman said she did not expect to be studying so much law, and that she appreciated everyone's contributions, questions, efforts, and positive energy. Kaufman said it was Respondent's obligation to make sure all partners were informed of the process and the journey and this was why they were having these meetings. She informed everybody of the election details, and said everyone has the same goal, which was 100 percent participation. ( GC 5(b) 0:00-1:19 ) (GC 9, p. 2)

Kaufman discussed the election, saying that ballots are anonymous and the question to be voted on was whether employees wanted to be represented by Workers United for collective bargaining. She said Workers United had committed to use members "from our team" to determine bargaining priorities because apparently they do "not know how the Roastery works . . . and we do." If employees voted to unionize, Kaufman said that collective bargaining will begin, that she believes the Union will reach out and start collecting priorities from partners, and "until then, we are frozen." ( GC 5(b) 2:40-4:09 ) (GC 9, p. 3-4 )

Kaufman said things are frozen in both benefits and standard operations, calling it "the dynamic status quo," and that everything goes on as it would be before the vote and remains that way after the vote. Kaufman said promotions can happen, along with annual raises based upon years of service, and whatever percentage increase that is announced Starbucks wide, is what partners will get, but no other changes to benefits or pay outside of those normal cycles will be given until there is a contract. ( GC 5(b) 4:40-5:10 ) (GC 9, p. 4-5) After discussing whether employees were due to receive a raise, the discussion returned to things being frozen, with Kaufman saying that what is legally binding as per the NLRB's status quo requirement is that "none of your benefits can be added to you, and none of them can be taken away." Barth followed up by saying that what normally happens will continue to happen, until such time as a contract is reached. ( GC 5(b) 6:36-6:49; 7:50-7:52 ) (GC 9, p. 6)

The conversation on this subject continued, and the participants discussed various other matters including collective bargaining, negotiations, strikes, and the election process. Regarding collective bargaining, Kaufman said that the partners would elect and prioritize things they would ask for, and then bargaining in good faith takes place; however neither side is obligated to agree to anything. ( GC 5(b) 8:40-9:25 ) [*51] (GC 9, p. 7) Kaufman told workers that the priorities they gathered will go to the negotiating table, and that "you will not be negotiating with us; it will be with Starbucks' lawyers." She said things might get better, stay the same, or partners might lose—which is a strong word—but some things could be negotiated away; whatever happens is up to that negotiating table. For example, Kaufman said that as the process goes on, Starbucks could say that workers have great pay and benefits, so the company could not meet certain other demands. At this point, negotiating table priorities would have to change or compromises made. ( GC 5(b) 12:30-13:49 ) (GC 9, p. 10-11)

Regarding strikes, Kaufman said that the "process," referring to negotiations, may take a long time and that partners can strike until generally a contract is signed, at which point there's always a clause that says there will not be any labor issues during the contract; but striking before a contract is signed is possible. Kaufman discussed the Union's strike fund, said that during a strike employees will not be able to receive paid sick time or vacations, their benefits could run out, and they cannot file for unemployment. She said the company is also allowed to bring in temporary workers and continue operating. Kaufman was unsure whether workers could continue working during a strike, and a discussion then ensued amongst the various participants about this issue, with Keanna noting that in an earlier meeting employees were told that they had to participate in a strike, but that Ean proved that statement was wrong. Kaufman replied by saying that it depends upon the Union's bylaws as to whether or not a strike is determined by a majority of employees, but even if someone chooses to work during a strike, "you're striking but you're working." ( GC 5(b) 14:40-15:25; 16:04-16:26 ) (GC 9, p. 11-12)

Kaufman then said that there was much interest in what workers would be able to negotiate. She told the partners that the odds they would receive miles above everybody else is challenging without a compromise. While the workers might ask for wage increases in a three to five year contract, either tied to inflation or tied to the minimum wage, she said "the approach on the other side will always be much more conservative because nobody knows what happens, like a pandemic for example. So high risk is challenging, without compromise." (GC 5(b) 16:33-18:10) (GC 9, p. 13)

Kaufman also said that Starbucks has thousands of stores, which is unlike bargaining for a single factory, or a couple hundred hotels or grocery stores in one region. Therefore, she said "I think for unionized stores to get a super great deal, it's going to be hounding, I think, for Starbucks to move all those billions of dollars that go to partners over to their legal department that's constantly negotiating contracts." ( GC 5(b) 18:13-18:58 ) (GC 9, p. 13) Kaufman then discussed five Starbucks stores in Canada that unionized, saying that only one still has its union contract because the others voted to "deunionize." And for the one remaining unionized store, she said that they negotiated [*52] a pay increase of 69 cents, but also negotiated more paid time off. However, because they had a signed contract, those employees did not receive any of the increases that the rest of the market has received, so that store now makes less than the rest of the stores around them. To this comment, Keanna can be heard on the recording whispering "more scare tactics." Kaufman then said that she thinks, it is "really really important to know that," while partners will be present at the negotiating table, "this will be the lawyers duking it out." ( GC 5(b) 19:00-20:12 ) (GC 9, p. 13-14) (Tr. 172) Kaufman then said:

And, uh—um, this will be lawyers duking it out for sure. Uh, and then also, you know—I think this relied on Starbucks having business for their part going up higher and higher. Or it is—considering—uh, them to also prioritize, frankly, un-unionized stores over unionized stores. I'm just being honest. ( GC 5(b) 20:20-21:03 ) (GC 9, p. 14)

Keanna then asked if Kaufman was saying that partners won't have much of a voice; Kaufman replied that they will definitely and absolutely have a voice, that their voice is incredibly important, but that it is a legal process and the lawyers will duke it out. Keanna then asked Kaufman about her statement that the company will "pay attention to other stores, rather than us." ( GC 5(b) 21:03-21:27 ) (GC 9, p. 14-15) Kaufman replied by saying:

Well, we'll be in contract, collective bargaining. We'll be, wuh—your voice will be at that table, for sure. But—um—if—uh—benefits are added, they will be added to non-collective bargaining stores. ( GC 5(b) 21:29-21:48 ) (GC 9, p. 15)

Keanna asked "so we won't get the new benefits that other stores will get?" And Kaufman said, "it's a risk." Keanna then said, "unless we negotiate it in the contract, which why wouldn't we?" And Kaufman replied again saying "it is a risk." ( GC 5(b) 21:48-22:00 ) (GC 9, p. 15)

After this, a barista named Mark asked an open question to anyone in the room about "deunionizing" and whether they could deunionize without having a contract. Kaufman and a couple employees addressed the question, to the best of their understanding, with some employees relating things they had heard in other company meetings. Kaufman then told the workers that she has never had to learn so much about the law and ultimately it is none of her business whether employees choose to organize and collectively bargain. She said everybody has been through the worst two years of their lives, everyone is tired, everyone wants to get paid more, in her mind she is not in the upper class, and if employees "do it," they should write a great/phenomenal contract because the likelihood of Starbucks coming back to revisit it is not that high. ( GC 5(b) 22:03-24:35 ) (GC 9, p. 15-16)

The meeting then continued in the same general format for almost another hour. Sometimes company representatives made various statements, resulting in questions from employees. Other times topics were raised, and employees discussed the issue amongst themselves, until moving on to another issue. And, there were instances where individuals made long statements about how they felt about the entire process.

1. Facebook post by Respondent's [*53] assistant manager

On February 14, the day the petition was filed, De La Vega, posted on Facebook about the petition. De a Vega's post reads as follows:16

As a leader of a prominent location, I've come across so many fantastic leaders and many that were the worst imaginable.

However, one of my favorite quotes passed down from me is this: "We always look at the mountains in front of us and forget the mountains behind us were just as hard to climb." [mountain emoji]

This quote will continue to ground me in how I show up as a leader for others and most importantly, myself! Today my location has decided to begin the process of unionization. As I'm certain most media will begin to initiate propaganda but would like my friends and family to know.

Overall, the road ahead is unclear and fogged up with thoughts and feelings from others and myself. But I will always stay true to what has inspired me about leadership...and these are the times that forge what a true leader is.

