372 NLRB No. 54
Lush Cosmetics, LLC
372 NLRB No. 54
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Lush Cosmetics, LLC and Workers United Canada
Council, SEIU. Case 20–CA–272392
February 10, 2023
DECISION AND ORDER
BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN
AND WILCOX
On March 24, 2022, Administrative Law Judge Dickie
Montemayor issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief. The General Counsel filed cross-
exceptions and a supporting brief, and the Respondent
filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
only to the extent consistent with this Decision and Or-
der.2
I. FACTUAL BACKGROUND
The Respondent is a worldwide company that manu-
factures, distributes, and sells cosmetics. It maintains a
nonpublic intranet site called the “Hive” where it shares
general news and guidelines with its employees in the
United States and Canada, including information about
its charitable activities and ethical campaigns. Employ-
ees can respond, like, and comment on the Respondent’s
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
There are no exceptions to the judge’s dismissal of the allegations
that the Respondent violated Sec. 8(a)(1) by interrogating employee
Dolso-Morey and by instructing him to allow his manager to review his
comments before they were posted to the Hive.
2 We shall amend the judge’s conclusions of law consistent with our
findings herein. We shall modify the judge’s recommended Order to
conform to our findings, to the Board’s standard remedial language,
and in accordance with our decision in Paragon Systems, Inc., 371
NLRB No. 104 (2022). We shall substitute a new notice to conform to
the Order as modified.
Member Kaplan acknowledges and applies Paragon Systems as
Board precedent, although he expressed disagreement there with the
Board's approach and would have adhered to the position the Board
adopted in Danbury Ambulance Service, Inc., 369 NLRB No. 68
(2020).
posts, as well as engage in discussion with each other.
They are also encouraged to post their thoughts related to
the company and workplace. The Respondent maintains
a Usage Policy for the Hive, which states that the Re-
spondent “welcome[s] all respectful thoughts and mus-
ings” but has “zero-tolerance for defamatory and/or per-
sonal attacks on anyone in the Lush community.” The
Usage Policy contains content guidelines requiring post-
ings to be professional, work related, and secure.3
Employee Maxwell Dolso-Morey was hired by Lush in
2015 and worked at the Respondent’s retail facility on
Powell Street in San Francisco, California, from August
2020 through January 2021. During his time at the Pow-
ell Street store, Dolso-Morey responded to the Respond-
ent’s Hive posts several times. As detailed in the judge’s
decision, on August 6, Dolso-Morey posted comments
that addressed the Respondent’s corporate restructuring
plan and described the Respondent as “vultures” and its
CEO as a “scumbag” and “the boot we are all supposed
to lick”; on December 5, he posted comments focused on
the employees’ working conditions and the need for em-
ployee organizing; on December 21, he posted content
addressing living wages and encouraged the Respondent
to support union organizing among its employees; and on
January 8, replying to a post about democracy, Dolso-
Morey told the Respondent to stop harassing employees
who want to join a union and highlighted the employees’
need for living wages.
In a letter to Dolso-Morey dated January 6, 2021, Ste-
phen Dynes, the Respondent’s West Coast human re-
sources representative, addressed Dolso-Morey’s “con-
duct related to posts on the hive.” Specifically, the letter
mentioned Dolso-Morey’s December 21 Hive post4 in
response to the Respondent’s post on December 18, In-
ternational Migrants Day. Referencing the Respondent’s
promotion of a non-profit organization that defends im-
migrants, Dolso-Morey had posted:
Y’all should find a[n] org that supports Canadian im-
migrants that work in warehouses. Whoops! Never
mind, that’d be totally against your own interests. Be-
fore you stand on your soap box, pay your workers a
livable wage. STARTING with your immigrant work-
ers in your own company. Support your workers trying
to join a #union to avoid shooting yourself in the foot
3 Neither the Hive Usage Policy nor the content guidelines are al-
leged to be or were litigated as unlawful in this proceeding.
4 Although the letter refers to a December 19 Hive post, there is no
December 19 Hive post in the record. Rather, Dolso-Morey’s com-
ments as referenced in the letter appear in his December 21 Hive post.
This apparently inadvertent error does not affect our decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2
because your public image is what you think is holding
up this company.5
In his January 6, 2021, letter to Dolso-Morey, Dynes
stated, in relevant part, as follows:
On December 19th, [sic] you made posts on the hive
which appear to be intended to disparage the Company
and its managers by implying, without any substance,
that Lush is mistreating Manufacturing employees . . . .
Your conduct in posting unsubstantiated allegations . . .
on the hive is not acceptable. . . . In the future, we ask
you to refrain from making unsubstantiated allegations
. . . on the hive. If you elect to continue such inappro-
priate conduct, the Company may consider your actions
to amount to misconduct.
Dynes added that “[f]or purposes of further clarity, you
may continue to express your views concerning unioni-
zation on the hive.”
Dynes contacted Anthony Ybarra, Dolso-Morey’s lo-
cal store manager and asked him to deliver the letter to
Dolso-Morey, field any questions, and point Dolso-
Morey to the appropriate person to answer those ques-
tions. Ybarra provided the letter to Dolso-Morey a few
days later, at which time Dolso-Morey read the letter and
did not ask any questions.
