American Steel Construction, Inc., and Local 25, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers (Ironworkers), AFL–CIO, Petitioner.  Case 07–RC– 269162

December 14, 2022

DECISION ON REVIEW AND ORDER

BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, RING, WILCOX, AND PROUTY

In Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013) (Specialty Healthcare), the Board rearticulated and clarified the framework that applies in bargaining-unit determination cases where a labor union seeks to represent a unit that contains some, but not all, of the job classifications at a particular workplace.  Drawing on longstanding precedent, Specialty Healthcare reaffirmed that, in order for such a unit to be appropriate, the employees in the petitioned-for unit must be readily identifiable as a group and share a “community of interest.”  Specialty Healthcare also reiterated that, if a party contends that the unit is nevertheless inappropriate because it excludes additional employees who are not sufficiently distinct from the petitioned-for employees, that party must show that the excluded employees share an “overwhelming community of interest” in order to mandate inclusion.^[1]  By retaining this heightened showing, the Specialty Healthcare framework properly protected the statutory rights being exercised by employees seeking representation, while also requiring that the petitioned-for unit have a rational basis and the requisite community of interest to engage in effective collective bargaining.  It is therefore unsurprising that Specialty Healthcare was upheld in the face of numerous challenges in the federal courts of appeals, with every reviewing court finding that the framework was consistent with the Board’s longstanding unit-determination test.

In PCC Structurals, Inc., 365 NLRB No. 160 (2017) (PCC Structurals), the Board overruled Specialty

Healthcare and purported to restore a “traditional” test.  In doing so, PCC Structurals focused almost exclusively on rejection of the “overwhelming community of interest” standard, contending that it was too deferential to the petitioned-for unit.^[2][3]  As detailed below, however, PCC Structurals’ reasoning fits poorly with the policy goals of the Act, with Supreme Court precedent, and with the “traditional” test it purported to restore.  In particular, by making it easier to invalidate a petitioned-for unit based on the supposed interests of excluded employees, PCC Structurals discounted the rights of the employees seeking representation and obscured the core inquiry in such cases: whether the employees in the petitioned-for unit share a community of interest rendering the unit appropriate for the purposes of collective bargaining.

Accordingly, as explained in greater detail below, we have decided to overrule PCC Structurals and reinstate Specialty Healthcare, which is superior to PCC Structurals in multiple respects: it better reflects traditional Board precedent, better achieves consistency with Supreme Court precedent, and better promotes the policies of the Act.

I.  BACKGROUND

On November 8, 2020, Local 25, International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers (Ironworkers), AFL–CIO (the Petitioner) filed a petition seeking to represent all journeymen and apprentice field ironworkers working for American Steel Construction, Inc. (the Employer).  TheEmployer asserted that the petitioned-for unit was inappropriate because the smallest appropriate unit must contain additional employees: specifically, the painters, drivers, and inside fabricators who work at the Employer’s shop.

On January 4, 2021, the Regional Director issued her Decision and Order.  Applying the unit determination test set forth in PCC Structurals, as revised in The Boeing Co., 368 NLRB No. 67 (2019),^[4] the Regional Director determined that the petitioned-for unit was not appropriate because the evidence was insufficient to establish that the Employer’s field ironworkers, who predominantly work as field installers at third-party jobsites, possess a community of interest that is “sufficiently distinct” from the Employer’s remaining employees.  Because the Petitioner was not willing to proceed to an election in any unit other than the petitioned-for unit, the Regional Director dismissed the petition.  Thereafter, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Petitioner filed a request for review of the Regional Director’s Decision and Order.  The Employer filed an opposition.

On December 7, 2021, the Board issued an Order Granting Review and Notice and Invitation to File Briefs.  See 371 NLRB No. 41.  In granting review, the Board offered interested parties the opportunity to answer the following questions:

1. Should the Board adhere to the standard in PCCBoeing?
2. If not, what standard should replace it? Should the Board return to the standard in Specialty Healthcare, either in its entirety or with modifications?

The Employer and Petitioner filed briefs on review, several interested parties filed briefs in response to the Board’s invitation,^[5] and the Employer and Petitioner filed responsive briefs.

Having carefully considered the entire record in this proceeding, including the briefs on review and the amicus briefs, the Board has decided to overrule PCC-Boeing and reinstate Specialty Healthcare, for the reasons discussed below.  We will therefore remand the case to the Regional Director for action consistent with this decision and the standard articulated herein, including reopening the record and reanalyzing the appropriateness of the petitioned-for unit, if necessary.

II.  DISCUSSION

1. The Statute and the Board’s Traditional Unit-Determination Standard

The overarching policy of the National Labor Relations Act is, as stated in Section 1, to “encourag[e] the practice and procedure of collective bargaining,” and to “protect[] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.”  Section 9(a) of the Act provides that employees have a right to representation by a labor organization “designated or selected for the purposes of collective bargaining,” and Section 9(b) provides that “the Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act . . . the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”  Thus, the Act itself repeatedly defines the “appropriate unit” as one that is appropriate “for the purposes of collective bargaining.”^[6]

In elaborating on what renders a unit appropriate “for the purposes of collective bargaining,” the Supreme Court has explained:

[T]he Board regards as its primary concern in resolving unit issues ‘to group together only employees who have substantial mutual interests in wages, hours, and other conditions of employment’ . . . . Such a mutuality of interest serves to assure the coherence among employees necessary for efficient collective bargaining and at the same time to prevent a functionally distinct minority group of employees from being submerged in an overly large unit.^[7]

Accordingly, “[a] cohesive unit—one relatively free of conflicts of interest—serves the Act’s purpose of effective collective bargaining.”^[8]  If the petitioned-for employees have a sufficient mutuality of interests, then the unit is, absent countervailing considerations, appropriate for collective bargaining.

In recognition of this key statutory principle, the Board has, since the earliest days of the Act, inquired into whether a petitioned-for unit has the requisite mutuality of interests—a “community of interest,” in the Board’s usual parlance.^[9]  This well-established test considers whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.^[10]

As various configurations of employees might share a community of interest sufficient for collective bargaining, “[i]t is elementary that more than one unit may be appropriate among the employees of a particular enterprise.”^[11] 

unit selected must be one to effectuate the policy of the act, the policy of efficient collective bargaining”).

This principle, recognized by the Supreme Court,¹¹ is rooted in the language of the Act itself, since Section 9(b) makes clear that an appropriate unit may be “the employer unit, craft unit, plant unit, or subdivision thereof.”  Hence, in every unit determination case, the Board’s inquiry will “consider only whether the requested unit is an appropriate one even though it may not be the optimum or most appropriate unit for collective bargaining.”¹²  In this regard, “the Act does not compel labor organizations to seek representation in the most comprehensive grouping of employees unless such grouping constitutes the only appropriate unit” (emphasis in original).¹³  In each case, the Board will examine the petitioned-for unit to determine whether it is appropriate, including when the employer contends that the unit is not appropriate because it excludes certain classifications of employees.  In that situation, if the Board determines that the petitioned-for unit is not appropriate, then the Board must determine the alternative configuration encompassing the petitioned-for classifications that constitutes the smallest appropriate unit.¹⁴

Over the years, the Board has developed various tests to analyze the unit configurations articulated in Section 9(b).  Employer-wide and plantwide units are presumptively appropriate under the Act, and will be approved unless the contesting party can rebut the presumption.¹⁵  Similarly, if the petitioned-for unit meets the criteria to be defined as a “craft unit,” it will also be approved.¹⁶  But a petitioner is

be defined in any particular factual setting”) (quoting Operating Engineers Local 627 v. NLRB, 595 F.2d 844, 848 (D.C. Cir. 1979)). ¹¹  As the Supreme Court has explained:

Section 9(a) of the Act provides that the representative “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes” shall be the exclusive bargaining representative for all the employees in that unit....  This section, read in light of the policy of the Act, implies that the initiative in selecting an appropriate unit resides with the employees.  Moreover, the language suggests that employees may seek to organize “a unit” that is “appropriate”—not necessarily the single most appropriate unit.... Thus, one union might seek to represent all of the employees in a particular plant, those in a particular craft, or perhaps just a portion thereof.

American Hospital Association v. NLRB, 499 U.S. 606, 610 (1991) (emphasis in original; citations omitted).

