In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-1321 & 19-1549
CONSTELLATION BRANDS U.S. OPERATIONS, INCORPORATED,
doing business as Woodbridge Winery,
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.
Nos. 32-CA-186238, 32-CA-186265
____________________
ARGUED JANUARY 13, 2021 — DECIDED MARCH 30, 2021
____________________
Before FLAUM, BRENNAN, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. In early 2017 a union alleged that
Woodbridge Winery violated the National Labor Relations
Act by directing an employee to remove pro-union clothing
and maintaining a policy that limited bonus eligibility to non-
union employees. An administrative law judge and the Na-
tional Labor Relations Board agreed that Woodbridge en-
gaged in unfair labor practices. Because the Board’s decision
2 Nos. 19-1321 & 19-1549
is supported by substantial evidence, we deny Woodbridge’s
petition for review and enforce the Board’s order.
I
A
Constellation Brands owns and operates Woodbridge
Winery in Acampo, California. There, in California’s Central
Valley, employees in Woodbridge’s so-called cellar depart-
ment work to turn grapes into wine before the bottling pro-
cess begins. In 2015 Woodbridge’s cellar department employ-
ees decided to unionize, held an election, and certified the Lo-
cal 601 chapter of the International Brotherhood of Teamsters
as their collective bargaining representative. From there, how-
ever, the collective bargaining process stalled. Woodbridge
refused to engage with the union and challenged the certifi-
cation before the National Labor Relations Board. Although
the Board ordered Woodbridge to bargain with the union, the
winery successfully challenged the order on appeal, and the
case is now back pending and unresolved before the Board.
See Constellation Brands, U.S. Operations, Inc. v. NLRB, 842 F.3d
784 (2d Cir. 2016).
Tensions over the unionization and the collective bargain-
ing impasse remained high within Woodbridge in the sum-
mer of 2016. It was then that Manuel Chavez, a pro-union ad-
vocate who worked in Woodbridge’s cellar department, de-
cided to express his support for the union cause by writing
“Cellar Lives Matter” with a marker on the back of his safety
vest. Chavez explained that he devised the slogan because he
thought it was both true and catchy—drawing upon the well-
recognized Black Lives Matter movement. In his own words,
Chavez explained that “[a]s a department and as individuals
Nos. 19-1321 & 19-1549 3
we put—we do everything we have to do to make sure that
wine is ready for bottle ready. So therefore, Cellar Lives Mat-
ter.”
Chavez wore the vest each day from July 20 to August 4,
2016. During that period, no employee complained to him
about the Cellar Lives Matter slogan, and indeed, Chavez re-
ported that many of his co-workers responded positively. On
August 4, however, Woodbridge’s General Manager in-
formed Chavez that “numerous people” found the slogan of-
fensive in the “current political situation” and directed him to
stop wearing the vest. For his part, Chavez responded by ex-
plaining that the slogan was in no way racially motivated, and
instead was all and only about supporting the union’s posi-
tion in the ongoing collective bargaining dispute. Chavez
asked if he could write a different pro-union message on his
vest, but his supervisors refused. He then stopped wearing
the vest.
B
In January 2017 the Local 601 Union filed charges against
Woodbridge, and, separately, the National Labor Relations
Board’s General Counsel issued a consolidated unfair labor
practices complaint against the winery. The union alleged
that Woodbridge violated section 8(a)(1) of the National La-
bor Relations Act by directing Chavez to stop wearing cloth-
ing bearing any pro-union message. The Local 601 also raised
a second charge, altogether unrelated to Chavez and his
workplace clothing, that Woodbridge violated the Act by
maintaining a policy in its employee handbook that limited
eligibility for a bonus program to “non-union full time and
regular part-time employees of the Company.”
4 Nos. 19-1321 & 19-1549
An administrative law judge held a three-day hearing and
issued an order finding that Woodbridge had violated the Act
on both fronts. As for the Cellar Lives Matter slogan, the ALJ
found that Woodbridge could not justify preventing Chavez
from engaging in pro-union speech in the workplace. The rec-
ord, the ALJ observed, contained no evidence that Chavez in-
tended to denigrate the Black Lives Matter movement, finding
instead that it was Woodbridge’s supervisors who insinuated
that “any slogan associated with the BLM movement was too
controversial and inflammatory.” Not a single rank-and-file
employee, the ALJ continued, complained about the slogan.