However, I won't be a martyr for anyone which side. I am my own person and will stay true to that

[smiley face emoji]

De La Vega's post sparked replies from his Facebook "friends," some of whom were also employees of the Seattle Roastery. The first employee to respond to the post, named Liza, worked on the roasting/manufacturing side at the Roastery. Liza wrote that she was against having a union, that unionization has never succeeded and it would "tear us apart." She said that the company calls them "partner for a reason" and once the union comes in they would lose most of their good benefits. Susan, another employee who also worked on the manufacturing side at the Roastery, commented saying "everyone was miserable after the maintenance union was voted in" at another roasting plant.17 De La Vega replied thanking them both for their comments. (Tr. 93)

The third person to comment on De La Vega's post was Melissa Slabaugh (Slabaugh). At the time, Slabaugh had been working as a mixologist at the Roastery for about four and a half years; she had started working at Starbucks in 2013.18 In her reply, Slabaugh wrote "[a]s I know both of you and support your perspectives, let me share some tidbits of what we have seen with unions," and remarked that the cafe side of the Roastery "is a different entity with different struggles." Slabaugh further wrote that union dues were only $10 per week, would only apply after a contract was negotiated, and that her coworkers would only vote on a contract that essentially negated those fees; she also shared a link to an article about union enrollment. Slabaugh continued her post saying that "the vote to unionize does not impact the manufacturing side because you guys are a different company essentially. A totally different entity. Which is why y'all's practices are so different from ours." Slabaugh ended her response by saying that the unity and comradery "on the Cafe side has been stronger than" what she had seen in quite some time, and while this "does not negate any experiences y'all may have had" it illustrates what was happening "on our side of the store." (Tr. 42, 48-49, 53-54, 93-94)

De La Vega responded to Slabaugh, [*54] saying "as you travel the road less traveled! Know I'm here for ya! As many times before this to!" Slabaugh replied with link to the Workers United website. Susan responded, thanking Slabaugh "for some solid information," and saying that she has "seen the scheduling retail partners have to deal with, and I understand. I am hopeful that upper management will take note of our grievances." Liza wrote, "it will impact manufacturing side no matter what." Slabaugh answered writing "it really won't," noting that the petition was specifically filed for the hourly cafe side workers, that the manufacturing side employees will not vote and therefore the union election will "not impact your structure back there" since the manufacturing side is "a different company and different entity." Slabaugh said she was trying to understand Liza's comment, and asked her to "elaborate" in order to "understand where you're coming from." Liza responded that this was "not a good place to discuss this issue." Slabaugh acknowledged Liza's position, but disagreed, writing "it's an excellent place to discuss the issue," and then wished Liza "a great day."

De Le Vega responded to the posts saying "[a]dditionally, if passed, it does effect other locations and business units relationships." De La Vega then wrote the following series of posts:

Mel[issa] Slab[augh] Liza . . . if union vote is passed, TLA opportunities would be on the table. As they wouldn't be considered a part of the theoretical union. Since they are two different entities, we can't share partners anymore for legality reasons.

Nothing will be guaranteed and everything will be on the table. Some might lose their free ASU others their healthcare. And much else. Even negotiating higher wages wouldn't be guaranteed.

From personal experience, I agree while corporate has made decisions for all of our lives. Let's remember they paid for us to stay home for two months, instead of laying us off. And hourly wages have been the highest they've ever been. There has never been a priority on mental health or sick like there is now on our store.

And seeing decisions being made at the top, I can guarantee everyone the partners are always front and center in every decision we make. And when we don't agree with corporate nonsense, we do what's best for our store.

I'm still not positive what there is to gain besides showing corporate leaders up? And I can attest I'm not a fan of them either.

Well you can, but it's pretty controversial. And the pandemic is looming to a end. And with a potential unionization. Some of us will be forced with making a choice if this is still for us or not. I am too in that boat, in this moment.

Liza wrote back saying "Elijah . . . thank you for making it clear, we are all Starbucks employee no matter what." This prompted De La Vega to draft another series of posts saying:

All in all, these are all facts.

Being all locked into a three year contract, doesn't seem to wise. When our world economics is 10 seconds to midnight [clock emoji] I'd leave some flexibility in policy during this time. But that's from experience, how we had to pivot to partner safety and business.

Not [*55] to mention, this third party has never consulted a coffee company quite like ours. And not to mention a multi-retail experience. Just seems to me, every detail hasn't been figured out. And a very big opportunity on change management.

Slabaugh responded writing "I had a comment posted, but tbh, I don't really trust this being out anymore. Happy to talk in person Elijah or through personal messages." Notwithstanding, Slabaugh went on to post that she was "admittedly . . . checking on TLAs, however . . . this would be a corporate decision to take those benefits away. That would mean they came to the bargaining table NOT in good faith. PERIOD. We are the union. No one is speaking for us." De La Vega responded writing that:

everyone has an opinion on what's best for their life. I haven't found any evidence of supporting my life beneficially. In all honesty, undue stress on a human level. But at this rate I'm resilient. What I'd encourage is all to vote in fair election with transparency of what we can & can't do. Let the voters decide what is best for our store. We are partners, and this company is why we have the opportunity to even go through this process. I owe very much of my success to the leaders of Starbucks guided by mission and values.

Slabaugh replied:

Elijah . . . the labor laws fought for by activists are why we have the ability to do this. Not the company. To be clear.

You shouldn't have to be resilient, you should be protected. Legally.

Union's aren't radical. And you're right, we all have a right to choose what's best for our life.

No one was pushed into this, information was given on a pro and con perspective. People saw more pros than cons, and we are being transparent. To imply anything else is disappointing and hurtful—on a human level.

This comment prompted a response from De La Vega who wrote:

thank you for the learning. I'm unaware of such policies due to the fact when I have an issue with my employer, I've learned to use my own voice to meet my concerns and find solutions. Even for others.

I've never thought of a need to be in a union. My goal is not to be at the Starbucks reserve Roastery decades.

I would rather get what I need from the company, and start my own business. I think that is what true success looks like to me.

And I've been lucky to find leaders at the Roastery that have given me stability in my life.

No matter what is chosen. The world is in a bigger crisis than unionizing revolution in Starbucks. Full stop. Finding peace in others and community is more important to me.

Slabaugh replied saying:

we both have that in common. Others just haven't been as lucky in their outcomes.

I don't want to be here for decades either, but we want everyone's time here to be enjoyable and fair for everyone, for whatever amount of time they are here. Long after any individual is gone from the building.

I too find so much respect in leaders at the Roastery, but time and time again I've stated there's only so much y'all can do and it's true.

Also true about the world. We can fight to make it better though collectively

De La Vega replied to Slabaugh writing, "I appreciate this conversation with you. Thank you for your patience [*56] and grace with me!" Slabaugh responded saying "But this fight comes in bite sized pieces. This is one of those pieces."

At this point in the Facebook conversation, Keanna posted a comment. Keanna learned about De La Vega's post from Slabaugh and added De La Vega as a Facebook friend because she wanted to read what he was saying. In her comment, Keanna wrote "i second the notion that you are great, but y'all can only do so much for us. when you come to learn a majority of our partners struggle with food insecurity, it can put things into a different perspective." De La Vega replied saying, "no hard feelings y'all! Thank you for sharing your perspectives! It is hard to hear people are having food insecurity. While I can't control these variables specifically. If there is anything we can do to combat in the meantime, let me know." (Tr. 326-327, 335-336)

A couple unknown people who did not work at the Roastery made brief comments in reply to this exchange, that solicited a short reply from De La Vega, saying thank you and hoping "all is well." Then a former Roastery employee named Anton commented. Anton praised De La Vega's leadership, said that what is transpiring amongst the "petitioned union cafes" was a literal title wave and long overdue, especially at the Roastery, and observed that he was "pretty sure" he would have been fired if he "uttered the word union" during his tenure. Anton offered to help if De La Vega needed any support, saying he now managed a cafe with unionized employees. A former Roastery employee named Brittany responded to Anton's post with four heart emojis. And, Slabaugh responded by saying that Anton was "incredible," and she was "inspired by present and past partners every single day." She also wrote "I also very much second Anton's post in regard to you, Elijah. [smiley face emoji]." (Tr. 94-96)

De La Vega responded as follows:

Mel[issa] Slab[augh] union or not. We are pressed with creating the space we want to see. I'm interested in hearing prounion side more transparently and strategic. As the Roastery is prominent, I want to ensure we aren't being used as a Trojan horse for everyone else political game. And the partners leading the initiative, protect not only their experience but the experience for all and find how a third party will support the initiatives mentioned. And bring this culture changer. What continues to ring clear to me...what evil is better? I'm confused either way but in time we will find our way one step at a time.

