Argued: May 2, 2019
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board; No.
L. Pryatel, KASTNER WESTMAN & WILKINS, LLC, Akron, Ohio,
Cretcher, NATIONAL LABOR RELATIONS BOARD, Washington, D.C.,
L. Pryatel, KASTNER WESTMAN & WILKINS, LLC, Akron, Ohio,
Cretcher, Linda Dreeben, Kira Dellinger Vol, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for
Before: COOK, McKEAGUE, and WHITE, Circuit Judges.
McKEAGUE, CIRCUIT JUDGE.
Hendrickson USA, LLC learned that employees were attempting
to unionize one of its manufacturing plants, it began
advocating against unionization. A plant-wide letter
cautioned employees that contract negotiations would begin
"from scratch," and a PowerPoint shown to employees
stated that "relationships suffer" in a union shop.
The National Labor Relations Board found that the
company's statements constituted unfair labor practices
because they coerced employees in the exercise of their
rights under the National Labor Relations Act (NLRA) and
ordered Hendrickson to post remedial notices around its
plant. Hendrickson petitioned this court for review, and the
Board cross-appealed for enforcement of its order. Because
the Board's opinion is not supported by substantial
evidence, we GRANT Hendrickson's petition and DENY the
owns an industrial plant in Lebanon, Kentucky, that produces
truck suspension and axle systems. On August 21, 2015,
Hendrickson received a letter from a group of employees
informing the company about the formation of a union
organizing committee on behalf of United Steel Workers of
America. The company quickly responded with a campaign
against unionization. The same day the company received the
letter, H.R. director Marlin Smith called a meeting to
emphasize the company's "direct employee
relationship strategy" and advised employees to read
carefully any union-related documents before signing them. A
few days later, on August 24, plant manager Randy Lawless
circulated a letter touting the company's current
compensation package and taking issue with the idea that
involving a third party would improve the relationship
between the company and employees. The letter cautioned
employees that union representation would not guarantee an
increase in compensation, stating that "[t]he Company
and any recognized Union would begin the negotiation process
from scratch." Then, on August 25 and again on August
26, the company played a PowerPoint slideshow for all
employees. Over the course of forty slides, the presentation
explained Hendrickson's negative view of unionization and
strongly urged employees not to vote for unionization. One of
the concluding slides opined that, when a plant unionizes,
"the culture will definitely change,"
"relationships suffer," and "flexibility is
replaced by inefficiency."
September, a Hendrickson employee filed a charge with the
Board, and the Board's General Counsel issued a complaint
against Hendrickson, alleging that the company violated
Section 8(a)(1) of the NLRA by threatening employees that
authorization of a union would lead to loss of access to
management and a more onerous work environment. The case went
to a Board administrative law judge (ALJ), where the General
Counsel added another claim, arguing that Hendrickson
threatened employees with the loss of wages and benefits if
they unionized. The ALJ rejected the General Counsel's
allegation regarding statements about the loss of access to
management but accepted the allegations regarding threats of
an onerous work environment and threats of lower wages and
benefits. The ALJ then ordered Hendrickson to cease
communication in violation of the NLRA and post public
notices about employees' rights under the NLRA.
Hendrickson and the General Counsel filed exceptions to the
ALJ's opinion with the Board. The Board adopted the
ALJ's opinion in full and added a footnote expressing the
majority and dissenting statements of the three participating
Members. Hendrickson has filed an appeal with this court,
challenging the holdings that it unlawfully threatened
employees with a more onerous work environment and lower
wages and benefits. The Board has filed a cross-appeal asking
for enforcement of its order.
role in reviewing the Board's findings is limited.
See Vencare Ancillary Servs., Inc. v. NLRB, 352 F.3d
318, 321 (6th Cir. 2003) (citation omitted). We must defer to
the Board's findings of fact, reasonable inferences from
the facts, and applications of law to the facts if they are
supported by substantial evidence on the record considered as
a whole. Beverly Health and Rehab. Servs., Inc. v.
NLRB, 297 F.3d 468, 476, 478 (6th Cir. 2002) (citing 29
U.S.C. § 160(e)). Despite its name, "substantial
evidence" is not an exacting standard-it means
"more than a mere scintilla" and "only such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Biestek v.
Berryhill, 139 S.Ct. 1148, 1154 (2019) (quotations
omitted). The deference of the substantial evidence standard
is rooted in "the Board's competence in the first
instance to judge the impact of utterances made in the
context of the employer-employee relationship." NLRB
v. Gissel Packing Co., 395 U.S. 575, 620 (1969)
(citation omitted). On the other hand, "a reviewing
court is not barred from setting aside a Board decision when
it cannot conscientiously find that the evidence supporting
that decision is substantial, when viewed in the light that
the record in its entirety furnishes, including the body of
evidence opposed to the Board's view." Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
7 of the NLRA guarantees employees the right "to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing," and the right to
refrain from those activities. 29 U.S.C. § 157. Under
Section 8(a), it is an unfair labor practice for an employer
"to interfere with, restrain, or coerce employees in the
exercise of rights guaranteed in [Section 7]." 29 U.S.C.
§ 158(a)(1). On the other hand, under Section 8(c),
"[t]he expressing of any views, argument, or
opinion" by an employer is not an unfair labor practice
as long as the expression "contains no threat of
reprisal or force or promise of benefit." 29 U.S.C.
§ 158(c). This last section recognizes both the
existence of and limits to an employer's right of free
speech under the First Amendment. See Gissel, 395
U.S. at 617.
enactment of Section 8(c) in 1947 "manifested a
congressional intent to encourage free debate on issues
dividing labor and management," and that policy judgment
"favor[s] uninhibited, robust, and wide-open debate in
labor disputes." Chamber of Commerce of the U.S. v.
Brown, 554 U.S. 60, 67-68 (2008) (quotations omitted).
Thus, in a labor dispute, both the employer and employees may
"express themselves on the merits of the dispute in
order to influence its outcome." Va. State Bd. of
Pharmacy v. Va. Citizens Consumer Council, Inc., 425
U.S. 748, 762 (1976) (citing Gissel, 395 U.S. at
617-18). On the other hand, the employer's right of free
speech must be balanced with employees' right of free
association, as "embodied in Section 7 and protected by
Section 8(a)(1)." Gissel, 395 U.S. at 617. And
a court's assessment of that balance "must be made
in the context of [the] labor relations setting," where,
because of employees' economic dependence on an employer,
they may be more likely to sense intended threats than a
disinterested observer. Id.
protected speech from unprotected threats can be difficult
because "the only effective way of arguing against the
union is for the company to point out to the workers the
adverse consequences of unionization." ITT Auto. v.
NLRB, 188 F.3d 375, 393 (6th Cir. 1999) (Kennedy, J.,
concurring in part and dissenting in part) (quoting NLRB
v. Village IX, Inc., 723 F.2d 1360, 1367 (7th Cir.
1983)). The Supreme Court has explained that the distinction
between lawful advocacy and coercive threat turns on whether
the employer communicates that predicted adverse consequences
of unionization are "outside [the employer's]
control" or instead "taken solely on [the
employer's] own volition." Gissel, 395 U.S.
at 619 (quotation omitted). In order to qualify as lawful
advocacy, a prediction that adverse consequences will result
"must be carefully phrased on the basis of objective
fact." Id. at 618.