• Black & Decker Mfg. Co., 147 NLRB 825, 828 (1964).
• Montgomery Ward & Co., 150 NLRB 598, 601 (1964).
• See Boeing Co., 337 NLRB 152, 153 (2001).
• See, e.g., Airco, Inc., 273 NLRB 348, 349 (1984) (plantwide unit); Greenhorne & O’Mara, Inc., 326 NLRB 514, 516 (1998) (employerwide unit); UPS Ground Freight, Inc. v. NLRB, 921 F.3d 251, 254 (D.C. Cir. 2019) (“Under controlling Board precedent, a single-facility bargaining unit is ‘presumptively appropriate.’”); Dunbar Armored, Inc. v. NLRB, 186 F.3d 844 (7th Cir. 1999) (rejecting challenge to unit determination that was based on presumptively appropriate single site unit). The dissent is therefore incorrect to suggest that imposing a heightened burden on a party seeking to invalidate a petitioned-for unit amounts to abdication of the Board’s duty in each case to determine the appropriateness of the unit and turns a representation case into an “adversarial”

not limited to choosing one of these three unit compositions:  Section 9(b) contemplates that a petitioner can also seek to represent a “subdivision” of employees that contains some, but not all, of the employee classifications¹⁷ that would otherwise be included in a plantwide, employer-wide, or craft unit.  In such cases, the Board has identified three fundamental elements that render the petitioned-for grouping of classifications appropriate: the petitioned-for unit must be (1) “homogeneous,” (2) “identifiable,” and (3) “separate” or “sufficiently distinct.”^[12]  While each element is a fundamental component of the unit determination, the decisionmaker (usually the Regional Director, in the first instance) is not required to litigate or address every single element in every single case: if no party disputes a particular element, it need not be analyzed. 

The first element—that the unit be “homogeneous”— simply reflects the principle, articulated above, that petitioned-for employees must share a community of interest that renders the unit suitable for collective bargaining.  Thus, the Board will reject a petitioned-for unit where the petitioned-for employees represent a heterogeneous grouping of classifications with disparate interests.^[13]

The second element—that the unit be “identifiable”—is met where the unit employees can “logically and reasonably be segregated from other employees for the purposes of collective bargaining.”^[14]  Put differently, there must be

proceeding.  To the contrary, the Board regularly applies presumptions and burdens in its unit determination cases.  See also Hilander Foods, 348 NLRB 1200, 1200 (2006) (the contesting party bears the burden to rebut a presumptively appropriate single-facility unit).

• See Burns & Roe Services Corp., 313 NLRB 1307, 1308 (1994).
• The question of whether a petitioned-for unit must contain addi-tional classifications is substantively different than whether a petitionedfor unit must contain employees at additional locations. Because our decision today concerns the test for evaluating whether a petitioned-for unit must contain additional employee classifications, it does not alter the Board’s extant law with respect to whether additional locations must be included.  See Hilander Foods, supra, at 1200 (articulating the test for when a petitioner seeks a single-facility unit); Laboratory Corp. of America Holdings, 341 NLRB 1079, 1081–1082 (2004) (articulating the test for when a petitioner seeks a multi-location unit). 

a “substantial, rational basis” for the unit’s contours.^[15]  The purpose of this element is to ensure that the petitioned-for subdivision of employees does not represent a “clearly arbitrary” unit composed of random classifications and with no coherent organizing principle.^[16]

The third element—that the unit be “sufficiently distinct”—recognizes that even if the petitioned-for unit exhibits a mutuality of interests and has some coherent organizing principle, it may nonetheless be inappropriate because it excludes employees who cannot rationally be separated from the petitioned-for employees on communityof-interest grounds.^[17]  When applying this element, the Board invalidates petitioned-for units where the petitioned-for employees have little-to-no separate identity from the excluded employees.^[18]  Crucially, the Board has always made clear that the presence of some overlapping interests between the petitioned-for and excluded employees does not invalidate the petitioned-for unit, even if those overlapping interests indicate that a larger unit would also be appropriate for collective bargaining.^[19]  Instead, the excluded employees must share “strong,” “substantial,” “overwhelming,” “significant,” or extremely “close” interests with the petitioned-for employees to mandate inclusion.^[20]  As the U.S. Court of Appeals for the District of Columbia Circuit has explained, “[i]n order successfully to challenge [a] unit, the employer must do more than show there is another appropriate unit,” because multiple unit configurations may be appropriate and the petitioner is not required to seek the most appropriate one.^[21]  Instead, the employer must prove that the petitioned-for unit is “irrational” and that “there is no legitimate basis upon which to exclude certain employees from it.”^[22]

When taken together, these three elements—that a unit be homogeneous, identifiable, and sufficiently distinct— form the foundation of the Board’s historical unit determination jurisprudence with respect to petitioned-for “subdivisions” of employee classifications.  The central inquiry is, of course, whether the petitioned-for employees share a community of interest, which renders the unit appropriate for the purposes of collective bargaining (and therefore appropriate for the purposes of the Act).  But the Board has also guarded against truly arbitrary or irrational units by invalidating petitioned-for units that constitute haphazard groupings of random classifications, or that represent arbitrary segments of broader groups with indistinguishable interests.  In so doing, the Board has balanced its fundamental duty under the Act—to facilitate the creation of bargaining units that possess the requisite community of interest—with its obligation to ensure that those bargaining units have a rational basis.

B.  Specialty Healthcare

In Specialty Healthcare, 357 NLRB 934, the Board synthesized these three fundamental elements into an overarching framework for situations where a petitioner is seeking to represent a “subdivision” of employee classifications.  Consistent with the Board’s traditional unit determination jurisprudence, the Specialty Healthcare framework considers whether the employees in the petitioned-for unit share a community of interest (i.e., whether the unit is “homogeneous”);^[23]  whether the petitioned-for unit is “readily identifiable as a group” (i.e., “identifiable”) based on “job classifications, departments, functions, work locations, skills, or similar factors;”^[24] and whether the petitioned-for unit is “sufficiently distinct.”

Recognizing that prior cases had been unclear with respect to the “sufficiently distinct” element, the Board undertook to more precisely define the standard that applies when a party asserts that “the smallest appropriate unit contains employees not in the petitioned-for unit.”^[25]  When this element is disputed (and only when this element is disputed), the party contesting the petitioned-for unit bears the burden of proving that there is an “overwhelming community of interest” between the petitioned-for and excluded employees in order to add the excluded employees to the petitioned-for unit.^[26]

As the Board explained in Specialty Healthcare, the precise formulation and wording of the “sufficiently

community of interest with the petitioned-for employees does not mean that they must be included in the unit or that the petitioned-for unit is inappropriate.”).

distinct” element has varied from case to case,^[27] and, accordingly, the Board did not necessarily apply a consistent approach to assessing this element in every single case prior to Specialty Healthcare.  Nevertheless, the “overwhelming community of interest” standard reflects the Board’s historical requirement that, in order to demonstrate that the petitioned-for unit is not sufficiently distinct, a party contesting that unit must show more than a community of interest between the petitioned-for and excluded employees: it must make a heightened showing to demonstrate that the interests of the petitioned-for and excluded employees are so similar that the petitioner is seeking, in essence, an arbitrary segment of an otherwise appropriate unit.^[28]  In other words, the interests of the petitioned-for and excluded employees must “overlap almost completely” to mandate inclusion.^[29]

There is substantial statutory justification for requiring a heightened showing of parties who are seeking to add employees to the petitioned-for unit.  As discussed above, an appropriate unit is one that is appropriate for the purposes of collective bargaining, and the Supreme Court has stated that what renders a unit appropriate for collective bargaining is the requisite mutuality of interests among the unit employees.  Moreover, Section 9(b) of the Act states that the Board’s unit determinations must assure employees’ “fullest freedom” in pursuing their rights under the Act.  In this regard, the Supreme Court has made clear that “[t]he central purpose of the Act [i]s to protect and facilitate employees’ opportunity to organize unions to represent them in collective-bargaining negotiations,” and that the Act “implies that the initiative in selecting an appropriate unit resides with the employees.”^[30]  Accordingly, if a petitioned-for unit is an identifiable group that has the requisite community of interest—and therefore is broadly appropriate for the purpose of collective bargaining—then the employees should be permitted to organize in their chosen unit (thereby assuring them their “fullest freedom” to organize) unless the contesting party can prove that the petitioned-for unit is arbitrary on community-of-interest grounds—not less optimal, or less efficient, or less appropriate,^[31] but truly arbitrary, meaning that the differences between the petitioned-for and excluded employees are so minimal that it would be irrational to engage in the process of collective bargaining absent the excluded employees.  In requiring a showing of arbitrariness, the “overwhelming community of interest” standard correctly recognizes that the “sufficiently distinct” element is a secondary concern in unit determinations: the primary question remains whether the petitioned-for unit has the requisite mutuality of interests to bargain collectively.^[32]

The “overwhelming community of interest” standard also recognizes that there are statutory limitations on how much latitude can be given to petitioned-for units.^[33]  First, Section 9(c)(5) of the Act provides that the extent of organizing “shall not be controlling” with respect to the Board’s unit determinations.  This is a relatively narrow limitation: it is well established that Section 9(c)(5) does not render employees’ choice of unit irrelevant (to the contrary, the extent of organization “is always a relevant consideration”^[34]), but is instead designed to prevent the Board from approving units that “could only be supported on the basis of the extent of organization,” as the Supreme Court has observed.^[35]  Consistent with Section 9(c)(5), the “overwhelming community of interest” standard evaluates whether there is a rational basis for excluding particular classifications on community-of-interest grounds, thereby

Court to consider it) and has reaffirmed that the principles articulated in Blue Man Vegas are entirely consistent with the Board’s prior unit determination case law.  See Rhino Northwest, LLC v. NLRB, 867 F.3d 95, 100–101 (D.C. Cir. 2017).

ensuring that the petitioned-for unit is not based solely on the extent of organization.

