Like many NLRB administrative law judges, the judge here has done nothing outside of work for the NLRB. It is no surprise that he found a violation here and it will also be no surprise when he is overturned on appeal.

“Judge Brian D. Gee was appointed in May 2022. Prior to his appointment, he served as the Regional Attorney in the West Los Angeles office of the NLRB (Region 31) for 10 years. Judge Gee joined the Agency as a Field Attorney in Region 31 in 1996. During the first 12 years of his career with the Agency, he gained experience as one of the Region’s lead trial attorneys. He was promoted to Supervisory Attorney in March 2008, Deputy Regional Attorney in May 2010, and Regional Attorney in August 2012. A graduate of Vanderbilt University School of Law, Judge Gee earned his Juris Doctorate in 1995. He graduated from Occidental College in 1987, where he received a Bachelor of Arts degree in History.”

Edit: turning to the linked opinion, we can see how flawed the judge’s argument is based on his argument on 8 where his primary support for his position is a case where both the ALJ and the Board were overturned on appeal: Hendrickson USA, LLC , 366 NLRB No. 7 (2018), enforcement denied by the Sixth Circuit in 932 F.3d 465 (2019), in which the Board agreed with the administrative law judge’s (ALJ)finding that the respondent violated Section 8(a)(1) by saying, “the culture will definitely change,” “relationships will suffer,” and “flexibility is replacedby inefficiency.”

This is the most relevant portion of Hendrickson. You can decide whether or not Jassy’s statements are similar to this fact pattern.

In our view, the Board’s opinion on this issue is inconsistent with Tri-Cast , and therefore its application of the law to the facts of this case does not meet the substantial evidence standard. The statements singled out from the PowerPoint slide can only be reasonably understood as elaborating upon and summarizing the company’s position on the ineffectiveness of third-party representation, which was a lawful argument for the company to make. The first statement—"the culture will definitely change"—does not have negative connotations in isolation and can only take meaning from the surrounding statements. The statements that "relationships suffer" and "flexibility is replaced by inefficiency" are certainly negative, but context shows that they are protected predictions of the consequences of unionization. The slides at appendix 64 and 65 together show that the "loss of our direct employee relationship " (emphasis added) directly stems from the fact that the employees "lose the right to represent themselves." The comments at the August 21 meeting likewise tie interference in the employer-employee relationship to the union’s right to intervene: "we don’t want [a] third party to have to intervene, we want to talk directly to our employees." And the August 24 letter similarly emphasizes the company’s belief that "employees are entitled to represent themselves without third party interference ." (emphasis added). Taken together, these remarks show that the only reasonable way to interpret the brief statements at issue is that Hendrickson believes that a union’s formal right under Section 9(c) to intervene in the adjustment of grievances renders untenable the casual, efficient communication of the company’s "open door policy" and "easy-going atmosphere," and the slide at issue "simply explicates" that position "in layman’s terms." Tri-Cast, Inc. , 274 NLRB at 377.

Finally, the Board’s opinion erroneously suggests that Hendrickson had a duty to present both the pros and cons of union representation. The opinion faults the company’s presentation for suggesting that employees would have a more difficult time influencing their working conditions while "ignoring the fact that, although they may not be at the negotiating table, union members most often have a say in developing bargaining proposals concerning their wages and benefits and other working conditions." 366 NLRB No. 7, *9. But Hendrickson had the right to emphasize the negative aspects of the loss of "direct" relationship, as the Board found in the first portion of its opinion, and Supreme Court precedent does not require Hendrickson to provide the counterargument to its own argument. This language in the Board’s opinion is inconsistent with the NLRA’s policy of "uninhibited, robust, and wide-open debate in labor disputes," Chamber of Commerce , 554 U.S. at 68, 128 S.Ct. 2408, in which both sides may "express themselves on the merits of the dispute in order to influence its outcome," Va. State Bd. of Pharmacy , 425 U.S. at 762, 96 S.Ct. 1817 (citing Gissel , 395 U.S. at 617–18, 89 S.Ct. 1918 ). Therefore, the Board’s conclusion is not supported even by substantial evidence