United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2020 Decided September 17, 2021

No. 19-1150

CADILLAC OF NAPERVILLE, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 19-1167

On Petition for Review and Cross-Application for 

Enforcement of an Order of the 

National Labor Relations Board

Michael P. MacHarg argued the cause for petitioner. With 

him on the briefs was Tae Y. Kim. Alisa P. Cleek entered an 

appearance.

Jared D. Cantor, Senior Attorney, National Labor 

Relations Board, argued the cause for respondent. With him 

on the brief were Ruth E. Burdick, Acting Deputy Associate 

General Counsel, David S. Habenstreit, Assistant General 

Counsel, and Julie B. Broido, Supervisory Attorney.
2

Before: MILLETT, PILLARD, and KATSAS, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Opinion concurring in part and dissenting in part filed by 

Circuit Judge KATSAS.

PER CURIAM: The service mechanics at Cadillac of 

Naperville went on strike in August 2017. The National Labor 

Relations Board found that the dealership responded to the 

strike unlawfully by discharging one mechanic for his union 

activity, threatening to retaliate against several mechanics, and 

refusing to bargain with the mechanics’ union. The dealership

challenges these rulings, as well as two procedural rulings by 

the administrative law judge.

At the NLRB’s request, we remand the discharge issue for 

the Board to apply its intervening decision changing the 

framework under which it assesses alleged retaliation in mixedmotive cases. We reject the dealership’s other challenges.

I

A

Section 7 of the National Labor Relations Act gives 

employees the right to unionize, to bargain collectively, and to 

engage in concerted action for their “mutual aid or protection.” 

29 U.S.C. § 157. Section 8(a) of the Act safeguards those 

rights by prohibiting employers from engaging in a variety of

unfair labor practices. Section 8(a)(1) makes it unlawful to 

“interfere with, restrain, or coerce employees in the exercise of 

the rights guaranteed” by section 7. Id. § 158(a)(1). Section 

8(a)(3) prohibits employment discrimination to “discourage 

membership” in a union. Id. § 158(a)(3). Section 8(a)(5) 
3

makes it unlawful “to refuse to bargain collectively” with a 

union. Id. § 158(a)(5).

B

Cadillac of Naperville, Inc. (Naperville) is an auto 

dealership in Naperville, Illinois. The dealership is a member 

of the New Car Deal Committee (NCDC), a multiemployer 

bargaining unit including employees in 129 dealerships in the 

Chicago area. The NCDC negotiates master collectivebargaining agreements with the Automobile Mechanics Local 

701, International Association of Machinists and Aerospace 

Workers, AFL-CIO, which represents some 2,000 mechanics 

employed across the dealerships.

In May 2017, the NCDC and the union began to negotiate

a new collective-bargaining agreement. The union negotiators 

included Naperville mechanic John Bisbikis as well as union 

representatives Sam Cicinelli and Kenneth Thomas.

On June 29, Bisbikis approached Frank Laskaris, the 

owner and president of Naperville, to discuss shop-related 

issues. In particular, Bisbikis asked Laskaris to rescind the 

dealership’s new policy of charging workers for part of the cost 

of their uniforms. Laskaris rebuffed the request and turned the 

conversation to the “sputtering labor negotiations.” Cadillac 

of Naperville, Inc., 368 N.L.R.B. No. 3, slip op. at 8 (June 12, 

2019). Laskaris then “warned” Bisbikis that “things would not

be the same” if the mechanics decided to strike. Id. at 17; see 

also id. at 3, 8, 19–20. On August 1, after the collectivebargaining agreement expired, mechanics at the NCDC 

dealerships went on strike.

On August 9, Naperville informed six of its strikers, 

including Bisbikis, that they had been permanently replaced.

The notices stated that the strikers would be placed on a 
4

preferential hiring list, but only if they unconditionally applied

to return to work. In response, the strikers escalated their 

demonstrations. Positioning themselves directly across the 

main entrance to the dealership, they blew horns, sought to 

engage customers, and yelled at non-striking employees. On 

one occasion, a striker named Patrick Towe impeded an elderly 

customer’s test drive by walking in front of her vehicle.

On September 15, the NCDC and the union entered into a 

settlement that allowed many of the strikers to return to work. 

Two days later, the union’s members ratified both the 

settlement and a successor collective-bargaining agreement.

On September 18, Bisbikis, Cicinelli, and Thomas met 

with Laskaris to discuss the strikers’ recall. Laskaris stated that 

he did not want Bisbikis present because Bisbikis was a 

ringleader of the strike and Laskaris no longer wanted to 

employ him. On Cicinelli’s advice, Bisbikis left the room. 

Later that day, Bisbikis, Cicinelli, and Thomas met again with 

Laskaris. In that meeting, Bisbikis called Laskaris a liar,

Laskaris responded that Bisbikis should “get the f*** out” of 

the room, and Bisbikis replied by calling Laskaris a “stupid 

jack off” in Greek. Naperville, 368 N.L.R.B. No. 3, at 10. As 

Bisbikis left the room, Laskaris said, “[E]ven if I have to take 

you back, now I’m firing you for insubordination.” Id. 

Laskaris did fire Bisbikis, assertedly for insubordination.

On September 20, Laskaris spoke with Towe, the 

mechanic who had obstructed the test-drive. Laskaris said he 

hoped that employees would refrain from such conduct. He

then said, “I don’t want any of you here,” and told Towe to look 

for another job because Towe would not be employed at 

Naperville for long. Naperville, 368 N.L.R.B. No. 3, at 12.

On September 21, Laskaris sought to restrict union access 

to Naperville premises. In a letter to the union, he stated that 
5

Cicinelli and Thomas were no longer welcome on the property

because of their assertedly threatening conduct. And he 

required other union representatives to make appointments to 

see union members while they were at work.

On September 25, Laskaris held a staff meeting to 

complain about union leafletting outside the dealership even 

after the strike was over. He told employees that the leafleting 

was “taking money out of their pockets” and that if the

dealership ran out of work, “all of the recalled employees 

would be laid off.” Naperville, 368 N.L.R.B. No. 3, at 13.