If union were to occur, it'd be interesting how my roles and responsibilities will change? What people can expect from me vs. union? How efficient is the process for 150 people? How will promotions be handled? What change can actually be accomplished while a contract is being drawn up for months, maybe years? As person who has admittedly work their a** off for corporate leaders that could care less. I understand the push. However, pro-union will not make you a better employee and might create a better work environment, but that isn't clear just yet as no contract has been approved. This third party, can force everyone to go on strike whenever they want [*57] unpaid or face the consequences. Also, we are not protected from layoffs. (Repeating what I was told) All in all, sifting through propaganda is troubling lol

Protect, educate, and advocate for your own needs, not others [shield emoji] you can't let this decision be decided by others. You are faced with knowing what your truest needs are and communicating and voting accordingly.

For Anton, De La Vega wrote "Anton . . . def would like to meet up for coffee to catch up soon! Appreciate you and your tireless support along my journey! I'll always hold dear the values you carried in the Roastery, that was failed to be recognized by leaders. You are a true gem! [diamond emoji]

Slabaugh replied to De La Vega's posts writing:

Elijah . . . with strikes, it has to be voted on by the union...btw. so us. But your role wouldn't really change. All of those things you mentioned? On the table for bargaining (including promotions which aren't handled with consistency or transparency atm). During that time nothing is legally allowed to change. Benefits are legally protected. But in contract negotiations we would be pushing for better, more comprehensive benefits and fairer workplace practices. All in all, it's biggest push is to hold accountability to those above that hinder our resources in the store.

The union is the workers. The workers do the bargaining, but with legal help. They represent us only in legalities but they don't SPEAK for us. We do that.

Elijah . . . if you know me, you know then that I was up until odd hours constantly researching this particular union, researching pros and cons of unions, looking at just about everything imaginable before literally doing anything.

I have lost so much sleep making sure this was something that would benefit our partners, not take away from them.

I don't do anything on others agenda

Elijah . . . and that wasn't meant to sound aggressive lol it was meant to remind you that I don't take anything lightly, and I feel you know that already. I am excited to be able to talk about this openly now because man there is some seriously bad info swarming about right now in general, and all over the place.

De La Vega responded to Slabaugh's post saying "I appreciate you and have always and will always respect your voice! Thank you for not taking my partner experience lightly! For that, you have my respect [raised fist emoji] you a leader too. [smiley face emoji]" De La Vega then posted "Man these Xbar peeps, are revolutionary! [sparkles emoji] #workingintrenchestogether!" And in another separate post wrote "We've come a long way! Proud we are able to have a discussion and share perspectives! [heart emoji]"

After this post, a former Roastery employee named Megan commented that she had "so many mixed feelings" on the subject. She wrote that De La Vega was one of the few leaders that took time to help develop her skills, that she looks up to him, and hoped for the best during the process. De La Vega thanked Megan her for her words of positivity and expressed hope that all was well with her and her store. Another person, unidentified in the record, responded by posting an emoji of clapping hands. [*58] A person named Sean, who was also not identified in the record, responded by saying that all this comes as a surprise as he had not heard the "faintest whisper in the store," that this was even happening. A former employee named Ryan responded to Sean's comment by saying that he knew the union drive was happening even though he doesn't even work at the Roastery. Slabaugh responded to Sean by tagging him and saying, "message me." (Tr. 98)

An unknow person named Stephanie commented, "Elijah, I know you can lead through anything," telling him to stay true to his values, listen to those he leads, and to remember that she is "just a phone call away." De La Vega responded by saying he appreciated Stephanie, that she continues to inspire him and her insights as a leader will always resonate with him. This appears to be the last comment made by anyone involving De La Vega's post.19

1. ANALYSIS
2. Group meetings with management about the union petition and election

The General Counsel alleges that the group meetings Respondent held about the union petition and the election violated Section 8(a)(1) of the Act. (Compl. Para 6(a), 6(f), 7) In support of this allegation, the General Counsel argues that the Board should overrule Babcock & Wilcox Co., 77 NLRB 577 (1948), and return to earlier precedent which held that an employer independently violates Section 8(a)(1) of the Act by compelling employees to listen to a speech on self-organization during work time. Clark Bros. Co., 70 NLRB 802, 804-805 (1946). (GC Br. at 27-44) In its brief, the Union sets forth its support of the General Counsel's position.20 (Union Br. at 8-20)

Respondent, in turn, claims that the meetings in question were not mandatory. (R. Br. at 20-21) The Roastery contends that there is no evidence partners were compelled to attend these meetings, claims no employee was disciplined for failing to attend a meeting, asserts that attendance was not taken, and points to the fact that employees were invited to share their perspectives and some employees made prounion statements. The company maintains that the meetings constituted a free exchange of ideas from partners regarding their thoughts on unionization. Id. at 21. Finally, Respondent asserts that no violation can be found because under extant Board precedent, citing Babcox & Wilcox, it is lawful for an employer to hold mandatory meetings with employees to discuss their efforts to unionize. Id. at 20-22.

1. Respondent's postpetition group meetings were mandatory

The evidence supports a finding that the postpetition meetings management held with Roastery employees to discuss their unionization efforts and the pending election were mandatory. The meetings occurred during work time and employees were paid for the time spent in the meetings. Also, the meetings appeared on employee work schedules, and there is nothing on those schedules to indicate that the meetings were voluntary or that employees otherwise did not have to attend. (GC 11, 12) See Relco Locomotives, Inc., 359 NLRB 1145, 1155 (2013) (reasonable employee could only conclude their meeting attendance was required where the meeting notification listed their names and time of the [*59] meeting, the meetings appeared to have occurred during the work day, and there was nothing on the notification informing employees that they did not have to attend), reaffirmed 361 NLRB 911 (2014).

I credit the testimony from Keanna and Slabaugh that, like work shifts, employees were expected to attend meetings that appeared on their work schedules and that failing to do so could result in discipline. (Tr. 72-3, 144, 320) And, the Roastery presented no evidence to the contrary. As for Respondent's assertion that "no partners were disciplined for failing to attend" the meetings (R. Br. at 21), there was simply no evidence introduced that any employee had actually missed a scheduled meeting. Under these circumstances, it is reasonable to presume that no partners were disciplined because everyone attended the meetings that appeared on their work schedules, knowing that attendance was mandatory.

Similarly unremarkable is Respondent's claim that the meetings were voluntary, because no attendance was taken. (R. Br. at 21) Conflicting evidence was presented as to whether attendance was, or was not, taken during some of the meetings. Notwithstanding, it is undisputed that Respondent monitors time and attendance by having employees clock in and out at the start and end of their work day and during breaks. If desired, Respondent could simply review the time and attendance records to ascertain whether an employee missed a scheduled meeting. And, the meetings themselves were small enough, anywhere from 10 to 25 people, that Respondent could easily determine whether someone who was scheduled to work that day was absent from a meeting. In these circumstances, the lack of someone physically taking roll during a meeting is insignificant to the question of whether the meetings were mandatory.

Contrary to Respondent's claim, the fact the company did not stifle some employees from making prounion statements and invited partners to share their perspectives about the unionization effort did not make the meetings voluntary. While some employees did make statements in support of the union, other employees present did not speak during the meetings. For example, in the March 22 meeting, of the approximately 15 to 20 employees present, only about nine were identified as having said anything during the meeting. (GC 9) And, I credit Slabaugh's testimony that she did not want to attend these meetings, but did so only because they were on her schedule and she was concerned about being disciplined if she did not attend. (Tr. 77-78)

Finally, supporting a finding that these meetings were not voluntary, is the statement made by Kaufman on March 22 that these meetings were, in fact, mandatory. In reply to a question from Keanna asking if the meetings were mandatory, Kaufman said "Yeah . . . We do have an obligation." She then clarified this statement by saying that employees were obligated to attend if the meeting appears on an employee work schedule more than 10 days in advance. The evidence shows that the March 11 and March 22 meetings appeared on employee work schedules [*60] more than 14 days in advance, thereby making them mandatory. Accordingly, the evidence fully supports a finding that these meetings were, in fact, mandatory and employees were potentially subject to discipline if they did not attend.

