NLRB v. Boch Imports Inc. , 826 F.3d 558 ( 2016 )

United States Court of Appeals
For the First Circuit
Nos. 15-1653, 15-1721
BOCH IMPORTS, INC., D/B/A BOCH HONDA,
Petitioner, Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent, Cross-Petitioner.
PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT
OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD
Before
Barron and Stahl, Circuit Judges,
and Sorokin,* District Judge.
Anthony D. Rizzotti, with whom Gregory A. Brown and Littler
Mendelson, P.C., were on brief, for petitioner.
Jared Cantor, with whom Kira Dellinger Vol, Supervisory
Attorney, Richard F. Griffin, Jr., General Counsel, Jennifer
Abruzzo, Deputy General Counsel, John H. Ferguson, Associate
General Counsel, and Linda Dreeben, Deputy Associate General
Counsel, were on brief, for respondent.
June 17, 2016
* Of the District of Massachusetts, sitting by designation.
BARRON, Circuit Judge. This case concerns cross-
petitions from an order that the National Labor Relations Board
("Board") issued in 2015. The Board ruled that a Massachusetts
car dealership was liable for unfair labor practices in two
respects. The Board concluded that the dealership was liable for
certain unlawful workplace policies because the dealership failed
to take the steps necessary to "repudiate" them, even though the
dealership had revised the policies to make them compliant with
federal labor law. The Board also concluded that the dealership's
ban on employees' wearing pins, insignia, and "message clothing"
in the workplace constituted an unfair labor practice even in the
ban's revised form.
In petitioning for review, the dealership principally
argues that the Board's findings are not supported by substantial
evidence and that the Board applied its precedents arbitrarily and
capriciously. The Board responds that it reasonably applied its
precedents to the facts that it supportably found, both with
respect to the steps that an employer must take to repudiate a
formerly unlawful workplace policy and with respect to the
circumstances that may justify the imposition of a dress ban as
sweeping as the one at issue here. The Board therefore requests
that we grant its petition for enforcement of its order.
We conclude that the Board's rulings are supported by
substantial evidence and by reasoning that is not arbitrary and
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capricious. We thus deny the dealership's petition for review and
grant the Board's petition for enforcement.
I.
This dispute concerns a Honda dealership located in
Norwood, Massachusetts. That dealership is operated by Boch
Imports, Inc., which does business as Boch Honda. For ease of
reference, we will refer to the petitioner simply as "Boch."
We start our review of the lengthy history of this case
with the response provoked by Boch's issuance of an employee
handbook in July 2010. Less than a year after the handbook's
publication, in 2011, the Boch employees' collective bargaining
representative -- the International Association of Machinists &
Aerospace Workers, District Lodge 15, Local Lodge 447 (the
"Union") -- asserted that some of the workplace policies contained
in that handbook infringed upon employees' right to organize in
violation of the National Labor Relations Act ("NLRA"). 29
U.S.C. § 151, et seq. [J.A. 1, 77-81]
Discussions between Boch and the Union over the possible
revision of those policies ensued. While those discussions
continued, the Union filed a formal charge against Boch with the
Board. That charge alleged that Boch maintained workplace rules
in its 2010 employee handbook that "interfere[d] with,
restrain[ed] or coerce[d] employees in the exercise of" their
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rights to organize under Section 7 of the NLRA, in violation of
Section 8(a)(1) of the NLRA.1 29 U.S.C. § 158(a)(1).
In September 2011, however, Boch's collective bargaining
unit decertified the Union. The discussions between Boch and the
Union thus came to an end. But Boch then began to discuss the
possible revision of the policies contained in the 2010 handbook
with the Board's regional office.
Prior to Boch's making any revisions, the Board, on
December 31, 2012, issued a formal complaint against Boch that
stemmed from the Union's charge. See id. § 160(b); 29 C.F.R.
§ 102.15. The Board's complaint alleged that certain portions of
the policies in Boch's 2010 employee handbook violated Section
8(a)(1) of the NLRA. For example, the complaint alleged that
Boch's 2010 social media policy impermissibly threatened employees
with disciplinary action if they engaged in conduct -- even when
off Boch's property and off the clock -- that could potentially
have a "negative effect on the Company." [J.A. 16, 209]
The Board's complaint identified the following policies
in the 2010 handbook as containing unlawful provisions: social
1 Section 7 of the NLRA provides:
"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 . . . ." 29 U.S.C. § 157.
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media, confidential and proprietary information, discourtesy,
inquiries concerning employees, solicitation and distribution, and
dress code and personal hygiene (the "2010 Policies"). [J.A. 2-
5] We note that the portion of the dress code and personal hygiene
policy that restricts the wearing of pins, insignias, and message
clothing figures particularly prominently in these cross-
petitions. We refer to that portion of the policy throughout as,
simply, the "dress ban."
In March 2013, before the Board had made any ruling on
the complaint, Boch issued a revised employee handbook that altered
the workplace policies that were the subject of the Board's
complaint. The 2013 handbook was certified as received by all of
the employees affected by the 2010 Policies. [J.A. 82-83]
Notwithstanding the publication of the revised handbook,
the Board issued an amended complaint against Boch on June 17,
2013. The amended complaint stated that Boch was liable for
violating Section 8(a)(1) of the NLRA by having "maintained," from
December 21, 2011 to about May 2013, specified portions of the
2010 Policies (the "2010 Policy Provisions"), and by maintaining,
from about May 2013 to present, a revised version of the 2010 dress
ban. [J.A. 15-16] The 2013 version of the dress ban provided:
"Employees who have contact with the public may not wear pins,
insignias, or other message clothing." [J.A. 251]
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The Administrative Law Judge ("ALJ") held a telephone
conference call with the parties regarding the amended complaint.
[Blue Br. 9] Boch argued on that call that the allegations in the
complaint concerning the 2010 Policy Provisions were moot in light
of the revisions Boch made to those provisions and Boch's
publication of the revised handbook in 2013. The ALJ agreed with
Boch that "it would not effectuate the policies of the [NLRA] to
spend time on" those no longer operative policy provisions. See
Boch Imports, Inc. v. NLRB ("Boch"), 362 NLRB No. 83, 2015 WL
1956199, at *8 (2015) (ALJ opinion appended to Board opinion).
The ALJ thus indicated that the parties should focus on the
lawfulness of the 2013 version of the dress ban.
At the hearing on the complaint, the General Counsel for
the Board stipulated that, with the exception of the 2013 dress
ban, the policies contained in Boch's 2013 employee handbook did
not violate Section 8(a)(1) of the NLRA. That is, the General
Counsel stipulated that, save for the dress ban, each of the 2010
Policy Provisions had been revised in a manner that made them
compliant with the NLRA.
Following the hearing, and after receipt of the parties'
briefs, in which the Board in its brief argued that Boch's revision
of the 2010 Policy Provisions did not render moot the issue of
Boch's liability for those provisions, the ALJ issued its ruling
on January 13, 2014. The ALJ explained that a "careful
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examination" of Board precedent "convince[d] [the ALJ] that [his]
initial impression [of the mootness of the 2010 Policy Provisions]
was incorrect." Id. The ALJ held that certain of the 2010 Policy
Provisions violated Section 8(a)(1) of the NLRA at the time they
were set forth in the 2010 handbook, insofar as employees would
"reasonably construe the language [in those provisions] to
prohibit Section 7 activity." Id.The ALJ further held, on the basis of the Board's
decision in Passavant Memorial Area Hospital ("Passavant"), 237
NLRB No. 21, 1978 WL 7798, (1978), that the publication of the
revised handbook in 2013 did not suffice to relieve Boch of
liability under the NLRA for the 2010 Policy Provisions because,
although Boch had revised them, Boch had failed to "repudiate"
them. Boch, 2015 WL 1956199, at *8. In particular, the ALJ found
that "[w]hile there has been an adequate publication [of the
revised provisions] to the affected employees, the dress code
provision remains as is in the handbook, and there have been no
assurances by [Boch] that, in the future, it will not interfere
with employees' Section 7 rights." Id.The ALJ then addressed the 2013 dress ban. The ALJ held
that Boch's interest in maintaining its public image did not
justify the imposition of a "blanket" ban on the wearing of pins,
insignias, and message clothing without regard to such factors as
size and message. Id. The ALJ held, however, that Boch's
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interests in promoting workplace safety and preventing damage to
vehicles did justify the imposition of a comprehensive ban on pins.
Id. Thus, the ALJ held that Boch violated Section 8(a)(1) of the
NLRA by maintaining, from about May 2013 onward, a ban on insignias
and message clothing. Id.The ALJ ordered Boch to rescind the non-compliant parts
of its 2013 dress ban. Id. The ALJ also ordered Boch to post a
notice at every Boch dealership and related retail business. Id.Such notice was to advise employees that they had certain rights
under Section 7 of the NLRA; that some of the policies in Boch's
2010 employee handbook interfered with those rights; that Boch had
since rescinded the unlawful policy provisions; that Boch would
rescind the portion of the 2013 dress code ban prohibiting the
wearing of insignias and message clothing; and that Boch would not
impinge on employees' Section 7 rights in any related manner in
the future. Id.Boch appealed to the Board, challenging its rulings as
to both repudiation and the 2013 dress ban. On April 30, 2015,
the Board issued its decision. The Board held that the language
of the 2010 Policy Provisions would be reasonably construed by
employees as impinging on their Section 7 rights.2 Id. at *1 &
2In its cross-exceptions to the ALJ's ruling, the Board
contended that the ALJ failed to make findings regarding the
legality of certain provisions of Boch's 2010 social media policy
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n.3. The Board also held that those provisions, though they had
been revised in a manner that the Board's General Counsel had
stipulated rendered them lawful (save for the dress ban), were not
repudiated within the meaning of Passavant and other Board
precedents. Id. The Board based that conclusion on, among other
things, its findings that Boch "neither notified its employees of
its unfair labor practices nor provided them assurances that it
would not interfere with their Sec. 7 rights in the future." Id.The Board therefore held Boch liable for having maintained the
2010 Policy Provisions until their revision in 2013. Id.The Board next turned to the 2013 dress ban. The Board
held that, for the reasons stated by the ALJ, Boch's interest in
maintaining its public image did not justify the ban. Id. at *2
& n.6. But the Board disagreed with the ALJ's ruling that Boch's
interests in promoting workplace safety and preventing damage to
vehicles justified the imposition of a ban on pins. Id. at *3 &
nn.7-8. The Board held that the ban on pins was not narrowly
tailored to address those concerns. Id.The Board then ordered Boch to issue a much more detailed
notice than the ALJ had required. See id. at *4-5. The Board
required Boch to issue a notice that included specific descriptions
that were referenced in the Board's amended complaint. On appeal,
the Board found merit in that contention and concluded that the
social media provisions were unlawful. Boch, 2015 WL 1956199, at
*1.
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of the policy provisions found to be unlawful, apprised employees
of their Section 7 rights, and assured employees against future
interference with such rights. Id. However, the Board required
that Boch post notices only at the "facility or facility it owns
or operates . . . , at which the rules found unlawful were or are
in effect" (i.e., the Norwood dealership). Id. at *4.
One Board member dissented. He concluded that Boch was
not liable for the 2010 Policy Provisions because, on his view,
Boch had done enough to repudiate those provisions. Id. at *6(Johnson, dissenting). He reasoned that "where there has been no
overt interference with Section 7 activity and an employer has
taken pains to fully comply with the Act through a line-by-line
revision of its handbook in cooperation with the Region and with
its approval, Passavant need not be applied with hyper-technical
precision." Id.The dissenting Board member also disagreed with the
Board regarding its ruling on the 2013 dress ban. He agreed that
the dress ban, save for the portion banning pins, was too broad to
be justified by the dealership's interest in maintaining its public
image. Id. But he concluded that Boch's ban on pins -- though
also not justified by Boch's interest in maintaining its public
image -- was justified by the dealership's interest in preventing
damage to vehicles. Id.- 10 -
We first consider Boch's challenge to the Board's ruling
as to repudiation. We then turn to Boch's challenge to the Board's
ruling as to the 2013 dress ban.