On October 6, Laskaris held another staff meeting. For 

forty minutes, he expounded on the strike and its aftermath. At 

one point, Laskaris threatened to enforce company rules more 

strictly: “I suggest you read your little blue book that he waved 

in my face like a smug a**hole ... and if I follow that book 

your life will get harder .... There’s so much stuff in that book 

that nobody enforces. Why? Because we don’t want to be that 

kind of place.” Naperville, 368 N.L.R.B. No. 3, at 15 (ellipses 

in original). At another point, Laskaris disparaged the 

grievance process in the collective-bargaining agreement: “Let 

me tell you about the grievance process.... What I’m telling 

you is I don’t give a s*** about grievances. Grieve all you 

want. It doesn’t matter. They can’t do s***.... I don’t care on 

what you grieve, I don’t care how much you complain, they’re 

not going to tell me what to do.” Id. Laskaris’s summation 

was even more colorful:

I can be the nicest guy in the world, you put me in a 

corner, I’m going to f***ing eat your face. That’s 

who I am. I’ll give you a kidney, Ronnie[,] but you 

f*** with me and my people, I’m going to eat your 

kidney out of your body and spit it at you. That’s how 

nasty I can be. It’s not in my nature to be a prick, but 
6

when I see s*** like that Pat, it’s easy to be a prick to 

you; real easy. And they can’t stop me from being a 

prick.

Id. at 16. One mechanic secretly made a recording of the tirade, 

which the NLRB later admitted into evidence.

On October 27, Laskaris spoke with Brian Higgins, a 

mechanic who had been permanently replaced during the 

strike. When Higgins expressed an interest in returning to 

work, Laskaris said that he did not want Higgins or any of the 

permanently replaced employees at the dealership and that if 

Higgins did return, “it would not be long before he was gone.” 

Naperville, 368 N.L.R.B. No. 3, at 16.

C

The union filed a complaint against Naperville. After a 

hearing, an administrative law judge found that Naperville had 

committed several unfair labor practices. First, the ALJ found 

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

threats to employees. The threats included telling Bisbikis that 

“things would not be the same” if the mechanics went on strike,

advising Towe to look for another job, announcing that recalled 

employees would be laid off if work ran out, warning of stricter 

enforcement of company rules, describing grievances as futile, 

saying that he would eat an employee’s kidney, and implying

that Higgins would quickly be fired if he returned to work. 

Naperville, 368 N.L.R.B. No. 3, at 16–19. Second, the ALJ 

found that Naperville violated sections 8(a)(1) and 8(a)(3) by 

firing Bisbikis in retaliation for his union activity. Id. at 19–

21. Finally, the ALJ found that Naperville violated sections 

8(a)(1) and 8(a)(5) by restricting the union’s access to its 

members. Id. at 22.
7

The NLRB affirmed these findings but gave different 

reasoning as to the firing of Bisbikis. The ALJ had assessed 

the firing under Wright Line, Inc., 251 N.L.R.B. 1083 (1980). 

Under that decision, the agency bears the initial burden of

proving that union activity was a “motivating factor” in an 

adverse action against an employee; if the agency meets this

burden, the employer must prove that it “would have taken the 

same action in the absence of the unlawful motive.” Novato 

Healthcare Ctr. v. NLRB, 916 F.3d 1095, 1101 (D.C. Cir. 

2019). In contrast, the Board assessed the discharge under

Atlantic Steel Co., 245 N.L.R.B. 814 (1979). That decision

identifies four factors for determining whether an employee has 

forfeited NLRA protection through “opprobrious conduct”:

“(1) the place of the discussion; (2) the subject matter of the 

discussion; (3) the nature of the employee’s outburst; and 

(4) whether the outburst was, in any way, provoked by an 

employer’s unfair labor practice.” Id. at 816.

Naperville sought review of the Board’s decision, and the 

Board filed a cross-application for enforcement. After briefing 

had concluded, the Board asked us to remand the discharge 

issue for reconsideration in light of its intervening decision in

General Motors, LLC, 369 N.L.R.B. No. 127 (July 21, 2020). 

That decision held that Wright Line, not Atlantic Steel, provides 

the appropriate framework for analyzing adverse actions that 

might reflect either protected activity or misconduct by the 

employee. Id., slip op. at 1–2.

We have jurisdiction over the petition for review under 29 

U.S.C. § 160(f) and over the cross-application for enforcement 

under 29 U.S.C. § 160(e).

II

Naperville first challenges two evidentiary rulings made 

by the ALJ. We review such rulings only for abuse of 
8

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

Napleton 1050, Inc. v. NLRB, 976 F.3d 30, 39 (D.C. Cir. 2020).

A

Naperville contends that the ALJ did not give it adequate 

access to witness affidavits at the administrative hearing. The 

Board’s regulations permit respondents to use and examine 

witness affidavits “for the purpose of cross-examination.” 29 

C.F.R. § 102.118(e)(1). Naperville asked to retain a witness’s 

affidavit for a short time after his cross-examination, but the

ALJ required it to return the affidavit immediately.

Right or wrong, the ALJ’s decision was not prejudicial. 

Whether an error is prejudicial depends on the “closeness of 

the case, the centrality of the issue in question, and the 

effectiveness of any steps taken to mitigate the effects of the 

error.” 800 River Rd. Operating Co., LLC v. NLRB, 846 F.3d 

378, 386 (D.C. Cir. 2017) (quoting Huthnance v. District of 

Columbia, 722 F.3d 371, 381 (D.C. Cir. 2013)). Here, although 

Naperville bore the burden of showing prejudice, see Desert 

Hosp. v. NLRB, 91 F.3d 187, 190 (D.C. Cir. 1996), it made no 

attempt to do so. Its briefs did not explain how retaining the 

affidavit after the cross-examination might have improved its 

prospects at the hearing. And when asked about prejudice at 

oral argument, Naperville argued only that showing it was 

unnecessary. We thus reject Naperville’s challenge to the 

ruling on the witness affidavit.