Dolso-Morey resigned from Lush Cosmetics in June
2021 to work elsewhere. Prior to his resignation, he
wrote two additional posts on the Hive. In April 2021,
Dolso-Morey stated that the company’s attempted union-
busting was in the press, and in June 2021, he comment-
ed that if “this is leading fearlessly that brings the bar
down QUITE a lot. Thanks for nothing I guess?” Dolso-
Morey was not disciplined for either of these posts.
II. JUDGE’S DECISION AND RESPONDENT’S EXCEPTIONS
The complaint alleges that the Respondent’s letter to
Dolso-Morey “threatened [him] with unspecified repris-
als by instructing the employee that making ‘unsubstan-
tiated allegations’ . . . would constitute misconduct.” In
his decision, however, the judge treated the Respondent’s
letter to Dolso-Morey as a work rule prohibiting employ-
ees from making unsubstantiated allegations. Applying
The Boeing Company, 365 NLRB No. 154 (2017), the
Board’s precedent for determining the lawfulness of em-
ployer work rules, the judge determined that the rule was
unlawful in violation of Section 8(a)(1).
On exception, the Respondent asserts that the letter’s
prohibition on making unsubstantiated allegations did not
constitute a work rule and that, accordingly, the judge
5
Dolso-Morey had learned from posts on the Hive that the Re-
spondent’s manufacturing and distribution employees in Toronto, Can-
ada, were seeking to organize.
erred in analyzing the prohibition under Boeing. Instead,
the Respondent maintains that the letter was an ad hoc
statement to a single employee to address his disrespect-
ful conduct in a specific situation and, as such, should
have been analyzed as a threat, as the General Counsel
had alleged in the complaint. For her part, the General
Counsel argues that the letter is properly analyzed as a
threat of unspecified reprisals in violation of Section
8(a)(1), but she also argues that the judge did not err in
considering the allegation under Boeing.
As explained below, we agree with the Respondent
that its statements to Dolso-Morey in its January 6, 2021,
letter must be analyzed as an allegedly unlawful threat.
Applying such an analysis, we find the statements unlaw-
ful, contrary to the Respondent’s position.
III. ANALYSIS
As noted, the complaint alleges that the statements in
the Respondent’s letter constituted an unlawful threat of
unspecified reprisals. In addition, at the hearing, both
parties litigated the statements as an unlawful threat, not
an unlawful work rule. Neither party made arguments
based on Boeing nor presented evidence in support of an
analysis under that legal standard. To the contrary, the
General Counsel stated that what was to be tried at the
hearing was “paragraph 5 of the complaint alleging
threats of reprisals by the letter . . . stating that unsub-
stantiated allegations about the company on the Hive
would be considered misconduct.” She also contended
that the letter’s vague and coercive language would lead
Dolso-Morey to fear discipline in the future. Further,
and notably, she asked the judge to apply a totality-of-
the-circumstances test, not the Boeing standard. For its
part, the Respondent advocated its view of the letter and
the circumstances of its delivery as noncoercive, nondis-
ciplinary, and nonthreatening. Testimony elicited by the
parties was consistent with their respective positions on
the merits of complaint paragraph 5. Dolso-Morey testi-
fied that he left Lush because he was having panic at-
tacks working with Ybarra after receiving the letter, and
he felt as though there “was kind of a target on my
back.” He also testified on cross-examination that he
thought the “other shoe” would soon drop. By contrast,
Dynes testified that the letter was merely of a coaching
nature and reiterated the Respondent’s position that
Dolso-Morey could continue to post about union-related
matters. Ybarra likewise testified as to the context of the
meeting and denied that he was monitoring or prescreen-
ing Dolso-Morey’s Hive posts.
In short, the complaint alleged that the Respondent vi-
olated Section 8(a)(1) by threatening Dolso-Morey with
unspecified reprisals, and the parties’ litigation at the
hearing was entirely consistent with this allegation.
LUSH COSMETICS, LLC
3
Therefore, we find that the judge erred in analyzing the
Respondent’s statements in the letter to Dolso-Morey as
a work rule under the Board’s Boeing jurisprudence.
Instead, the Respondent’s statements should have been
analyzed as an allegedly unlawful threat under the
Board’s totality-of-circumstances standard.6 Applying
that standard here, we find that the Respondent’s state-
ments to Dolso-Morey in the letter constituted an unlaw-
ful threat of unspecified reprisals for engaging in protect-
ed activity.