Second, Section 9(b) directs that the Board determine the appropriate unit “in each case.”  As the Supreme Court has explained, the purpose of the “in each case” requirement is “simply to indicate that whenever there is a disagreement about the appropriateness of a unit, the Board shall resolve the dispute.”^[36]  The Board’s consideration of a petitioned-for unit accordingly cannot be perfunctory, but must be undertaken based on the particular facts of the case.  Of course, aside from the “overwhelming community of interest” standard, the Board considers, in each case, whether the petitioned-for unit has the requisite community of interest to bargain collectively and whether it constitutes an identifiable grouping of employees.  But, in any event, the “overwhelming community of interest” standard requires that—in each case where a party contends that a petitioned-for unit is not sufficiently distinct— the Board carefully scrutinize the similarities and differences between the petitioned-for and excluded employees to determine whether the exclusion has a rational basis.

The “overwhelming community of interest” standard is therefore not a matter of mechanically deferring to employees’ desire for representation in the petitioned-for unit.  Rather, the Regional Director must find that there are more than minimal differences between the petitionedfor employees’ shared interests and the interests of the excluded employees another party contends must be added to the unit.  If there are more than minimal differences, the petitioned-for unit has a rational basis such that collective bargaining limited to that unit may appropriately take place.  However, the “overwhelming community of interest” standard correctly characterizes this inquiry as placing a burden on the party contesting the petitioned-for unit because—consistent with the Board’s traditional unit determination jurisprudence and the statutory policies of the Act—the contesting party must prove that the petitioned-for unit is truly arbitrary on community-of-interest grounds, not just that some other unit configuration is also, or even more, appropriate.  The Board’s review is no less thorough simply because the Act imposes a relatively high standard (i.e., arbitrariness) on parties seeking to invalidate a petitioned-for unit that is otherwise identifiable and possesses the requisite community of interest to bargain collectively.

In sum, the Specialty Healthcare framework, including the “overwhelming community of interest” standard, is entirely consistent with both the Board’s traditional unit determination jurisprudence and the statutory policies of the Act.  Indeed, as observed earlier, the Specialty Healthcare test was upheld by every Circuit Court to review it^[37]—an outcome consistent with the deference courts give to the Board’s unit determinations in light of the Board’s policy-making role and expertise, as noted by the Supreme Court.^[38]  As these courts recognized, the “overwhelming community of interest” test “is not the invention of the Specialty Healthcare case.”^[39]  Instead, this standard “is consistent with earlier Board precedents that imposed a heightened burden on a party who urges the Board to add employees to a unit that has otherwise been deemed appropriate.”^[40]  And again, the “overwhelming community of interest” standard is only one element of the Specialty Healthcare framework: the primary focus remains whether the petitioned-for units share a sufficient mutuality of interests to bargain collectively.^[41]

standard when a party (usually an employer) argues that the bargaining unit should include more employees.”).

C.  PCC-Boeing

Despite unanimous appellate approval of Specialty Healthcare, the Board overruled the “overwhelming community of interest” standard in PCC Structurals, 365 NLRB No. 160, and in doing so purported to return to the Board’s “traditional” test.  The Board would later clarify, in Boeing, that the “traditional” test contemplated by PCC Structurals contains three parts:

First, the proposed unit must share an internal community of interest. Second, the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively analyzed and weighed. Third, consideration must be given to the Board’s decisions on appropriate units in the particular industry involved.⁴⁸

There is no dispute that the first step of this test comports with the Board’s traditional unit determination test and with Specialty Healthcare; nor is there any dispute that the third step does so.⁴⁹  At the second step, however, the PCC-Boeing test diverges significantly from Specialty Healthcare in terms of what it means for a petitioned-for unit to be “sufficiently distinct.”  While Specialty Healthcare holds that a petitioned-for unit is sufficiently distinct unless the excluded employees share an “overwhelming community of interest” with the petitioned-for employees, PCC-Boeing holds that the petitioned-for unit is sufficiently distinct only if the “excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.”^[42]  The distinction between these two standards lies at the heart of PCC-Boeing, which focuses almost exclusively on the “overwhelming community of interest” standard and the supposedly undue deference it gave to petitionedfor units.^[43]

PCC-Boeing’s approach to the “sufficiently distinct” element is flawed for three significant reasons.  First, PCCBoeing fails to articulate a workable alternative to the “overwhelming community of interest” standard, instead propounding a standard that is vague, confusing, and has no support in Board precedent.  Second, by eliminating the “overwhelming community of interest” test, PCC-Boeing removes an important safeguard that provides employees with the fullest freedom to organize in units of their

the members of the unit.”); Macy’s, Inc. v. NLRB, 824 F.3d at 569 (noting that “the structure and the underlying policy motivations of [the accretion] standard resemble those of the Specialty Healthcare overwhelming community of interest test.”).

• Boeing, supra, slip op. at 3.
• Although the consideration of industry-specific unit-determination guidelines was not articulated as a separate step or inquiry prior to Boeing, it is a well-established component of unit-determination jurisprudence that Specialty Healthcare was careful to recognize. See 357 NLRB at 942, 946 fn. 29.

choosing.  Finally, and perhaps most importantly, PCCBoeing provides no compelling rationale for why the Board should add employees to units that otherwise possess a rational basis and the requisite mutuality of interests to bargain collectively.  When combined, these three flaws lead to a decision that is impractical, damaging to employee interests, and unpersuasive from either a statutory or policy standpoint.

First, it is unclear what PCC-Boeing requires in determining whether a petitioned-for unit is “sufficiently distinct.”  PCC Structurals posits that it is returning to the Board’s “traditional” community of interest test, and reiterates that the Board must consider “whether employees in the proposed unit share a community of interest sufficiently distinct from the interests of employees excluded from that unit to warrant a separate bargaining unit.”^[44]  But Specialty Healthcare did not eliminate the “sufficiently distinct” element; rather, it performed the critical function of explicitly articulating, for the first time, exactly what a party must show (an “overwhelming community of interest”) in order to demonstrate that a petitioned-for unit is not sufficiently distinct.  Accordingly, the onus was on the PCC Structurals Board to provide its own countervailing guidelines for how to determine whether a petitioned-for unit is “sufficiently distinct.”  As the Board observed in Specialty Healthcare, merely stating that a unit must be “sufficiently distinct” does not explain what degree of distinction is necessary.^[45] 

PCC-Boeing, however, offers little in the way of constructive guidance. PCC Structurals states that a unit is sufficiently distinct if the “excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.”^[46]  On its face, this language suggests that if the petitioner cannot prove that the petitioned-for employees have more differences from, than similarities with, the excluded employees, then the excluded employees are not sufficiently distinct from the petitioned-for employees and must be included in the unit.  That approach, however, is completely at odds with the Board’s traditional unit determination jurisprudence.  Prior to PCC Structurals, the Board had never used any language resembling this formulation, and neither PCC Structurals nor Boeing (nor our dissenting colleagues) cite to any prior Board decisions articulating, explaining, or applying such a standard.  Further, if it is indeed the petitioner’s burden to prove that the petitioned-for employees are more different from than they are similar to the excluded employees, then this is flatly inconsistent with the Board’s traditional unit determination jurisprudence, which has always required the contesting party to prove that the excluded employees have significant, substantial, or otherwise extensive similarities with the petitioned-for employees before mandating inclusion.^[47]

Perhaps recognizing this potential failing, Boeing elaborates on PCC Structurals by explaining that the “[sufficiently distinct] inquiry does not require that distinct interests must outweigh similarities by any particular margin, nor does it contemplate that a unit would be found inappropriate merely because a different unit might be more appropriate.”^[48]  Rather, “what is required is that the Board analyze the distinct and similar interests and explain why, taken as a whole, they do or do not support the appropriateness of the unit.”^[49]  But, stating that Regional Directors should explain why certain differences or similarities support “the appropriateness of the unit” provides no guidance as to what types of differences and similarities render a unit appropriate; how heavily they should be weighed; or what threshold must be met to demonstrate that the unit is (or is not) sufficiently distinct.