Nor did Woodbridge show that the slogan caused disruption
to Woodbridge’s operations or presented any risk to anyone’s
safety. In these circumstances, the ALJ concluded, Wood-
bridge’s suppression of Chavez’s pro-union speech violated
section 8(a)(1) of the Act.
The ALJ then turned to the bonus-eligibility policy in
Woodbridge’s employee handbook. The ALJ found that the
policy, by its terms, limited participation in Woodbridge’s bo-
nus plan to non-union employees, in violation of Board prec-
edent interpreting section 8(a)(1) of the Act.
The National Labor Relations Board affirmed. Wood-
bridge then sought our review of the Board’s order, and the
Board cross-petitioned for enforcement. See 29 U.S.C. § 160(f)
(authorizing judicial review of a Board order granting or
denying relief in any circuit court in which the unfair labor
practice has allegedly occurred or where the appealing party
resides or transacts business).
Nos. 19-1321 & 19-1549 5
II
Section 7 of the National Labor Relations Act guarantees
employees “the right to self-organization, to form, join, or as-
sist labor organizations, to bargain collectively through rep-
resentatives 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. The Act pro-
tects this right in many ways, including in section 8(a)(1) by
prohibiting an employer from acting “to interfere with, re-
strain, or coerce employees in the exercise of the rights guar-
anteed in [section 7].” Id. § 158(a)(1). To establish a violation
of section 8(a)(1), “[n]o proof of coercive intent or effect is nec-
essary,” and we ask only “whether the employer engaged in
conduct, which, it may reasonably be said, tends to interfere
with the free exercise of employee rights under the Act.”
Brandeis Mach. & Supply Co. v. NLRB, 412 F.3d 822, 830 (7th
Cir. 2005) (alteration in original) (citation omitted).
Our review of a Board decision is limited. We look for
whether substantial evidence supports the Board’s factual
findings and whether legal conclusions have a reasonable ba-
sis in law. See Rochelle Waste Disposal, LLC v. NLRB, 673 F.3d
587, 592 (7th Cir. 2012). These standards are not demanding:
a finding is supported by substantial evidence if “a reasonable
mind might accept” its truth. See SCA Tissue N. Am. LLC v.
NLRB, 371 F.3d 983, 988 (7th Cir. 2004) (citation omitted); see
also id. at 987–88 (describing our review of a Board decision
as “circumscribed” and reminding that “we must not dabble
in fact-finding and may not dispute reasonable determina-
tions’” (citation omitted)). The party challenging the Board’s
determination bears the burden of proof. See Int’l Union of Op-
erating Eng’rs, Local 150 v. NLRB, 47 F.3d 218, 222 (7th Cir.
6 Nos. 19-1321 & 19-1549
1995). Where, as here, the Board adopts the ALJ’s findings of
fact and conclusions of law, our review focuses on the ALJ’s
order. See SCA Tissue N. Am. LLC, 371 F.3d at 988.
A
We begin with the ALJ’s conclusion that Woodbridge vio-
lated section 8(a)(1) of the National Labor Relations Act by or-
dering Chavez to stop wearing the vest with the Cellar Lives
Matter slogan. We also start from the common recognition by
the parties that section 7 of the Act protects an employee’s
right to wear clothing bearing pro-union messages “as part of
concerted activity to assist the union.” Brandeis Mach.,
412 F.3d at 832 (quoting NLRB v. Shelby Mem’l Hosp. Ass’n,
1 F.3d 550, 556 (7th Cir. 1993)). An employer violates sec-
tion 8(a)(1) when it curtails that right, see Republic Aviation
Corp. v. NLRB, 324 U.S. 793, 802–03 n.7 (1945), and indeed
such action is presumptively invalid. See Medco Health Sols. of
Las Vegas, Inc., 364 N.L.R.B. 115, at *4 (2016).
An employee’s right to wear union insignia is not abso-
lute, however. An employer may restrain an employee’s pro-
union speech “when the employer demonstrates that special
circumstances exist which justif[y] the banning of union in-
signia.” Brandeis Mach., 412 F.3d at 832 (citation omitted). Spe-
cial circumstances may be present where a message would
“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 employ-
ees.” Medco Health Sols., 364 N.L.R.B. 115, at *4. The employer
shoulders the obligation of showing the presence of special
circumstances. See Brandeis Mach., 412 F.3d at 832.