“The Board has long held that the standard to be used
in analyzing statements alleged to violate Section 8(a)(1)
is whether they have a reasonable tendency to coerce
employees in the exercise of their Section 7 rights. In-
tent is immaterial.” KSM Industries, Inc., 336 NLRB
133, 133 (2001) (citing Concepts & Designs, 318 NLRB
948, 954, 955 (1995), and Puritech Industries, 246
NLRB 618, 622-623 (1979)). The Board considers the
totality of circumstances in assessing the reasonable ten-
dency of an ambiguous statement or a veiled threat to
coerce. Id. Whether or not the employee changed their
behavior in response is not dispositive, nor is the em-
ployee’s subjective interpretation of the statement. See
Boar’s Head Provisions Co., 370 NLRB No. 124, slip
op. at 16 (2021); Sunnyside Home Care Project, 308
NLRB 346, 346 fn. 1 (1992). The Board therefore con-
siders the total context of the alleged unlawful conduct
from the viewpoint of its impact on employees’ free ex-
ercise of their rights under the Act. See American Tissue
Corp., 336 NLRB 435, 441–442 (2001).
Under the established standard, the Respondent’s Jan-
uary 6, 2021, letter could easily be understood as a warn-
ing against communicating with fellow employees about
terms and conditions of employment on the Hive. Dolso-
Morey’s December 5, 2020 post on the Hive addressed
employees’ working conditions, and his December 21,
2020 Hive post addressed the wages the Respondent pays
its employees by exhorting the Respondent to “pay your
workers a livable wage.” 7 By notifying Dolso-Morey
6 Board precedent has distinguished “one-off” threats from general-
ly applicable work rules, including in post-Boeing decisions. See, e.g.,
Watco Transloading, 369 NLRB No. 93, slip. op. at 8 fn. 24 (2020);
PAE Applied Technologies, 367 NLRB No. 105, slip op. at 4 fn. 8
(2019); and Shamrock Foods, 366 NLRB No. 117, slip op. at 2 fn. 10
(2018).
7 These posts constituted protected concerted activity. See Eastex,
Inc. v. NLRB, 437 U.S. 556, 569–570 (1978); Cordua Restaurants, 368
NLRB No. 42, slip op. at 4 (2019), enfd. 985 F.3d 415 (5th Cir. 2021).
Member Kaplan agrees that Dolso-Morey’s December 21 Hive post
constituted protected concerted activity. The record establishes that
when Dolso-Morey exhorted the Respondent to pay its workers a living
wage, he was bringing a group complaint to the attention of manage-
ment. See Meyers Industries, 281 NLRB 882, 887 (1986), affd. sub
that the Respondent considered his protected activity to
be “unacceptable” and that, should he persist in such
conduct, it would be deemed “misconduct,” the letter
strongly suggested that future postings about employees’
terms and conditions of employment on the Hive would
result in discipline or other unspecified reprisals. The
Board has found that similar warnings to employees re-
garding protected activities convey a threatening mes-
sage that engaging in such activities would put them at
risk of adverse consequences and thus violate Section
8(a)(1). Indeed, the Board has found statements milder
than the Respondent’s—such as warnings to “be care-
ful,” “watch out,” or “watch your back,” even where the
manager or supervisor was genuinely concerned for the
warned employee’s job security and intended the warn-
ing as friendly advice—to constitute unlawful threats.
See, e.g., Gaetano & Associates Inc., 344 NLRB 531,
534 (2005); St. Francis Medical Center, 340 NLRB
1370, 1383-1384 (2003); Jordan Marsh Stores Corp.,
317 NLRB 460, 462 (1995).
That the letter states that it “does not constitute disci-
pline” does not warrant a different result. The letter
clearly warned of the potential for future discipline or
other adverse consequences, stating that “[i]f you elect to
continue such inappropriate conduct, the Company may
consider your actions to amount to misconduct.” The
letter came from senior management, putting an impri-
matur of authority onto the warnings and suggesting up-
per management was watching Dolso-Morey’s behavior.
In these circumstances, upon reading the letter, Dolso-
Morey would reasonably understand that he could be
subject to discipline or other unspecified reprisals if he
continued to post protected comments addressing em-
ployees’ wages or working conditions on the Hive.8
Similarly, the letter’s statements that Dolso-Morey
“may continue to express [his] views concerning unioni-
zation on the [H]ive,” and the fact that Dolso-Morey con-
tinued to do so, do not undercut a conclusion that the
letter constituted a threat of unspecified reprisals. As
noted, the relevant legal standard is an objective one, and
we have determined that the statements in the letter
would reasonably be understood as a coercive threat.
Further, the Act protects employees’ rights to engage in
other protected concerted activities besides, and in addi-
nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487
U.S. 1205 (1988).
8 Although Dolso-Morey was not disciplined after issuance of the
letter, the absence of later discipline is not dispositive of whether, at the
time of issuance, the letter would reasonably be understood to consti-
tute a threat of unspecified reprisals for engaging in protected activity.
See Publix Super Markets, 347 NLRB 1434, 1435–1436 (2006) (find-
ing unlawful threat of discipline despite the fact that no discipline took
place).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4
tion to, those related to unions and unionization.9 So,
although the letter allowed Dolso-Morey to continue to
express his views on unionization, it did not assure him
that he was free to engage in other protected concerted
activity, such as communicating with his coworkers con-
cerning wages, hours, or other terms and conditions of
their employment, as he had done in previous posts on
the Hive.10
Based on the foregoing, we find, consistent with the
complaint and the parties’ litigation at the hearing, that
the Respondent violated Section 8(a)(1) by threatening
Dolso-Morey with unspecified reprisals if he continued
to engage in protected activity.