Simply put, PCC-Boeing directs Regional Directors to weigh the varying interests of the petitioned-for and excluded employees without explaining what tips the scales in one direction or the other.  In contrast to Specialty Healthcare, it never articulates the precise degree of distinction that is necessary to render the unit appropriate without the inclusion of additional employees.  And, by failing to articulate clear and consistent guideposts for determining when additional employees must be included in the unit, PCC-Boeing invites extensive litigation and makes it more difficult for Regional Directors to quickly resolve preelection disputes over unit appropriateness.  This is particularly troublesome in the context of representation cases, where the Board has a duty to expeditiously resolve questions concerning representation.^[50] 

Second, the removal of the “overwhelming community of interest” test infringes on employees’ “fullest freedom” to organize under Section 9(b) of the Act.  The Board has long recognized that requiring employees to seek representation in a larger or more comprehensive unit can effectively “deny them their statutory rights to self-organization and bargaining,” because larger units are frequently more difficult to organize, especially in situations where the previously excluded employees had not shown any interest in unionizing.^[51]  Thus, in order to ensure employees the fullest freedom to exercise their rights under the Act, “the Board must be wary lest its unit determinations unnecessarily impede the exercise by employees of these rights,”^[52] and it does not require petitioners to organize in larger or more comprehensive units simply because such units may be more optimal or effective than the petitionedfor unit.^[53]  Accordingly, Specialty Healthcare’s “overwhelming community of interest” standard is deliberately protective of the unit configuration chosen by the petitioning employees, holding that a unit with the requisite mutuality of interests for collective bargaining should not be invalidated unless it arbitrarily excludes employees with near-indistinguishable interests.  PCC-Boeing, in contrast, makes it easier to mandate the inclusion of additional employees by removing the requirement that the contesting party make a heightened showing with respect to the similarities between the petitioned-for and excluded employees.  This eliminates an important safeguard that preserves the right of employees to organize as long as their chosen unit is not arbitrary and has the requisite mutuality of interests to bargain collectively.^[54]

The final, and perhaps most troubling, problem with PCC-Boeing is that it provides no compelling reason for why this safeguard should be removed.  PCC-Boeing overrules Specialty Healthcare’s “overwhelming community of interest” standard because it supposedly “unduly limits its focus to the Section 7 rights of employees in the petitioned-for unit, while disregarding or discounting the Section 7 rights of excluded employees except in the rare case when excluded employees share ‘overwhelming’ interests . . . with petitioned-for employees.”^[55]  Purporting to better accommodate the excluded employees’ Section 7 interests, PCC-Boeing requires unit determinations to “consider the Section 7 rights of employees excluded from the proposed unit and those included in that unit.”^[56] 

Thus, the fundamental premise of PCC-Boeing is that excluded employees have certain Section 7 rights that can only be protected by mandating their inclusion in the unit and that protecting the excluded employees’ rights (at the expense of the petitioning employees’ fullest freedom to associate in a unit of their choosing)^[57] is the purpose of the “sufficiently distinct” element.  This fundamental premise, however, fails to withstand even the slightest scrutiny.  To begin, it is not the excluded employees who seek to vindicate their rights by arguing for the inclusion of additional employees in the unit, as they are not made party to the representation proceeding.  Instead, it is other, usually non-petitioning parties—most frequently employers— who seek to litigate the appropriateness of the unit by contending that additional employees must be added.  As the Supreme Court has explained, the interests of an employer are not equivalent to the interests of employees, and “the Board is accordingly entitled to suspicion when faced with an employer’s benevolence as its workers’ champion.”^[58]

Such skepticism is fully justified in situations where a contesting party is seeking to add employees to the unit because the Section 7 rights of any employees excluded from the unit are not implicated by their exclusion from the unit.  Section 7 of the Act provides as follows:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities . . . .

29 U.S.C.  §157. Consistent with Section 7, the excluded employees retain the right to organize separately or to refrain from doing so regardless of whether the petitioned-for employees decide to select a collective-bargaining representative.  Further, if the excluded employees desire to join the petitioned-for unit at a later date, they can do so via a self-determination election, as long as they constitute an appropriate voting group and share a community of interest with the existing unit employees^[59]—far less than what is required to mandate their inclusion in the petitioned-for unit for purposes of an initial election.  Finally, if the excluded employees exercise their right to refrain from organizing entirely, any collective-bargaining agreement reached on behalf of the petitioned-for employees will not dictate terms and conditions for anyone outside of the petitioned-for unit.^[60]  The Section 7 rights of excluded employees, therefore, are not implicated (much less negatively affected) by their exclusion from the unit. The excluded employees remain free to exercise their rights if and when they choose to do so.

PCC-Boeing provides no meaningful rebuttal to this point, except for asserting that “the possibility that excluded employees may seek separate representation in one or more separate bargaining units does not solve the problem caused by the failure to give reasonable consideration to their inclusion in a larger unit,” because the Act requires the Board to “consider the interests of all employees . . .  so the Board can ‘decide whether the unit should be the ‘employer unit, craft unit, plant unit, or subdivision thereof.’”^[61]  But it does not actually answer the question of why, and to what extent, the interests of the excluded employees are relevant when the Board considers whether a particular grouping of employee classifications constitutes an appropriate unit.  As just shown, the answer implicitly advanced by PCC-Boeing—that the excluded employees’ interests are relevant because exclusion from the unit abrogates their rights under Section 7—does not withstand scrutiny.^[62]

Moreover, by purporting to guard the rights of excluded employees, PCC-Boeing turns the statutory focus of the unit determination on its head.  The primary purpose of any unit determination, as the Act itself states, is to determine whether the petitioned-for unit is appropriate for the purposes of collective bargaining—an inquiry that focuses on whether the petitioned-for employees share a sufficient mutuality of interests, and which does not implicate the interests of the excluded employees.  Further, Section 9(b) mandates that the Board “assure to employees the fullest freedom in exercising the rights guaranteed by the Act,” echoing Section 1’s commitment to “protecting the exercise by workers of full freedom of association, selforganization, and designation of representatives of their own choosing.”  Consistent with these principles, the Supreme Court has made clear that an important function of the Board’s unit determinations is “to prevent a functionally distinct minority group of employees from being submerged in an overly large unit.”^[63]  Employees who file a petition are, of course, exercising their Section 7 rights, and it is, therefore, the petitioning employees’ “fullest freedom” with which the Board ought to be concerned.  The petitioning employees, and not the excluded employees, are those whose bargaining interests may be submerged (and, by extension, whose rights may be infringed) if the Board is too eager to require additional employees—who are not themselves currently exercising their right to self-organization—to be included in the unit.  So long as the petitioned-for employees have the requisite mutuality of bargaining interests, and the unit is not arbitrary, then the Board can, should, and must be vigilant in assuring the petitioned-for employees’ fullest freedom in exercising their rights.  The overwhelming community of interest standard does that by requiring a heightened showing to include additional employees in the unit; PCCBoeing’s focus on the interests of employees who have not chosen to exercise their right to self-organization—and who will retain all of their rights under Section 7 if they are excluded from the unit—does not.

The remaining statutory arguments relied upon in PCCBoeing—that Specialty Healthcare’s “overwhelming community of interest” standard abrogates the Board’s duty to consider the appropriate unit “in each case,” and that it renders the extent of organizing controlling in derogation of Section 9(c)(5)^[64]—are similarly flawed.  Neither Section 9(c)(5) nor the Board’s duty to determine the appropriate unit “in each case” prevent the Board from requiring a heightened showing from parties seeking to include additional employees in the unit—to the contrary, each of the five circuit courts to consider these arguments has roundly rejected them.^[65]  Consistent with the “in each case” requirement, Specialty Healthcare requires that the Board evaluate whether a unit is “sufficiently distinct” whenever a contesting party contends that additional employees must be included in the unit.  And, as we have discussed above, Section 9(c)(5) requires the Board to invalidate units only in circumstances where there is no other rational basis for the exclusion of certain employees, such that the exclusion can only be explained by the extent of organization^[66]—a narrow requirement that is consistent with, and already recognized by, Specialty Healthcare’s “overwhelming community of interest” standard.  Quite simply, there is no statutory justification for imposing a more stringent standard than what Section 9(c)(5) requires, and the expansive reading of these provisions espoused by PCC-Boeing (and rearticulated by the dissent) has, again, been unambiguously refuted by numerous appellate decisions.^[67]

In short, the standard articulated by PCC-Boeing has a weak foundation in Board law and lacks any clear guiding principle that can be explained by statutory policy or the Act’s text for Regional Directors who are charged with applying it.  PCC-Boeing’s justification for this standard is entirely limited to its criticisms of Specialty Healthcare.  But these criticisms rest on novel, dubious, and flawed interpretations of statutory provisions that do not withstand scrutiny.  Moreover, PCC-Boeing incorrectly examines the “overwhelming community of interest” standard in a vacuum and, in overruling it, makes the “sufficiently distinct” element the Board’s highest concern, thereby obscuring and ignoring the Board’s primary duty in unit determination cases: to determine whether the petitioned-for unit is appropriate for the purposes of collective bargaining.

D.  Response to Dissent

As our dissenting colleagues acknowledge, the sole point of disagreement between Specialty Healthcare and PCC-Boeing is how the Board should evaluate the “sufficiently distinct” element.  According to the dissent, the purpose of the “sufficiently distinct” element is not to evaluate whether there is a rational basis for the exclusion of certain classifications, but rather to perform a rigorous balancing test that yields just one correct result in every case, by precisely weighing two supposedly competing considerations: the petitioning employees’ right to organize in a unit of their choosing and the excluded employees’ presumed interest in participating in the election process. 