II.
We review the Board's decision for "mistakes of law,
lack of substantial evidence to support factual findings, and
arbitrary or capricious reasoning." The Edward S. Quirk Co., Inc.
v. NLRB, 241 F.3d 41, 42 (1st Cir. 2001); 29 U.S.C. § 160(e). We
accord the Board considerable deference, as "[w]e may not
substitute our judgment for the Board's when the choice is 'between
two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been before
it de novo.'" Yesterday's Children, Inc. v. NLRB, 115 F.3d 36, 44
(1st Cir. 1997) (quoting Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951)). Where the Board adopts the conclusions and
reasoning of the ALJ, we review the ALJ's reasoning as if it were
that of the Board. See McGaw of P.R., Inc. v. NLRB, 135 F.3d 1,
3 n.3 (1st Cir. 1997). Where the Board adopts the conclusions of
the ALJ but not the ALJ's reasoning, we review only the Board's
reasoning.
III.
In petitioning for review of the Board's repudiation
ruling, Boch does not challenge the Board's ruling that the 2010
Policy Provisions were unlawful when they were imposed. Boch
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contends instead that the Board erred in concluding that Boch took
insufficient steps to repudiate those provisions. We first
describe the legal framework for deciding what constitutes
repudiation and how the Board applied that framework to these
facts. We then explain why we conclude that, contrary to Boch's
contentions, the Board did not err in concluding that Boch failed
to repudiate.
A.
Longstanding Board precedent requires that in order for
an employer to be relieved of liability for a workplace policy
that constitutes an unfair labor practice, an employer must
repudiate that policy, even if the employer has since discontinued
that policy or revised it in a manner that makes it compliant with
the NLRA. See Passavant, 1978 WL 7798, at *2; Sequoyah Spinning
Mills, 194 NLRB No. 179, 1972 WL 4224, at *30 (1972); Pepsi-Cola
Bottling Co. of Sioux City ("Pepsi"), 170 NLRB No. 58, 1968 WL
18830, at *5 n.4 (1968); see also Lily Transp. Corp. & Robert
Suchar ("Lily"), 362 NLRB No. 54, 2015 WL 1439930, at *1, *3
(2015). The "fundamental remedial purpose" served by this
repudiation requirement is to protect employees from the potential
lingering effects of an unfair labor practice, even though that
practice has been halted. Webco Industries, Inc., 327 NLRB No.
47, 1998 WL 866665, at *2 (1998).
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Consistent with the repudiation requirement's underlying
purpose, the Board has made clear that the employer is obliged to
"signal[] unambiguously" to employees that the employer
"recognizes that it has acted wrongfully, that it respects their
Section 7 rights, and that it will not interfere with those rights
again." Id. Without these signals, "there is no assurance that
the coercive effects of the initial wrongful conduct will not
linger in the workplace." Id.The Board relied here on Passavant, in which the Board
explained that, to be effective, the employer's notice of
repudiation must be "adequate[ly] publi[shed]" to the affected
employees, must not be accompanied by the "proscribed conduct on
the employer's part after the publication," and "should give
assurances to employees that in the future their employer will not
interfere with the exercise of their Section 7 rights." Passavant,
1978 WL 7798, at *2 (citation omitted). Passavant also explained
that the notice of repudiation to employees "must be 'timely,'
'unambiguous,' 'specific in nature to the coercive conduct,' and
'free from other proscribed illegal conduct.'" Id. (quoting
Douglas Div., The Scott & Fetzer Co., 228 NLRB No. 124, 1977 WL
8482, at *15 (1977), enf. denied on other grounds by NLRB v.
Douglas Div., The Scott & Fetzer Co., 570 F.2d 742 (8th Cir.
1978)); see also Sequoyah Spinning Mills, 1972 WL 4224, at *1, *30
(noting, in concluding that notice of repudiation was ineffective,
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that the notice "fail[ed] to repudiate or even make any reference
to the coercive conduct" at issue); Pepsi, 1968 WL 18830, at *5
n.4 ("It is no defense to the 8(a)(1) violations that on April 25
[employer] posted a notice disavowing any unfair labor practices
it may have committed. This disavowal was
ineffective . . . because it was ambiguous in that it did not
specify the conduct to which it had [sic] reference.").
In this case, the Board concluded that Boch did not meet
its burden to show that it had effectively repudiated the 2010
Policy Provisions. See Lily, 2015 WL 1439930, at *3 (noting that
the employer bears the burden of demonstrating repudiation). The
Board based that conclusion on its findings that Boch "neither
notified its employees of its unfair labor practices nor provided
them assurances that it would not interfere with their Sec. 7
rights in the future."3 See Boch, 2015 WL 1956199, at *1 n.3.
Boch contends that the Board's repudiation ruling cannot
stand because its findings are not supported by substantial
3
The Board stated in its opinion that it agreed with the
ALJ's decision regarding repudiation, and the ALJ, as we have
noted, based that decision in part on its finding that Boch
continued to engage in proscribed conduct after the publication of
the 2013 handbook, in that the dress ban continued to be unlawful.
See Boch, 2015 WL 1956199, at *1, *8. Given the Board's
independent grounds for concluding that there was no repudiation,
we focus, as the parties do, on those other grounds for the Board's
repudiation ruling, without addressing whether Boch's maintenance
of the dress ban provides a separate basis for concluding that
Boch failed to repudiate the 2010 Policy Provisions, only one of
which involved a dress ban.
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evidence; because its conclusions of law rely on an arbitrary and
capricious application of the Board's repudiation precedents; and
because the Board's ruling in this case cannot be squared with the
Board's independently expressed policy in favor of remedying
unfair labor practices through cooperative means. We disagree as
to each contention.
B.
In challenging the evidentiary basis for the Board's
repudiation ruling, Boch takes aim at the Board's findings as to
Boch's failure to provide assurances to employees and as to Boch's
failure to notify employees about the unlawful nature of the 2010
Policy Provisions. Both Board findings, however, are supported by
substantial evidence.
First, as to assurances, Boch notes that the 2013
employee handbook did set forth certain guarantees to employees as
to how they would be treated. Those guarantees, however, do not
speak specifically to the Section 7 rights to organize that the
Board determined were infringed by the 2010 Policy Provisions.
The guarantees Boch points to instead concern protection of
employees from discrimination and harassment in the workplace and
Boch's commitment to promoting ethical conduct. The guarantees
make no reference to Section 7 or the rights guaranteed by the
NLRA at all. [Blue Br. 23, J.A. 223-24, 255] And, indeed, the
guarantees were not changed from the 2010 handbook to the 2013
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handbook to reflect Boch's liability for the 2010 Policy
Provisions. [J.A. 181, 186-88, 212] We thus do not see how Boch's
retention of the 2010 guarantees in the 2013 handbook shows that
the Board lacked substantial evidence for its finding that Boch
failed to assure its employees that it would not interfere with
the Section 7 rights implicated by the provisions set forth in the
2010 handbook that the Board found violated the NLRA.
As to notice of unlawful conduct, Boch notes that the
2010 Policy Provisions (save for the dress ban) were, as the
Board's General Counsel stipulated, revised to be compliant with
the NLRA and that the revised provisions were contained in the
2013 handbook that was distributed to all affected employees. But
the simple fact -- unchallenged by Boch -- is that Boch did nothing
more in terms of notification than to provide copies of the revised
handbook to employees. There is no evidence that Boch informed
employees that some of the policies contained in the 2010 handbook
were -- or even may have been -- unlawful, or even that parts of
those policies could be construed as impinging on employees'
Section 7 rights. Nor did the ALJ state otherwise in finding that
there had been an "adequate publication" of the 2013 handbook.
See id. at *8.
Thus, the Board's finding that Boch did not "notif[y]
its employees of its unfair labor practices" -- let alone provide
the sort of "unambiguous" and "specific" notice that Passavant
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requires -- is supported by substantial evidence. And that is
true even if we were to somehow construe the ALJ to have mistakenly
found that in "adequate[ly] publi[shing]" the 2013 handbook, Boch
actually did notify employees, albeit implicitly, of its unfair
labor practices. See C.E.K. Indus. Mech. Contractors, Inc. v.
NLRB, 921 F.2d 350, 355 (1st Cir. 1990) (noting that, where the
Board's findings conflict with those of the ALJ, we are to defer
to the Board's findings so long as they are supported by
substantial evidence).
Boch does also appear to argue that, notwithstanding the
Board's findings as to assurances and notification, the Board
lacked substantial evidence to support its conclusion that Boch
needed to do more than it did to repudiate the 2010 Policy
Provisions. But that argument is not a challenge to whether the
evidence in the record supports the Board's findings about the
limited nature of Boch's assurances and notification to employees.
That argument is instead a challenge to the Board's application to
these facts of prior Board precedents concerning what constitutes
repudiation. And so we consider that challenge in connection with
Boch's challenge to the Board's treatment of its own repudiation
precedents, which is the issue to which we now turn.4
4Boch contends that it was lulled by the ALJ into not
presenting evidence of repudiation. Boch thus requests that this
Court, at a minimum, remand to the Board so that Boch can have the
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C.
We start with Boch's apparent contention that the
repudiation requirement that generally applies to unfair labor
practices does not apply -- or does not apply with the same
vigor -- to the practices at issue here. But Boch provides us
with no basis for reaching that conclusion.
Board precedent is clear that an employer may violate
Section 8(a)(1) of the NLRA through the promulgation of a workplace
policy that either explicitly or implicitly restricts employees'
Section 7 rights. See Guardsmark, LLC v. NLRB, 475 F.3d 369, 374
(D.C. Cir. 2007) (citing Martin Luther Memorial Home, 343 NLRB No.
opportunity to develop the record and so the Board can make fact
findings regarding repudiation on the basis of a more developed
record. [Blue Br. 23 n.3] But Boch did not make that lulling
argument to the Board on appeal from the ALJ's ruling. Nor did
Boch request that the Board remand to the ALJ for greater
development of the record regarding repudiation. [Gray Br. 11
n.6; Red Br. Add. 11-14] Accordingly, Boch's never-before-raised
argument about its right to further factual development is not
properly before us. See 29 U.S.C. § 160(e); NLRB v. Saint-Gobain
Abrasives, Inc., 426 F.3d 455, 459 (1st Cir. 2005). Moreover, we
note that, prior to the ALJ's ruling, the Board stated in its brief
to the ALJ that the "mere discontinuance of alleged unfair labor
practices does not render [a] case moot" absent "dissipati[on]
[of] the effects of [such] practices and preventi[on] [of] the
recurrence of similar unlawful conduct in the future," and yet
Boch does not appear to have addressed that contention. Thus,
given that Boch chose not to give either the ALJ or the Board a
chance to consider the lulling issue in the first instance, we see
no basis on this record for concluding on our own that Boch's
lulling contention has any merit. [Board Br. to ALJ 29] Nor do
we see any basis in the record for the dissent's speculative
assertions about what must have transpired below. See infra at
40, 42 n.16, 43.
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75, 2004 WL 2678632, at *1-2 (2004)). Board precedent is equally
clear that a workplace policy implicitly restricts employees'
Section 7 rights if -- as the Board found here -- employees would
reasonably construe the policy as restricting such rights, even if
that policy need not be so construed and even if that policy was
neither intended to be applied nor in fact applied in an
impermissibly restrictive fashion. Id.5 And, finally, Board
precedent is clear that the requirement of repudiation applies to
violations of just this implicit type. See Lily, 2015 WL 1439930,
at *1, *3.