AMENDED CONCLUSIONS OF LAW
1. Lush Cosmetics (the Respondent) is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Workers United Canada Council, SEIU (the Union)
is a labor organization within the meaning of Section
2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) by its
letter dated January 6, 2021, threatening employee Max-
well Dolso-Morey with unspecified reprisals if he en-
gaged in protected concerted activity by instructing him
that making “unsubstantiated allegations” on the Hive
forum would constitute misconduct.
4. The above unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that the
Respondent, Lush Cosmetics, LLC, San Francisco, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with unspecified reprisals
if they engage in protected concerted activities.
9 The Act, of course, applies to employees in both unionized and
non-unionized workplaces, and Sec. 7 of the Act grants employees the
right to act together for their “mutual aid or protection.” It is well set-
tled that this right includes employees’ right to communicate with one
another regarding their terms and conditions of employment. See East-
ex, Inc. v. NLRB, supra. Such communications among employees are
often preliminary to action for mutual aid or protection and, as the
Board has explained, “lie[] at the heart of protected Section 7 activity.”
St. Mary Margaret Mercy Healthcare Centers, 350 NLRB 203, 205
(2007), enfd. 519 F.3d 373 (7th Cir. 2008). As a result, the right of
employees under the Act to discuss terms and conditions of employ-
ment is broad. It encompasses employee discussions of a host of issues
that may arise in the course of employment.
10 This is particularly true if the posts include communications about
working conditions and other protected concerted activity that, like
Dolso-Morey’s posts on the Hive, cannot be “substantiated” because
they are the employee’s opinion and not a factual statement.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its San Francisco, California facility copies
of the attached notice marked “Appendix.”11 Copies of
the notice, on forms provided by the Regional Director
for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if the Re-
spondent customarily communicates with its employees
by such means. The Respondent shall take reasonable
steps to ensure that the notices are not altered, defaced,
or covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, copies of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since January 6, 2021.
(b) Within 21 days after service by the Region, file
with the Regional Director for Region 20 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. February 10, 2023
11 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have
returned to work, and the notices may not be posted until a substantial
complement of employees have returned to work. If, while closed or
not staffed by a substantial complement of employees due to the pan-
demic, the Respondent is communicating with its employees by elec-
tronic means, the notice must also be posted by such electronic means
within 14 days after service by the Region. If the notice to be physical-
ly posted was posted electronically more than 60 days before physical
posting of the notice, the notice shall state at the bottom that “This
notice is the same notice previously [sent or posted] electronically on
[date].” If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
LUSH COSMETICS, LLC
5
______________________________________
Lauren McFerran, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
Gwynne A. Wilcox, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten you with unspecified reprisals if
you engage in protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
LUSH COSMETICS
The
Board’s
decision
can
be
found
at
www.nlrb.gov/case/20-CA-272392 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.
Randy M. Girer, Esq., for the General Counsel.
Joel S. Aziere, Esq., Rob Buikema, Esq. (Buelow Vetter Buike-
ma Olsen & Vliet), for the Respondent.
DECISION
STATEMENT OF THE CASE
DICKIE MONTEMAYOR, Administrative Law Judge. This case
was tried before me on November 9, 2021, via the Zoom for
Government videoconferencing platform. Charging Party filed
a charge on February 8, 2021, and an amended charge on May
3, 2021. A complaint was issued on May 11, 2021, and an
amended complaint issued August 2, 2021. Respondent filed
an answer to the complaint denying that it violated the Act. By
order dated October 28, 2021, the Regional Director withdrew
allegations related to paragraph 7 of the complaint. On De-
cember 14, 2021, the parties filed posthearing briefs. After
considering the matter (including the submissions by both Re-
spondent and General Counsel) and based upon the detailed
findings and analysis set forth below, I conclude that Respond-
ent violated the Act.
FINDINGS OF FACT
JURISDICTION
The complaint alleges, and I find that
1. (a) The charge in this proceeding was filed by the Charg-
ing Party on February 8, 2021, and a copy was served on Re-
spondent by U.S. mail on February 9, 2021.
(b) The first-amended charge in this proceeding was filed by
the Charging Party on May 3, 2021, and a copy was served on
Respondent by U.S. mail on May 4, 2021.
2. (a) At all material times, Respondent has been a limited
liability company with places of business located throughout
the State of California, including in San Francisco, and has
been engaged in the retail sale of cosmetics.
(b) During the calendar year ending December 31, 2020,
Respondent, in conducting its business operations described
above in subparagraph 2(a), derived gross revenues in excess of
$500,000.
(c)
During the calendar year ending December 31, 2020,
Respondent, in conducting its business operations described
above in subparagraph 2(a), purchased and received at its Cali-
fornia facilities goods valued in excess of $5000 directly from
points outside the State of California.