B

Naperville challenges the Board’s admission of the 

recording of the October 6 meeting. Naperville contends that 

the recording was made in violation of Illinois law, which 

prohibits recording a “private conversation” without the 

consent of all parties, 720 Ill. Comp. Stat. 5/14-2(a)(2).
9

The NLRA provides that Board proceedings “shall, so far 

as practicable, be conducted in accordance with the rules of 

evidence applicable in the district courts of the United States.” 

29 U.S.C. § 160(b). Thus, the NLRB must follow the Federal 

Rules of Evidence unless doing so would be impracticable. See 

McDonald Partners, Inc. v. NLRB, 331 F.3d 1002, 1007 (D.C. 

Cir. 2003). Under Rule 402, “[r]elevant evidence is 

admissible” unless the United States Constitution, a federal 

statute, the Rules themselves, or “other rules prescribed by the 

Supreme Court” provide otherwise. Fed. R. Evid. 402. The 

recording—which contains several statements by Laskaris 

alleged to be threatening or coercive—is plainly relevant to the 

unfair-labor-practice claims at issue. Naperville neither 

disputes the relevance of the recording nor contends that any 

other Federal Rule requires its exclusion. Nor does Naperville 

contend that following Rule 402 was impracticable. The ALJ 

thus properly admitted the recording.

Naperville’s objections are unpersuasive. First, the 

dealership argues that admitting the tape frustrated Illinois’ 

public policy of discouraging secret recordings. But as 

explained above, the NLRA makes clear that state policy does 

not dictate the admissibility of evidence in Board proceedings. 

Next, Naperville objects that admitting the recording 

contravened Weiss v. United States, 308 U.S. 321 (1939),

which requires the suppression of items intercepted in violation 

of the Communication Act of 1934. Id. at 331. But that federal 

statute expressly made such communications inadmissible in 

court. Id. at 326; see also Nardone v. United States, 302 U.S. 

379, 380–82 (1937). Naperville does not contend that any 

similar federal statute or rule applies here. Finally, Naperville 

argues that admitting unlawful recordings will prejudice 

employers. But it provides no reason to think that employees 

are more likely to record their employers than vice versa. And 

in any event, the governing rules provide no textual basis for 
10

accommodating Naperville’s naked policy argument. The ALJ 

permissibly admitted the recording.1

III

We turn to the substance of the Board’s decision. Our 

review is “deferential,” Comau, Inc. v. NLRB, 671 F.3d 1232, 

1236 (D.C. Cir. 2012) (cleaned up), but not a “rubber stamp,” 

Circus Circus Casinos, Inc. v. NLRB, 961 F.3d 469, 484 (D.C. 

Cir. 2020). Although we “accord considerable deference” to 

the Board’s policy judgments, Stephens Media, LLC v. NLRB, 

677 F.3d 1241, 1250 (D.C. Cir. 2012), we must set aside a 

decision that rests on an error of law, is unsupported by 

substantial evidence, or “departs from established precedent 

without a reasoned explanation,” Comau, 671 F.3d at 1236

(cleaned up).

A

Section 8(a)(1) of the NLRA makes it an unfair labor 

practice to “interfere with, restrain, or coerce employees in the

exercise of” their right to bargain collectively. 29 U.S.C. 

§ 158(a)(1). This section “forbids coercive statements that 

threaten retaliation against employees” for protected union 

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

Cir. 2001). Section 8(c), however, cabins section 8(a)(1). It 

provides that expressing “any views, argument, or opinion” is 

neither an unfair labor practice nor evidence of an unfair labor 

practice, as long as the views contain “no threat of reprisal or 

1

 Because we resolve this issue under the Federal Rules of 

Evidence, we need not address the Board’s alternative argument that 

the recording was not of a “private conversation” covered by the 

Illinois law. See Edmondson & Gallagher v. Alban Towers Tenants

Ass’n, 48 F.3d 1260, 1266 (D.C. Cir. 1995).
11

force or promise of benefit.” 29 U.S.C. § 158(c). We assess 

whether statements violate section 8(a)(1) under “the totality of 

the circumstances,” with an eye to whether “the statement has 

a reasonable tendency to coerce or to interfere with” section 7 

rights. Tasty Baking, 254 F.3d at 124.

We begin with the several statements on which the panel 

is unanimous, then we address the one statement on which we 

are divided.

1

We unanimously conclude that the challenged statements 

made by Laskaris in September and October of 2017 threatened 

retaliation for protected activity and thus constituted unfair 

labor practices.

a

The Board found that Laskaris violated section 8(a)(1) on 

September 20, by telling Towe that he did not want any former 

strikers at the dealership and that Towe should look for a new 

job. The Board reasoned that the statement threatened to 

discharge Towe for his union activity. Naperville, 368 

N.L.R.B. No. 3, at 1 n.2. We agree.

Naperville argues that Laskaris threatened to fire Towe not 

because of his union activity but because of his misconduct 

during the strike, which included obstructing a test-drive. This

argument overlooks Laskaris’s comment regarding the other

strikers. Moreover, the ALJ found that the “overarching 

theme” of Laskaris’s criticism was Towe’s union activity, not 

the one specific instance of misconduct. Naperville, 368 

N.L.R.B. No. 3, at 17. And that finding, in turn, rested on the 

ALJ’s decision to credit Towe’s testimony about the 

conversation, id. at 12 n.24, which we accept because it was 
12

not “patently insupportable,” Exxel/Atmos, Inc. v. NLRB, 28 

F.3d 1243, 1246 (D.C. Cir. 1994) (quoting NLRB v. Creative 

Food, 852 F.2d 1295, 1297 (D.C. Cir. 1988)).

b

The Board found that Laskaris violated section 8(a)(1) on 

September 25, by telling the recalled mechanics that union 

leafletting was harming the dealership financially and that he 

would fire them if the dealership ran out of work. The Board

reasoned that Laskaris targeted only former strikers, as 

opposed to the dealership’s employees in general, thereby 

singling them out for a threat of adverse treatment based on 

protected activity. Naperville, 368 N.L.R.B. No. 3, at 3.