We reject that view.

Like Goldilocks, the dissent wants a unit that is “just right.”  That unit must maximize the participation of employees whose interests might be affected by the results of the election (i.e., any employees whose interests are “insufficiently distinct” from those of the petitioned-for employees).  At the same time, it must somehow preserve the petitioning employees’ “right to self-organize” in a unit that is capable of bargaining collectively (i.e., one that possesses an internal community of interest).  This approach has no sound basis in Board precedent.  And indeed, it runs directly counter to a core tenet of the Board’s unit determination jurisprudence endorsed by the federal courts, including the Supreme Court: that the Board’s role is to permit the petitioning employees to organize in an appropriate unit, not to ascertain which unit configuration is the optimal one in the Board’s judgment.^[68] 

Despite the dissent’s repeated insistence that “decades” of Board precedent support its characterization of the “sufficiently distinct” element, the dissent cites to no Board precedent (aside from PCC-Boeing itself) that identifies the excluded employees’ interests in the outcome of the election as playing a role in the Board’s unit determination framework—much less any case holding that these interests are the key consideration when determining whether the bargaining interests of the petitioned-for unit are “sufficiently distinct” from those of the excluded employees.

Similarly, judicial precedent provides no support for the dissent’s interpretation of the “sufficiently distinct” element.  To the contrary, the Circuit Court cases relied upon by the dissent explicitly frame the “sufficiently distinct” inquiry as a question of arbitrariness,^[69] explaining that the Board must thoroughly evaluate the differences and similarities between the petitioned-for and excluded employees in order to avoid “rubber stamping” units based on “arbitrary lines of demarcation” or “meager differences” between the petitioned-for and excluded employees.^[70]  And this is precisely what the “overwhelming community of interest” standard does. 

If a party asserts that additional employees must be included in the unit,^[71] then the Regional Director does not presume that the petitioned-for unit is appropriate absent these employees; rather, the Regional Director must utilize the Board’s traditional community of interest factors to determine whether there is a rational basis for the exclusion in the first instance.^[72]  That is to say, the Board’s analysis “necessarily proceeds to a further determination whether the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.”^[73]  If the Regional Director determines that there is no rational basis for the exclusion because there is an overwhelming community of interest between the two groups, then the unit is not “sufficiently distinct,” and therefore, not appropriate absent the

Board applies the “overwhelming community of interest” standard by examining the distinctions between the petitioned-for and excluded employees to ascertain whether there is a rational basis for any exclusions.  In contrast, the “internal community of interest” element evaluates whether the petitioned-for employees share sufficient common interests to engage in collective bargaining.

Although some of the circuit courts have characterized the Board’s unit determinations as incorporating a burden-shifting framework (see, e.g., Blue Man Vegas, supra, at 421–422), the Board cannot and does not find a unit “appropriate” unless it determines that the petitioned-for employees are “sufficiently distinct” from the excluded employees on community-of-interest grounds.  The Board has never, either as part of its “traditional” unit determination jurisprudence or in applying Specialty Healthcare, declared a petitioned-for unit to be “prima facie appropriate” or “presumptively appropriate” after finding that it possesses an internal community of interest and is readily identifiable as a group.  Rather, the Board has simply moved on to the next element of the analysis—determining whether the unit is “sufficiently distinct” under the overwhelming community of interest standard.  See, e.g., Macy’s Inc., 361 NLRB 12, 20–23 (2014), enfd. 824 F.3d 557 (5th Cir. 2016), cert. denied 137 S. Ct. 2265 (2017); Northrop Grumman Shipbuilding, Inc., 357 NLRB

2015, 2017–2019 (2011); DTG Operations, Inc., 357 NLRB 2122, 2127– 2128 (2011).  We believe that this approach is consistent with the concerns articulated in cases such as Constellation Brands—which emphasize that the Board must consider the distinctions between the petitionedfor and excluded employees in order to prevent arbitrary exclusions— and is fully justified by the statutory considerations discussed above.  

inclusion of additional employees.  Simply put, the Regional Director cannot approve a petitioned-for unit based on “arbitrary lines of demarcation” under the overwhelming community of interest standard, nor is the Regional Director permitted to approve units “without any consideration of whether the interests of the included employees are sufficiently distinct from those of excluded employees,” as the dissent contends.^[74]  Although the “overwhelming community of interest” standard properly creates a high bar for the party seeking to demonstrate that the unit is not “sufficiently distinct,” that is not equivalent to a “presumption” of appropriateness, as the dissent repeatedly suggests.  Nor does Specialty Healthcare create an “insurmountable” standard, as the cases applying it demonstrate.^[75]  In sum, the dissent has failed to demonstrate that the “overwhelming community of interest” standard is somehow contrary to Board or appellate precedent.^[76]

The dissent also mistakenly contends that PCC-Boeing is preferable to Specialty Healthcare as a matter of statutory policy.  In this regard, the dissent focuses on two “central policies of the Act” that it believes underscore the approach articulated in PCC-Boeing: “ensuring to employees their rights to self-organization and freedom of choice, and fostering industrial peace and stability through collective bargaining.” 

This first “central policy” argument in the dissent is merely a reframing of the same faulty premise underlying PCC Structurals: that the Board should, under the guise of protecting the rights of excluded employees, effectively veto the petitioning employees’ choice of an appropriate unit by insisting on what it deems to be the optimal unit.^[77]  According to the dissent, the Board must protect the excluded employees’ interests that might be “collaterally controlled” by unionization.  But this is not the Board’s role under Section 9 of the Act.  Rather—so long as the petitioned for unit is an appropriate unit (and regardless of whether it is the most optimal unit)—the employees must determine for themselves which employees are included in or excluded from the unit.  Section 7 gives both the petitioning employees and the excluded employees the same toolbox of rights that they can use to protect their interests in the workplace, including engaging in collective-bargaining and other protected concerted activity, or refraining from such activity.  Under Specialty Healthcare, the excluded employees retain the “fullest freedom” to utilize every single one of these Section 7 tools to protect their interests in the event that their coworkers attempt to organize.  In contrast, PCC-Boeing disregards the “fullest freedom” of the organizing employees by placing unnecessary obstacles to representation in the unit of their choice. 

The second “central policy” relied upon by the dissent forms the basis of a novel argument in favor of PCCBoeing: that PCC-Boeing gives greater weight to the interests of the excluded employees so that the Board can facilitate “efficient and stable collective bargaining.”  Notably, although PCC Structurals and Boeing both contained general citations to Kalamazoo Paper Box, neither case framed the “sufficiently distinct” inquiry in terms of evaluating whether the petitioned-for unit could engage in effective collective bargaining absent the excluded employees; rather, both decisions focused exclusively on evaluating the Section 7 interests of excluded employees.  Although PCC-Boeing indicated that the Board should evaluate the employees’ distinct interests “in the context of collective bargaining,” this empty directive does not substitute for an explanation of why these collective bargaining interests are relevant to the “sufficiently distinct” requirement or how they should be weighed.^[78]

At any rate, the dissent’s arguments on this point are contradictory.  On the one hand, the dissent acknowledges that an internal community of interest among the petitioned-for employees is necessary to facilitate effective

there is a rational basis for any exclusions under the “overwhelming community of interest” standard. 

collective bargaining.  Thus, our dissenting colleagues observe—in agreement with Allied Chemical—that a cohesive and homogenous unit reduces internal conflicts and prevents the interests of a minority group from being submerged by the majority.  But, on the other hand, the dissent suggests that even where the petitioned-for unit is cohesive and homogenous, the Board can only ensure “efficient and stable collective bargaining” by mandating the inclusion of additional employees whose interests are assertedly “closely aligned” with the collective-bargaining interests of the petitioned-for employees.  Of course, the inclusion of such employees necessarily threatens to make the unit less cohesive and therefore less optimal from a collective-bargaining standpoint.  Crucially, the dissent makes no effort to explain how permitting the exclusion of employees with assertedly “closely aligned” (but ultimately distinguishable) interests undermines collective bargaining, disrupts labor stability, creates “unworkable situations in the workplace,” or precludes parties from reaching collective-bargaining agreements, given that the unit is cohesive and homogenous without the excluded employees.  Indeed, both the Board and the courts have regularly rejected such arguments in approving smaller units that are segments of a greater whole.^[79] 

Nor does the dissent acknowledge that, under the “overwhelming community of interest” standard, the Board does mandate the inclusion of additional employees under circumstances where the differences between the petitioned-for and excluded employees are so minimal that it would be truly irrational to engage in the process of collective bargaining without them.  And this is all that is required: once again, the dissent ignores that the Board’s role is solely to determine whether the unit is an appropriate unit for bargaining, not the optimal one.

