29 U.S.C. § 158(a) · C relations

fact · cuts-against The Christmas and In-N-Out Foundation buttons are approximately three times larger in diameter than the "Fight for $15" buttons.

rule Under Board law, an employer need not show "actual harm" in order to establish "special circumstances," but it must put forth specific, non-speculative evidence of the adverse effects it claims justify its restriction.

held We uphold the Board's reasonable conclusion that In-N-Out failed to establish a "special circumstances" defense based on its "public image" interest.

fact · cuts-against The Board also noted that In-N-Out's managers did not make "any effort to examine" the "Fight for $15" buttons for safety issues before restricting employees from wearing them, which indicates that the company's food safety argument is a "post hoc invention[ ]."

fact · cuts-against Novato proffers no other evidence that Brown and Sabelino were sleeping longer than their permitted break times and no other evidence that Metellus and Bernales were sleeping at all.

held Given the absence of such evidence, combined with the contrary testimony that the ALJ reasonably credited, we find nothing unreasonable in the Board's conclusion that Novato failed to meet its burden of showing it would have fired the four employees notwithstanding its anti-union animus.

fact · cuts-against The question was asked by Clark during a chance encounter as McCarty was leaving a restroom.

fact · cuts-against It was asked of an employee who was, by then, an open supporter of the union.

fact · cuts-against The question was entirely general, the sort of question that might pass between any two employees, regardless of rank; it did not ask about individuals, and it carried no portent of discipline.

rule In sum, the Bourne factors "are not to be mechanically applied," Rossmore House , 269 N.L.R.B. at 1178 n.20 ; and in order to determine whether questioning constituted an unfair labor practice, the Board assesses the "totality of the circumstances," i.e. , it considers "whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act," id . at 1178 & n.20.

held We conclude, as did the dissent, that the record supports the conclusion that all of the Bourne factors, except Clark's position as a company officer, point toward a finding that Clark's question was not coercive and did not violate the Act.

fact · cuts-against Yet until then he had never fired a crane operator.

fact · cuts-against Making matters harder to justify, Erickson said that he would reverse his decision if the Local changed its ways.

held We disagree. The conclusion was a reasonable one on this record.

fact · supports The Company and any recognized Union would begin the negotiating process from scratch.

fact · cuts-against The company makes clear that its statement is meant to counter any ideas that union representation would automatically lead to an increase in compensation, and that purpose is explicitly allowed under Board precedent.

rule The phrase is coercive if used to "indicate that the employer will adopt a regressive bargaining stance or lowered benefits to penalize workers for unionization," and it must be "viewed in the context of other statements or actions by the employer."

held Despite the deference we owe to the Board's expertise in labor matters, we find that the Board's conclusion is not supported even by substantial evidence.

fact · supports Hudson, who had worked for Consolidated for 39 years, was a Union member and participated in the strike.

fact · cuts-against Before it could pass Hudson, she changed lanes and intentionally blocked the Consolidated truck from passing.

fact · cuts-against The entire incident took place at highway speeds.

held Here, the conduct may be less severe, but it is still sufficient to forfeit the Act's protection.

held Because the Board based their decision on substantial evidence and a reasonable application of the law, we AFFIRM.