2. Respondent's postpetition group meetings were lawful

Section 7 of the Act give employees the right to engage in union activities along with the right to refrain from any or all such activities. Radio Officers' Union of Commercial Telegraphers Union v. NLRB, 347 U.S. 17, 42 (1954) (employees have the right "to abstain from union activities without" their jobs being affected); Tamosiunas v. NLRB, 892 F.3d 422, 425 (2018) (Section 7 protects the right of employees to bargain collectively through representatives of their own choosing, as well as the inverse right: to abstain from unionization). And, the Board has found that an employer violates Section 8(a)(1) of the Act when it forces employees to attend union meetings against their will. Injection Molding Co., 104 NLRB 639 (1953), enfd. 211 F.2d 59 (8th 1954).

In Injection Molding, workers were represented by a labor union which had fined an employee one dollar for his nonattendance at a union meeting.21 The union notified the employer of the fine, and the employer deducted the fine from the employee's pay without consent. The Board found that the employer's conduct, in deducting the fine over the employee's protest, constituted a violation Section 8(a)(1) of the Act "because it tended to force [the employee] to attend union meetings against his will." Injection Molding Co., 104 NLRB at 646. The Board further found that "such conduct was in direct derogation of the right of employees under Section 7 of the Act to refrain from union activities."22 Id.

The Board had previously applied this same general reasoning to meetings where an employer compels its employees to listen to a speech on self-organizing, finding that such conduct impairs employee free choice which is guaranteed in Section 7 of the Act. Clark Bros. Co., 70 NLRB 802, 804-805 (1946). However, after Section 8(c) was amended into the Act, in Babcox & Wilcox, 77 NLRB 577, 578 (1948), the Board changed course, holding that, even assuming employees were required to attend and listen to an employer's anti-union speeches, Section 8(c) of the Act, and its legislative history, "make it clear that the doctrine of Clark Bros., no longer exists as a basis of finding unfair labor practices."

Courts have recognized that the "captivity" of an audience is an important factor in determining the proper degree of First Amendment protection for certain speech. Aguilar v. Avis Rent A Car Sys., Inc., 980 P.2d 846, 871-872 (Cal. 1999) (Werdegar, J. concurring) (consolidating United States Supreme Court cases discussing the applicability of First Amendment protections to various speech involving different types of captive audiences, and arguing that the relative captivity of an audience is a relevant and important, if not dispositive, factor in determining whether government restrictions on speech in the workplace are permissible under the First Amendment). And, various commentators have remarked on the wisdom of the Board's decision in Babcox & Wilcox, along with whether reforms in this area of the law should, or should not, occur. See e.g., Roger C. Hartley, Freedom [*61] Not to Listen: A Constitutional Analysis of Compulsory Indoctrination Through Workplace Captive Audience Meetings, 31 Berkeley J. Emp. & Lab. L. 65, 78 (2010); Alan Story, Employer Speech, Union Representation Elections, and the First Amendment, 16 Berkeley J. Emp. & Lab. L. 356, 358 (1995); Daniel V. Johns, The Coddling of the American Worker's Mind: The Anti-Free Speech Nature of Popular Labor Law Reforms, 30 Wm. & Mary Bill of Rts. J. 755, 762 (2022). Ultimately, however, whether Babcox & Wilcox was rightly decided is beyond my purview. I am compelled to "apply established Board precedent which the Supreme Court has not reversed. It is for the Board, not the judge, to determine whether that precedent should be varied." Waco, Inc., 273 NLRB 746, 749 fn. 14 (1984) (internal citations omitted). The facts here fall squarely within the ambit of Babcox & Wilcox and do not resemble the situation where the Board found an 8(a)(1) violation in Injection Molding Co. As such, I recommend that this allegation be dismissed.

1. Statements made at the March 11 meeting
2. Maintaining a direct relationship with management

Complaint paragraph 6(a)(i) alleges that the Roastery violated Section 8(a)(1) of the Act when Marpoe told employees during the March 11 meeting that, to maintain a direct relationship with Respondent, employees must vote against unionization and that if something is not in the contract employees cannot raise or have a conversation about that issue with management. Regarding these allegations, the evidence shows that, at the start of the March 11 meeting, Marpoe told employees that she wanted to give them an update about the election process, information and facts about unions and how they work, and discuss collective bargaining. Marpoe encouraged employees to do their own research and then said:

If you want a union to represent you—uh—you want to give your right to speak to leadership through a union, you're going to check off 'yes' for the election. If you want to maintain a direct relationship with leadership, you'll check off no.

The General Counsel asserts that this statement violates Section 8(a)(1) of the Act as Respondent did not equate union representation with collective bargaining and did not explain the legal obligations on all parties with respect to good faith bargaining. (GC Br. at 20) The government also asserts that the vagueness of the statement could lead a reasonable employee to believe that they could not have a casual conversation with a supervisor, or that they would lose their right to speak with people in nonsupervisory roles if they are considered part of leadership.

For many years the Board "consistently held" that an employer violates Section 8(a)(1) by telling employees "they would lose their right to speak directly with management" if they selected union representation. Dish Network Corp., 358 NLRB 174, 175, 175 fn. 3 (2012) (Member Block concurring in part) (collecting cases where the Board found violations). However, that changed in Tri-Cast, 274 NLRB 377 (1985). In Tri-Cast, the Board found that there "is no threat, either explicit or implicit, in a statement which explains to employees that, when they select a union to represent them, the relationship that existed between [*62] the employees and employer will not be as before." 274 NLRB at 377. The Board has since applied Tri-Cast to find no violation where an employer stated that "union representation might limit direct access to management," Holy Cross Hospital, 370 NLRB No. 16, slip op. at 1 fn. 3 (2020), and where an employer said, "if the union came in, employees could no longer come directly to management with problems . . . [and they] would have to go to the union with any complaint." Montgomery Ward & Co , 288 NLRB 126, 126 fn. 3 (1988), remanded on unrelated grounds 904 F.2d 1156 (7th Cir. 1990). Here, I find that Marpoe's comments fall within those statements that are privileged by the Board's holding in Tri-Cast and its progeny. Therefore I recommend that complaint paragraph 6(a)(i) be dismissed.

2. Discussing something that is not in the contract with management

Complaint paragraph 6(a)(ii) alleges that Marpoe violated Section 8(a)(1) of the Act by telling employees they cannot raise or have conversations with Respondent about matters that are not in their contract if they unionize. The evidence shows that, during the March 11 meeting, Marpoe discussed with partners what she said was her experience working at Macy's, where employees were unionized. Marpoe told the partners there was a time when she went to the person who hired her to ask for more hours and was told she needed to talk to her union representative, and "[t]hat's it. I could not have any other conversation with them." She then said:

And so that's—that is—a representation of a union is the rules of employment will then be grounded in a contract. And if it's not in that contract, it's not a conversation in my opinion that's going to happen with leadership. We'll be bound by the contract. So the union will be bound. And Starbucks will be bound.

Marpoe then said that she wanted to be "clear on that. That a third party comes in and speaks for you. And everything will be grounded, from my experience and my opinion through the lens of that contract."

The General Counsel asserts that Marpoe's statement is unlawful, as she incorrectly tells employees that they will not be able to speak with their supervisors, does not equate union representation with collective bargaining, or explain the obligation to bargain in good faith. And, as with the previous allegation, the General Counsel also asserts that Marpoe's use of the term "leadership" could be construed to make employees to believe that they cannot speak with nonstatutory employees in leadership roles. (GC Br. at 20) Respondent asserts that this allegation should be dismissed because Marpoe's comment is confusing, open to multiple interpretations, and is grounded in opinion. (R. Br. at 23-24)

In context, I believe Marpoe's statements are covered by the Board's holding in Tri-Cast, 274 NLRB 377 (1985), with respect to whether employees, after they unionize, will being able to speak with management about matters. Accordingly, I recommend that complaint paragraph 6(a)(ii) be dismissed. Holy Cross Hospital, 370 NLRB No. 16, slip op. at 1 n. 3; Montgomery Ward & Co , 288 NLRB at 126 fn. 3.

3. Time Limited Agreements (TLAs)

Employees considered TLAs to be an important benefit, and during the March 11 meeting someone asked how bargaining and negotiations would effect TLAs [*63] and lateral transfers. Marpoe replied saying that they both could be impacted because hours, benefits and wages are all negotiated into the contract. She said that if something is important to the partners and they want to get it in the contract, "that may also be part of the process." Underriter then said that TLAs are "super complex." And Kaufman followed-up saying TLAs are complex because a unionized partner is protected under the contract, but only protected where they work, and it is "a big question" as to whether a unionized partner would be allowed to go from their home store to another store, and maybe all of that needs to be specifically outlined on what can be done. Marpoe then interjected saying that:

Yeah, in my opinion. I'm speaking from my opinion. I think TLAs go off the table because you're still a union. And if you go there, you're still in a union, but you're in a non-union home. And I don't see how, in my opinion, either Starbucks or the union would allow you to not adhere to union rules in a contract because then, you know, we're talking a lot of stuff that goes on, like, you're doing things, you're paying your membership dues, but you're not actually in a union job, and you're not actually following the union rules. What does that say about the agreement? So in my opinion, TLAs are going to be sticky or gone.