3. At all material times, Respondent has been an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
4. At all material times, the following individuals held the
positions set forth opposite their respective names and have
been supervisors of Respondent within the meaning of Section
2(11) of the Act and/or agents of Respondent within the mean-
ing of Section 2(13) of the Act:
Tony Ybarra - Store Manager
Stephen Dynes - People & Culture Business Partner, West
Region
ALLEGED UNFAIR LABOR PRACTICES
Maxwell Dolso-Morey was employed by Respondent from
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6
November 15, 2015, to July 2021, when he voluntarily left the
company. He worked in the retail operations of the company
beginning as a seasonal contract employee moving up to a sales
associate, then an Operations Specialist and in 2017, he held
the position of a floor leader, Respondent is a cosmetics com-
pany that manufactures, distributes, and directly sells products
in retail locations in North America, Europe, Asia, and Austral-
ia.
Respondent maintains intranet sites for internal communica-
tions which are not accessible by the public. Respondent utiliz-
es the sites to update employees on company policies products
and announcements. Employees are required to log onto both
websites daily to remain up to date with any employer an-
nouncements or informational posting. There are two separate
sites. The first is called zipline. It is a site that only Respond-
ent’s officials can post on. The second is called the hive. Un-
like zipline, the hive allows for communications by employees
and between employees. The hive had a usage policy which
employees were directed to follow which stated as follows:
The hive is an online space meant for communicating with
one another. You're welcome to speak your mind- just re-
member to keep it respectful to one another. The hive is a
space that welcomes and encourages thoughtful discussion
around topics related to Lush, its people, and its values. We
aim to foster a safe space for the entire Lush community. We
welcome all respectful thoughts and musings, regardless of
personal opinion. In all spaces on the hive, there is zero-
tolerance for defamatory and/or personal attacks on anyone in
the Lush community. All commenters on the hive are asked to
observe these guidelines and to keep language and remarks
within accordance of them. All users are expected to follow
the instructions above; any violation of these policies and pro-
cedures may result in disciplinary action. (R. Exh. 1.)
The usage policy also set forth what it described as “quick
and easy” guidelines to maintain a safe and respectful hive for
all Lushies as follows:
1. Keep it respectful.
Because we want the hive to be a positive and collaborative
environment where you can always find accurate information,
all employee activity will be monitored by the internal com-
munications team. Inappropriate comments, and misinfor-
mation will be deleted.
2. Keep it Lush
We want the hive to be a place where employees can quickly
and easily find relevant information for their jobs, so let’s not
clutter it up with too many distractions! Please keep your
comments related to the posts’ original topics. There are many
places to share content about ourselves and our passions.
Business posts on the hive should be a place where we talk
about work.
3. Keep it secure.
All content on the hive is for employees’ eyes only, and sub-
ject to our confidentiality agreement. Please only access the
hive from secure devices, and remember to log out when you
are finished. (R. Exh. 1.)
Dolso-Morey was aware of the acceptable use policy which
he acknowledged electronically on June 23, 2019. (R. Exh. 6.)
The employer also had in place an anti-harassment policy
which Dolso-Morey was aware of. The policy stated as fol-
lows:
Lush prohibits harassment of any kind, including sexual har-
assment, and will take appropriate and immediate action in re-
sponse to complaints or knowledge of violations of this poli-
cy. . . . Written or graphic material placed on walls, bulletin
boards, e-mail, the hive or elsewhere Lush’s premises or cir-
culated in the workplace that mocks, denigrates, or shows
hostility towards an individual or group as outlined in the pro-
tected grounds/identities. (GC Exh. 11.)
On August 16, 2020, in response to one of Respondent’s
“Business Updates” regarding employee layoffs, Dolso-Morey
posted a comment on the Hive under the topic “Lush Restruc-
turing.”
This company doesn’t value tenured staff. They’d rather hire
an outside manager to run the staff like the Target or Mar-
shalls they came from instead of already knowing and under-
standing the culture of being a Lush employee. When a staff
member has worked here for 6+ years gets furloughed but a
manager who's only worked here for a little over a year gets a
25% pay reduction is unjust and cruel.
Where is the equity in BID training from that? You’re vul-
tures are taking advantage of this PANDEMIC to “rearrange”
people and lighten the financial burden on YOU. Without any
thought of your loyal, unflinching staff that have put blood,
sweat and tears into this company, literally! These layoffs are
irredeemable and prove that you are CEO and businessman,
before you’re a working class person but let’s not forget that
you will be totally fine with your Wolverton Security money.
You’re a scumbag and the boot we are all supposed to lick.
Congratulations, you've started a revolution you didn’t bar-
gain for, Coward. (GC Exh. 2) (R. Exh. 5, p. 14).
On December 5, 2020, Dolso-Morey again posted on the
hive under the topic of “Business Update from Mark Wolver-
ton, CEO of Lush America” and the post read as follows:
The lack of solidarity and curiosity on this post is dishearten-
ing. When it comes to the environment, people’s right to vote,
or shark “n soup we all come together and sell our hearts out
for these causes that we believe in. But for some reason when
employees come together and talk about organizing them-
selves, they’re met with IMMEDIATE resistance and doubt. I
love this company, it’s products, and my fantastic co-workers
but I cannot for the life of me wrap my head around why be-
ing anti-union is the focus for so many. We are WORKING
through the pandemic. As a front facing retail employee, in a
large city, I can confidently say that I am terrified of going to
work and I can only imagine what manu is going through dur-
ing holiday right now. I have nothing but love and support for
LUSH COSMETICS, LLC
7
them because they’re physically producing pro”t (sic)in work-
ing conditions that only they can describe because I only
know the manicured version. Support and appreciate them
because they are essentially the ones paying your pay check.