Naperville’s responses do not persuade. First, it argues 

that section 8(c) protected its criticism of the leafletting. But 

the Board found an unfair labor practice based on a threat to

fire the recalled mechanics, not because Laskaris criticized the

leafletting. Naperville also would construe the comments as a 

truism governing all employees generally—no work means no 

jobs. But Laskaris made the comments in a staff meeting 

involving only the former strikers, and the Board reasonably 

construed the comments as directed against them specifically.

c

As to the October 6 philippic, the Board found that three 

statements crossed the line—the threat to make the mechanics’ 

lives “harder” by ramping up enforcement of company rules, 

denigration of the grievance process as futile, and the rhetorical 

threat to eat the kidney of any employee who “f***[ed] with” 

him. Naperville, 368 N.L.R.B. No. 3, at 3–4. In the context of 

a speech harshly critical of recent union activity, the threat to 

increase enforcement of company rules would reasonably be 

understood as threatening retaliation because of that activity. 
13

See, e.g., Miller Indus. Towing Equip., Inc., 342 N.L.R.B. 

1074, 1074 (2004). Moreover, because “filing and prosecution 

of employee grievances is a fundamental, day-to-day part of 

collective bargaining,” Laredo Packing Co., 254 N.L.R.B. 1, 4 

(1981) (quoting Crown Cent. Petroleum Corp. v. NLRB, 430 

F.2d 724, 729 (5th Cir. 1970)), it is an unfair labor practice to 

say that a “contractual grievance procedure” is “futile,” M.D. 

Miller Trucking & Topsoil, Inc., 361 N.L.R.B. 1225, 1225

(2014), which is what Laskaris did here. Naperville objects

that section 8(c) allows employers to criticize the substance of 

individual grievances. But the Board faulted Laskaris for 

making clear that he would refuse to honor all grievance 

determinations, not for addressing the merits of any individual 

one. Finally, while the Board and the ALJ split on whether 

Laskaris’s kidney comment reflected a threat of violence, the 

Board was clearly correct that, at a minimum, it would 

“reasonably tend to coerce employees in the exercise of their 

Section 7 rights.” Naperville, 368 N.L.R.B. No. 3, at 4.

d

The Board found that Laskaris violated section 8(a)(1) on 

October 27, by telling Higgins that he did not want to employ 

any of the former strikers and that, if Higgins returned, “it 

would not be long before he was gone.” Naperville, 368 

N.L.R.B. No. 3, at 16; see id. at 1 n.2. Naperville attempts to 

cast the statement about Higgins as a lawful prediction about 

his commitment to the dealership. But that overlooks the 

context of the remark, which followed immediately after 

Laskaris’s comment that he did not want to take back any of 

the striking mechanics. The Board thus had ample ground for 

concluding that Laskaris’s comment was a threat of reprisal for 

Higgins’ union activities.
14

2

The Board also found that Laskaris violated section 8(a)(1) 

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

the employees went on strike. Naperville, 368 N.L.R.B. No. 3, 

at 1, 3; see id. at 8 (ALJ decision). The Board agreed with the 

ALJ’s conclusion that, under the facts of this case, “the 

statement cannot be viewed as anything but a threat that a strike 

would produce only negative consequences for the unit.” Id. at 

3 (brackets omitted). Substantial evidence supports the 

Board’s finding that Laskaris’s statement was an unlawful 

threat.

On June 29, just a month before the union contract was set 

to expire, Bisbikis came into Laskaris’s office seeking the 

rescission of a new policy requiring employees to pay for a 

portion of their uniforms’ cost. Naperville, 368 N.L.R.B. No. 

3, at 8. Laskaris rebuffed Bisbikis’s demand. Turning the 

conversation to the company’s ongoing labor negotiations with 

the union, Laskaris then told Bisbikis that “things would not be 

the same” if the mechanics chose to strike. Id.; see also id. at 

3, 19–20. 

The Board reasonably concluded on this record that 

Laskaris’s statement was a threat rather than a mere prediction 

about the consequences of union activity. While an employer 

may “communicate to his employees any of his general views 

about unionism or any of his specific views about a particular 

union,” and even predict “the precise effects he believes 

unionization will have on his company[,]” this does not give 

employers carte blanche to make threats against union activity 

under the guise of innocent prognostication. NLRB v. Gissel 

Packing Co., 395 U.S. 575, 618 (1969). Instead, the 

employer’s comments must be “carefully phrased on the basis 

of objective fact to convey an employer’s belief as to 
15

demonstrably probable consequences[,]” and those 

consequences must be ones that are “beyond [the employer’s] 

control[.]” Id.; see also United Food & Com. Workers Union 

Loc. 204 v. NLRB, 506 F.3d 1078, 1081 (D.C. Cir. 2007) 

(Employer predictions of adverse consequences must “rest on 

objective facts outside the employer’s control[.]”); General 

Elec. Co. v. NLRB, 117 F.3d 627, 632 (D.C. Cir. 1997) (“We 

ask whether [the employer] based its predictions about the 

effect of unionization on objective facts about consequences 

beyond its control or whether its predictions were unrelated to 

economic necessity, thus amounting to [unlawful] threats of 

reprisal[.]”) (citations omitted)). 

Substantial evidence supported the Board’s decision that 

Laskaris’s words did not refer to adverse circumstances 

“outside the employer’s control[,]” United Food, 506 F.3d at 

1081, but instead implied that the dealership would make 

things worse for the mechanics after the strike. The record 

shows that Laskaris made the remark, without any 

qualification, after a union activist pressed his objection to a 

new workplace policy that required workers to pay part of the 

cost of their uniforms. Laskaris, in other words, chose to link 

the potential strike and its consequences to the discussion of an 

unpopular new employer-imposed policy. Naperville, 368 

N.L.R.B. No. 3, at 8; J.A. 143. By linking his authority over 

the new uniform policy and the economic cost it imposed on 

employees with the adverse consequences that would come 

after a strike, Laskaris crossed the line from the innocent 

expression of a viewpoint to a threat. Or so the Board 

reasonably concluded. Cf. United Food, 506 F.3d at 1084 (“[I]t 

is the Board’s duty, not ours, to focus on the question: What 

did the speaker intend and the listener understand?”) (internal 

quotation marks and citations omitted)). 
16

After all, the content and context of Laskaris’s comment 

must be read in light of “the economic dependence of the 

employees on their employers”—especially when, as here, 

labor negotiations are underway. Gissel Packing, 395 U.S. at 

617. Those circumstances made Bisbikis attuned to the 

“intended implications of the [employer] that might be more 

readily dismissed by a more disinterested ear.” Id. Keep in 

mind that “the line between prediction and threat is a thin one,” 