Nos. 19-1321 & 19-1549 7
The ALJ applied these principles and, based on evidence
presented during a three-day evidentiary hearing, found that
the Cellar Lives Matter slogan expressed a pro-union message
that enjoys protection under the Act. We cannot say this find-
ing lacks substantial support in the record. Chavez penned
the slogan on his work vest in an effort to promote the fledg-
ling union and to protest Woodbridge’s refusal to recognize
and bargain with the union. He donned the vest during a two-
week period in the summer of 2016, when Woodbridge had
appealed the Board’s order directing collective bargaining to
proceed, and thus much uncertainty remained over the entire
unionization effort within the winery and its cellar depart-
ment. Right to it, Chavez chose to express a pro-union mes-
sage at a time when he believed doing so was important—all
to support his colleagues in the cellar department who like-
wise wanted to unionize. Time and place matter with speech.
The ALJ also reasonably determined that Woodbridge
failed to identify special circumstances justifying the winery’s
restriction of Chavez’s pro-union expression. Chavez wore
the vest solely while working in Woodbridge’s grape pro-
cessing center. His job within the cellar department entailed
no customer contact, no interactions with third-party suppli-
ers, and no public-facing role of any kind. His immediate su-
pervisor uttered not a word of concern about the slogan. In
short, the two-week period during which Chavez wore the
vest was uneventful and unremarkable.
We can put the same points in terms of what the record
does not show. There is no evidence of Chavez’s co-workers
telling him they found the slogan offensive or racially
charged. Nor did Woodbridge make any showing of any em-
ployee approaching Chavez or his supervisor to express a
8 Nos. 19-1321 & 19-1549
concern about workplace morale or any disruption with
Woodbridge’s wine production or, for that matter, any other
aspect of the winery’s operations. Adhering to the deferential
standard that guides our review, we are confident the ALJ’s
finding is supported by substantial evidence. See NLRB v.
Aluminum Casting & Eng’g Co., 230 F.3d 286, 289 (7th Cir.
2000).
Woodbridge disagrees and asserts that at least three spe-
cial circumstances justified directing Chavez to stop wearing
the vest. We see each contention differently.
First, Woodbridge contends that pro-union speech may
not “appeal to ethnic prejudices,” Komatsu Am. Corp.,
342 N.L.R.B. 62, at *3 (2004), and the company must have the
right to prohibit racially insensitive speech in the workplace.
This contention is surely right at that level of generality. But
the question from there is whether it was reasonable for the
ALJ, based on the facts and circumstances presented here, to
find that Chavez’s Cellar Lives Matter slogan conveyed a pro-
union message without an accompanying racially insensitive
connotation.
In resolving the question, our role is not to “displace the
Board’s choice between two fairly conflicting views” even if
we “would justifiably have made a different choice.” Universal
Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). That deferen-
tial standard all but resolves Woodbridge’s challenge. The
ALJ’s conclusion that Woodbridge did not present evidence
that the Cellar Lives Matter slogan appealed to any prejudice
is reasonable. We see no evidence that the slogan criticized or
degraded anyone of any race or, even more specifically, the
Black Lives Matter movement or mission. To the contrary, all
signs point to Chavez’s attraction to the slogan precisely
Nos. 19-1321 & 19-1549 9
because it might grab the attention of his intended audience—
Woodbridge’s management—at a time of meaningful tension
between union employees and management. As the ALJ put
it, the slogan “was an appeal for respect and recognition” in-
spired by the ongoing collective bargaining dispute.
Nor does our review proceed on a blank slate. We benefit
from the Board’s resolution of similar cases addressing pro-
union speech in the workplace. Take, for example, Komatsu
America Corporation. See 342 N.L.R.B. 62. The Board in Ko-
matsu found that a company with connections to Japan could
ban its employees from wearing T-shirts saying “December 7,
1941” and “History Repeats Negotiate Not Intimidate.” Id. at
*2. The Board determined that the “Union’s Pearl Harbor T-
shirt directly invoked a highly charged and inflammatory
comparison between the [employer’s] outsourcing plans and
the Japanese sneak attack’ on the United States” during
World War II—a comparison made “especially inflammatory
and offensive because the [employer] is a Japanese-owned
company.” Id. at *3. On those facts, the Board found that the
employer met its burden of demonstrating a degree of work-
place disruption and unrest that justified banning the T-shirt.