Accordingly, we are unpersuaded by the dissent’s arguments that PCC-Boeing is preferable to Specialty Healthcare from a policy or statutory standpoint.  We do not claim that Specialty Healthcare is the only permissible unit determination framework under the Act, or that every prior decision of the Board, over many decades, can be completely harmonized with Specialty Healthcare.  Rather, after careful consideration, we choose the Specialty Healthcare framework because it is broadly consistent with the Board’s historical treatment of the “sufficiently distinct” element (as the courts have recognized), and, most importantly, because it best serves the goals of the

Act as reflected in Section 9.^[80]

E.  Return to Specialty Healthcare

In light of PCC-Boeing’s extensive faults—its cumbersome and confusing approach to the “sufficiently distinct” element, its detrimental effects on the rights of the petitioning employees, and its hollow statutory reasoning— we have decided to overrule PCC Structurals and Boeing and reinstate the Specialty Healthcare test.^[81]

Accordingly, the Board will once again approve a petitioned-for “subdivision” of employee classifications if the petitioned-for unit: (1) shares an internal community of interest; (2) is readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors; and (3) is sufficiently distinct.  Of course, the Board need not address each element in every case: if a particular element is not disputed, it need not be adjudicated.  But if a party contends that the petitioned-for unit is not sufficiently distinct—i.e., that the smallest appropriate unit contains additional employees—then the Board will apply its traditional community-of-interest factors to determine whether there is an “overwhelming community of interest” between the petitioned-for and excluded employees, such that there is no rational basis for the exclusion.  If there are only minimal differences, from the perspective of collective bargaining, between the petitioned-for employees and a particular classification, then an overwhelming community of interest exists, and that classification must be included in the unit.  As the Board noted in Specialty Healthcare, this test does not disturb or displace any preexisting rules or presumptions applicable to specific industries or occupations.^[82]

Having reinstated Specialty Healthcare, we apply it retroactively to all pending cases.^[83]  With respect to the present dispute, we acknowledge that our reinstatement of the Specialty Healthcare standard alters the burden placed on the Employer in terms of litigating whether the petitioned-for unit is appropriate without the inclusion of additional employees—i.e., whether the unit is “sufficiently

distinct.”  In the interests of fairness, we will therefore remand the case to the Regional Director for action consistent with our decision today and the standard articulated therein, including reopening the record, if necessary.  

ORDER

The Regional Director’s Decision and Order is reversed, the petition in Case 07–RC–269162 is reinstated, and the case is remanded to the Regional Director for further appropriate action consistent with this Decision, including reopening the record, if necessary, and analyzing the appropriateness of the unit under the standard articulated herein, and for the issuance of a supplemental decision.

Dated, Washington, D.C.  December 14, 2022

______________________________________ Lauren McFerran,    Chairman

______________________________________ Gwynne A. Wilcox,                     Member

______________________________________ David M. Prouty,                         Member

(SEAL)            NATIONAL LABOR RELATIONS BOARD

MEMBERS KAPLAN AND RING, dissenting:

Collective bargaining under the National Labor Relations Act is premised on the existence of an appropriate bargaining unit within which bargaining will take place.  Appropriate for what purpose?  Section 9(a) of the Act answers that question.  Repeating a key phrase, Section 9(a) specifies that bargaining units must be appropriate “for the purposes of collective bargaining,” and it further specifies

whatever stage.’”  SNE Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007 (1958)).  Indeed, “[t]he Board’s established presumption in representation cases like this one is to apply a new rule retroactively.”  BFI Newby Island Recyclery (Browning-Ferris), 362 NLRB 1599 (2015), affd. in part and revd. in part 911 F.3d 1195 (D.C. Cir. 2018). ¹  Sec. 9(a) relevantly states:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for

that the representative of such a unit shall be the exclusive representative of all the employees in that unit “for the purposes of collective bargaining.”¹  To ensure that the mandate of Section 9(a) is fulfilled, Section 9(b) of the Act directs the Board to decide, in each case, “the unit appropriate for the purposes of collective bargaining.”  And Section 9(b) adds a second theme:  in making this determination, the Board is to “assure to employees the fullest freedom in exercising the rights guaranteed by this Act.”^[84]

Accordingly, in determining whether a particular unit is appropriate, the Board must be guided by two central policies of the Act:  ensuring to employees their rights to selforganization and freedom of choice, and fostering industrial peace and stability through collective bargaining.  Kalamazoo Paper Box Co., 136 NLRB 134, 137 (1962). 

These two policies follow directly from Section 9(b) of the Act, which requires the Board to assure employees their “fullest freedom in the exercise of” their Section 7 rights and to ensure that the unit is “appropriate for the purposes of collective bargaining” (emphasis added).  Congress also specified several limitations on the Board’s unit determinations in Section 9 of the Act.  Most pertinently here, Section 9(c)(5) prohibits the Board from making “the extent to which the employees have organized” the controlling factor in unit determinations.

Consistent with these principles, the Board’s appropriate-unit determinations turn on whether the employees in a particular unit share a “community of interest.”  United Operations, Inc., 338 NLRB 123, 125 (2002).  The traditional community-of-interest factors long considered by the Board in making this determination are whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.

Id. at 123.  When assessing these factors, the Board

such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to

rates of pay, wages, hours of employment, or other conditions of employment…

never addresses, solely and in isolation, the question whether the employees in the unit sought have interests in common with one another. Numerous groups of employees fairly can be said to possess employment conditions or interests “in common.” Our inquiry—though perhaps not articulated in every case—necessarily proceeds to a further determination whether the interests of the group sought are sufficiently distinct from those of other employees to warrant the establishment of a separate unit.

Wheeling Island Gaming, 355 NLRB 637, 637 fn. 2 (2010) (emphasis and citation omitted).

When a union petitions for an election in a particular unit, the Board’s inquiry begins with the petitioned-for unit.  If that unit is appropriate, then the inquiry into the appropriate unit ends.  Boeing Co., 337 NLRB 152, 153 (2001).  In some cases, however, a party asserts that the petitioned-for unit is inappropriate, and that the smallest appropriate unit must also include additional employees.  In PCC Structurals, Inc., 365 NLRB No. 160 (2017), and

The Boeing Company, 368 NLRB No. 67 (2019), the

Board articulated a framework for conducting this inquiry.  Based on the traditional test for determining appropriate units, the PCC/Boeing framework first considers whether the employees in a proposed unit share an internal community of interest.  Second, the Board considers whether the interests of employees within the proposed unit are sufficiently distinct from the interests of those excluded from the proposed unit.  Third, the Board considers any applicable guidelines that the Board has established for the specific industry involved with regard to appropriate unit configurations.  Boeing, 368 NLRB No. 67, slip op. at 3. 

The PCC/Boeing framework effectuates the statutory policies on which unit determinations must be based.  First, it gives appropriate weight to employees’ right to self-organize by ensuring that the employees in the petitioned-for unit share an internal community of interest.  Self-organization among employees with disparate interests or infrequent contact would be challenging at best.  Indeed, the interests of employees in the unit proposed by the union may be so disparate that directing an election in that unit would effectively nullify the employees’ right to self-organization.  In the event that employees do choose union representation, the union’s ability to successfully represent them would be severely limited if they did not share common interests.^[85]  Moreover, if a unit is not cohesive, a minority subgroup’s interests may be sacrificed to the interests of other unit employees, and this would infringe on the subgroup’s Section 7 rights.^[86] 

Second, the PCC/Boeing framework also gives due consideration to whether the interests of the employees in the proposed unit are sufficiently distinct from those of other employees to warrant a separate unit.  This vital inquiry ensures that the Board’s unit determinations respect the Section 7 rights of employees excluded from the proposed unit.  PCC Structurals, 365 NLRB No. 160, slip op. at 8.  The “sufficiently distinct” inquiry also ensures that appropriate-unit determinations will result in a unit that is workable “for the purposes of collective bargaining,” as Section 9(b) mandates.  As the Board explained long ago,

[b]ecause the scope of the unit is basic to and permeates the whole of the collective-bargaining relationship, each unit determination, in order to further effective expression of the statutory purposes, must have a direct relevancy to the circumstances within which collective bargaining is to take place. For, if the unit determination fails to relate to the factual situation with which the parties must deal, efficient and stable collective bargaining is undermined rather than fostered.

Kalamazoo Paper Box, 136 NLRB at 137.  A realistic appraisal of a petitioned-for unit in light of the factual situation with which the parties would have to deal were a majority of that unit to choose representation necessarily requires the Board to carefully consider the extent to which the interests of employees excluded from that unit overlap with those of employees in the proposed unit.