especially in the midst of difficult labor negotiations, “and in 

the field of labor relations that line is to be determined by 

context and the expertise of the Board.” Timsco Inc. v. NLRB, 

819 F.2d 1173, 1178 (D.C. Cir. 1987). 

Given that record, Naperville and the dissenting opinion 

err in insisting that Laskaris’s comment was too vague for the 

Board to find it a threat. See Pet. Br. 34–36; Dissenting Op. at 

1–5. In support, the dissenting opinion offers a list of 

statements deemed non-threatening, without any explanation 

of their surrounding context. Dissenting Op. at 2. To be sure, 

considered in a factual vacuum, the claim that “things would 

not be the same” post-strike might not necessarily be an 

unlawful threat. 

But here the law, like nature, abhors a vacuum. Contrary 

to the dissenting opinion’s approach, there is no list of 

acceptable and unacceptable statements. Labor law does not 

categorize statements as permissible or impermissible based 

just on which words were used. Instead, words draw their 

meaning from context, and that case-specific context lends 

strong support to the Board’s decision here. Specifically, 

Laskaris’s comment about things changing arose within a tense 

conversation between the employer and a union activist over a 

disputed new policy that Laskaris’s dealership had imposed, 

that Laskaris controlled, that economically burdened the 

workers, and that Laskaris insisted on continuing, all while 
17

labor negotiations were ongoing. See J.A. 197–199. And it 

was Laskaris who connected the discussion over an unpopular 

employer-set working condition with ongoing labor 

negotiations and the threat of a strike. In light of the 

contentiousness of the dispute over an employment policy 

entirely within the employer’s control and the course in which 

Laskaris took the discussion, the Board reasonably concluded 

that Laskaris was not predicting that a strike would improve 

conditions. Instead, by connecting the strike and a disfavored 

new policy that the dealership itself had imposed, the Board 

found as a matter of fact that Laskaris was implying that the 

employer could make conditions worse still. That hardly 

qualifies as “bland[,]” Dissenting Op. at 5. 

The dissenting opinion says that the fact that Laskaris, 

rather than Bisbikis, testified to the content and unpopularity of 

the new uniform policy makes this context less revealing. 

Dissenting Op. at 4–5. If anything, Laskaris’s testimony that 

the new policy was “big scuttlebutt” among the employees who 

“were all squawking” about it buttresses the Board’s 

conclusions. J.A. 197–198. 

The dissenting opinion then brushes off the notion that 

paying roughly $2 per work shirt could be a source of relevant 

upset. Dissenting Op. at 5. Suffice it to say that the workers 

whose paycheck got smaller time and again could reasonably 

look at the issue through a different economic lens. 

In other words, on this record, the Board’s finding that 

Laskaris’s statement amounted to a threat and not just a 

prediction of economic consequences beyond his control 

passes muster under our “highly deferential” and “tightly 

cabined” standard of review. Inova Health Sys. v. NLRB, 795 

F.3d 68, 73, 80 (D.C. Cir. 2015); see, e.g., Ebenezer Rail Car 

Servs., Inc., 333 N.L.R.B. 167, 167 n.2 (2001) (holding that 
18

supervisor’s statement to an employee that he would “regret 

this all year” was an unlawful threat when uttered 

“immediately after the announcement of the union election 

victory,” given “the context and timing of [the] statement”). 

The only question before us, after all, is whether the Board’s 

ruling “rest[s] upon reasonable inferences[.]” Tasty Baking, 

254 F.3d at 125. The Board’s decision here does, and so we 

cannot overturn it “simply because other reasonable inferences 

may also be drawn.” Id. 

The Board’s decision also comports with its own 

precedent. In Valmet, Inc. the Board held that an employer 

violated the law when he told an employee that, if a union were 

formed, they could no longer have one-on-one conversations, 

and then added “[r]emember that I hired you.” 367 N.L.R.B. 

No. 84, slip op. at 2 n.7 (Feb. 4, 2019). In the Board’s words, 

the employer’s warning that “things would change if the 

[u]nion came in,” combined with his assertion of employment 

authority, constituted a threat. Id. So too here the Board found 

a threat when Laskaris combined an assertion of authority—his 

rejection of employees’ request to rescind a newly adopted 

policy that hit them in their wallets—with a warning that things 

would change if the employees chose to strike. Naperville, 368 

N.L.R.B. No. 3, at 3. 

In so holding, we must decline the credit the dissenting 

opinion ascribes to us for the Board’s reasoning. Dissenting 

Op. at 4–6. It was the Board’s idea (correctly) to accord 

significance to the timing and setting of Laskaris’s statement 

as a response to the conversation “Bisbikis initiated * * * about 

employee concerns.” Naperville, 368 N.L.R.B. No. 3, at 3. 

The Board and the ALJ both found that Laskaris’s comment 

“did not communicate any objective facts or predictions as to 

the effects of a potential strike,” and under the circumstances 

could only be viewed as a threat. Id. (internal quotation marks 
19

omitted); see also id. (citing Valmet, Inc., 367 N.L.R.B. No. 84, 

slip op. at 2 n.7). The ALJ, whose findings the Board here 

adopted, repeatedly noted the context for Laskaris’s comment 

in explaining its conclusion that the statement was unlawful. 

Id. at 8, 17, 19–20 (“At this meeting, Laskaris rejected 

Bisbikis’ proposal [to rescind the new uniform policy] and 

warned him that if the mechanics went on strike, ‘things 

wouldn’t be the same.’”).2 

The dissenting opinion also argues that, because the 

Board’s decision places an instance of speech beyond the 

protection of the First Amendment, constitutional avoidance 

counsels in favor of setting aside the NLRB’s decision 

regarding Laskaris’s “things would not be the same” statement. 