But don’t just appreciate them for doing the dirty physical
work but for having the courage to organize and take matters
into their own hands. There is nothing more important
RIGHT NOW than the labor movement because all of the
things we all care deeply about are tied to the labor move-
ment. From the environment to people’s right to vote, and to
shark “n soup it’s all interconnected. So please have some
empathy and try to critically analyze and question the re-
sponse the company is having/going to have. From sales in
San Francisco to manu in Vancouver and across Canada, we
stan a queen. (GC Exh. 3.)
On December 8, 2020, Mark Wolverton posted a response to
the comments that were received on the “Business Update”
thread. It read as follows:
I thought it appropriate to post a few thoughts on this thread.
On December 3rd, Karen and I posted an update to thank eve-
ryone for their hard work and recognize the effort and stress
you all are going through with this unprecedented pandemic.
A conversation on unions in Toronto followed my post, which
I did not intend. Regrettably, I have noticed that the hive has
become a place where attacks are common, the conversation
or comments sometimes negative and I am learning that some
employees are choosing not to visit it due to this inappropriate
sentiment. Although we encourage healthy debate and dia-
logue, Karen and I do not condone disrespectful behavior and
comments, or posting falsehoods or statements which are de-
signed to mislead staff. We are both very concerned with this
trend and are working diligently to get our company and the
hive back to our vision where it was not long ago. Over the
past several months, there have been some posts that have at-
tacked our company, our ethics and our integrity. In addition,
there are posts that contain very significant inaccuracies. Alt-
hough this has not been sitting well with us, it is important
that our conversations continue. The hive was established to
provide an open forum to share thoughts and ideas about
work, and it must be a place where we can trust what is pre-
sented. As a result, we will directly reach out to an employee
to address and any false statements, understand why they
were made, and work to ensure correct information replaces
it. We remain committed to maintaining a lively forum but
will work to ensure it is also civil. We ask everyone to keep
their comments relevant, respectful and truthful. (R. Exh. 5.)
On December 21, 2020, Dolso-Morey under the topic of “In-
ternational Migrants Day” posted on the hive. This post read as
follows:
Y’all should find a org that supports Canadian immigrants
that work in warehouses. Whoops! Never mind, that'd be to-
tally against your own interests. Before you stand on your
soap box, pay your workers a livable wage. STARTING with
your immigrant workers in your own company. Support your
workers trying to join a #union to avoid shooting yourself in
the foot because your public image is what you think is hold-
ing up this company. (R. Exh. 5).
On January 8, 2021, Dolso-Morey posted under the topic of
It’s Our Democracy on the hive as follows:
Y’all wanna talk about fragile democracy? Stop harassing
employees who want to participate in the DEMOCRATIC
process of joining a union. Please, please get off of your
SOAPBOX. You know what helps more than mental health
day? Being paid a livable wage so we don’t have to worry
about the next check being half of what we need for
rent/utilities/medical expenses/food. Wait, that’s all supposed
to be covered with an extra $1 and a one time payment of
$300. You’re (sic) grapevines are getting thinner and thinner
with little to no fruit. (R. Exh. 5.)
On January 6, 2021, Stephen Dynes, Respondent’s west
coast human resources official issued a letter addressed to
Dolso-Morey regarding his “conduct related to posts on the
hive.” (GC Exh. 7.) The letter at Dynes’ direction was deliv-
ered to Dolso-Morey by Shop Manager Tony Ybarra in a
closed door meeting where only he and Dolso-Morey were
present. At the closed door meeting Ybarra handed Dolso-
Morey the letter. Ybarra was instructed to present the letter to
Dolso- Morey “allow him to read it and then allow him to—if
he had any questions, put him in the right direction of whoever
he needed to talk to.” (Tr. 157.) The letter provided as follows:
This letter concerns your continuing conduct related to posts
on the hive.