Although Boch asserts that employees would derive no
benefit from Boch's "notifying [them] that [they] could have
construed defunct policies to restrict their Section 7 rights,"
the Board's application of Passavant and related Board precedent
to these facts was not arbitrary and capricious. Such application
was instead perfectly in accord with these precedents. Nor does
Boch contend that these precedents were founded on arbitrary and
5 The dissent states that, in determining whether Boch
employees "would reasonably construe" the 2010 Policy Provisions
as impinging on their Section 7 rights, the ALJ "inexplicably
abandoned the proper legal standard in the process of attempting
to apply it," infra at 45, because, with respect to 2 of the 15
challenged provisions, the ALJ purportedly focused on whether
employees "could" -- rather than "would" -- construe the provisions
to be unlawful. We have no reason to resolve the issue, as this
argument is neither one Boch itself made below nor one Boch makes
in its petition to this Court. [Red Add. (Cross-Exceptions); A.R.
41-43]
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capricious reasoning -- that is to say, Boch makes no developed
argument that the benefits employees derive from repudiation
generally would not also apply here.6 The Board's ruling thus
certainly falls within the not inconsiderable realm of reasonable
discretion that an agency possesses to determine how to apply its
own past precedents. See Harrington v. Chao, 372 F.3d 52, 58 (1st
Cir. 2004) (observing that only a "narrow band of administrative
determinations . . . fail the deferential arbitrary and capricious
test").
Boch next contends, somewhat relatedly, that the Board
acted unreasonably in relying on Lily and Lytton Rancheria of
California d/b/a Casino San Pablo & Unite Here Local 2850 ("Casino
San Pablo"), 361 NLRB No. 148, 2014 WL 7330998 (2014). In each
case, the Board concluded that an employer's removal of unlawful
policies from its employee handbook, without more, did not suffice
to relieve the employer of liability for those policies. Lily,
2015 WL 1439930, at *1, *3; Casino San Pablo, 2014 WL 7330998, at
*6.
Boch contends neither case applies here given the
history of cooperation between Boch and the Board. But the Board
reasonably concluded otherwise. Lily and Casino San Pablo each
6With regard to Lily in particular, Boch simply notes, in
its reply brief, that no Court of Appeals has reviewed the case or
cited it positively. But that is not a sound argument for
concluding that the reasoning in Lily was arbitrary and capricious.
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drew on Passavant and focused on the steps the employer took (or
did not take) to disavow its prior unlawful policies. See Lily,
2015 WL 1439930, at *1, *3; Casino San Pablo, 2014 WL 7330998, at
*6. Neither case indicated that the employer's cooperation or
non-cooperation with the Board in excising the unlawful workplace
policies from the employee handbook mattered in determining
whether the employer had done enough to repudiate those policies.
We also find no merit in Boch's contention that the Board
acted unreasonably in failing to give weight to two Board cases in
which the Board found there was effective repudiation --
Extendicare Health Services, Inc. d/b/a Rivers Bend Health & Rehab.
Serv. & Amer. Fed'n of State, Cnty., and Mun. Emps., AFL-CIO, Local
913 ("Rivers Bend"), 350 NLRB No. 16, 2007 WL 1946628 (2007), and
The Broyhill Co. & District No. 162, Int'l Ass'n of Machinists &
Aerospace Workers, AFL-CIO ("Broyhill"), 260 NLRB No. 183, 1982 WL
24367 (1982). Instead, we conclude that the Board reasonably
distinguished each of those cases on their facts. See Boch, 2015
WL 1956199, at *1 n.3.
In Rivers Bend, the Board stated that "the Passavant
decision indicates that what an employer must do to [repudiate] a
violation may depend on the nature of the violation." 2007 WL
1946628, at *2, *18. The Board in that case concluded that the
employer repudiated an unfair labor practice involving an
unbargained-for increase in meal prices. Id. There, the employer
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notified employees that the price increase was "not legal," that
it was abandoning the increase, and that it would compensate
employees for the increase. Id.The conclusion in Rivers Bend that such notice was
sufficient to constitute effective repudiation in view of the
"relatively minor importance" of the unfair labor practice, id.,does not help Boch. As the Board supportably found, Boch did less
than the employer did in Rivers Bend, as Boch provided no notice
of its prior unlawful conduct to employees.
Similarly, in Broyhill, the Board concluded that an
employer "did all that it reasonably could do to disavow the
unlawful conduct" by notifying employees that a supervisor of the
company "may have acted in an improper manner" and by assuring
employees that it would not again engage in the sort of restrictive
activity engaged in by the supervisor. Broyhill, 1982 WL 24367,
at *2, *8-9, *11. But, as the Board supportably found, Boch did
less than the employer in that case, too, as Boch neither "notified
its employees of its unfair labor practices nor provided them
assurances that it would not interfere with their Sec. 7 rights in
the future." See Boch, 2015 WL 1956199, at *1 n.3.
In sum, the Board drew reasonable distinctions with past
Board precedents finding repudiation, and the Board reasonably
found Board precedents finding no repudiation to be on point. We
thus conclude, contrary to Boch's contentions, that the Board acted
- 22 -
well within its discretion in applying its repudiation precedents.
See Jicarilla Apache Nation v. U.S. Dep't of Interior, 613 F.3d
1112, 1120 (D.C. Cir. 2010) (noting that agency actions may "stand
without elaborate explanation where distinctions between the case
under review and the asserted precedent are so plain that no
inconsistency appears").
D.
That brings us to Boch's contention that the Board's
repudiation ruling is arbitrary and capricious for the additional
reason that it supposedly conflicts with the Board's previously
stated policy in favor of encouraging the remedying of unfair labor
practices without litigation. We do not agree.
The Board has emphasized that it is important to elicit
employers' voluntary cooperation, as such cooperation helps to
effectuate the goals of the NLRA expeditiously. See, e.g.,
Broyhill, 1982 WL 24367, at *2. And, in this case, Boch did work
with the Board in conducting a "line-by-line" revision of its 2010
handbook, Boch, 2015 WL 1956199, at *6 (Johnson, dissenting), with
the result that the Board stipulated to the lawfulness of the
revised policy provisions (save for the dress ban).
Nevertheless, Boch clearly did not reach an agreement
with the Board that encompassed whether Boch had repudiated the
2010 Policy Provisions. The Board thus reasonably concluded that
Boch's cooperation with the Board in revising its employee handbook
- 23 -
is simply not germane to the determination of whether Boch is
liable for those provisions insofar as Boch failed to repudiate
them. In other words, the fact that Boch cooperated with the Board
in revising the 2010 Policy Provisions is essentially a non
sequitur, as Boch did not cooperate on the issue that matters,
which involves providing adequate notice and assurances to
employees. See Boch, 2015 WL 1956199, at *1 n.3 ("[W]e value
cooperation to revise problematic rules and prompt remedying of
unfair labor practices. But merely revising the unlawful rules
does not remedy the unfair labor practices at issue, absent notice
to the affected employees that the violations occurred and that
they will not be repeated."). And, as we have explained, Board
precedent supports that conclusion. See Lily, 2015 WL 1439930, at
*1, *3; Casino San Pablo, 2014 WL 7330998, at *6.
IV.
We now turn to Boch's challenge to the Board's ruling
that Boch's 2013 dress ban -- which prohibits "employees who have
contact with the public" from wearing "pins, insignias, or other
message clothing" -- violates Section 8(a)(1) of the NLRA. We
first describe the Board's key precedents in this area. We then
address Boch's challenge to the Board's application of its own
precedents to these facts.
- 24 -
A.
The Board has made clear that employees are
"presumptively entitled under Section 7 to wear union insignia and
other attire during" work hours. Pathmark Stores, Inc. & Local
342-50, United Food and Commercial Workers Union, AFL-CIO
("Pathmark"), 342 NLRB No. 31, 2004 WL 1531761, at *2 (2004).7 But
7 The dissent questions whether it is correct to apply such a
presumption to dress rules without regard to whether the rules are
tailored to working time and working areas. See infra at 48-56.
In so doing, the dissent notes that the Board applies a different
set of presumptions to rules prohibiting union solicitation and
distribution. In that distinct context, the Board has developed a
set of legal rules in which restrictions on solicitation and
distribution are deemed presumptively lawful unless the
restrictions proscribe solicitation during nonworking time or
proscribe distribution during nonworking time in nonworking areas,
in which case the restrictions are deemed presumptively unlawful.
Beth Israel Hosp. v. NLRB, 437 U.S. 483, 492-93 (1978). But we do
not see why -- and the dissent does not explain why -- it
necessarily would be unreasonable for the Board to apply a
different set of presumptions to dress rules than it would apply
to solicitation and distribution rules, given the differential
nature of the employee activity each type of rule addresses.
Active solicitation and distribution diverts employee time, while
the passive wearing of clothes and accessories obviously does not.
And the inherently intrusive nature of the former activities
distinguishes them from the latter as well. Thus, given that an
employer has a particularly legitimate interest in preventing
employees from spending their work time on non-work-activities,
the basis for treating solicitation and distribution differently
is not hard to identify. See Republic Aviation Corp. v. NLRB, 324
U.S. 793, 802-03 & nn.7, 10 (1945) (implicitly contrasting these
two contexts). To the extent the dissent suggests that dress rules
should be deemed presumptively lawful only when confined to public
areas, we note that the 2013 dress ban is not tailored to public
areas such as the showroom or selling floor. In any event, Boch
does not challenge this aspect of the Board's ruling, and so we
have no reason to call into question, without proper briefing, the
presumption that the Board employed and that Boch accepts. See
- 25 -
the Board has also made clear that an employer may limit that
activity, as Boch did with the 2013 dress ban, if the employer
shows that there are "special circumstances" that justify the
limitations imposed. Id.Special circumstances exist, according to the Board,
"when the[] display [of union attire] may jeopardize employee
safety, damage machinery or products, . . . or unreasonably
interfere with a public image that the employee has established,"
among other things. Starwood Hotels & Resorts Worldwide, Inc.,
d/b/a W San Diego and Hotel, Employees and Restaurant Employees
Int'l Union, Local 30, CLC ("Starwood"), 348 NLRB No. 24, 2006 WL
2826434, at *3 (2006). Limitations on union attire, however,
generally must be tailored to advance the special circumstance,
and the burden is on the employer to establish both that special
circumstances exist and that those circumstances justify the
breadth of the limitations imposed. See id. at *3-4.
We note at the outset that different considerations may
apply when employers proscribe all adornments, including union
adornments, than would apply when employers proscribe only certain
types of adornments (for example, "provocative" adornments), which
Beth Israel, 437 U.S. at 493. Nor do we think it proper to take
the Board to task, as the dissent appears to do, for failing to
provide a sufficient justification for a presumption that the
employer in this case has not seen fit to challenge. Infra at 55
n.20.
- 26 -
may, on a case-by-case basis, include union adornments. Compare
NLRB v. Harrah's Club, 337 F.2d 177, 178 n.2, 180 (9th Cir. 1964)
(all-encompassing ban), with Davison-Paxon Co., Div. of R.H. Macy
& Co. v. NLRB, 462 F.2d 364, 368 n.11 (5th Cir. 1972) (limited ban
on "anything that might offend or be controversial to a customer").
The 2013 dress ban is of the former variety, and we analyze the
ban with that understanding in mind.
B.
In challenging the Board's ruling, Boch appears to ask
for a blanket seal of approval for its blanket dress ban.8 To that
end, Boch first contends that the record shows that it reasonably
believed that the 2013 dress ban would further its interest in
promoting its public image and that the Board had no basis for
requiring Boch to show anything more. But, in pressing this
contention, Boch relies chiefly on a single D.C. Circuit case that
considered whether an employer was justified in preventing public-
facing employees from wearing a particular piece of attire with a
particular message -- there, a t-shirt likening employees to
8 Boch notes that it provided evidence of "specific examples
of message clothing that would interfere with [its public] image,"
but Boch does so in the context of arguing that the Board should
have concluded that Boch demonstrated special circumstances that
suffice to justify the 2013 dress ban in its entirety. [Blue Br.
