AdvancePierre Foods, Inc. v. NLRB, 966 F.3d 813

In 2015 union organizers targeted roughly 600 hourly workers at AdvancePierre Foods’ Cincinnati plant; union literature and authorization cards were widely distributed by May.
Management mistakenly posted and enforced an outdated (2001) overbroad no-solicitation/no-distribution policy from May–June, leading to confiscation of a card and verbal warnings to employees.
Management investigated employee identities, demanded new ID from employee Concepcion, and ultimately suspended her when documentation issues persisted (Board does not seek enforcement as to Concepcion here).
AdvancePierre issued an attendance point to an employee who missed work during a one-day strike, failed to timely respond to many pro-union CATS (grievance) submissions, and (erroneously) told employees pay information must be kept confidential.
During mid-May–mid-June management held meetings and distributed flyers and pre-printed letters explaining how employees could withdraw/recall union authorization cards; the ALJ treated the flyers as permissible information, not unlawful solicitation.
The NLRB reversed the ALJ, finding that contemporaneous ULPs created a “perilous atmosphere” such that providing revocation assistance unlawfully solicited card withdrawals, and ordered a notice-reading remedy; AdvancePierre sought review in this Court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether AdvancePierre unlawfully solicited employees to revoke union authorization cards	Flyers/meetings were informational and protected speech under §8(c); no coercive language; Board double-counted other misconduct	Board: contemporaneous ULPs created an atmosphere of peril so advising how to revoke (and offering assistance) was unlawful under Mohawk	Court upheld Board: substantial evidence of a perilous atmosphere; plaintiff forfeited broader challenge to Mohawk for not raising it before the Board
Whether the Board’s notice-reading remedy was appropriate	Notice-reading is extraordinary and cannot be imposed absent finding that traditional remedies are insufficient	Board: broad remedial discretion; the scope/severity of 17 ULPs warranted a notice-reading to dissipate lingering effects	Court enforced remedy: Board did not abuse discretion; many specific objections forfeited for failure to seek reconsideration before the Board
Preservation under 29 U.S.C. §160(e) (Section 10(e))	Company sought to raise defenses based on Mohawk and First Amendment but did not present them to the Board	Board argues objections not presented below are forfeited absent extraordinary circumstances	Court: enforced Section 10(e) bar; declined to consider unraised arguments because extraordinary circumstances not shown

Inova Health Sys. v. NLRB, 795 F.3d 68 (D.C. Cir. 2015) (standard of review for Board factual findings)
Hawaiian Dredging Constr. Co. v. NLRB, 857 F.3d 877 (D.C. Cir. 2017) (review standards for Board decisions)
Fallbrook Hosp. Corp. v. NLRB, 785 F.3d 729 (D.C. Cir. 2015) (Board’s broad remedial discretion)
In re Mohawk Industries, 334 N.L.R.B. 1170 (2001) (employer may advise revocation only if not offering assistance, monitoring, or creating atmosphere of peril)
Parexel Int’l, LLC, 356 N.L.R.B. 516 (2011) (restrictions on wage discussions violate §158(a)(1))
HTH Corp. v. NLRB, 823 F.3d 668 (D.C. Cir. 2016) (review of notice-reading remedy and when extraordinary remedies are appropriate)
ABM Onsite Servs.—West, Inc. v. NLRB, 849 F.3d 1137 (D.C. Cir. 2017) (agency must explain departures from precedent)
Allied Mech. Servs., Inc. v. NLRB, 668 F.3d 758 (D.C. Cir. 2012) (summary enforcement of unchallenged Board orders)
United Food & Commercial Workers Int’l Union v. NLRB, 852 F.2d 1344 (D.C. Cir. 1988) (scope of remedies available to Board)