Dissenting Op. at 5–6. That is incorrect for two reasons.

First, Naperville has never argued—to the administrative 

law judge, to the Board, or to this court—that finding 

Laskaris’s statement to be an unfair labor practice implicates 

the First Amendment in any way. At a minimum, 

constitutional avoidance disfavors judges raising constitutional 

questions that the parties have not. Doubly so under the 

National Labor Relations Act that statutorily precludes us 

“from considering an objection that has not been urged before 

the Board, ‘unless the failure or neglect to urge such objection 

shall be excused because of extraordinary circumstances[,]’” 

which are not present here. Detroit Edison Co. v. NLRB, 440 

2 The dissenting opinion adjures us to “make an independent 

examination of the whole record” in this case. Dissenting Op. at 5 

(quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). So the 

dissenting opinion inconsistently faults us for being both too 

independent in our consideration of the whole record and not 

independent enough. Compare Dissenting Op. at 4, 5–6 with

Dissenting Op. at 5. Our care to analyze whether the whole record 

substantiates the Board’s decision cannot be both wrong and right. 
20

U.S. 301, 311 n.10 (1979) (quoting 29 U.S.C. § 160(e)); see 

also Sims v. Apfel, 530 U.S. 103, 108 (2000); U-Haul Co. of 

Nevada, Inc. v. NLRB, 490 F.3d 957, 963 (D.C. Cir. 2007); cf. 

Polynesian Cultural Ctr., Inc. v. NLRB, 582 F.2d 467, 473 (9th 

Cir. 1978) (holding that raising First Amendment issue on 

judicial appeal was “too late” under 29 U.S.C. § 160(e)).

Second, under long-settled Supreme Court precedent, 

when an employer’s prediction that negative consequences will 

arise from union activity contains the “implication” that the 

employer may of its own accord contribute to those 

consequences, the statement constitutes “a threat of retaliation

* * * and as such [is] without the protection of the First 

Amendment.” Gissel Packing, 395 U.S. at 618. That is this 

case.

B

Section 8(a)(3) of the NLRA makes it an unfair labor 

practice to discriminate in employment to “discourage 

membership” in a union. 29 U.S.C. § 158(a)(3). Employers 

violate this provision if they take “an adverse employment 

action in order to discourage union activity.” Ark Las Vegas 

Rest. Corp. v. NLRB, 334 F.3d 99, 104 (D.C. Cir. 2003). But 

the Board has held that an employee can lose section 8(a)(3)’s

protection by confronting the employer in a sufficiently 

opprobrious manner. See Kiewit Power Constr. Co. v. NLRB, 

652 F.3d 22, 26 (D.C. Cir. 2011). Here, the Board found that 

Naperville violated section 8(a)(3) by firing Bisbikis. 

Naperville, 368 N.L.R.B. No. 3, at 2. Naperville counters that 

Bisbikis lost the protection of the NLRA by calling Laskaris a 

“stupid jack off” after Laskaris cursed at him in the 

confrontation immediately preceding his termination.

After briefing was complete, the NLRB asked us to 

remand on this issue for reconsideration in light of its 
21

intervening decision in General Motors. There, the Board held 

that mixed-motive terminations should be assessed under 

Wright Line rather than Atlantic Steel, 369 N.L.R.B. No. 127, 

slip op. at 1–2, and that this change should apply “retroactively 

to all pending cases,” id. at 10.

We have “broad discretion to grant or deny an agency’s 

motion to remand.” Util. Solid Waste Activities Grp. v. EPA, 

901 F.3d 414, 436 (D.C. Cir. 2018). An agency may obtain a 

remand without confessing error, so long as it genuinely 

intends “to reconsider, re-review or modify” its original 

decision. Limnia, Inc. v. Dep’t of Energy, 857 F.3d 379, 387 

(D.C. Cir. 2017). We consider whether the agency has 

provided a reasoned explanation for a remand, see Clean Wis.

v. EPA, 964 F.3d 1145, 1175–76 (D.C. Cir. 2020), whether its

motion is “frivolous or made in bad faith,” Util. Solid Waste, 

901 F.3d at 436, and whether granting the motion would 

“unduly prejudice the non-moving party,” id.

Here, the Board has offered a reasonable ground for 

remand—so that it may apply Wright Line in the first instance. 

In General Motors, the Board explained its view that Wright 

Line should govern cases like this one.

3

 In this case, the key 

question under Wright Line is whether Laskaris would have 

fired Bisbikis in the absence of his union activity. See Novato 

Healthcare, 916 F.3d at 1100–01. Because the Board did not 

address that question below, we remand for it to do so.

Other considerations also favor a remand. Naperville does 

not contend that the Board is acting in bad faith. Further, there 

3 General Motors reasoned that Atlantic Steel had produced 

inconsistent results and prevented employers from addressing 

genuinely abusive conduct, 369 N.L.R.B. No. 127, slip op. at 4–6

(July 21, 2020), and that the benefits of Wright Line warrant applying 

it retroactively, id. at 10–11.
22

is little reason to think that a remand would unduly prejudice 

Naperville. To the contrary, a remand would give the 

dealership an opportunity to argue why its discharge of 

Bisbikis was lawful, and to do so under a legal standard that 

the Board views as more favorable to employers. See Gen. 

Motors, 369 N.L.R.B. No. 127, at 5. A remand is also unlikely 

to burden Naperville with substantial litigation costs, as an ALJ 

has already found a violation under Wright Line, and 

Naperville has already briefed its opposition to that finding 

before the Board. See Naperville, 368 N.L.R.B. No. 3, at 19; 

Brief in Support of Exceptions at 11–13 (No. 13-CA-207245) 

(N.L.R.B. Aug. 31, 2018).

We thus remand for reconsideration on the question 

whether Naperville unlawfully discharged Bisbikis. In doing 

so, we take no position on whether the ALJ properly applied 

Wright Line or whether Naperville adequately preserved its 

objections before the Board.

C

Section 8(a)(5) of the NLRA makes it an unfair labor 

practice for an employer to “refuse to bargain collectively”

with a union. 29 U.S.C. § 158(a)(5). Collective bargaining 

means conferring “in good faith with respect to wages, hours, 

and other terms and conditions of employment.” Id. § 158(d). 