Neither Underriter nor Kaufman said anything in reply to Marpoe's statement. After a 6 second pause where nobody spoke, Marpoe asked if anyone wanted some chocolate; some in the room laughed. Marpoe then said this is not an easy conversation to have, that she wants to be open and honest and does not want to sugarcoat anything. But, Marpoe added, she can tell workers her opinion on what is probably going to happen. Then she said that if it is not in the contract it is not going to happen.

In complaint paragraph 6(b)(iii) the General Counsel alleges that Marpoe's statement about TLA's being "off the table . . sticky or gone," violates Section 8(a)(1) of the Act. (GC Br. at 21) Respondent argues that no threats were made, and instead claims that Marpoe's comments were "the conveyance of personal opinions about the potential future of such a benefit in a unionized environment and an explanation that [the] ultimate fate is that TLA's would be sticky—meaning still possible—or gone." (R. Br. at 9) (italics in original) The company further asserts that Marpoe's explanation of "sticky or gone" was because TLAs "were, in fact, complicated." Id. at 12 Finally, Respondent argues that there should be no violation because in the March 22 meeting Marpoe explained that TLAs would "get hammered out in the contract." Id. at 10.

In assessing alleged threats, the Board uses an objective standard, whether a remark would tend to coerce a reasonable employee, Hendrickson USA, LLC, 366 NLRB No. 7, slip op. at 5 (2018). And, the Board considers the totality of the relevant circumstances in determining whether an employer's statement constitutes a violation. Ebenezer Rail Car Services, 333 NLRB 167 fn. 2 (2001). Here, I believe that, considering the totality of the relevant circumstances, a reasonable employee would understand Marpoe's statement about TLAs as a threat of [*64] losing an existing benefit if employees unionized and therefore violates Section 8(a)(1). Marpoe told the assembled employees she believed "TLAs go off the table because you're still a union," and that in her opinion "TLAs are going to be sticky or gone."23 This occurred during a meeting where company officials said they were present to make sure employees "just have the facts" to "make the decision that's right for you," and to present the "facts" regarding what the company described as "a big flipping decision with huge ramifications." Given her position with the company, and the fact Marpoe spoke in the presence of Barth, who did not contradict or her statement or otherwise say anything in response, employees would understand that Marpoe was speaking as a representative of Respondent, and that her statements were the company's position on the matter.

Advancing the coercive nature of Marpoe's comments was the fact they were made during a mandatory meeting, whose purpose was to discuss the unionization petition, the pending election, and to persuade employees to adopt the company's position that they should forego unionization. Aldworth Co. Inc., 338 NLRB 137, 141 (2002) (In finding statements violated Section 8(a)(1), the Board considered the context in which they were made, including the fact they occurred during a meeting whose purpose was to discuss the union campaign); Mautz Paint & Varnish Co., 117 NLRB 496, 508 (1957) (judge considers context in which statements were made, noting the employer "was not conducting a sedate seminar on the law. It was attempting to induce employees to forego union representation."). And, employees, in fact, understood Marpoe's statement about TLAs as a threat. Immediately after her comment, Keanna said that Respondent's scare tactics were inappropriate, and when asked for examples, she pointed to company statements about benefits being taken off the table.

Respondent cannot point to the fact that Marpoe used the words "I think" or "in my opinion" to forestall the finding of a violation. The Board long ago recognized that an employer cannot immunize its statements by simply characterizing them, "however coercive, as expressions of opinion." J.S. Abercrombie Co., 83 NLRB 524, 530 (1949); see also Chief Freight Lines Co., 111 NLRB 22, 24-25 (1955), enfd. 235 F.2d 105 (10th Cir. 1956) (Board noting that it would not "excuse an employer representative, defending an 8(a)(1) charge, because he had only told the employees that 'he thought' they would be discharged if they persisted in exercising the rights guaranteed them by Section 7 of the Act.").

While an employer can express a prediction on the precise effects it believes unionization will have on the company, such predictions must be "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control." NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). "And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear." [*65] Id. at 617. "The underlying message of Section 8(a)(1) is that an employer . . . needs to take care in the rhetoric it uses when discussing union issues with its workers." AutoNation, Inc. v. NLRB, 801 F.3d 767, 774 (7th Cir. 2015).

Here, Marpoe statements were not phrased based upon objective facts outside of the company's control. She said "TLAs go off the table because you're still a union," and "are going to be sticky or gone." Also, her comment about how neither Starbucks nor the Union would allow employees not to adhere to union rules, while paying union dues, did not cure the damage caused by her statement. There are multiple Board cases describing collective bargaining agreements with provisions allowing unit employees to take a leave of absence for a certain period of time, even to work elsewhere with their employer's approval, and then return to the bargaining unit while keeping their seniority. See, e.g., Appalachian Power Co., 198 NLRB 576, 576, 1972 (contract provision allowing employees, when conditions permit, to take a leave of absence for up to one year, and work elsewhere during this time, with the approval of the company); California Saw and Knife Works, 320 NLRB 224, 309 (1995) (describing contract provision where, when granted, an employee can take a leave of absence for up to six months and return to their position with full seniority); Electrical Workers IBEW Local 1212 , 288 NLRB 374, 378, (1988) (contract provision allowing employees to take a 2 year leave of absence to conduct union business in connection with the broadcasting industry while allowing them accrue/retain seniority throughout their leave). There is certainly no reason beyond Respondent's control that Siren Retail and the Union could not craft an agreeable contract provision to allow for unit employees to continue to enjoy TLA benefits, and then return to their bargaining unit positions when the TLA expired.

Finally, as for Respondent's claim that there was no threat because of subsequent statements made about TLAs in the March 22 meeting (R. Br. at 10-12), there is no evidence that the same employees were present in both the March 11 and 22 meetings. See Service Employees Local 399 (City of Hope), 333 NLRB 1399, 1401 (2001). ("[T]here must be adequate publication of the repudiation to the employees involved."). Accordingly, by telling partners that TLAs would be off the table, sticky or gone, if they unionized, Respondent threatened employees with decreased benefits in violation of Section 8(a)(1) of the Act. Cf. Bethany Medical Center, 328 NLRB 1094, 1105 (1999) (telling employees that if they persisted in activities protected by Section 7 of the Act their accrued benefits "may be in jeopardy" constituted an unlawful threat); Textron, Inc., 199 NLRB 131, 135 (1972) ("Section 8(c) does not protect the expression of an intention to make bargaining demands that will place in jeopardy the employees' existing benefits").

4. Tips

For years, merchants have had the ability to process customer credit card tips at the point of sale.24 However, Starbucks stores including the Roastery historically have been unable to do so. The inability of customers to leave credit card tips was one of the issues that drove employees during the union campaign.

At one point during the March 11 meeting, [*66] an employee named Ean said there was a discrepancy between the amount of work partners perform and the pay they receive. He complained that Respondent was telling employee their relationship with management will change in a negative way and benefits will be taken away if they unionized, when the main asking point in the union drive was for the company to give customers the ability to tip partners in more ways, which would increase worker pay without Starbucks having to pay for it. Ean also said that partners had been seeking increased tipping options for a long time, and Starbucks could have implemented this at any time but had chosen not to do so.

Barth replied saying that the issue with tips was "a technology piece that is in the way" and it has been for years. She said tips have been a topic of conversation for some time, that the challenge for the company is on the "back end," and the technology piece was the difficulty. Barth further said she believed there was a constraint on the technology preventing this from happening and was not sure the union was going to change that. Ean responded that Starbucks was a billion dollar company and the issues on the back end should have been resolved by now. Barth said this issue had been on their annual operating plan for three years and Ean countered that three years was a long time. He later noted that partners at the Roastery bus tables, but do not get tips, while at restaurants where workers bus tables, customers leave tips of 25 percent most of the time. Ean said that, when it comes to employee wages in relation to their labor, it was not adding up and this was the reason why employees at so many Starbucks stores, including the Roastery, were unionizing. Barth replied saying "we've heard it loud and clear that wages and tips have been a big issue."

