See also Laborers' Dist. Council of Georgia and South Carolina v. NLRB, 501 F.2d 868, 874 (D.C. Cir. 1974) (employers' opinions and predictions of unfavorable consequences will not violate Act "if they have some reasonable basis in fact and are in fact predictions or opinions and not veiled threats of employer retaliation"). Two of our post-Gissel cases, Crown Cork Seal Co. v. NLRB, 36 F.3d 1130 (D.C. Cir. 1994), and Allegheny Ludlum, provide the framework for analyzing the statements at issue in this case. Crown Cork Seal arose from the Steelworkers' attempt to organize Crown's Vineland, New Jersey, manufacturing plant.

Even if the Union could have convinced the salaried employees that it would act responsibly, with a view to economic circumstances and the workers' best interests, it could not dull the impact of the Company's threat to lay off salaried employees in retaliation for their having elected Union representation. The Company argues on appeal that this ruling contradicted this circuit's recent treatment of similar employer communications in Crown Cork Seal v. N.L.R.B., 36 F.3d 1130 (D.C. Cir. 1994), and Somerset Welding Steel v. N.L.R.B., 987 F.2d 777 (D.C. Cir. 1993). But we find that the absolved communications in those two cases were significantly different from the threatening combination of messages contained in the second edition of the "Your Choice" newsletter.

Such an approach, we are told, is an affront to Gissel's teaching that the First Amendment allows an employer to express anti-union views (so long as threats of reprisal or promises of benefits are not imparted) and to make objective, nonmisleading predictions of the likely effects of union representation. See Gissel, 395 U.S. at 618; see also, e.g., General Elec. Co. v. NLRB, 117 F.3d 627, 630 (D.C. Cir. 1997); Crown Cork Seal Co. v. NLRB, 36 F.3d 1130, 1134 (D.C. Cir. 1994). The district court rejected US Airways' reliance on the First Amendment principles announced in these cases: "Gissel Packing, and the other cases cited by Plaintiff are inapposite for the simple reason that they were decided under the NLRA, not the RLA, which is the statute governing this case."

In the statute's early years, the Board interpreted § 8(a)(1) expansively, "condemn[ing] almost any anti-union expression by an employer." Crown Cork Seal Co. v. NLRB, 36 F.3d 1130, 1138 (D.C. Cir. 1994) (internal quotation marks omitted). Concerned that the Board's "aggressive enforcement of § 8(a)(1) had made it excessively difficult for employers to engage in any form of non-coercive communications with employees regarding the merits of unionization," Allegheny Ludlum Corp. v. NLRB, 104 F.3d 1354, 1361 (D.C. Cir. 1997), and concerned about the infringement of the employer's free-speech rights, cf. Hecla Mining Co. v. NLRB, 564 F.2d 309, 313 n. 6 (9th Cir. 1977), Congress in 1947 added a new provision to limit § 8's scope" § 8(c), Labor-Management Relations Act, ch. 120, sec. 101, § 8(c), 61 Stat. 136, 142 (1947) (codified at 29 U.S.C. § 158(c)).

Any forecasts of consequences for rejecting the employers position are permissible as long as the forecasts are backed with objective evidence and do not imply retaliation within the employer's control. See Gissel Packing, 395 U.S. at 618; Crown Cork Seal Co. v. NLRB, 36 F.3d 1130, 1138 (D.C. Cir. 1994); Garry Mfg., 630 F.2d at 938-39; Monroe v. NLRB, 460 F.2d 121, 125 (4th Cir. 1972). Employers and unions must be allowed equal footing.

Section 8(c) protects statements to the effect that union activity will harm employees by decreasing an employer's competitiveness. In Crown Cork & Seal Co. v. NLRB , 36 F.3d 1130 (D.C. Cir. 1994), we explained that an employer may "say how the company is likely to respond to a changed economic environment," so long as its statements "imply no punitive or retaliatory purpose." Id. at 1138.

"Of course the employees are free to draw their own conclusions therefrom, but employee conclusions are certainly not to be viewed as employer predictions." Michael's Markets , 274 N.L.R.B. 826, 826 (1985) ; see also Crown Cork & Seal Co. v. NLRB , 36 F.3d 1130, 1134 (D.C. Cir. 1994) (finding that a letter could not be read to threaten plant closure because it linked job preservation to the plant's ability to compete regardless of unionization); EDP Med. Comput. Sys., Inc. , 284 N.L.R.B. 1232, 1264 (1987) (holding that employers have a "right to ... stat[e] ‘economic reality’ by informing employees of [unionized companies that had closed].").

We have often applied Gissel in situations involving allegedly unlawful employer speech. In Crown Cork Seal Co. v. NLRB, 36 F.3d 1130 (D.C. Cir.1994), we found an employer's letter attacking a union's record on job security protected under NLRA section 8(c), noting that "[i]f the Board may take management statements that very emphatically assert a risk, twist them into claims of absolute certainty, and then condemn them on the ground that as certainties they are unsupported, the [employer's] free speech right is pure illusion." Id. at 1140.

And we have recognized that "an employer's free speech right to communicate his views to his employees is firmly established and cannot be infringed by . . . the Board." See Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130, 1140 (D.C. Cir. 1994) (quoting NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969)); see also Cadillac of Naperville, Inc. v. NLRB, 14 F.4th 703, 723 (D.C. Cir. 2021) (Katsas, J., concurring in part and dissenting in part) (observing that in labor disputes, there should be a presumption "in favor of speech rather than against it"). In short, we favor "uninhibited, robust, and wide-open debate in labor disputes."

Shaeffer's statements resemble the protected statements in Pentre Elective and DTR Industries more closely than they resemble coercive threats. See also Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130, 1140 (D.C. Cir. 1994) ("[I]f unions are free to use the rhetoric of Mark Antony while employers are limited to that of a Federal Reserve Board chairman, [] the employer's speech is not free in any practical sense."). No one disputes that Shaeffer truthfully spoke about his experience working with unions, and Shaeffer stands entitled to communicate his views about "the likely economic consequences of unionization that are outside his control."