In determining whether the interests of employees in the petitioned-for unit are sufficiently distinct from those of excluded employees, the PCC/Boeing framework requires the Board to consider whether “‘excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.’”  Boeing, 368 NLRB No. 67, slip op. at 4 (quoting Constellation Brands, U.S. Operations, Inc. v. NLRB, 842 F.3d 784, 794 (2d Cir. 2016) (emphasis in Constellation Brands)).  As the Board explained in Boeing, this inquiry does not require that distinct interests must outweigh similarities by any particular margin, nor does it contemplate that a unit would be found inappropriate merely because a different unit might be more appropriate.  Rather, “what is required is that the Board analyze the distinct and similar interests and explain why, taken as a whole, they do or do not support the appropriateness of the [proposed] unit.”  Id., slip op. at 4.  “Merely recording similarities or

interest serves to assure the coherence among employees necessary for efficient collective bargaining and at the same time to prevent a functionally distinct minority group of employees from being submerged in an overly large unit” (citation and internal quotation marks omitted)).

differences between employees does not substitute for an explanation of how and why these collective-bargaining interests are relevant and support the conclusion.  Explaining why the excluded employees have distinct interests in the context of collective bargaining is necessary to avoid arbitrary lines of demarcation.”  Constellation Brands, 842 F.3d at 794–795 (quoted in Boeing, supra, slip op. at 4).

For most of its history, the Board has applied a standard that affords comparable weight to a petitioned-for unit’s internal community of interest and to the distinctness of those interests from those of excluded employees.  In Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (Specialty Healthcare),^[87] however, the Board abruptly departed from its traditional standard.  Specialty Healthcare replaced that standard with one that gave overriding weight to whether the petitioned-for employees have a community of interest with each other.  If those employees “are readily identifiable as a group (based on job classifications, departments, functions, work locations, skills, or similar factors)” and share a community of interest with each other, Specialty Healthcare compels a finding that the unit is appropriate unless the party asserting that the unit must include additional employees shows that those employees “share an overwhelming community of interest” with the petitionedfor employees.  Id. at 944–946.  Under this framework, the question of whether the interests of excluded employees are truly distinct from those of employees in the proposed unit is at best a secondary consideration.  Indeed, under Specialty Healthcare, the similarity of excluded employees’ interests with those of included employees is simply disregarded unless the interests of included and excluded employees “‘overlap almost completely.’”  Id. at 944.^[88]

Overruling PCC Structurals and Boeing, our colleagues reinstate Specialty Healthcare in today’s decision.  Because they offer no persuasive justification for this step, we respectfully dissent.

Discussion

To define the precise area of disagreement between ourselves and our colleagues in the majority, we begin by observing that the majority agrees with some of the premises on which the PCC/Boeing framework is based.  First, our colleagues agree that a proposed unit must “share an internal community of interest.”  Boeing, 368 NLRB No. 67, slip op. at 3.  Second, our colleagues agree that the Board’s unit determinations must take into account “guidelines that the Board has established for specific industries with regard to appropriate unit configurations.”  Id., slip op. at

4. Third, the majority also agrees that the employees in the proposed unit must have interests “sufficiently distinct” from those of employees excluded from the proposed unit. That is, the majority agrees that, in their words, “even if the petitioned-for unit exhibits a mutuality of interests and has some coherent organizing principle, it may nonetheless be inappropriate because it excludes employees who cannot rationally be separated from the petitioned-for employees on community-of-interest grounds.”

Our colleagues’ disagreement with the PCC/Boeing framework concerns how to determine whether the interests of included employees are “sufficiently distinct” from those of excluded employees.  In making this determination, only the Specialty Healthcare “overwhelming community of interest” standard will do for our colleagues.  As they candidly acknowledge, the interests of the petitionedfor and excluded employees must “overlap almost completely” to mandate including the latter in the unit under that standard.  The majority contends that Supreme Court precedent supports this standard, that it provides a workable standard for making unit determinations while the PCC/Boeing framework does not, and that their preferred standard better effectuates the policies of the Act.  We respectfully disagree in all respects.

1. The “Overwhelming Community of Interest” Standard Is Unsuitable for Appropriate-Unit Determinations.

The “overwhelming community of interest” standard was developed by the Board for the purpose of deciding whether a particular group of unrepresented employees should be added to an existing unit by accretion—that is, without an election.  NV Energy, Inc., 362 NLRB 14, 16 (2015).  The Board appropriately applies a “restrictive policy” in deciding whether to accrete employees to an existing unit because doing so deprives the accreted employees of the right to choose for themselves whether to be represented by a union for the purpose of collective bargaining.  Id.  Accordingly, the Board finds “a valid accretion only when the additional employees have little or no separate group identity and thus cannot be considered to be a separate appropriate unit and when the additional employees share an overwhelming community of interest with the preexisting unit to which they are accreted.”  Safeway Stores, Inc., 256 NLRB 918, 918 (1981) (emphasis added). 

This “restrictive” standard, applicable in accretion cases, is identical to the “overwhelming community of interest” standard that the Board applied to unit determinations under Specialty Healthcare and that our colleagues reinstate today.^[89]  As the majority states, this standard requires the party objecting to the proposed unit on the ground that the smallest appropriate unit must include additional employees to show that “there is no rational basis” for excluding the disputed employees because there are “only minimal differences” between excluded and included employees’ interests—or, in an even more forceful articulation of the standard our colleagues adopt, because the interests of the employees the objecting party seeks to add are “near-indistinguishable” from those of the employees within the proposed unit.  In our view, it is irrational to apply to unit determinations made for the purpose of directing an election the same standard used to decide whether to include employees in a unit without an election.  To the contrary, as the Fourth Circuit recognized more than 25 years ago, applying the “overwhelming community of interest” standard outside of the accretion context “effectively accord[s] controlling weight to the extent of union organization . . . . because ‘the union will propose the unit it has organized.’”  NLRB v. Lundy Packing Co., 68 F.3d 1577, 1581 (4th Cir. 1995) (quoting Laidlaw Waste Systems, Inc. v. NLRB, 934 F.2d 898, 900 (7th Cir. 1991)).  As noted above, this is specifically prohibited by Section 9(c)(5) of the Act.^[90] 

As the Board further explained in PCC Structurals, applying the “overwhelming community of interest” standard to initial unit determinations also improperly undermines the Board in fulfilling its statutory duty, under Section 9(b) of the Act, to “assure” to employees “in each case” their “fullest freedom” in exercising their Section 7 rights.  365 NLRB No. 160, slip op. at 6.  It does so because it sharply circumscribes the Board’s role.  Rather than conduct a thorough analysis of shared and distinct interests between included and excluded employees, the Board is limited by the “overwhelming community of interest” standard, and by the assignment of the burden of proof to the objecting party, to determining whether the objecting party has shown that the interests of excluded employees are nearly indistinguishable from those of included employees.  Our colleagues find this unproblematic.  They focus on the Section 7 rights of the petitionedfor employees, to the near exclusion of the rights of excluded employees.  They say that in a subsequent representation case, excluded employees may petition for separate representation, or to be added to the existing unit. 

But in doing so, they fail to honor Congress’s requirement that the Board assure “employees”—all employees, both those included in and those excluded from a proposed unit—”in each case”—not some employees in one case and other employees later on, if there ever is a subsequent case—the “fullest freedom” in exercising their Section 7 rights.

1. No Precedent Compels the “Overwhelming Community of Interest” Standard, Which Is Inconsistent with the Traditional Community of Interest Inquiry.

No court has rejected the PCC/Boeing framework or questioned it in any way.  Nor has any court held that the Act compels the Board to apply the “overwhelming community of interest” standard.  Indeed, the application of that standard to initial unit determinations has dubious antecedents at best.  The Board applied it in Lundy Packing Co., 314 NLRB 1042 (1994), where a divided Board found that a petitioned-for unit of production and maintenance employees was appropriate, excluding quality assurance technicians.  As Member Stephens persuasively noted in dissent, the Lundy Packing majority cited no prior case in which that standard had been applied to an initial unit determination. Id. at 1046.  The Fourth Circuit agreed, properly recognizing that the “overwhelming community of interest” standard was a “novel legal standard” in this context.  NLRB v. Lundy Packing Co., 68 F.3d at 1577.

The Fourth Circuit was correct that the Board had not previously applied the “overwhelming community of interest” standard in making initial unit determinations but instead had used other formulations, a point our colleagues effectively concede.  See, e.g., Colorado National Bank of Denver, 204 NLRB 243, 243 (1973) (“[T]he unit sought is too narrow in scope in that it excludes employees who share a substantial community of interest with employees in the unit sought.”); Mc-Mor-Han Trucking Co., 166 NLRB 700, 701 (1967) (“[T]ruckdrivers enjoy a sufficient community of interest separate and apart from the mechanics to warrant finding them to be a unit appropriate for collective bargaining.”).  Neither did the Board apply an “overwhelming community of interest” standard in cases decided after Lundy Packing. See, e.g., United Rentals, Inc., 341 NLRB 540, 541 (2004) (finding that excluded employees share such a “substantial community of interest with the petitioned-for employees that they must

accretion standard and Specialty Healthcare are “broadly similar polic[ies].” 

be included in the unit”); Engineered Storage Products Co., 334 NLRB 1063, 1063 (2001) (“[T]he test is whether the community of interest they share with [employees in the proposed unit] is so strong that it requires or mandates their inclusion in the unit.”).  At best, then, the “overwhelming community of interest” standard’s use for initial unit determinations had its origin in an unexplained departure from precedent.