29] Boch thus appears to ask that we vacate the Board's order on
the ground that Boch has shown that the 2013 dress ban is lawful
in all its applications. Boch makes no argument that the Board's
remedy, requiring Boch to rescind the entire 2013 dress ban, is
unduly broad.
- 27 -
prisoners. See So. New England Tel. Co. v. NLRB ("New England"),
793 F.3d 93, 96-97 (D.C. Cir. 2015) (invoking t-shirt's
"straightforward" message and employer's consequently reasonable
belief as to the impact of that message on customer relations).
This case, by contrast, concerns a Board judgment about the
propriety of an employer's general ban on pins, insignias, and
message clothing.9
Nor do we find persuasive Boch's contention that it is
no different from the employer in Starwood and thus that the Board
was required by Starwood to rule other than it did. In Starwood,
the Board found that a hotel employer demonstrated special
circumstances to justify the employer's specific enforcement of
its general ban on uniform adornments, which meant that the
employer could lawfully prevent its uniformed employees from
wearing a particular union button in public areas. See Starwood,
9The other cases Boch cites in connection with its contention
that Boch's interest in its public image justifies the dress ban
are similarly distinguishable. See Medco Health Solutions of Las
Vegas, Inc. v. NLRB, 701 F.3d 710, 717-18 (D.C. Cir. 2012)
(concluding that employer satisfied its burden of establishing
special circumstances to justify ban on particular t-shirt mocking
company program); Pathmark, 2004 WL 1531761, at *3 (concluding
that employer satisfied burden of establishing special
circumstances to justify ban on attire bearing particular union
logo, where logo "reasonably threatened" customer relationships by
giving customers the impression that they were being cheated); In
re Bell-Atlantic-Pennsylvania, Inc., 339 NLRB No. 1084, 2003 WL
22012216, at *5 (2003) (concluding that employer satisfied burden
of establishing special circumstances to justify ban on particular
t-shirt "depicting employees as squashed and lying in a pool of
blood").
- 28 -
2006 WL 2826434, at *2-4. But, in so ruling, the Board did not
simply conclude that the employer's general dress ban was lawful
in all its applications, including the one at issue, because its
imposition would advance (however marginally) the employer's
interest in promoting its public image. See Starwood, 2006 WL
2826434, at *2-4; see also Nordstrom, 1982 WL 23740, at *6-7. The
Board instead examined whether the restriction at issue was
tailored to the employer's particular interest in promoting its
public image. See Starwood, 2006 WL 2826434, at *2-4 (concluding
that uniformed employee's wearing of a particular union button in
public areas "would have interfered with [hotel]'s use of a
particular . . . uniform (professionally-designed all-black shirt,
slacks, and apron) to create a special atmosphere for hotel
customers"); see also Nordstrom, 264 NLRB No. 95, 1982 WL 23740,
at *6-7 (1982) (concluding that fashion company, which generally
prohibited employees from wearing unfashionable dress, could not
prohibit the wearing of a particular union button, as the button
at issue was "not of a size and intrusiveness which unreasonably
interferes" with the company's "long cultivated image of fashion"
(emphasis added)).
This discerning approach accords with the Board's
charge, which is to strike a balance between the employer's
legitimate business interests and the statutorily protected
workplace rights to organize. See Beth Israel Hosp. v. NLRB, 437
- 29 -
U.S. 483, 504 (1978) (noting that "it is the Board upon whom the
duty falls in the first instance to determine the relative strength
of the conflicting interests [of employers and employees] and to
balance their weight"). The Board thus may reasonably choose to
require employers to show why a dress rule is tailored to stamp
out those aspects of employee dress that would "unreasonably
interfere" with the employer's public image. Starwood, 2006 WL
2826434, at *3 (emphasis added).
Against that backdrop, the Board distinguished Starwood
by explaining that the employer in that case provided evidence
"demonstrat[ing] that its strict uniform policy was intended to
create a specific and unique environment," while Boch provided no
"comparable" evidence. Boch, 2015 WL 1956199, at *2 n.6 (emphasis
added).10 And the record backs up the Board's conclusion regarding
the comparative weakness of Boch's showing.
In Starwood, the employer prohibited uniformed employees
from wearing any adornments on their uniforms, "including
10The Board did also indicate that Starwood was
distinguishable from the present case for the reason that Boch's
attire was not unique in the dealership-specific sense (as opposed
to in the company-specific sense), but we do not read the Board's
decision to depend on that distinction, given the Board's
independent grounds for rejecting Boch's reliance on Starwood.
See Boch, 2015 WL 1956199, at *2 n.6 (noting, in the context of
describing the "narrow factual circumstances" that the Board found
to justify the result in Starwood, that the employer in Starwood,
unlike Boch, adhered to a "strict" uniform policy and "intended to
create a specific and unique environment").
- 30 -
sweatbands, scarves worn as belts, and professional association
pins," except for a small, company pin that they were required to
wear. Starwood, 2006 WL 2826434, at *2. And the employer in
Starwood sought thereby to "provid[e] an alternate hotel
experience" and to cultivate a unique, fantasy-like ambiance. Id.By contrast, the Board supportably found that the 2013
dress ban -- unlike the dress ban involved in Starwood, 2006 WL
2826434, at *2-4 -- applies both to employees who are required to
wear uniforms (service advisors, service technicians) and to
employees who are not required to wear uniforms (salespeople,
finance and administrative staff).11 The Board also supportably
found that Boch did not provide evidence that its dress code "was
intended to create a specific and unique environment," as Boch's
aim was to cultivate a general, professional environment. Boch,
2015 WL 1956199, at *2 n.6, *3. In other words, the Board
reasonably found that Boch was not comparable to the employer in
Starwood because Boch was generally promoting professionalism and
not something more distinctive and because Boch was willing to
tolerate a fair amount more variation in dress as to the employees
to whom the ban applies.
11
Boch does not challenge the Board's finding that the dress
ban applies to finance and administrative staff. And these
personnel are required only "to dress in a manner consistent with
their level of responsibility and/or public contact" (that is, to
wear business casual attire). [J.A. 250]
- 31 -
In light of these findings, the Board acted neither
arbitrarily nor capriciously -- much less in defiance of "common
sense," as the dissent suggests, infra at 69 -- in holding that
Starwood did not control the outcome here. As the Board reasonably
concluded, Boch simply failed to explain why the additional
increment of variation that might arise from non-uniformed
employees' wearing a small and unobtrusive union pin (for example)
would unreasonably interfere with the general professional
environment Boch sought to create. See Beth Israel, 437 U.S. at
504 ("The Board [i]s, of course, free to draw an inference from
the[] facts in light of its experience, the validity of which
'depends upon the rationality between what is proved and what is
inferred.'") (quoting Republic Aviation Corp. v. NLRB, 324 U.S.
793, 805 (1945)); see also Nordstrom, Inc., 1982 WL 23740, at *4
(noting as significant in cases of this nature "[t]he requirement
of uniformity of dress and concomitant severe restriction on
employee display of other personal adornment[s]" (emphasis
added)).12
12
The same reasoning explains why we do not find persuasive
Boch's reliance on the Sixth Circuit's decision in Burger King Co.
v. NLRB, 725 F.2d 1053 (6th Cir. 1984). There, too, the employer
appeared to have imposed an all-encompassing dress ban only on
employees who were subject to a strict uniform policy as opposed
to on employees who were subject only to a basic dress code. Id.
at 1054-55. We note, in any event, that Burger King has since
been called into doubt by the very circuit that promulgated that
decision. Meijer, Inc. v. NLRB, 130 F.3d 1209, 1215 (6th Cir.
- 32 -
In challenging that ruling, Boch makes no argument about
why, in light of the workplace rights that employees presumptively
enjoy, the Board's distinction between the facts of this case and
those of Starwood is an unreasonable one to draw. After all, it
stands to reason that the more distinctive the public image the
employer seeks to cultivate, and the less variation in dress the
employer permits in promoting that image, the more likely any
deviation in employee dress will unreasonably interfere with the
employer's promotion of that image. But, rather than explain why
the distinguishing facts on which the Board relied are not relevant
ones, Boch simply asserts, in conclusory fashion, that it is just
like the employer in Starwood. Boch thus provides no basis for
overturning the Board's ruling.13
1997) (noting that "not a single relevant opinion from our Circuit,
subsequent to Burger King, has adopted that case's per se approach
to [the special circumstances inquiry]"). NLRB v. Harrah's Club,
which Boch also cites, is similarly distinguishable. See 337 F.2d
at 178 n.2, 180 (noting that company was permitted to prohibit
public-facing, uniformed employees from wearing adornments).
13 The dissent does attempt to do what Boch does not, by
offering a variety of arguments about why the Board's differential
treatment of Boch and the employer in Starwood is insufficiently
respectful of Boch's legitimate business interests. But, in doing
so, the dissent appears to give no weight to the competing concern
that, absent such differential treatment, bans on protected
activity that do not actually serve an employer's claimed
legitimate business interests would be imposed. And since the
Board is, in general, charged with bringing its expertise to bear
on just such tradeoffs in workplace matters, we see no reason to
address these newly presented arguments about how to make such
tradeoffs, when Boch never presented them to the Board and when
Boch failed to set forth those arguments in its petition to us.
- 33 -
To be sure, as Boch notes, Boch neither promulgated its
dress ban in response to union activity nor enforced its dress ban
in a discriminatory manner. [Blue Br. 28] But while the presence
of these circumstances may constitute grounds for invalidating a
dress ban, see Pay'n Save Corp. v. NLRB, 641 F.2d 697, 701 (9th
Cir. 1981), it does not necessarily follow that the absence of
these circumstances constitutes a ground for upholding a dress ban
of this breadth. And Boch has not directed our attention to any
Board precedent that supports such a proposition. Thus, the fact
that Boch did not promulgate the dress ban in response to union
activity and the fact that Boch has not enforced the ban in a
discriminatory manner are not themselves facts that require the
Board to uphold a ban of this breadth.
C.
In sum, Boch does not explain why the facts on which the
Board relied to distinguish this case from Starwood supply an
arbitrary basis for the Board's ruling. See infra at 63-70. Nor
has Boch directed our attention to any precedent in which the
Board -- or any Circuit Court -- has held that an employer's
general public image warrants the imposition of a dress ban of
this breadth on non-uniformed employees. We thus cannot say the
Board acted unreasonably in concluding that, in accordance with
Board precedent, Boch failed to demonstrate special circumstances
that suffice to justify this dress ban.
- 34 -
D.
That brings us to Boch's final contention: that its
interests in promoting workplace safety and preventing damage to
vehicles justified its outright ban on pins. The Board, departing
from the ALJ, concluded that the ban on pins was not "narrowly
tailored" to address those concerns because the ban applied to
"employees who have contact with the public, regardless of whether
they come into contact with [Boch's] vehicles," "no evidence
support[ed] actual safety concerns related to pins worn by public
facing employees," and "image . . . was [Boch's] justification for
the entire [2013 dress ban], including its ban on pins." Boch,
2015 WL 1956199, at *3. But here, too, we see no basis for
rejecting the Board's ruling.
During the administrative proceedings, Boch expressed
concern that an employee's pin could fall into an engine (assuming
the employee is working under the hood of a car) and that an
employee's pin could inadvertently damage the leather inside of a
car or scratch the car's paint. [J.A. 115-17, 136, 139, 149, 159-
60] In that connection, Boch rightly notes that the absence of
evidence that a risk has materialized does not necessarily mean
that the risk is not a real one.
