Trinity Services Group, Inc. v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 8, 2021 Decided June 1, 2021
No. 20-1014
TRINITY SERVICES GROUP, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 20-1055
On Petition for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
Frederick C. Miner argued the cause for petitioner. With
him on the briefs was S. Libby Henninger.
Kellie Isbell, Senior Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the brief
were Peter B. Robb, General Counsel, Ruth E. Burdick, Acting
Deputy Associate General Counsel, David Habenstreit,
Assistant General Counsel, and Usha Dheenan, Supervisory
Attorney.

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Before: GARLAND and RAO, Circuit Judges, and *
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
RANDOLPH, Senior Circuit Judge: Trinity Services Group
asks us to review an order of the National Labor Relations
Board. The Board cross-petitions for enforcement. We must
decide whether employers are entitled to express opinions that
the Board considers baseless.
I.
This case began with a mix-up. In December 2017, the
timecard of Trinity employee Marisol Victoria indicated that she
had earned three days of paid leave. The company’s records
indicated otherwise. The truth? Less than clear. But Victoria’s
boss, Sergio Rivera, thought he knew the source of the problem.
Victoria belonged to United Food and Commercial Workers
Local 99. Thanks to the union, she and her coworkers had a
unique paid-leave plan — different from the plan at Trinity’s
other, nonunionized facilities. Yet that meant headaches for
Rivera, since the parallel schemes were too much for Trinity’s
bookkeeping software. So when Victoria’s timecard disagreed
with his records, Rivera pinned the blame on Local 99:
• “[T]hat is a problem that the Union created regarding
[paid leave].”
• “You need to fix that with the Union.”
Then-Judge Garland was a member of the panel but did not *
participate at oral argument or in the disposition of this case.

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• “[T]hat’s the problem with the Union.” J.A. 7.
A split panel of the National Labor Relations Board found
that these remarks “had a reasonable tendency to interfere with”
employees’ labor rights — a violation of 29 U.S.C. § 158(a)(1).1
Id. In the majority’s view, there was “no objective basis for
blaming the Union, rather than [Trinity]” for the mix-up. Id. at
8. And because the remarks came amidst “ongoing contract
negotiations and grievance proceedings” over paid leave, they
“would undermine the Union’s status” and “cause an employee
to lose faith” in Local 99. Id.
Chairman Ring dissented. While he found it “unfair to lay
the blame entirely at the Union’s feet,” id. at 10, he reasoned
that Rivera’s remarks were a “lawful expression” of “personal
opinion,” protected under 29 U.S.C. § 158(c). Id. at 9.2
These petitions followed. We review the Board’s factual
findings for substantial evidence. See Davidson Hotel Co. v.
NLRB, 977 F.3d 1289, 1292 (D.C. Cir. 2020).
“It shall be an unfair labor practice for an employer . . . to 1
interfere with, restrain, or coerce employees in the exercise of the
rights guaranteed in section 157 of this title[.]” 29 U.S.C. § 158(a)(1).
“The expressing of any views, argument, or opinion, or the 2
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).

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II.
Section 8(c) of the National Labor Relations Act protects an
employer’s right to “express[] . . . any views, argument, or
opinion[.]” 29 U.S.C. § 158(c); see also Chamber of Com. of
U.S. v. Brown, 554 U.S. 60, 67 (2008). Unless the employer
threatens “reprisal or force” or promises “benefit[s],” such
expressions “cannot be used as evidence of an unfair labor
practice.” Sasol N. Am. Inc. v. NLRB, 275 F.3d 1106, 1112
(D.C. Cir. 2002) (internal quotation marks omitted).
The Board’s order here is based solely on Rivera’s remarks.
These remarks are “opinion[s]” under § 8(c). And they contain
no threats or promises. True, threats and promises “may be
subtle or veiled.” Int’l Union of Elec., Radio, & Mach. Workers,
AFL-CIO v. NLRB, 289 F.2d 757, 762 (D.C. Cir. 1960). But
Rivera’s remarks — assigning blame, offering advice, and
expounding “the problem with” Local 99 — evoke no future
consequences. See generally Robert Nozick, Coercion, in
Philosophy, Science and Method 440 (Sidney Morgenbesser et
al. eds., 1969). So no reasonable employee would have spied
threats or promises lurking behind them. See Advanced Life Sys.
Inc. v. NLRB, 898 F.3d 38, 44–45 (D.C. Cir. 2018) (“The inquiry
is objective.”).
The Board concedes as much, but it urges us to recognize
an exception under § 8(c) for misstatements involving no threat
or promise. Respondent’s Brief 8. In its view, § 8(c) “provides
no safe harbor” for “materially false statements” that an
employer “has reason to believe will mislead his employees.”
Id. at 8, 15 (cleaned up). And because (says the Board) it was
“patently false” to blame Local 99 for “administration of the
[paid-leave plan],” § 8(c) does not apply here. J.A. 8.

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Where does the Board find this misstatement rule?
Certainly not in the statute. “Section 8(c) does not require
fairness or accuracy,” N. Star Steel Co., 347 N.L.R.B. 1364,
1367 n.13 (2006) (citation omitted), and it says nothing about
materiality or knowledge. Neither did Congress hedge. Absent
threats or promises, § 8(c) unambiguously protects “any views,
argument, or opinion” — even those that the agency finds
misguided, flimsy, or daft. 29 U.S.C. § 158(c) (emphasis
added).3
No precedent holds otherwise. The Board relies chiefly on
National Labor Relations Board v. Ingredion Inc., 930 F.3d 509,
516 (D.C. Cir. 2019), where we agreed that an employer’s
misstatements violated § 8(a)(1) of the Act. But the
misstatements in Ingredion were implied promises — a “better
contract,” a retirement package that employees “would like” —
unprotected by § 8(c). Id. And Ingredion did not claim to find
any new exceptions in the statutory text. Westminster
Community Hospital, Inc., 221 N.L.R.B. 185, 185 (1975),
enforced mem., 566 F.2d 1186 (9th Cir. 1977), is no different.
There, the employer implied that “benefits would be increased
in the future if the employees voted against the Union” —
another unprotected promise. Id.
So here is the short of it. Rivera expressed “opinions”
containing “no threat of reprisal or force or promise of benefit.”
29 U.S.C. §158(c). Sound or unsound, such expressions “shall
not constitute or be evidence of an unfair labor practice[.]” Id.
Of course, this does not mean that anything goes. Suppose a 3
mendacious manager tells workers that the union has cancelled
tonight’s election — duping them into missing the vote. Even if the
manager avoids threats and promises, the Board must still ask whether
his chicanery “represent[s] the expression of ‘views, argument, or
opinion’ that section 8(c) covers.” Microimage Display Div. of Xidex
Corp. v. NLRB, 924 F.2d 245, 251 n.2 (D.C. Cir. 1991).

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And since the Board found a violation based solely on Rivera’s
remarks, substantial evidence does not support its order.
*
Perhaps a no-misstatement rule would be good labor policy.
Or perhaps not. But it is not the policy reflected in § 8(c).
“Congress, when it enacted § 8(c), determined the dangers that
free expression might entail . . . were a lesser risk than to have
the Board police employer or union speech.” NLRB v. Gen.
Elec. Co., 418 F.2d 736, 773 (2d Cir. 1969) (Friendly, J.,
concurring and dissenting). “If policy considerations suggest
that [this] scheme should be altered, Congress must be the one
to do it.” Intel Corp. Inv. Pol’y Comm. v. Sulyma, 140 S. Ct.
768, 778 (2020). We grant Trinity’s petition for review and
deny the Board’s cross-application for enforcement.
So ordered.

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