For the next 10 minutes the conversation on tips continued and a discussion ensued about wages. Then, Kaufman said it sucks being the person who is "just trying to share the facts in terms of this is a big flipping decision with huge ramifications." Kaufman said that she is conditioned to look out for partners and tries to go to every one of these meetings because she wants to hear from employees about what matters to everyone, but said it is hard and a lot of heavy stuff. Kaufman then told the partners

I would say, like, hell yeah, if, you know, credit card tips could be, like, if that could just be switched on—that would be amazing. That server, that code, doesn't exist yet. And, um, contract negotiations isn't going to create the code. We use registers that are used in every other Starbucks. What updates on ours will impact every other Starbucks. When we talk about like mobile—you know when you go to like Square, or whatnot, like that front end, credit card, those registers flip, so that a customer can make a personal choice as to how much to tip. Our equipment doesn't do that. And negotiations is going to have a hard time in us getting brand new equipment in here, plus server code. It's just honest.

After this comment, the room went silent for half of a minute, until Marpoe said that [*67] she was going to make some coffee.

Pursuant to Section 8(d) of the Act "wages, hours, and other terms and conditions of employment" are mandatory subjects of bargaining. 29 U.S.C. 158(d). The definition of "wages" is broad. Weyerhaeuser Timber Co., 87 NLRB 672, 675, (1949). It includes tips and gratuities that employees receive from customers, even though the employer is not the source of the benefit. The Capital Times Co., 223 NLRB 651, 652 (1976). "The payment of tips is beneficial to the employer in that it gives an incentive to the employee to render good customer service on behalf of the employer to the customer." Id.

An employer is also required to bargain with the union representing its employees regarding the means of payment relating to wages. Tribune Publishing Co., 351 NLRB 196, 197 (2007) enfd. (564 F.3d 1330 ) (DC. Cir. 2009) (Since employee payroll deductions are a mandatory subject of bargaining, by extension the means by which those deductions are made, direct deposit, is also a mandatory subject of bargaining); Electro-Flyte, Inc., 331 NLRB 633, 636, 2000 ("The subject of health insurance premiums and the means of their payment relates to wages, hours, and other terms and conditions of employment . . . and is a mandatory subject . . . of bargaining."); Cf. Titan Box Corp., 208 NLRB 787, 789 (1974) (A wage incentive plan that could increase employee wages based upon their personal effort, and in no way is dependent upon the company's profit or loss, is a method of payment and a mandatory subject of bargaining.). The timing of these payments are also a mandatory subject of bargaining. Somerville Mills, 308 NLRB 425, 439 (1992) ("the hour at which employees can obtain their paychecks constitutes a mandatory subject of collective bargaining.").

Over the years counter-service credit card tipping has become omnipresent, and Respondent's employees were frustrated with the company's inability to offer credit card tipping. This was a big issue in the organizing drive. When employees raised the matter during the March 11 meeting, Barth said the issue was a back-end technology piece and she was unsure the Union would change that. Kaufman then followed up saying that the server and code for credit card tipping does not exist yet, and contract negotiations is not going to create code. She also said that, while other merchants have credit card tipping at the point of sale, the company's "equipment doesn't do that" and "[i]t's just honest" that negotiations would "have a hard time in getting brand new equipment in here, plus service code." In short, by these statements both Barth and Kaufman were telling employees that changes to tipping could only flow from the Respondent, and not the collective-bargaining process. I believe that, in context, Respondent's reply to the concerns raised by partners in the meeting would lead reasonable employees to believe that it would be futile for them to select the Union to bargain with Respondent over the issue of credit card tipping. By so doing, Respondent violated Section 8(a)(1) of the Act.

5. Bargaining

About seven minutes into the March 11 meeting, Marpoe told employees that the pending unionization vote does not give workers any wages, benefits, or hours and it was simply for partners to decide on whether to give the Union [*68] the right to collectively bargain with Starbucks. Marpoe then discussed collective-bargaining and told the gathered employees that:

For collective bargaining, it can—there is no timetable for when an agreement may or may not happen. It can take on average a year to eighteen months for any kind of agreement to be reached.

Currently the core store in Buffalo, New York, they have been 3 months into the process and nothing has been reached. So just be mindful of the fact that nothing overnight changes. And with regards to your wages, benefits, or hours, that is what's going to be negotiated in a contract, and everything is on the table. So your benefits, wages, and hours could go up, could stay the same, or you could lose benefits.

Marpoe then told employees to be mindful that, if a contract is ratified, it is usually in place for three years and during that time Starbucks "can roll something out" involving benefits, like Bean Stock, and that any of those things that are not in the contract will not be afforded to union members; for them to receive it, it has to be in the contract.25 Marpoe said any promises being made that wages, hours or benefits will go up or get better is not guaranteed because both the Union and Starbucks will both "come to the table with something," that neither side is compelled to make an agreement or give a concession, and as long as both Starbucks and the Union is bargaining in good faith, which means "a reasonable time, a reasonable place, and an open mind. Then the bargaining process can go on, for a very long time."

Citing Airtex, 308 NLRB 1135, 1135 fn. 2 (1992), and Valerie Manor Inc., 351 NLRB 1306 (2007), the General Counsel argues that Marpoe's statements violate Section 8(a)(1) of the Act. (GC Br. at 22-24) Respondent asserts that these statements were "objectively lawful." (R. Br. at 12-13).

As noted by the General Counsel, in Airtex, 308 NLRB 1135, 1135 fn. 2 (1992), the Board found a violation where the company president told two employees during a restaurant conversation that negotiations could last a year, that he only had to negotiate with the union, and not sign a contract. Id. In finding a violation, the Board noted that these statements did not stand alone, and the company president had also threatened one of the employees, who was the lead union adherent, with job loss, while making specific offers to him of a supervisory position and other "blandishments" if he gave up his support of the Union, thereby browbeating him in front of a coworker. The Board said that, in this context, the president's statement about negotiations and not having to sign a contract "was not a mere statement of law" but was "a threat that employee support for the union would be futile." Id. In Valerie Manor Inc., 351 NLRB 1306, 1313 (2007), the Board found a violation where the employer said negotiations could take up to two years and the parties could reach an impasse. Again these statements were made in the context of other extensive and serious unfair labor practices including: repeated threats of facility closure, job loss, and loss of wages and benefits. Id. at 1306-1307.

In other contexts, the Board has found that statements about bargaining taking years, without any guarantees, to be [*69] lawful. Histacount Corp., 278 NLRB 681 (1986). In Histacount Corp., no violation was found where the employer sent a letter to employees that said: bargaining can continue for weeks, months, or even years until the parties come to a mutual agreement; there is no guarantee existing benefits will survive bargaining; the company is legally entitled to bargain from ground zero; every benefit is up for grabs; and while the company would bargain in good faith, it would do so in light of all its legal rights. 278 NLRB at 686. Ultimately, these statements were found lawful, with the Board finding that, in context, they did not appear to relay the message that the employer would unilaterally discontinue existing benefits if the employees selected union representation, but rather that existing benefits may be lost as a result of bargaining. Histacount Corp., 278 NLRB 681, 689 (1986).

It appears, therefore, that in reviewing statements made by an employer about bargaining, the Board looks at the statement itself, and its immediate context, to determine whether what was said is coercive and constitutes a violation. Wild Oats Markets, Inc., 344 NLRB 717, 717-718 (2005); See also Mantrose-Hauser Co., 306 NLRB 377, 377-378 (1992) (no violation where statements in mailing sent to employees were devoid of any other unlawful statements and the employer did not commit any other unfair labor practices). And, "[w]hen the question is close, a critical factor in determining whether the statement has a threatening color is whether the context of the statement includes contemporaneous threats or unfair labor practices. Hendrickson USA, LLC v. NLRB, 932 F.3d 465, 472 (6th Cir. 2019) (internal quotations omitted).

Here, Marpoe's comments occurred in the context of other coercive statements that were made during the March 11 meeting, including the threat that TLAs would be "off the table" if employees unionized, and the threat that the Union could not bargain about credit card tips. Accordingly, given the other contemporaneous threats made during the March 11 meeting, I find that, in context, Marpoe's statements here, including her comments about how long bargaining can take, are coercive and violate Section 8(a)(1) of the Act.