One mandatory subject of bargaining is union access to 

employees during work hours. Ernst Home Ctrs., Inc., 308 

N.L.R.B 848, 865 (1992). Employers cannot unilaterally 

change employment terms on such mandatory subjects without 

first “bargaining to impasse.” Litton Fin. Printing Div. v. 

NLRB, 501 U.S. 190, 198 (1991).

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

relevant times, granted the union access to the dealership to 
23

adjust complaints individually or collectively. Before the 

strike, Thomas had visited the dealership about once every six 

weeks. Soon after the strike, Naperville barred both Thomas 

and Cicinelli from its premises and required other union 

representatives to request access before visiting the dealership. 

By restricting the mechanics’ ability to communicate with the 

union, Naperville changed their terms and conditions of 

employment on a mandatory subject of bargaining. And it did 

so unilaterally, without any effort to bargain with the Union.

Naperville seeks to defend its conduct under Republic 

Aviation Corp. v. NLRB ̧ 324 U.S. 793 (1945). Although that 

case recognized conditions in which an employer could ban

union solicitation during working hours, id. at 803 & n.10, it 

never suggested that an employer could institute such a ban in 

the face of an operative bargaining agreement. We thus decline 

to set aside the Board’s finding that Naperville violated 

sections 8(a)(1) and 8(a)(5).4

IV

We remand the unlawful discharge claim for 

reconsideration, deny the petition for review in all other 

respects, and grant the Board’s cross-application for 

enforcement in all other respects.

So ordered.

4 Under our precedent, conduct that violates section 8(a)(5) also 

violates section 8(a)(1). S. Nuclear Operating Co. v. NLRB, 524 F.3d 

1350, 1356 n.6 (D.C. Cir. 2008).
KATSAS, Circuit Judge, concurring in part and dissenting

in part: The National Labor Relations Board held that Frank 

Laskaris, the owner and president of Cadillac of Naperville,

violated federal law by telling an employee that “things would 

not be the same” if Naperville employees went on strike. 

Cadillac of Naperville, Inc., 368 N.L.R.B. No. 3, slip op. at 3

(June 12, 2019). The Board further ordered Laskaris and the 

dealership to cease and desist from making similar statements 

in the future. Id. at 4. In my view, Laskaris’s statement was 

protected speech as opposed to an unlawful threat of retaliation.

Section 8(a)(1) of the National Labor Relations Act makes 

it an unfair labor practice for employers to “interfere with, 

restrain, or coerce employees in the exercise of the rights 

guaranteed” by the Act. 29 U.S.C. § 158(a)(1). But section 

8(c) qualifies section 8(a)(1) with regard to speech. It states 

that that the expression “of any views, argument, or opinion” is 

neither an unfair labor practice, nor even evidence of an unfair 

labor practice, “if such expression contains no threat of reprisal 

or force or promise of benefit.” Id. § 158(c). Section 8(c)

“protects speech by both unions and employers” and thus

“‘implements the First Amendment.’” Chamber of Commerce

v. Brown, 554 U.S. 60, 67 (2008) (quoting NLRB v. Gissel 

Packing Co., 395 U.S. 575, 617 (1969)). Moreover, section 

8(c) serves “to encourage free debate on issues dividing labor 

and management,” Linn v. United Plant Guard Workers, 383 

U.S. 53, 62 (1966), and “favor[s] uninhibited, robust, and wideopen debate in labor disputes,” Letter Carriers v. Austin, 418 

U.S. 264, 273 (1974).

Section 8(c) protects statements to the effect that union 

activity will harm employees by decreasing an employer’s 

competitiveness. In Crown Cork & Seal Co. v. NLRB, 36 F.3d 

1130 (D.C. Cir. 1994), we explained that an employer may “say 

how the company is likely to respond to a changed economic 

environment,” so long as its statements “imply no punitive or 

retaliatory purpose.” Id. at 1138. For example, section 8(c) 
2

protects speech “seeking to impugn” a union’s “record on job 

security.” Id. at 1133, 1140. It protects this statement: “We 

are against the Union because we know they can wreck the 

Company and reduce the number of jobs.” Id. at 1144 (quoting 

Laborers’ Dist. Council of Ga. v. NLRB, 501 F.2d 868, 872 

n.11 (D.C. Cir. 1974)). It protects this statement: “Unions do 

not work in restaurants .... If the Union exists at [the 

restaurant] Shenanigans, Shenanigans will fail. That is it in a 

nutshell.” Id. at 1145 (quoting NLRB v. Village IX, Inc., 723 

F.2d 1360, 1364 (7th Cir. 1983)). It also protects this one: 

“Please, don’t let this outside union force you and your 

Company into a knock-down and drag-out fight!” Flamingo 

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

1998) (cleaned up). And this one: “A vote for the union would 

put us back to the bargaining table which is a long and 

expensive process, and who knows, we might wind [up] in 

another strike.” Id. (cleaned up). Laskaris’s unelaborated 

remark that “things would not be the same” after a strike is akin 

to these remarks, but notably tamer.

The Board cited its precedents, though not ours, on the line 

between protected speech and unprotected threats of 

retaliation. Naperville, 368 N.L.R.B. No. 3, at 3. Yet even the 

Board has held that statements like Laskaris’s are “too vague 

and ambiguous” to constitute an unlawful threat. Phoenix 

Glove Co., 268 N.L.R.B. 680, 680 n.3 (1984). For example, in 

Phoenix Glove, the Board held that a supervisor could 

permissibly say “that the employees did not need a union and 

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

in Ben Franklin Division of City Products Corp., 251 N.L.R.B. 