To ensure that this letter is not misconstrued, we are specifi-
cally advising that it does not constitute discipline. Rather, we
intend to ensure that you are aware of the Company’s expec-
tations and assist you in not engaging in misconduct the fu-
ture. On December 19th, you made posts on the hive which
appear to be intended to disparage the Company and its man-
agers by implying, without any substance, that Lush is mis-
treating Manufacturing employees along with a unsubstantiat-
ed claim that “public image is what is holding up this compa-
ny”. This is in addition to your August 19th hive post in
which you described Mark Wolverton as a “scumbag” and “a
boot we are supposed to lick.” Your conduct in posting un-
substantiated allegations and personally insulting comments
on the hive is not acceptable. If your intention is actually to
have your complaints or concerns addressed, that intention
cannot be served in this manner. The Company is committed
to investigating and responding to all complaints and other re-
ports that are brought forward in good faith. If you have a
specific complaint or concern that you wish to bring to Lush’s
intention, it is asked that you speak directly with your manag-
er
or
utilize
either
opendoor@lush.com
or
work-
inghere@lush.com. In the future, we ask you to refrain from
making unsubstantiated allegations or personal insults on the
hive. If you elect to continue such inappropriate conduct, the
Company may consider your actions to amount to miscon-
duct. For purposes of further clarity, you may continue to ex-
press your views concerning unionization on the hive. Given
the original spirit of the hive, the Company has permitted the
hive to be utilized to share views respecting unionization. It
intends to continue to do so, as long as the discourse is profes-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8
sional and that it doesn’t, again, cross the line into insubordi-
nation, the making of misrepresentations or potentially libel-
ous statements concerning the Company or against any indi-
viduals. Finally, we would also ask you to seriously consider
the adverse effects that the making of unsubstantiated allega-
tions and insulting comments, including to the approximately
4600 users of the hive, can have on the Company and on all of
its employees. We hope that this is clear. Please contact me if
you have any questions.
Ybarra handed him the letter, told him to take some time to
read it, and asked if he had any questions. After reading the
letter, Dolso-Morey “chatted back and forth for a little bit” then
there were no questions about the letter so they both went about
their day. (Tr. 160.) The “chat” revolved around books, vide-
os, and movies about unionizing which Dolso-Morey recom-
mend as resources to educate Ybarra about the topic. (Tr. 161.)
Analysis
1. The prohibition against making “unsubstantiated
allegations” on the hive
At the outset it is important to point out that the General
Counsel’s complaint paragraph 5 is narrowly drawn to allege
only that the instruction against making unsubstantiated allega-
tions violates the Act. It does not challenge the lawfulness of
the employer’s rule or policy as it relates to prohibitions against
“personally insulting statements.” It is also important to note
that the basic facts surrounding this allegation are undisputed.
Section 8(a)(1) of the NLRA states that it is an unfair labor
practice “to interfere with, restrain, or coerce employees in the
exercise of” their organizing rights. 29 U.S.C. § 158. Mainte-
nance of even a facially neutral workplace rule can violate Sec-
tion 8(a)(1) where the rule is overbroad. To assess overbreadth,
the Board asks whether a facially neutral rule, “when reasona-
bly interpreted, would potentially interfere with the exercise of
NLRA rights.” Boeing, 365 NLRB No. 154 (2017). If a rule
“would not prohibit or interfere with the exercise of NLRA
rights, maintenance of the rule is lawful without any need to
evaluate or balance business justifications, and the Board’s
inquiry into maintenance of the rule comes to an end.” Id. at 16.
If it would prohibit or interfere with the exercise of NLRA
rights, the Board then balances “the nature and extent of the
potential impact” on those rights against the “legitimate justifi-
cations associated with the rule.” Id. at 3. “[T]he rule’s mainte-
nance will violate Section 8(a)(1) if the Board determines that
the justifications are outweighed by the adverse impact on
rights protected by Section 7.” Id. at 16.
Applying the law to the undisputed facts, I find that the rule
is overbroad under the Board’s established standards. The term
“unsubstantiated allegations” by its very terms is vague ambig-
uous and unclear. A reasonable employee would not know
what could or could not be posted.
What is not ambiguous
when viewed objectively is that the rule carries with it the
threat of discipline. This is by its own terms coercive. Any
reasonable employee when presented with a prohibition at-
tached to which is a threat of discipline would reasonably inter-
pret it as coercive. In Dolso-Morey’s case, Respondent’s spe-
cific aim was to coerce him into not posting about the alleged
disconnect between the company’s stated values and its treat-
ment of migrant workers. This translates directly into interfer-
ence under Section (8)(a)(1).
The second prong of the analysis requires balancing the em-
ployers “legitimate justifications” of the rule against “the extent
of the potential impact.” I find that given the degree of over-
breadth and ambiguity of the rule, it could subject an employee
to discipline for nearly any critical comment regarding terms
and conditions of employment. In Dolso-Morey’s case, he
testified that some of his concerns were formed from reading
published news articles. (GC Exhs. 8, 9, 10.) Presumably a
regular employee would be tasked to take on the extraordinary
role to investigate beyond published news articles and establish
the absolute truth of any concern or face discipline if the em-
ployer disagreed with the contents of the communication. The
“extent of potential impact” is broad. Respondent has offered
no legitimate justifications which would balance the vague and
ambiguous policy and its “extent of potential impact” against
employees and in its favor. I find that the prohibition against
“unsubstantiated allegations” violated Section 8(a)(1) of the
Act.
2. The alleged interrogation and preview of employee com-
ments by Tony Ybarra
General counsel in its complaint alleged that Tony Ybarra
both interrogated Dolso-Morey and instructed him to allow
Ybarra to review any comments before posting on the hive.