6. Statements about strikes

About a half-hour before the March 11 meeting ended, there was a discussion regarding whether employees could vote the union out at some later date. Kaufman said that, once a contract is signed there was no getting out of the union until the contract ends, and then NLRB would have to conduct another vote. Kaufman further said that, if partners wanted to renegotiate a signed contract during the term of the agreement, there were no guarantees that Starbucks would come back to the negotiating table; she said there are no guarantees, but there were other rights to exercise. At this point a barista named Justin asked about what he described as a common practice he had read about involving a "scheduled walkout, or those type of things," where workers go to their leader and say they are walking out and would not work until certain terms are met or renegotiated. Kaufman then said: "Yup—and for that all union partners would have to strike." Marpoe followed up saying "there is [*70] no opt-out in the State of Washington. Everyone will be union, if you go union, and the contract is ratified." And Kaufman finished by saying "the strike will be a simple majority as well." In reply to Respondent's comments, another barista said that employees can choose not to strike, and conveyed his experience working during a strike without suffering any repercussions.

Complaint paragraph 6(d) alleges the statements by Respondent that all union partners would have to strike, and that there is no opting out in the State of Washington, constitute violations of Section 8(a)(1) of the Act. I disagree.

After Justin asked about what he described as a common practice of a "scheduled walkout, or those type of things" in order to get an employer to agree to negotiate the modification of a signed collective bargaining agreement, Kaufman said: Yup—and for that all union partners would have to strike. In context, it is unclear exactly what Kaufman was trying to explain, because Justin's question about a "scheduled walkout, or those type of things," occurring mid-contract was similarly vague. Whether workers can strike during the term of a contract depends upon a variety of variables. See e.g., Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956); NLRB v. Lion Oil Co., 352 U.S. 282 (1957); Caterpillar Tractor Co. v. NLRB, 658 F.2d 1242, 1247 (7th Cir. 1981); 29 U.S.C. § 158(d).

What is clear is that Kaufman did not say "all employees would need to strike if they were represented by a union" as argued by the General Counsel, nor do her words "imply that a strike would be an inevitable result of unionizing." (GC Br. at 25) Her comments about a strike came in response to a very narrow hypothetical poised by Justin where: (1) employees had unionized; (2) the Union and Respondent had entered into a collective bargaining agreement; (3) employees wanted to modify the contract during the term of the agreement; (4) Respondent refused to renegotiate the contract; and (5) employees wanted to engage in a "scheduled walk out, or those type of things" to pressure Respondent to bargain a modification. Considering Kaufman's words objectively, and in context, I find that her statement was not coercive, and would not reasonably tend to interfere with employee rights. As such, I recommend that the allegation in complaint paragraph 6(d)(i) be dismissed.

As for Marpoe immediately following up with the statement "there is no opt-out in the State of Washington. Everyone will be union, if you go union, and the contract is ratified," clearly this is a misstatement of the law. There is no blanket requirement that everyone must join a union once a majority of employees vote for union representation and after a contract is ratified. Nevertheless, the Board has held that misstatements of the law, including telling employees they would have to join the union if the union won the election, are not in themselves a violation of Section 8(a)(1) if there is no express threat that the employer, by its own action, would impose dire consequences upon employees and if the statement does not contain an implicit threat on employee rights. Daniel Construction Co., 257 NLRB 1276, 1276 (1981), enfd. mem. 732 F.2d 139 (1st. Cir. 1984). While Marpoe's statement came immediately after Kaufman's [*71] comments, I find it significant that Marpoe did not say anything one way or another about the status of any employee who might strike, what actions the employer would take on its own initiative, or that anything negative would happen to an employee if such a strike occurred. Accordingly, taken in context, I find that Marpoe's statement, although false, does not contain either an explicit or implicit threat on employee rights, and falls within the misrepresentations of the law that the Board has countenanced. Therefore, I recommend that complaint paragraph 6(d)(ii) be dismissed.

1. Statements made at the March 22 meeting

The March 22 meeting lasted about an hour and 15 minutes. Kaufman and Barth led the discussion, which was attended by anywhere from 15 to 20 baristas, including Keanna who recorded the meeting. About 15 minutes into the meeting, Kaufman told employees that negotiations may take a long time and that during this process employees can generally strike until a contract is signed, at which point there is always a clause in the agreement that prohibits any labor issues during the term of the contract. However, she said that striking before a contract is signed is possible. They continued to discuss strikes, the Union's strike fund, and whether employees could or could not continue working during a strike. Kaufman then told partners that there was much interest in what employees would be able to negotiate in a contract and said the odds of employees receiving miles above everybody else is challenging without compromise. Kaufman said that, while partners might ask for a wage increase in a three to five year agreement that is tied to inflation or the minimum wage, Respondent will always be much more conservative, because nobody knows what happens, like a pandemic; high risk is challenging without compromise.

Kaufman told employees that, unlike bargaining for a single factory, or a few hundred hotels or grocery stores in one particular region, Starbucks has thousands of stores. Therefore, she said "I think for unionized stores to get a super great deal, it's going to be hounding, I think, for Starbucks to move all those billions of dollars that go to partners over to their legal department that's constantly negotiating contracts." Kaufman then discussed five Starbucks stores in Canada that had unionized, saying that all but one had voted to deunionize later. For the one remaining store, Kaufman said that while they had bargained for more time off, the pay increase they negotiated in their contract was 69 cents. Therefore, because that store had a signed contract, it did not receive any of the other increases the rest of the market received so they now make less than the rest of the stores around them; after this comment, Keanna can be heard whispering "more scare tactics." Kaufman followed-up by telling partners that, while they will be present at the negotiating table, it will be the lawyers duking it out. She then said:

And, uh—um, this will be lawyers duking it out for sure. Uh, and then also, you know—I think this relied [*72] on Starbucks having business for their part going up higher and higher. Or it is—considering—uh, them to also prioritize, frankly, un-unionized stores over unionized stores. I'm just being honest.

Keanna then asked if Kaufman was saying that partners won't have much of a voice, to which Kaufman said that they will definitely and absolutely have a voice, that their voice is incredibly important, but that it is a legal process and the lawyers will duke it out. Keanna then asked Kaufman about her statement that the company will "pay attention to other stores, rather than us." Kaufman replied by saying:

Well, we'll be in a contract, collective bargaining. We'll be, wuh—your voice will be at that table, for sure. But—um—if—uh—benefits are added, they will be added to non-collective bargaining stores.

Keanna asked "so we won't get the new benefits that other stores will get?" And Kaufman said, "it's a risk." Keanna then said, "unless we negotiate it in the contract, which why wouldn't we?" And Kaufman replied again saying "it is a risk." After this exchange, another employee present at the meeting said that he wanted to ask an open question to anyone in the room about deunionizing, asking whether they had to have a contract in place or if workers could deunionize without having a contract. At the end of the discussion about deunionizing, Kaufman told the workers it was ultimately none of her business whether they chose to unionize, that everyone has been through the worst two years of their lives, everyone was tired and wanted more pay, and that she does not view herself as being in the upper class. She told the partners that if they "do it" they should write a great/phenomenal contract because the likelihood of Starbucks coming back to revisit it is not that high.

Complaint paragraph 6(e) alleges that the statements at the meeting about Respondent prioritizing nonunionized stores over unionized stores, and about benefits being added to nonunionized stores, constitutes a violation of Section 8(a)(1).26 I agree.

In context, I believe the message from Respondent was objectively clear, if employees unionized the company would prioritize nonunionized stores for additional upgrades or benefits over the Roastery. By threatening employees that future upgrades and/or benefits could be put at risk if employees unionized, Kaufman violated Section 8(a)(1) of the Act, as her statements would be perceived as threats by a reasonable employee. EPE, Inc. v. NLRB, 845 F.2d 483, 492 (4th Cir. 1988) (Board properly found an 8(a)(1) violation where company president told employees that "union members would not be eligible for benefits that were to be available to nonunion workers.") enfg. 284 NLRB 191, 197, 201 (1987); Cf. Gem Knits, Inc., 174 NLRB 449, 452 (1969) (statement to employees, in the context of discussions about the union, that the employer would not purchase new equipment until things had worked out a violation); Stahl Specialty Co., 364 NLRB 635, 640, 652, (2016) (Management speech during mandatory meeting, including comments that suggested further investment in the plant would be put at risk if employees unionized, a violation); Melville Confections, Inc. v. NLRB, 327 F.2d 689, 691 (7th Cir. 1964) cert. denied 377 U.S. 933 (1965) (Employer violated Section 8(a)(1) by [*73] maintaining a profit sharing plan which, by its terms, specifically excluded employees represented by a union), enfg. 142 NLRB 1334 (1963).