But the Board's ruling does not rest either on a
rejection of the notion that cars and pins might not mix or an
acceptance of the notion that an employer must show actual harm
- 35 -
from a risk to justify a measure designed to mitigate that risk.
Rather, the Board came to the more limited, and adequately
supported, conclusion that Boch's ban on pins was not narrowly
tailored to address the safety and damage risks that Boch itself
identified, insofar as the ban was neither crafted narrowly to
target, nor was intended to target, Boch's claimed interests in
workplace safety and preventing damage to vehicles.
The Board found that the 2013 dress ban "applies to
employees who do not typically have contact with vehicles (e.g.,
finance and administrative personnel)." The Board also found that
the ban applies to employees "during their performance of tasks
that do not require vehicle contact." Id. Boch does not squarely
challenge these findings. Rather, Boch contends that the record
does not preclude the possibility that such persons may in fact
interact with vehicles in a way that would raise safety and damage
concerns. But the burden was on Boch to prove that special
circumstances justified the scope of the ban, and it was thus
incumbent on Boch to explain why a ban that applied as broadly as
the Board found this one to apply was warranted.
For that reason, the key fact about the record is that
it does not contain evidence that makes unreasonable the Board's
conclusion that a more tailored restriction on pins -- either with
respect to the employees subject to the restriction, the times
when the restriction would apply, or both -- would have adequately
- 36 -
served Boch's claimed interests in safety and damage prevention.
In fact, consistent with the Board's conclusion that Boch had not
met its burden of showing that the ban was adequately tailored to
the interests Boch claimed that the ban served, the Board
supportably found that the safety and damage prevention rationales
for the sweeping ban on pins were "post hoc invention[s]."14 Boch,
2015 WL 1956199, at *3 n.7; see also In re E & L Transp., 331 NLRB
No. 83, 2000 WL 972084, at *1 (2000) (concluding that employer's
purported interests in promoting safety and preventing damage
could not justify dress ban, where employer imposed rule for
retaliatory reasons and not for the reasons cited). [J.A. 207]
In that regard, the record shows that the 2010 version
of the ban permitted employees to wear company-provided pins and
appeared under the auspices of Boch's "Dress Code and Personal
Hygiene Policy." The stated purpose of that policy, however, had
nothing to do with safety or preventing vehicle damage; rather,
the purpose was "to ensure that employee dress and personal hygiene
[we]re consistent with their job function and the Company's
14The Board also noted, as "addition[al]" support for its
conclusion that Boch's image served as the real driving force for
the dress ban, that the "Safety" sections of the 2010 and 2013
handbooks did not reference the dress ban. Boch, 2015 WL 1956199,
at *3 n.7. Boch notes that the "Safety" sections "d[id] not
purport to be [] exhaustive account[s] of [Boch]'s various safety
provisions," [Blue Br. 36] but, even so, the Board did not act
unreasonably in invoking that fact as added support for its
conclusion that Boch's purpose in enacting the ban on pins was to
advance its image interest and not its safety interest.
- 37 -
interest in presenting a professional image to the public." [J.A.
207]
Moreover, the record shows that Boch, after consulting
with the Board, revised the ban by prohibiting the wearing of all
pins (including company-provided ones), because Boch did not want
to appear to be sanctioning only company-sponsored messages. [J.A.
104-05] In doing so, however, Boch retained all other aspects of
the ban, including the ban's placement in the dress code section
of the revised handbook, which section set forth the same image-
driven purpose as the prior handbook. [J.A. 251]
Thus, the record provides scant basis for concluding, as
Boch contends, that a ban on pins of this breadth was needed,
either for reasons of safety or for reasons of preventing damage
to vehicles. Rather, the uncontroverted record shows only that
the ban applies to some categories of employees who would not seem
to interact with vehicles with any frequency, that until recently
Boch allowed all of its employees to wear company-provided pins,
and that Boch apparently changed the scope of the ban on pins for
reasons unrelated to safety and damage prevention.15
15
The Board and Circuit precedents Boch cites in support of
its position regarding the ban on pins each involved very different
facts, as the employer in those cases imposed less sweeping
restrictions. See, e.g., Albis Plastics & United Steelworkers of
Amer., District #12, AFL-CIO, CLC, 335 NLRB No. 74, 2001 WL
1203209, at *4 (2001) (concluding that company's ban on
unauthorized stickers on employees' hardhats was warranted, where
- 38 -
V.
For the reasons given, we grant the Board's petition
for enforcement and we deny Boch's petition for review.
-Concurring and Dissenting Opinion Follows-
evidence showed that unauthorized stickers would reduce the
visibility of the hardhat itself or interfere with the visibility
of authorized stickers containing important safety information);
Va. Elec. & Power Co. v. NLRB, 703 F.2d 79, 81-84 (4th Cir. 1983)
(concluding that employer did not violate NLRA simply by expressing
preference that employee not wear a "large, brightly colored, and
potentially provocative button" in a public lobby, in light of the
potential for public conflict between competing unions).
- 39 -
STAHL, Circuit Judge, Concurring in part and dissenting
in part. In this case, a newly certified union alleged that some
of Boch's 2010 workplace policies were too broad, such that
employees might believe their labor rights were restrained. Boch
began discussions with the union over possible revisions to the
policies, but, within the year, employees filed a petition to
decertify the union. Boch turned discussions to the Board's
regional office to ensure that its policies complied with federal
law. Before discussions were complete, the Board issued a formal
complaint based on the union's charge. Nonetheless, Boch continued
to work hand-in-hand with the Board's regional office to address
its concerns and soon issued a revised set of workplace policies.
Despite these efforts--and the Board's purported aim of working
with employers to remedy violations--the Board maintained the
breadth of its complaint and argued that Boch had failed to
repudiate its 2010 policies.
With respect to the allegedly violative policies
contained in Boch's 2010 employee handbook, I concur in the result
but write separately to make clear that my concurrence is limited
to the narrow evidentiary record and legal arguments before us.
With respect to the majority's decision regarding Boch's "dress
ban" (or, what most of us might simply call a "dress code"),
however, I dissent because I believe that Boch has demonstrated
"special circumstances" warranting its policy.
- 40 -
I.
As the majority points out, Boch did not challenge the
Board's ruling that the 2010 policy provisions at issue were
unlawful when imposed. Ante, at 11. Instead, Boch contends that
it adequately "repudiated" the alleged violations by issuing the
revised 2013 handbook. I agree with the majority that, based on
the evidentiary record and legal arguments before us, Boch has
failed to show that the Board erred in rejecting this argument.
In order for an employer's repudiation of prior conduct
to be effective, the repudiation "must be 'timely,' 'unambiguous,'
'specific in nature to the coercive conduct,' and 'free from other
proscribed illegal conduct.'" Passavant Mem'l Area Hosp., 237
NLRB 138, 138 (1978). The Board also examines whether the employer
has provided "assurances" to employees that there will not be
future interferences with their rights. Id. at 138-39.
Boch cites cases wherein repudiation was held to be
effective despite various Passavant factors only being implicitly
and/or partially satisfied. See In River's Bend Health &
Rehabilitation Serv. ("River's Bend"), 350 NLRB 184, 184, 193
(2007) (holding repudiation effective where employer posted
memorandum implicitly conceding violation and implicitly providing
assurances against future violations); Broyhill Co., 260 NLRB
1366, 1366-67 (1982) (holding repudiation effective where employer
posted notice sufficiently disavowing violation and including "we
- 41 -
will not" language that is traditionally employed in Board
notices). But, as the majority points out, these cases miss the
mark. There is a difference between arguing that you have
implicitly satisfied individual Passavant factors and arguing that
the mere cessation of an ongoing violation constitutes an
"implicit" repudiation. Such an interpretation would make the
very concept of repudiation meaningless. Because Boch did not
even advise its employees that some of its 2010 policies "may have
been" overly broad, ante, at 16, I agree that the Board did not
err in finding a lack of adequate repudiation.16
16
Member Johnson's warning that the Passavant factors should
not be applied with "hyper-technical precision" is well taken
nonetheless. Boch Imports, Inc., 362 NLRB No. 83, 2015 WL 1956199,
at *6 (Apr. 30, 2015) (Johnson, dissenting). "[W]hat an employer
must do to cure a violation may depend on the nature of the
violation." River's Bend, 350 NLRB at 193. This is because
proportionality avoids punishing cooperation. Otherwise, a
company facing a dubious complaint over a somewhat-vague policy
would have to (1) declare a violation in stark terms (which would
damage the company's reputation but provide little extra benefit
or notice to employees), or (2) stand on the contested policy
(which would vindicate the company but frustrate the purposes of
the Act). The resources of the Board and the business alike are
squandered in such situations.
Taxpayer funds are likewise misspent when the Board fails to
advise a cooperating employer that litigation can be avoided
through repudiation. Boch fully cooperated in the revision of its
policies and was understandably surprised when the Board doggedly
pursued liability nonetheless. It is true that Boch "did not reach
an agreement with the Board" regarding repudiation, ante, at 23,
but it appears that the Board did not even raise this issue until
the final throes of litigation. If the Board actually values
cooperation, there is little reason to litigate an expired policy
without first simply asking the employer to post a repudiation
notice. Only in the rarified air of appellate review could this
- 42 -
I write separately to emphasize that my concurrence is
limited to the narrow factual record and legal arguments in the
parties' petitions. From what we have before us, the record
appears to have been improperly truncated. As Boch rightly points
out, and the majority acknowledges, the ALJ seemed to remove the
challenges to the 2010 policies from the table altogether during
an initial hearing on the complaint. Ante, at 6. After evidence
had been heard, the Board, in its briefing to the ALJ, resuscitated
its challenges to the 2010 policies. Ante, at 6. Without giving
Boch an opportunity to add to the record, the ALJ found that
"[a]lthough I originally agreed with counsel for the Respondent
that it would not effectuate the policies of the Act to spend time
on these allegations which had already been remedied, a careful
examination of the Board's cases, convinces me that my initial
impression was incorrect." Boch Imports, Inc. ("Boch Imports"),
362 NLRB No. 83, 2015 WL 1956199, at *8 (Apr. 30, 2015).
Boch argues, quite persuasively, that it was lulled by
the ALJ into not presenting evidence of repudiation and that we
should remand to the Board and permit Boch the opportunity to
develop the record. Unfortunately, this argument was not made
below and has been raised for the first time to us in Boch's
argument be deemed, as my colleagues put it, a "non sequitur."
Ante, at 24.
- 43 -
petition. As such, it is not properly before us and we must work
with the factual record as its stands. Ante, at 17-18 n.4.
Apart from Boch's failure to preserve an opportunity to
develop the record, it also failed to preserve a challenge to the
underlying premise of liability. Section 7 of the Act, 29 U.S.C.
§ 157, 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 aid or protection." Section 8(a)(1) of
the Act, 29 U.S.C. § 158(a)(1), in turn, makes it an unfair labor
practice for an employer "to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in [Section
7]."
In examining workplace rules, the Board first determines
whether the rule explicitly restricts activity protected by
Section 7. Martin Luther Mem'l Home, Inc. ("Martin Luther"), 343
NLRB 646, 646 (2004). If it does, the rule is unlawful. Id. If
the rule does not, however, then there is only a violation if "(1)
employees would reasonably construe the language to prohibit
Section 7 activity; (2) the rule was promulgated in response to
union activity; or (3) the rule has been applied to restrict the
exercise of Section 7 rights." Id. at 647. In evaluating the
challenged rule, the Board must give the rule a reasonable reading,
- 44 -
must refrain from reading particular phrases in isolation, and
must not presume improper interference with employee rights. Id.
at 646.
The ALJ in this case acknowledged that the rules at
issue did not explicitly restrict Section 7 activity, were not
promulgated in response to union activity, and had not been applied
to restrict the exercise of Section 7 rights. Boch Imports, 2015
WL 1956199, at *8. As such, the ALJ rightly recognized that the
policies would only violate Section 8(a)(1) if employees would
reasonably construe them as prohibiting Section 7 activity. Id.The ALJ then purported to apply that law to the 2010 policies.