Only two people were present during the alleged violations, and
each offered a different version of events. The resolution of the
question is entirely dependent on whose version of events is
believed to be credible. I credit the testimony of Ybarra over
that of Dolso-Morey as being a more accurate depiction of the
events in question. The accuracy of Dolso-Morey’s testimony
was called into question more than once. For example, he was
unable to recall what Ybarra allegedly said to him at the meet-
ing regarding his hive posts. (Tr. 106.) He also testified that he
never read or reviewed the hive usage policy. However, the
electronic record showed that he had both opened the document
and acknowledged that he read and received it. (R. Exh. 6, Tr.
176–178.) Ybarra’s testimony was credited for a number of
reasons. Overall, his calm demeanor and his openness while
testifying suggested that he was being truthful. His testimony
was logically consistent with established facts. He testified that
he was delivering a letter that he was not the author of, and his
job was to deliver the letter and “point him [Dolso-Morey] in
the right direction” if he had any questions. (Tr 158.) This is
logically consistent with his description of the conversation as
someone merely serving as a messenger and not the author of
the letter. Since there were no witnesses to the conversation,
Ybarra could easily have denied any mention of unionization.
He didn’t. Instead, he described the conversation as follows:
Q When you said you chatted back and forth, what did you
chat about?
We talked about—Max had mentioned some books, videos,
movies that I should watch revolving unionizing—somehow
we'd gotten on that conversation. I let him know that I was
no—almost not educated at all about it. Max was always—
definitely the person in the store that was an educational fig-
LUSH COSMETICS, LLC
9
ure, so I think he took the opportunity to just, you know, keep
me educated and give me some resources and tools if I needed
them. And then I also offered my service as resources and
tools back to him.
This portion of Ybarra’s testimony was particularly convincing
because it offered a glimpse into the tone and character of the
discussions. It is also important to note that the conversation
regarding unionization was initiated by Dolso-Morey not
Ybarra. (Tr. 105.) An interrogation violates Section 8(a) (1)
when under all the circumstances, the questioning at issue
would reasonably tend to coerce the employee at whom it is
directed so that he or she would feel restrained from exercising
rights protected by Section 7 of the Act. Westwood Healthcare
Center, 330 NLRB 935 (2000). There is nothing regarding the
conversation that took place as described by Ybarra that would
“reasonably tend to coerce.” This is especially true since the
topic of unionization was initiated by Dolso-Morey. (Tr. 105.)
See Phillips-Van Heusen Corp., 165 NLRB 1 (1967) (finding
conversation between manager and employees, a normal re-
sponse to a discussion employees themselves initiated and not
violative of Section 8(a)(1)).
The General Counsel alleged that Ybarra instructed Dolso-
Morey to review all of his posts before posting on the hive.
Ybarra denied that he ever gave this instruction. He testified:
I think it's important to know I was managing two shops in
San Francisco, two large high traffic stores. It was my first
time doing it ever for the business. There's no way I would
have been able to do any of those things. Even if I, you
know—whatever, I—I—there's—I didn't have the time. I
barely had the time to give the developments to the people
that I wanted, the quality of development I wanted. There
was no way I would have wanted to invest time or energy into
babysitting Max. You know, I wouldn't have prioritized that
over anything else. (Tr. 167.)
I found this testimony credible. It is supported by the fact that
after the meeting, Dolso-Morey continued to post on the hive
without any input by Ybarra.
In view of the above findings, the allegations regarding par-
agraph six of the complaint are hereby dismissed.
CONCLUSIONS OF LAW
1. Respondent’s actions surrounding its creation of a work
rule regarding “unsubstantiated allegations” which threatened
an employee with unspecified reprisals violated Section 8(a)(1)
of the Act.
2.
Respondent did not interrogate or request to review
Dolso-Morey’s hive posts and thus did not violate Section
8(a)(1).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
1
If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ORDER
The Respondent, Lush Cosmetics, LLC its officers, agents,
successors, and assigns, shall
1. Cease and desist from engaging in the following conduct
(a) Making and enforcing overbroad work rules regarding
“unsubstantiated allegations” and threatening employees with
unspecified reprisals regarding such.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the purposes of the Act.
(a) Rescind the overbroad rule.
(b) Within 14 days after service by the Region, post at its
facility in San Francisco, California, copies of the attached
notice marked “Appendix.” Copies of the notice, on forms
provided by the Regional Director for Region 20, after being
signed by the Respondent’s authorized representative, shall be
posted by Respondent, and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
employees are customarily posted including the Respondent’s
Intranet known within the company as “the hive”. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings. The Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respondent
at that facility at any time since February 9, 2021.
(c) Within 21 days after service by the Region, file with the
Regional Director of Region 20 a sworn certificate of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply with the provi-
sion of this Order.
Dated, Washington, D.C. March 24, 2022
APPENDIX
NOTICE TOEMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT interfere with, restrain, or coerce you in the ex-
ercise of the above rights.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10
WE WILL NOT threaten you with reprisals because you en-
gaged in activities protected by the National Labor Relations
Act.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the National Labor Relations
Act.
YOU HAVE THE RIGHT to talk about your own and other em-
ployees’ working conditions, and WE WILL NOT stop you from
talking about such matters.
LUSH COSMETICS,LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/20–CA–272392 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1099 14th Street, N.W., Washington, D.C. 20570, or by calling
(202) 273-1940.