1512 (1980), an employer stated that a union “‘would just mess 

up the employees worse,’” and the Board concluded that the 

statement was “entirely too vague and ambiguous” to constitute 

an unfair labor practice. Id. at 1519. In contrast, the cases cited

by the Board here involve facially threatening language. See 
3

Valmet, Inc., 367 N.L.R.B. No. 84, slip op. at 2 n.7 (Feb. 4, 

2019) (“Remember that I hired you.”); Colonial Parking, 363 

N.L.R.B. No. 90, slip op. at 4 (Jan. 5, 2016) (“Up until now you 

and we were like family members, living in peace, in good 

terms. From now on, we are not going to continue the 

sentiment of family-ship.”); Ozburn-Hessey Logistics, LLC, 

357 N.L.R.B. 1456, 1490 (2011) (employer “told an employee 

that he did not want the employee to work” in the department 

“because of the employee’s union activities” and “threatened 

her with an unspecified reprisal” if she disclosed the 

conversation); F.W. Woolworth Co., 310 N.L.R.B. 1197, 1200 

(1993) (“if they think that I’m a bitch now, wait”).

The Board further reasoned that Laskaris’s statement was 

unlawful because it did not “communicate any objective facts” 

about the likely effects of a strike. Naperville, 368 N.L.R.B. 

No. 3, at 3. This reasoning overreads a statement in Gissel 

Packing that when an employer predicts the “precise effects”

of union activity, the prediction must rest on “objective fact.” 

395 U.S. at 618. A “precise” assertion of fact, if unsupported, 

could perhaps be unfairly misleading. But that concern does 

not cover the kind of open-ended language at issue here. We 

have thus held that section 8(c) protects “speculat[ion]” about 

the possible negative outcomes of unionization. Flamingo 

Hilton-Laughlin, 148 F.3d at 1174. Moreover, Gissel Packing 

itself stressed that “an employer’s free speech right to 

communicate his views to his employees is firmly established 

and cannot be infringed by a union or the Board.” 395 U.S. at 

617. And because section 8(c) ensures “free debate on issues 

dividing labor and management,” Linn, 383 U.S. at 62, we

cannot leave unions “free to use the rhetoric of Mark Antony”

while limiting employers “to that of a Federal Reserve Board 

chairman,” Crown Cork & Seal Co., 36 F.3d at 1140.
4

Finally, the Board reasoned that because Laskaris made 

retaliatory threats three to four months after the statement at 

issue, the mechanics likely understood the earlier statement as 

“a foreshadowing of worse to come.” Naperville, 368 

N.L.R.B. No. 3, at 3. But the lawfulness of any given statement 

turns on whether it has a “reasonable tendency to coerce or to 

interfere with” protected activity. Tasty Baking Co. v. NLRB, 

254 F.3d 114, 124 (D.C. Cir. 2001). Here, there was no 

reasonable connection between the first statement and later 

ones, in time or subject matter. Laskaris’s June 2017 statement 

that “things would not be the same” did not reasonably 

foreshadow, say, his October 2017 threat to eat the kidney of a 

former striker. So the later statements cannot fairly be used to 

retroactively recharacterize the first one.

The administrative law judge reasoned that Laskaris’s

statement occurred “just before a strike.” Naperville, 368 

N.L.R.B. No. 3, at 17. That is a bit of an exaggeration; Laskaris 

made the statement on June 29, and the strike began on August 

1. But in any event, the timing of the statement reveals nothing 

about whether it was an unlawful threat of retaliation. And 

because section 8(c) protects “wide-open debate in labor 

disputes,” Letter Carriers, 418 U.S. at 273 (emphasis added), 

we cannot temper its application precisely when the disputes 

are becoming most acute.

My colleagues rest on a different theory. They contend 

that Laskaris’s statement was threatening because it “arose 

within a tense conversation” about an “unpopular” policy that 

“burdened the workers”—namely, the requirement that 

employees “pay a portion of uniform costs.” Ante at 15–16. 

Neither the Board nor the ALJ mentioned this consideration in 

their respective legal analyses. See Naperville, 368 N.L.R.B. 

No. 3, at 3 (Board); id. at 17 (ALJ). Nor did John Bisbikis, the 

employee to whom Laskaris spoke, even identify what the 
5

policy was, much less connect it to any actual or perceived 

threat. J.A. 143 (“I initiated the meeting to discuss some issues 

that I was having in the shop, and after we talked about those 

issues, he started the conversation by saying that if we went on 

strike, things wouldn’t be the same.”). The policy itself was 

mentioned only by Laskaris, and it involved a requirement that 

employees pay half the wholesale cost of their work T-shirts, 

which was “about $2 per shirt.” Id. at 197–98. In my 

judgment, that contextual consideration does not transform 

Laskaris’s bland and ambiguous “things would not be the 

same” statement into a threat.

Deference cannot salvage the Board’s decision. It is 

“firmly established” that the First Amendment, which section 

8(c) implements, protects an “employer’s free speech right to 

communicate his views to his employees.” Gissel Packing, 

395 U.S. at 617. Appellate courts must “make an independent 

examination of the whole record” in determining the scope of 

free speech protections. Snyder v. Phelps, 562 U.S. 443, 453 

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

Disciplinary Comm’n, 496 U.S. 91, 108 (1990) (plurality

opinion); id. at 111–17 (Marshall, J., concurring in the 

judgment); Bose Corp. v. Consumers Union, 466 U.S. 485, 508 

(1984). Moreover, statutes must be interpreted to avoid serious 

constitutional questions—a rule often applied to determine the 

interplay between the NLRA and the First Amendment. See, 

e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & 

Constr. Trades Council, 485 U.S. 568, 575–78 (1988); Bill 

Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 740–43 

(1983); NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 499–

507 (1979). So if it were a close question whether “things 

would not be the same” was an unlawful threat despite its 

vagueness, ambiguity, and anodyne tone, I would resolve the

question in favor of speech rather than against it. Finally, even 

if deference were otherwise appropriate, as my colleagues 
6

argue, we could not uphold the Board’s decision on a rationale 

different from the ones given by the agency itself. SEC v. 

Chenery Corp., 318 U.S. 80, 95 (1943).

For these reasons, I would set aside the NLRB’s 

determination that Laskaris committed an unfair labor practice 

in telling an employee that “things would not be the same” in 

the event of a strike. I agree with my colleagues that Laskaris’s 

later statements were unprotected threats and that Naperville’s 

other arguments lack merit. I therefore join the per curiam

opinion except for Part III.A.2, from which I respectfully 

dissent.