But here, the ALJ misstepped and inexplicably abandoned
the proper legal standard in the process of attempting to apply
it. For example, the ALJ found that particular aspects of Boch's
confidential and proprietary information rule "could lead an
employee to believe that his ability to discuss his terms and
conditions of employment with fellow employees, the media or a
union were limited." Id. (emphasis added). Similarly, the ALJ
found that "the provision prohibiting any activity which could
harm the image or reputation of the company is clearly susceptible
of being understood to limit employees in their right to engage in
a strike, work stoppage or similar forms of concerted activities."
Id. (emphasis added).
- 45 -
This is not merely a matter of semantics. One can
imagine a number of rules that would not reasonably be construed
by employees as limitations on Section 7 rights even if they could
be construed as limitations on Section 7 rights. The reasonably-
construe standard is a narrow exception to the rule that neutral,
reasonable workplace policies that do not explicitly restrict
Section 7 rights generally do not violate Section 8(a)(1). Like
the exceptions for purportedly "neutral" policies that are adopted
in response to union activities or enforced in targeted ways, the
purpose of the reasonably-construe exception is to catch those
rare policies that, while facially neutral and legitimate, can be
understood as little else but a restriction upon Section 7 rights.
By striking policies that merely could be construed to
restrict Section 7 rights, the ALJ transformed the reasonably-
construe standard from a narrow exception into a freestanding, and
highly intrusive, test. Such a standard would capture a far wider
sweep of plainly legitimate business policies in its maw and would
radically expand the Board's authority. In effect, such a standard
would grant the Board wide-ranging license to draft and impose its
own preferred workplace policies under the threat of litigation.
The Board has previously disavowed this approach. In
Martin Luther, for example, the Board declined to find a Section
8(a)(1) violation where the employer had adopted rules that
"serve[d] legitimate business purposes" and that would not be
- 46 -
construed by a reasonable employee to prohibit Section 7 conduct.
See 343 NLRB at 647. The Board further held:
Where, as here, the rule does not refer to
Section 7 activity, we will not conclude that
a reasonable employee would read the rule to
apply to such activity simply because the rule
could be interpreted that way. To take a
different analytical approach would require
the Board to find a violation whenever the rule
could conceivably be read to cover Section 7
activity, even though that reading is
unreasonable. We decline to take that
approach.
Id. Therefore, the burden never should have shifted to Boch to
show repudiation because, in my view, the ALJ failed to properly
apply the correct standard of liability in the first place.17
17
Although "any ambiguity in [an employer's workplace policy]
must be construed against the [employer] as the promulgator of the
rule," Lafayette Park Hotel, 326 NLRB 824, 828 (1998) enf'd 203
F.3d 52 (D.C. Cir. 1999), the Board traditionally has exhibited
some skepticism about allowing ambiguity to form the basis for
liability under the reasonably-construe standard, see id. at 827(footnote omitted) (holding that a ban on employees "fraternizing"
with guests on hotel property was not ambiguous despite the
undefined term because "[e]mployees would recognize the legitimate
business reasons for which such a rule was promulgated, and would
not reasonably believe that it reaches Section 7 activity"). The
Board's normal approach seems to be that ambiguity will not
necessarily make a rule more likely to be construed as a restraint
on Section 7 rights, see id., but that an employer cannot save
itself from a rule that would reasonably be construed as
restrictive by relying upon ambiguity as a defense, see id. at 828(holding that a rule requiring employees to leave the "premises"
immediately after the completion of their shift violated Section
8(a)(1) because employees would reasonably read the rule as
covering parking areas and other outside areas despite
respondent’s argument that it did not intend outside areas to fall
within the scope of the term "premises").
- 47 -
Yet, as with Boch's failure to preserve its evidentiary
objections, Boch failed to sufficiently raise this issue before us
or below.18 With these limitations in mind, I concur in the
judgment with respect to Boch's 2010 policies.
II.
The majority also upholds the Board's decision that Boch
violated Section 8(a)(1) with its dress code policy and that Boch
failed to demonstrate "special circumstances" justifying the
allegedly unlawful policy. Because I take a fundamentally
different view of the law in this area, I respectfully dissent.
A.
To begin its analysis, the majority observes that
employees are "presumptively entitled under Section 7 to wear union
insignia and other attire during" work hours. Ante, at 25 (quoting
Pathmark Stores, Inc. & Local 342-50, United Food and Commercial
Workers Union, AFL-CIO ("Pathmark"), 342 NLRB 378, 379 (2004)).
Although the majority seems to unquestioningly accept this basic
premise, I do not. As I shall discuss further below, I am willing
to assume without deciding that such a presumption applies in this
case (since Boch did not raise a challenge to it), but I feel
18The majority points out that "[w]e have no reason to resolve
the issue, as this argument is neither one Boch itself made below
nor is it one Boch makes in its petition to this Court." Ante, at
19 n.5. Certainly so. That is, of course, why I concur in the
judgment with respect to Boch's 2010 policies. But judges need
not be silent bystanders to the misapplication of the law.
- 48 -
compelled to comment on the silent, unexplained creep of the
Board's presumptions and the resulting subtle, but consequential,
shift in the burdens of litigation.
The "central purpose of the Act [is] to protect and
facilitate employees' opportunity to organize unions to represent
them in collective-bargaining negotiations." Am. Hosp. Ass'n v.
NLRB, 499 U.S. 606, 609 (1991). As the Supreme Court has long
recognized, "the right of employees to self-organize and bargain
collectively [under Section 7] necessarily encompasses the right
effectively to communicate with one another regarding self-
organization at the jobsite." Beth Israel Hosp. v. NLRB ("Beth
Israel"), 437 U.S. 483, 491 (1978) (emphasis added). At times,
employees' exercise of Section 7 rights in the workplace may come
into conflict with their employer's legitimate interest in
controlling its property and operating its business. To balance
the conflicting interests in such cases, the Board, with Supreme
Court approval, has developed certain legal presumptions. See id.
at 491-95, n.10. One of these presumptions is the right to wear
union-related paraphernalia while at work as a form of "concerted
action," i.e., to communicate about self-organization rights or
show support for a union. See Republic Aviation Corp. v. NLRB
("Republic Aviation"), 324 U.S. 793, 803-04 (1945); Asociacion
Hosp. del Maestro, Inc. v. NLRB ("Maestro"), 842 F.2d 575, 577
(1st Cir. 1988).
- 49 -
According to the Board's more recent cases, this means
that a restriction upon the right to wear such paraphernalia at
work is presumptively unlawful, absent a showing of "special
circumstances" by the employer to justify the imposition. See
Starwood Hotels & Resorts Worldwide, Inc. ("Starwood"), 348 NLRB
372, 373 (2006). For example, an employer may restrict union
insignia and apparel "when their display may jeopardize employee
safety, damage machinery or products, exacerbate employee
dissension, or unreasonably interfere with a public image that the
employer has established, as part of its business plan, through
appearance rules for its employees." Bell-Atl.-Pa., Inc. ("Bell-
Atlantic"), 339 NLRB 1084, 1086 (2003), enf'd sub nom., Commc'ns
Workers of Am., Local 13000 v. NLRB, 99 F. App'x 233 (D.C. Cir.
2004).
Note the difference, however, between the legal
presumption sanctioned by the Supreme Court and the supposed right
now read into Section 7 by the Board. The former recognizes a
presumptive right to wear union-related paraphernalia while at
work as a manifestation of employees' right to communicate
effectively regarding self-organization at the jobsite. The
latter, on the other hand, holds as presumptively unlawful any
restrictions upon the wearing of union-related paraphernalia, even
during working hours or while the employee is on the job. This is
a subtle, but undoubtedly significant, shift. As the Ninth Circuit
- 50 -
has observed, while the "Supreme Court has held that the wearing
of union buttons comes under the heading of 'other concerted
activities,'" it did not intend "to erect this into a rule which
makes the wearing of union buttons per se a guaranteed right" at
all times and in all places. NLRB v. Harrah's Club ("Harrah's"),
337 F.2d 177, 179 (9th Cir. 1964).
In the realm of workplace restrictions upon union
solicitation, for example, there is an established rule that
policies restricting solicitation during nonworking time in
nonworking areas are presumptively unlawful. In Beth Israel, the
Supreme Court reviewed a workplace restriction upon off-hours
solicitation in a hospital cafeteria. 437 U.S. at 486. The Court
noted that "patient use of the cafeteria, is voluntary, random,
and infrequent," and the Court found it "of critical significance
that only 1.56% of the cafeteria's patrons are patients." Id. at
502. Thus, the Court reaffirmed that the Board could find
restrictions on employee solicitation during nonworking time in
nonworking areas to be presumptively violative of Section 8(a)(1).
See id. at 492-93, 508.
The Court contrasted this presumption with that utilized
"[i]n the case of retail marketing establishments, including
public restaurants, . . . [where] the Board has held that
solicitation . . . may be prohibited on the selling floor at all
times." Id. at 493. The presumption flips because, "[i]n the
- 51 -
retail marketing and restaurant industries, the primary purpose of
the operation is to serve customers." Id. at 506. As such, a
policy prohibiting solicitation on the selling floor is
presumptively lawful because "solicitation in these areas, if
disruptive, necessarily would directly and substantially interfere
with the employer's business." Id.These offsetting presumptions strike a reasoned balance
between employers' business prerogatives and employees' labor
rights.19 Indeed, a prohibition tailored to employees who are on
the clock and on the selling floor does not inappropriately
suppress employees' Section 7 rights, because "it would be an
unusual store or restaurant which did not have stockrooms,
kitchens, and other nonpublic areas" wherein "employee
solicitation of nonworking employees" not only could be permitted,
but "must be permitted." Id. (emphasis added).
In the realm of workplace restrictions upon union
insignia, most of the seminal case law also reflects this logical
and easily discernable line. For example, Republic Aviation, which
19See Republic Aviation, 324 U.S. at 803 n.10 ("The 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. It is therefore within the province of
an employer to promulgate and enforce a rule prohibiting union
solicitation during working hours. Such a rule must be presumed
to be valid in the absence of evidence that it was adopted for a
discriminatory purpose." (emphases added) (quoting Peyton Packing
Co., Inc., 49 NLRB 828, 843 (1943))).
- 52 -
is commonly cited for the presumptive right to wear union insignia
absent special circumstances, dealt with a military-aircraft
manufacturer. See 324 U.S. at 794. There, the Board applied a
presumption that the button restriction at issue was unlawful and
held that the employer had failed to demonstrate any evidence that
wearing insignia had an adverse impact on the plant's normal
operations. See id. at 801-04, n.7. Republic Aviation, however,
dealt with an industrial business. The question of what
presumption to apply to insignia restrictions for "public-facing"
employees simply never arose.
The First Circuit's treatment of insignia in Maestro
also implicitly recognizes this distinction. In Maestro, we
recognized that "employees have the right to wear union-related
insignia," but also recognized that "proscriptions against the
wearing of union insignia in 'immediate patient care areas' are
not presumptively invalid." 842 F.2d at 577. The workplace policy
in Maestro was fatally flawed because the hospital had
"promulgat[ed] and enforc[ed] a rule prohibiting its employees
from wearing union insignia in all places and at all times." Id.
at 575 (emphases added). This blanket prohibition was a
presumptively unfair labor practice absent identification of any
"specific threat to patient care that wearing union insignia in
nonpatient-care areas posed." Id. at 577 (emphasis added).