1. De La Vega's Facebook posts

Complaint paragraph 5(b) alleges that De La Vega's Facebook posts threatened employees by telling them they would lose their TLAs, ASU tuition, and/or healthcare benefits in violation of Section 8(a)(1) of the Act. Respondent asserts there can be no finding of a violation because: (1) "De La Vega's Facebook posts cannot be attributed to Starbucks;" and (2) De La Vega's statements were lawful. (R. Br. at 27-30)

Regarding De La Vega, the Roastery entered into a written stipulation that, as the assistant store manager, at various times, he was a supervisor within the meaning Section 2(11) of the Act, and/or an agent of Respondent within the meaning of Section 2(13) of the Act. And during the hearing, Respondent's counsel clarified the stipulation stating there was no dispute that De La Vega was an associate store manager on February 14, and that his job with the Roastery is supervisory. Respondent's position is that De La Vega's Facebook postings were not part of his job duties and/or were outside the scope of his job duties and therefore were not attributable to Respondent. (Tr. 128-131; J. 1)

The fact that De La Vega's Facebook posts may have occurred while he was not at work is immaterial, as some of his Facebook "friends" were employees at the Roastery and he was directly addressing the unionization efforts at the Roastery in his posts. Big Ridge, Inc., 358 NLRB 1006, 1020 (2012), affirmed by 361 NLRB 1372 (2014), enfd. 808 F.3d 705 (7th Cir. 2015) (collecting cases where violations were found based on statements made after work and finding that Facebook posts made by a foreman while he was not at work violated Section 8(a)(1) of the Act). Likewise, even if De La Vega "had not intended his Facebook posts to be seen by . . . employees, it was virtually certain under the circumstances, and therefore reasonably foreseeable, that they would be," and he received several responses from Roastery employees. Id. at 1020-1021. Therefore, the only remaining issue is whether De La Vega's Facebook comments are objectively coercive. I find that they are.

During the back and forth between De La Vega and his various Facebook friends, in one post he addressed Slabaugh and Liza directly saying:

. . . if union vote is passed, TLA opportunities would be on the table. As they wouldn't be considered a part of the theoretical union. Since they are two different entities, we can't share partners anymore for legality reasons.

Nothing will be guaranteed and everything will be on the table. Some might lose their free ASU others their healthcare. And much else. Even negotiating higher wages wouldn't be guaranteed.

Regarding De La Vega's statement about TLAs, his post is objectively read as saying that employees would no longer be able to partake in TLAs if they unionized, because the Roastery and the other Starbucks corporate entities where employees work under a TLA "are two different entities, [and] we can't share partners anymore for legality reasons." Sharing partners between two different areas of the Starbucks organization, in order for employees to [*74] gain work experience and a broader understanding of the company, is the primary purpose of TLAs. While De La Vega claimed that, if employees unionized, TLAs would cease for "legality reasons," he did not give a "a lawful explanation based on objective facts as to why such a loss of benefits would occur." Poly-America, Inc. v. NLRB, 260 F.3d 465, 485 (5th Cir. 2001) (internal quotation omitted); see also Gissel Packing Co., 395 U.S. at 618 (while an employer can express predictions about the effects of unionization it must be "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control."). Accordingly, under the circumstances, I find that the statement constituted a threat of a reduction in benefits, specifically TLAs, if employees unionized, and violated Section 8(a)(1) of the Act.

I also find that De La Vega's comment that "some might lose their free ASU others their healthcare. And much else," is coercive and a violation of Section 8(a)(1). De La Vega was not simply saying that, if employees unionized, certain existing benefits might be negotiated away through the natural give and take of collective bargaining. Instead, he was relaying a message to employees that, if they voted to unionize, some existing benefit will definitely be lost, whether it was ASU tuition benefits, healthcare, or "much else." This comment is objectively coercive and constitutes an unlawful threat.

CONCLUSIONS OF LAW

1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Workers United, affiliated with the Service Employees International Union, is a labor organization within the meaning of Section 2(5) of the Act.
3. By threatening employees that existing benefits will be reduced if they vote to unionize, Respondent violated Section 8(a)(1) of the Act.
4. By threatening employees that they will lose existing benefits if they vote to unionize, Respondent violated Section 8(a)(1) of the Act.
5. By threatening employees that it would be futile for them to unionize, Respondent violated Section 8(a)(1) of the Act.
6. By threatening employees that, if they unionize, the company will prioritize nonunion stores and unionized stores will not receive added benefits, Respondent violated Section 8(a)(1) of the Act.
7. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

REMEDY

Having found that the Respondent has engaged in certain unfair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative actions, as further set forth in the Order below, designed to effectuate the policies of the Act. The Respondent shall be required to post the attached notice in accordance with J. Picini Flooring, 356 NLRB 11 (2010), and Durham School Services, 360 NLRB 694 (2014).

In the complaint, the General Counsel seeks additional remedies including a request for a notice reading and training for supervisors and managers on employee rights under the Act. The General Counsel's arguments in favor of both of these remedies is limited to one footnote. (GC Br. at 45, fn. 39) In this same footnote, the General Counsel also asks that [*75] a posting of employee rights be ordered, to be posted alongside the notice. Because the General Counsel has not shown that the Board's standard remedies are insufficient to remedy the unfair labor practices found herein, I find that these additional remedies are not necessary.

Consistent with FDRLST Media, LLC, 370 NLRB No. 49, slip op. at 1 fn. 5 (2020), enf. denied 35 F.4th 108 (3d Cir. 2022), and Tesla, Inc., 370 NLRB No. 101, slip op. at 9 (2021), I shall also order Respondent to direct De La Vega to delete the unlawful posts from his personal Facebook page/account and to take appropriate steps to ensure that De La Vega complies with the directive.

On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended27

ORDER

Respondent Siren Retail Corp. d/b/a Starbucks, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Threatening employees by telling them that existing benefits will be reduced if they vote to unionize.

(b) Threatening employees by telling them that they will lose existing benefits if they vote to unionize.

(c) Threatening employees by telling them that selecting union representation would be futile.

(d) Threatening employees by telling them that, if they vote to unionize, the company will prioritize nonunion stores and unionized stores will not receive added benefits.

(e) 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.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Direct its agent/supervisor Elijah De La Vega to delete the February 14, 2022 posts—"if union vote is passed, TLA opportunities would be on the table. As they wouldn't be considered a part of the theoretical union. Since they are two different entities, we can't share partners anymore for legality reasons" and "Nothing will be guaranteed and everything will be on the table. Some might lose their free ASU others their healthcare. And much else. Even negotiating higher wages wouldn't be guaranteed."—from his personal Facebook page/account, and take appropriate steps to ensure De La Vega complies with this directive.

(b) Within 14 days after service by the Region, post at its Seattle Reserve Roastery, located at 1124 E Pike Street, Seattle, Washington, copies of the attached notice marked "Appendix."28 Copies of the notice, on forms provided by the Regional Director for Region 19, 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, 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 [*76] 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 its Seattle Reserve Roastery at any time since February 14, 2022.

(c) Within 21 days after service by the Region, file with the Regional Director for Region 19 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.

Dated, Washington, D.C. January 31, 2023

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 employees that benefits will be reduced if they vote to unionize.

WE WILL NOT threaten employees that they will lose existing benefits if they vote to unionize.

WE WILL NOT threaten employees that selecting union representation would be futile.

WE WILL NOT threaten employees that if they unionize the company will prioritize nonunion stores and unionized stores will not receive added benefits.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights listed above.

WE WILL direct our agent/supervisor, Elijah De La Vega to delete the February 14, 2022 posts—"if union vote is passed, TLA opportunities would be on the table. As they wouldn't be considered a part of the theoretical union. Since they are two different entities, we can't share partners anymore for legality reasons" and "Nothing will be guaranteed and everything will be on the table. Some might lose their free ASU others their healthcare. And much else. Even negotiating higher wages wouldn't be guaranteed."—from his personal Facebook page/account, and WE WILL take appropriate steps to ensure De La Vega complies with our directive.

SIREN RETAIL CORP. D/B/A STARBUCKS

The Administrative Law Judge's decision can be found at www.nlrb.gov/case/19-CA-290905 or by using the QR code below. 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.