See id. Not so here. Woodbridge may be right that in some
contexts the Cellar Lives Matter slogan could risk undue dis-
ruption or present other special circumstances justifying a
corporate response. But the ALJ’s contrary conclusion that
Chavez’s slogan did not appeal to prejudice or disparage a
civil rights group is supported by substantial evidence.
Second, Woodbridge posits that some employees were up-
set by the slogan and, even more, that an employer must have
the freedom to prevent “employee dissension.” Medco Health
Sols., 364 N.L.R.B. 115, at *4. But Woodbridge has not met its
10 Nos. 19-1321 & 19-1549
burden on this score either. Not one of Chavez’s co-workers
and indeed no non-management employee complained to
him about the slogan at any point during the two-week period
he wore the vest. Woodbridge insists that it is “obvious” that
the Cellar Lives Matter slogan could exacerbate employee dis-
sension. Perhaps in some circumstances. But the company
had the affirmative obligation of proving its position with
facts and evidence. The ALJ did not find Woodbridge’s posi-
tion so obvious, and that finding is reasonable—especially
where an employee’s statutory right to expression is at issue.
See Brandeis Mach., 412 F.3d at 832; see also Medco Health Sols.,
364 N.L.R.B. 115, at *4 (emphasizing that the “special circum-
stances exception is narrow, and a rule that curtails an em-
ployee’s right to wear union insignia at work is presump-
tively invalid” (cleaned up)).
Third, Woodbridge asserts that the slogan could have
“unreasonably interfere[d] with [its] public image.” Medco
Health Sols., 364 N.L.R.B. 115, at *4. An employee, Woodbridge
imagines, could have posted a photo of the vest on social
media as part of an effort to damage the winery’s brand. For
support, Woodbridge leans on Noah’s New York Bagels, Inc.,
where the Board determined that an employer could prohibit
a New York City delivery driver, catering to customers who
keep kosher, from wearing a T-shirt bearing the message, “If
its not Union, its not Kosher.” 324 N.L.R.B. 42 (1997). It is easy
to grasp how an insinuation that products are not actually
kosher—visible to customers on the clothing of a delivery
driver—might harm the company’s brand and goodwill.
Here, though, Chavez does not interact with customers, and
the contention that a photo of his vest could have been posted
to social media is precisely the kind of speculative evidence
that an employer may not rely on to meet its burden of
Nos. 19-1321 & 19-1549 11
demonstrating special circumstances. See Medco Health Sols.,
364 N.L.R.B. 115, at *6 (holding that the employer “has the
burden of adducing nonspeculative evidence that [the
employee’s] shirt adversely affected its business”).
The ALJ’s conclusion, adopted by the Board—that Wood-
bridge did not meet its burden to demonstrate special circum-
stances warranting the infringement on Chavez’s statutory
rights—is reasonable and supported by substantial evidence.
B
We need only briefly analyze the altogether separate ques-
tion regarding the bonus-eligibility policy published in
Woodbridge’s employee handbook. “It is well settled that an
employer violates section 8(a)(1) of the Act through a provi-
sion in, or a statement about, a plan which suggests that em-
ployees who choose union representation will automatically
be excluded from participation.” Voca Corp., 329 N.L.R.B. 60,
at **11 (1999) (citation omitted). The challenged handbook
policy did just that, providing that “[a]ll non-union full time
and regular part-time employees of the Company are eligible
for the incentive plan.” The message is clear and precise: un-
ion members are not eligible.
Woodbridge contends that reality contradicts the policy,
as all employees are eligible to participate in the incentive
plan notwithstanding the language in the handbook. But the
fact that no employee has been “rejected for participation in
the plan or deprived of benefits thereunder because of union
representation is not of significance.” Melville Confections, Inc.
v. NLRB, 327 F.2d 690, 692 (7th Cir. 1964). It is enough that the
language by its terms “reasonably tends” to interfere with the
free exercise of an employee’s right to choose to support
12 Nos. 19-1321 & 19-1549
unionization. Voca Corp., 329 N.L.R.B. 60, at **12. Here too,
then, the ALJ’s conclusion is reasonable and supported by
substantial evidence.
For these reasons, we DENY Woodbridge’s petition for re-
view and GRANT the Board’s application for enforcement.