- 53 -
Only in recent years has this distinction eroded. In
Starwood, for example, the Board held that a hotel did not violate
Section 8(a)(1) when it prohibited an employee from wearing a union
button in public areas and when it prohibited another employee
from wearing union stickers in the hotel kitchen (a nonpublic
area), but did violate Section 8(a)(1) by prohibiting an employee
from wearing a union button in other nonpublic areas. 348 NLRB at
372. The Board's explanation for these outcomes, however, strayed
from the rule above. Rather than finding the ban presumptively
lawful in public areas and presumptively unlawful in nonpublic
areas, the Board presumed the ban was unlawful in all areas but
then examined whether the hotel had shown "special circumstances"
justifying the prohibition with respect to the public areas (i.e.,
an interest in its public image) and with respect to the nonpublic
areas (i.e., an interest in food safety/sanitation). Id. at 373-
76.
This new rule--that employees possess a presumptive
right to wear union insignia at all times and in all places--is
not an exercise of the Board's expertise or an application of the
Board's experience in applying the principle of accommodation to
particular classes of circumstances or categories of rules. See
Beth Israel, 437 U.S. at 492 ("Accommodation between [employee-
organization rights and employer-property rights] must be obtained
with as little destruction of one as is consistent with the
- 54 -
maintenance of the other." (alteration in original) (quoting NLRB
v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956))). Rather, this
"presumption" seems to be an abdication of the Board's role to
carefully balance employer and employee interests.20
20 The majority rides to the Board's rescue and argues that I
have not explained why it would be unreasonable for the Board to
apply different presumptions to solicitation and insignia. The
majority then offers its own hypothetical explanations for the
divergent treatment of solicitation and insignia. See ante, at
25-26 n.7. This misses the point entirely.
The Board must justify using different presumptions for
solicitation and insignia. Yet, instead of relying on its
experience and expertise to explain the insignia presumption that
it presently employs, the Board merely points to Republic Aviation
and other such cases. These cases do not support the Board's
expansive interpretation, and the Board is not entitled to
deference when it (mis)reads judicial decisions. If the Board
would like to extend the presumption from Republic Aviation to
include public-facing industries, then the Board--not the
majority--must undertake an "appraisal of normal conditions [in
service, rather than] industrial[,] establishments" and adopt its
new presumption after balancing the sector-wide interests of
employers and employees. Republic Aviation, 324 U.S. at 804; see
also Beth Israel, 437 U.S. at 506 (noting that it is the Board's
role to formulate "rules [that] str[ike] the appropriate balance
between organizational and employer rights in the particular
industry to which each is applicable") (emphasis added). The
majority's ruminations about why the Board might adopt different
presumptions are irrelevant.
In fact, the majority's own speculative justifications only
reinforce why it is important for the Board to base its
presumptions on a real-world appraisal of costs and conditions.
The majority theorizes that the "passive" wearing of insignia
"obviously" does not divert employee time or intrude upon the
workplace. Ante, at 25-26 n.7. But experience has shown
otherwise. The uncritical (and perhaps unwitting) expansion of
the insignia presumption has led to an interminable string of vague
and unpredictable cases over just when, where, and why messaging
attire goes "too far." See post, at 59-62. As these cases show,
not only is it quite obvious that insignia can--and do--interfere
with business, it is equally evident that the threats and burdens
- 55 -
In this case, Boch's dress code policy prohibited
"employees who have contact with the public" from wearing "pins,
insignias, or other message clothing." Perhaps an employee would
interpret the rule to apply to "employees who have contact with
the public" even when they are not on the job. Perhaps Boch left
too few opportunities for employees at the jobsite to communicate
and organize off the clock and out of the public eye. These might
constitute grounds for liability. In my view, however, the Board
has not offered any explanation why a prohibition on insignia for
public-facing employees who are on duty is presumptively unlawful
under Section 8(a)(1) in this retail business.
Because Boch did not challenge the Board's presumption,
however, we must assume the policy is presumptively unlawful. The
question then becomes whether Boch's justifications for its
prohibition on messaging attire constitute "special circumstances"
and overcome the presumption. Here, too, I part ways with my
colleagues in the majority.
B.
Even if Boch's dress code policy were presumptively
unlawful, I would hold that Boch has demonstrated "special
circumstances" justifying its policy. That is because I believe
of litigation in this area can adversely impact employer interests.
These are the kinds of industry-wide realities that must be
considered by the Board before adopting a new, broadened
presumption.
- 56 -
that an employer can demonstrate special circumstances as a matter
of law if the employer reasonably believes that a dress code will
enhance its public image and the employer shows that it has
maintained, and neutrally enforced, a clear and consistent dress
code policy for public-facing employees who are on duty. See
Burger King Corp. v. NLRB ("Burger King"), 725 F.2d 1053, 1055
(6th Cir. 1984); Harrah's, 337 F.2d at 179.
The ALJ in this case recited the supposedly guiding
precedent:
In determining whether an employer, in
furtherance of its public image business
objective, may lawfully prohibit uniformed
employees who have contact with the public
from wearing union insignia, the Board
considers the appearance and message of the
insignia to determine whether it reasonably
may be deemed to interfere with the employer's
desired public image.
Boch Imports, 2015 WL 1956199, at *8 (quoting United Parcel Serv.,
312 NLRB 596, 597 (1993)). The ALJ noted that "customer exposure
to such insignia, alone, is not a special circumstance allowing
the employer to prohibit such a display," id. (citing Meijer, Inc.,
318 NLRB 50 (1995)), and found that Boch's "blanket prohibition"
on messaging attire did not provide an opportunity to evaluate the
"numerous factors that need to be weighed to determine whether a
displayed item" threatens the employer's interest in its public
image, "including [the] size [of the item] and the message
thereon," id.- 57 -
The Board affirmed the ALJ's analysis, id., at *2, and
now argues in its petition that an employer's interest in its
public image cannot constitute a "special circumstance" unless the
employer demonstrates its deliberate cultivation of a particular
image as part of its business plan and tailors the limitations to
protect that image without overly impeding employees' rights. See
Bell-Atlantic, 339 NLRB at 1086.
The majority holds that the Board did not err in applying
these precedents, ante, at 34, but fails to examine whether these
precedents are coherent or tenable in the first place. One of the
primary "precedents" cited by the ALJ, for example, was reversed,
and the Board's application for enforcement in that case was
denied. See United Parcel Serv. v. NLRB, 41 F.3d 1068, 1073 (6th
Cir. 1994).
To begin its analysis, the majority quickly disposes of
the cases relied upon by Boch that deal with prohibitions on
particular pieces of messaging attire. Ante, at 27-28. The
majority is right to distinguish these cases;21 however, in the
21 See Pathmark, 342 NLRB at 379 ("Respondent had no policy
on uniforms and had permitted employees to wear other union
insignia . . . ."); Bell-Atlantic, 339 NLRB at 1085 ("Although
employees do not wear uniforms and may wear T-shirts during working
time, the Respondent's apparel standards direct supervisors to be
aware of 'disruptive appearance' by employees . . . ."); id. at
1084 ("Respondent has historically permitted all of its employees
represented by the Union to wear red union-sponsored T-shirts
displaying the Union's logo."); S. New England Tel. Co. v. NLRB
- 58 -
process of doing so, the majority demonstrates precisely why a
business like Boch might have legitimate reasons to adopt a broader
dress code policy. That is because the Board's precedents
regarding more limited bans on provocative attire offer little
solace to businesses that wish to maintain a decent image while
minimizing exposure to labor law liability.
By tacitly encouraging employers to adopt narrower
policies limited to offensive or controversial messages, the Board
and the courts have lured businesses into a legal bog. Such
policies cannot be administered in any kind of predictable or
coherent manner. Employers must examine each t-shirt, button,
sticker, or hat and make an on-the-spot judgment call, in each
instance, about whether a particular message in a particular
context has "crossed the line." Thus, the employer risks liability
every time human resources or in-house counsel draws that line
(assuming the business can afford such experts) and bears the
burden of proof to boot. And, of course, once that determination
is made, employees are free to don a slightly altered piece of
attire, leaving the employer in a quicksand of boundary-testing
litigation.
("New England"), 793 F.3d 93, 97 (D.C. Cir. 2015) ("[T]he Board
suggests that AT&T did not enforce its ban on unprofessional
clothing in an evenhanded way . . . .").
- 59 -
The majority's own examples prove the point. See ante,
at 27-28, 28 n.9. How "straightforward" of a message is too
"straightforward"?22 Can an employee swap out a slogan that "mocks"
a company program with a more gentle parody?23 If we replace a t-
shirt depicting "employees as squashed and lying in a pool of
blood" with one showing employees toiling under a heavy load, can
it be worn on the selling floor over the employer's objection?24
The Board acknowledges that its approach has led to cases
"turn[ing] on fine distinctions based on a balancing of respective
statutory interests and on unique factual circumstances." Bell-
Atlantic, 339 NLRB at 1086. But the Board's cases reveal a
"standard" that is more subjective than anything else.
[I]n United Parcel Service [I], the Board
found that an employer could prohibit the
wearing of a 2-1/2-inch conspicuous button
worn on a uniform, but in United Parcel
Service [II], the Board found that an employer
could not prohibit the wearing of a small
inconspicuous pin on a uniform. In Evergreen
Nursing Home, the Board found that an employer
could prohibit the wearing of a conspicuous
bright-yellow 2-1/4-inch button worn by nurses
in patient-care areas, but in St. Luke's
22 New England, 793 F.3d at 96-97 (invoking t-shirt's
"straightforward" message and employer's consequently reasonable
belief as to the impact of that message on customer relations).
23 Medco Health Solutions of Las Vegas, Inc. v. NLRB, 701 F.3d
710, 717-18 (D.C. Cir. 2012) (concluding that employer satisfied
its burden of establishing special circumstances to justify ban on
particular t-shirt mocking company program).
24 Bell-Atlantic, 339 NLRB at 1086 (concluding that employer
satisfied burden of establishing special circumstances to justify
ban on particular t-shirt "depicting employees as squashed and
lying in a pool of blood").
- 60 -
Hospital, the Board found that an employer
could not prohibit the wearing of a 2-1/4-inch
button with conspicuous white and black
lettering in light of other patient-care
circumstances. In Noah's New York Bagels, the
Board found that an employer could prohibit a
phrase (added to company T-shirt) stating, "If
it's not Union, it's not Kosher," but in
Escabana Paper Co., the Board found that an
employer could not prohibit buttons stating
"Just Say NO-Mead" and "Hey Mead-Flex this."
In Southwestern Bell Telephone Co., the Board
found that an employer could prohibit a shirt
stating, "Ma Bell is a Cheap Mother" but in
Borman's Inc., the Board found that an
employer could not prohibit a shirt stating,
"I'm tired of bustin' my ass" alongside
company name.
Id. (internal citations omitted). Even a manager aware of these
cases will have difficulty making a contemporaneous assessment
when an employee shows up wearing a union button that is 2-1/4-
inches wide (rather than 2-1/2-inches wide), is a slightly-less-
conspicuous shade of mustard (rather than a conspicuous bright-
yellow), and is inscribed with an edgy (but not quite provocative)
slogan. Pick wrong, and the employer will be liable for a labor-
rights violation. Pick right, and the employee may return the
following day with a slightly smaller and darker button. To
businesses seeking to avoid liability, and courts seeking to
ascertain administrable rules, the Board's standard is simply
unworkable.
Next, the majority rejects Boch's reliance on Starwood,
which dealt with a hotel's across-the-board ban on pins and other
- 61 -
"adornments." 348 NLRB at 372. According to the majority, the
Board reasonably distinguished Starwood because the dress code in
that case was meant "to create a specific and unique environment"
and required employees to wear uniforms. Ante, at 30 (quoting
Boch Imports, 2015 WL 1956199, at *2 n.6). Specifically, servers
wore "professionally-designed all-black shirt[s], slacks, and
apron[s]" in order to create a "special atmosphere" for customers.
Starwood, 348 NLRB at 373.
The majority argues that Boch, on the other hand, only
sought to "cultivate a general, professional environment" and
applied its insignia ban to all public-facing employees, even
though some had to wear uniforms (service technicians and service
advisors), some had to wear a shirt and tie or Boch Honda jersey
(salespeople), and some had to wear "business casual"
(administrative and financial staff). See ante, at 31, 31 n.11.25
25
More specifically, the policy stated that "[m]ale [non-
uniformed] personnel [were] expected to wear dress shirts, dress
slacks, and coordinated neckties" and "be mindful" that
undershirts "not contain logos, wording, or designs which can be
seen through a dress shirt." "Female [non-uniformed] personnel
[were] expected to wear blouses and skirts or dress slacks,
dresses, or pant suits and hosiery" according to detailed
specifications. For example, dresses and skirts were "not to be
worn shorter than 2 inches above the knee," heels were required to
be "3 inches or shorter," and blouses or shirts were required to
have "a conservative neckline" and could not "be any shorter than
the person's waistline." Such shirts were to be worn "with a
sweater or blazer if they are strapless, sleeveless, backless, or
have very thin straps." Both genders were prohibited from wearing
"[f]lannel, leather, vinyl, denim, spandex or athletic-related
clothing" or "athletic-type footwear."
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Thus, in the majority's view, Boch's desired public image was not
"distinctive" enough and its "willing[ness] to tolerate . . . more
variation in dress" meant that it could not justify prohibiting
"the additional increment of variation" that would be created by
its non-uniformed employees wearing buttons and other messaging
attire. Ante, at 31-32.
All of these arguments and points of distinction
overlook one simple fact: none of this is the Board's concern.
By rubber-stamping the Board's arbitrary infatuation with the
uniqueness and uniformity of workplace dress codes, the majority
has done little more than grant the Board the authority to play
"fashion police."
With respect to "uniqueness," one might be left
wondering why the Board has any authority whatsoever to second-
guess Boch's style choices or Boch's judgment that its own
customers will respond more favorably to a salesperson wearing a
tie than a salesperson wearing a designer t-shirt. Starwood, 348
NLRB at 372 n.4. The legality of a dress code cannot credibly
turn on whether the employer thinks "business casual" befits its
image, ante, at 31 n.11, or whether the employer thinks a
"professionally-designed all-black" outfit will do the trick,
Starwood, 348 NLRB at 373. That decision is distinctly beyond the
proper role of the Board. In fact, visitors to Boch Honda might
be a bit perturbed if the company attempted to project a "trendy,
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distinct, and chic look." Id. at 378. Yet, the majority seems
untroubled by the suggestion that an employer's interest in
creating a "professional environment" deserves less respect than
an employer's interest in creating a "unique environment." Ante,
at 31. In my view, these are equally legitimate business
objectives and the Board's fixation on "distinctive" or "special"
atmospheres is simply unsupportable.
Nor should the "uniformity" of an employer's chosen
dress code carry such dispositive power. The majority makes much
of the fact that salespeople and service technicians at Boch wear
different outfits. See ante, at 31. But unless dealerships are
required to put salespeople in coveralls or mechanics in ties (to
preserve a "uniform" public image), I fail to see how Boch's
decision to tailor its dress code options to employees' different
roles poses any cause for concern.
According to the majority, once Boch opens the door to
"business casual" and "tolerate[s] a fair amount [of] variation"
in its dress code, Boch forfeits the ability to keep the door
closed to "the additional increment of variation" caused by buttons
and other messaging clothing. See ante, at 31-32. But all
"increments of variation" are not created equal. Allowing
employees to wear a variety of dress shirts will advance Boch's
chosen image; allowing employees to wear a variety of buttons and
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lanyards will undermine it.26 Indeed, the majority's increments-
of-variation theory would hardly survive a real-world encounter
with a wedding invitation: “dressy casual” may admit of variation,
but there is a difference between inviting guests to take off their
ties and inviting guests to don pins protesting the bride's choice
of groom.
In short, the Board seems to imply that employers cannot
prevent employees from bombarding customers with colorful and
personalized proclamations on the job unless the employer is
attempting to strike a gimmicky or novel tone through the use of
completely homogeneous and inflexible uniforms.
Boch's differentiated dress code requirements reflect
its coherent, and reasonable, vision for a look that is
professional and appropriate for a car dealership. As other
circuits have recognized, the Board may "dra[w] on a fund of
knowledge and expertise all its own," but "that expertise is surely
not at its peak in the realm of employer-customer relations."
Medco Health Solutions of Las Vegas, Inc. v. NLRB, 701 F.3d 710,
717 (D.C. Cir. 2012). The Board cannot honestly believe that an
26
My colleagues' question as to how "a small and unobtrusive
union pin" would interfere with a "professional environment,"
ante, at 32, begs a further question: whether a slightly larger
button with a pun about the company slogan would interfere with a
"professional environment." Once the clear and consistent policy
is removed, Boch will be forced to engage in these subjective case-
by-case evaluations, as discussed above.
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employer's goal of creating and maintaining a reputation for
professional service (both in style and substance) does not
constitute a legitimate business interest.
Most business establishments . . . try to
project a certain type of image to the public.
One of the most essential elements in that
image is the appearance of its uniformed
employees who furnish that service in person
to customers. . . . [An employer] should not
be required to wait until it receives
complaints or suffers a decline in business to
prove special circumstances. Businessmen are
required to anticipate such occurrences and
avoid them if they wish to remain in business.
This is a valid exercise of business judgment,
and it is not the province of the Board or of
this court to substitute its judgment for that
of management so long as the exercise is
reasonable and does not interfere with a
protected purpose.
Harrah's, 337 F.2d at 180 (footnote omitted).
I would instead follow the Sixth Circuit's lead in Burger
King and hold that an employer can demonstrate special
circumstances as a matter of law if the employer reasonably
believes that a dress code will enhance its public image and the
employer shows that it has maintained, and neutrally enforced, a
clear and consistent dress code policy for public-facing employees
who are on duty. See Burger King, 725 F.2d at 1055; see also
Harrah's, 337 F.2d at 179. The majority rejects this approach for
three reasons, none of which are persuasive.
First, the majority notes that Burger King has been
"called into doubt by the very circuit that promulgated that
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decision." Ante, at 32-33 n.12 (citing Meijer, Inc. v. NLRB
("Meijer"), 130 F.3d 1209, 1215 (6th Cir. 1997)). In Meijer, the
Sixth Circuit stepped away from the Burger King rule, arguing that
the Burger King opinion "did not address, much less explain, how
its holding can be reconciled with the Supreme Court's dictate in
Republic Aviation that employees have a presumptive right to wear
union insignia, and that employers bear the affirmative burden of
demonstrating special circumstances." 130 F.3d at 1215.
Yet, the Burger King rule is easily reconcilable with
Republic Aviation. Republic Aviation did not deal with public-
facing employees. As such, the Burger King rule, which only
applies where "employees have contact with the public," 725 F.2d
at 1055, would not apply to the facts of Republic Aviation on its
own terms. An employer could not, for example, overcome the burden
of proving "special circumstances" if its prohibition extended to
nonworking times or non-public places. See Starwood, 348 NLRB at
374.
Similarly, the employer would still shoulder the burden
of showing that it did not apply its policy in a discriminatory or
lackadaisical fashion. These are all prerequisites to the
application of the Burger King rule. See Burger King, 725 F.2d at
1055 (noting that the challenged policy must be enforced in a
"consistent and nondiscriminatory fashion"). In fact, the Meijer
court could have applied Burger King to the facts of its own case
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and achieved the same result. The employer in Meijer only loosely
enforced its policy until the union began organizing. 130 F.3d at
1211. Only then did the employer issue a "reminder" memorandum to
employees and begin strictly enforcing its policy. Id.Second, the majority notes that Burger King, like
Harrah's, dealt with "employees who were subject to a strict
uniform policy as opposed to . . . employees who were subject only
to a basic dress code." Ante, at 32 n.12. As discussed above,
however, the uniqueness or uniformity of the image that a company
chooses to project to the public turns on "a valid exercise of
business judgment, and it is not the province of the Board or of
this court to substitute its judgment for that of management so
long as the exercise is reasonable and does not interfere with a
protected purpose." Harrah's, 337 F.2d at 180. Thus, to the
extent the holdings in Burger King and Harrah's only applied to
"authorized uniforms," I would extend the rule to encompass other
clearly articulated dress code expectations such as those found in
this case. See ante, at 63 n.11.
Finally, the majority postulates that this approach
"give[s] no weight to the competing concern that . . . bans on
protected activity that do not actually serve an employer's claimed
legitimate business interests would be imposed." Ante, at 33 n.13.
Once one respects the boundary between the Board's and the
business's respective realms of expertise, however, this concern
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recedes. An employer's reasonable belief that its image will
benefit from a dress code is sufficient to show that a legitimate
business interest exists.
This ensures that the Board's presumption does not
invade the proper province of an employer's business judgment.
Indeed, the problem with the Board's approach is made quite plain
by the record before us. For instance: What else, exactly, did
Boch need to show in order to prove that its customers preferred
a "professional environment" or that the dress code it adopted
would further that image? Did Boch need to conduct focus group
testing, run customer surveys, or retain a stylist to "prove up"
its judgment that its employees will look more professional if
they aren't festooned in a smattering of random paraphernalia? I
would hope not. S. New England Tel. Co. v. NLRB, 793 F.3d 93, 94
(D.C. Cir. 2015) ("Common sense sometimes matters in resolving
legal disputes.").
Applying a standard akin to that found in Burger King
and Harrah's, I think there is little question that Boch has
demonstrated an interest in its public image sufficient to satisfy
the special-circumstances exception. As in Harrah's, the Board
here attacked a "prohibition against all special adornments" that
"only applied to employees coming in contact with the public" and
"did not purport to prevent the wearing of buttons in nonworking
time or in places not open to the public." Harrah's, 337 F.2d at
- 69 -
180. And there, as here, there was no evidence of unlawful purpose
or discriminatory enforcement. Id. Because Boch reasonably
believed that its public image would benefit from this dress code,
I would hold that Boch has satisfied the special-circumstances
exception.27
In my view, the Board's decision reflects a cavalier
disregard for the legitimate prerogatives of those in the private
sector and put an unreasonable evidentiary burden upon employers
who decide that a professional-looking workforce will be good for
business. Because the majority's decision only compounds the
Board's arbitrary reasoning and erroneous interpretations of law,
I respectfully dissent.28
27 The majority claims that Boch "simply asserts, in
conclusory fashion, that it is just like the employer in Starwood,"
and so it cannot be saved by "newly presented arguments about how
to make . . . tradeoffs" in "workplace matters." See ante, at 33,
33 n.13. This is a misreading of Boch's petition, which clearly
argues that the business is the proper arbiter of its own public
image (by citing Medco and Harrah's) and that Boch has established
"special circumstances" (by invoking the Burger King rule).
28 Given my view that Boch's "public image" interest justifies
its dress code, I do not believe that Boch's separate "safety and
damage prevention" justification is required. Nonetheless, I
believe that the Board unduly trivializes the risk that pins pose
to the interiors, exteriors, and engines of the vehicles that are
the lifeblood of Boch's business. Boch's entire business revolves
around selling and servicing vehicles, and it is eminently
reasonable to employ precautionary measures. Perhaps, in an ideal
world, salespeople and service technicians would remember to don
and doff pins in precise correlation with tasks requiring vehicle
contact. See ante, at 36. And perhaps, in this ideal world,
administrative staff who do not "typically" have contact with
vehicles would remember to remove their buttons on those occasions
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when they do. See ante, at 36. In such a world, the scope of
Boch's policy would be indefensible. But we do not live in that
world, and so I believe that Boch's policy involves a reasonable
preventive judgment.
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