Undeterred, the Board applied that standard again in the representation case reviewed by the Court of Appeals for the District of Columbia Circuit in Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008), a case on which Specialty Healthcare and the majority heavily rely.  In Blue Man Vegas, the D.C. Circuit affirmed a Board decision finding that a unit of Las Vegas stage crew employees was an appropriate unit notwithstanding the exclusion of musical instrument technicians (MITs) who worked on the same show.  As summarized by the court, the regional director found that the petitioned-for unit was appropriate— indeed, that no party had contended otherwise—and then proceeded to find that the inclusion of the MITs was not required because they did not share an “overwhelming community of interest” with the stage crew employees.  Id. at 423.  In enforcing that decision, the court did not hold that the Board must apply that standard, nor did it have before it the question of whether that standard should apply when a party does contend that the petitioned-for unit is inappropriate.^[91]  Accordingly, Blue Man Vegas simply cannot bear the weight that Specialty Healthcare and our colleagues place on it.^[92]  

The Supreme Court precedent cited by our colleagues is not to the contrary.  As noted above, the Supreme Court has recognized that the Board’s unit determinations must ensure that the employees in the unit share “substantial mutual interests.”  Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. at 172.  But the issue before the Court in that case was whether the Board had properly found that retirees were part of a bargaining unit of active employees such that changes to retiree health care benefits were a mandatory subject of bargaining.  The Court’s holding that retirees did not share the required mutual interests with active employees says little about whether particular active employees belong in the same unit as other active employees because they do share mutual interests, much less about the standard to be applied in making that determination.  Decades of precedent establish that unit determinations must prevent a group of employees whose interests sufficiently align with those of employees in a petitioned-for unit from being improperly excluded from the unit, and nothing in the Court’s opinion in Allied Chemical is to the contrary.

The majority contends that “individuals’ selection of those with whom they wish to join in a common endeavor” is a key element of freedom of association, quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984).  But the majority neglects to acknowledge the actual holding in Roberts, in which the Supreme Court found that a state human rights act was lawfully applied to prohibit an organization from refusing to allow women to join.  Accordingly, the Court held that the free association rights of Jaycees’ members were not “absolute” but, rather, may be infringed upon in light of other compelling governmental interests.  Id. at 623.  Here, of course, the employees’ freedom of association must be considered in the context of Section 9(b) and 9(c)(5) of the Act, in which Congress mandated that the Board must decide in “each case” whether a unit is appropriate “for the purposes of collective bargaining” and, most importantly, that the extent of organizing shall not be controlling.

Citing American Hospital Association v. NLRB, 499 U.S. 606, 609–610 (1991), the majority stresses that “the initiative in selecting an appropriate unit resides with the employees.” Nothing in PCC Structurals or Boeing disputed that proposition.  In practice, however, petitions in representation cases are typically filed by unions, and so it is they who decide the scope of the petitioned-for unit they seek to represent—and “‘the union will propose the unit it has organized.’”  NLRB v. Lundy Packing, 68 F.3d at 1581 (quoting Laidlaw Waste Systems v. NLRB, 934 F.2d at 900).  In any event, it does not follow from the fact that the initiative resides with employees or unions that the

“sufficiently distinct” by “examining the distinctions between the petitioned-for and excluded employees to ascertain whether there is a rational basis for any exclusions,” applying the “overwhelming community of interest” standard. And Specialty Healthcare indisputably places the burden of proving an overwhelming community of interest on the party opposing the unit.  

unit they choose must be presumed appropriate or that the party opposing it must sustain the all-but-insurmountable burden of showing that the interests of excluded employees are “near[ly] indistinguishable” from those of included employees. 

Our colleagues say that Section 9(c)(5) does not prevent the Board from considering the extent of organizing as one factor among others in its unit determinations, citing NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 441–442 (1965).  But neither the Act nor the Court’s decision provides any support for our colleagues’ elevation of that factor so that it is, for all practical purposes, controlling—and Section 9(c)(5) does prohibit that.^[93]

Reviewing courts have, however, repeatedly rejected the notion that a unit could be found appropriate without any consideration of whether the interests of included employees are sufficiently distinct from those of excluded employees.  See Constellation Brands v. NLRB, 842 F.3d 784, 792 (2d Cir. 2016); Nestle Dreyer’s Ice Cream Company v. NLRB, 821 F.3d 489;FedEx Freight, Inc. v. NLRB, 832 F.3d 432, 441 (3d Cir. 2016).  As these courts implicitly acknowledge, addressing sufficient distinctness only at step two of the analysis, where the overwhelming-community-of-interest standard is applied, and not at step one, where the traditional community-of-interest factors are applied, would represent a significant departure from the Board’s traditional test discussed above.  Cases applying Specialty Healthcare have nevertheless done just that. See, e.g., DPI Secuprint, Inc., 362 NLRB 1407, 1410 (2015) (finding that “the employees in the petitioned-for unit are a readily identifiable group who share a community of interest, and that the Employer has not demonstrated that the offset-press employees share an overwhelming community of interest with the petitioned-for employees”); Macy’s Inc., 361 NLRB 12, 32–44 (2014) (considering “distinctions between the petitioned-for employees and other selling employees” only as part of employer’s rebuttal burden under the overwhelming community-of-interest standard), enfd. 824 F.3d 557 (5th Cir. 2016), cert. denied 137 S. Ct. 2265 (2017); Northrop

Grumman Shipbuilding, Inc., 357 NLRB 2015, 2017– 2018 (2011) (same); DTG Operations, Inc., 357 NLRB 2122, 2126 (2011) (finding that petitioned-for unit “is an appropriate bargaining unit—subject to the Employer’s proving that the unit must include additional employees” because the petitioned-for employees “unmistakably share a community of interest”).  

This is hardly surprising, since Specialty Healthcare effectively deems a petitioned-for unit presumptively appropriate if an internal community of interest is shown, and it takes account of whether the included employees have interests sufficiently distinct from those of excluded employees only if a party objecting to the unit proves that excluded employees’ interests are not sufficiently distinct under the “overwhelming community of interest” standard discussed above.  In effect, a critical aspect of the traditional analysis was excised from the Board’s purview and shunted to the employer in a stringent and nearly insurmountable burden shifting more suited to an adversarial proceeding than a representation-case analysis required by statute to be conducted by the Board. This curtailment of the Board’s role in performing a complete analysis of unit appropriateness undermined the mandate of Section 9(b), under which the Board must determine the appropriate bargaining unit “in each case.”^[94]

Reinstating Specialty Healthcare, our colleagues perpetuate that error.  As explained above, Specialty Healthcare is at the very least susceptible to the interpretation that it permits petitioned-for units to be found appropriate solely on the basis that the included employees share an internal community of interest and are “readily identifiable” as a group, without any consideration of whether their interests are “sufficiently distinct” from those of excluded employees unless a party contending that they are not raises the issue and proves it under the onerous “overwhelming community of interest” standard.  Our colleagues “reinstate the Specialty Healthcare test” without any explicit modification.^[95]  Their decision

employer, gives the appearance of bias and undermines public trust.  We repudiate it. 

appears to suggest in some places that the Specialty Healthcare test considers whether the interests of included employees are “sufficiently distinct” as part of the internal-community-of-interest inquiry, an inquiry courts have held must be undertaken before the overwhelming-community-of-interest standard may properly be applied.  But any such consideration is at best attenuated and indirect, since the internal-community-of-interest inquiry is primarily focused on the interests of the petitioned-for employees.  In any event, the majority opinion also repeatedly emphasizes that Specialty Healthcare requires the Board to “determin[e] whether the unit is ‘sufficiently distinct’ under the overwhelming community of interest standard” (emphasis added), and that “the ‘overwhelming community of interest’ standard properly creates a high bar for the party seeking to demonstrate that the unit is not ‘sufficiently distinct.’”

This interpretation of Specialty Healthcare represents an unexplained and unjustified departure from the traditional community-of-interest test for the reasons previously stated.  Indeed, the majority implicitly acknowledges that Specialty Healthcare is at least in tension with that precedent.  Although they say that they reject any interpretation of Wheeling Island Gaming, supra, one of the

shares an internal community of interest; (2) is readily identifiable as a group based on job classifications, departments, functions, work locations, skills, or similar factors; and (3) is sufficiently distinct.  Of course, the Board need not address each element in every case—if a particular element is not disputed, it need not be adjudicated.  But, if a party contends that the petitioned-for unit is not sufficiently distinct—i.e., that the smallest appropriate unit contains additional employees—then the Board will apply its traditional community-of-interest factors to determine whether there is an “overwhelming community of interest” between the petitioned-for and excluded employees, such that there is no rational basis for the exclusion.  If there are only minimal differences, from the perspective of collective-bargaining, between the petitionedfor employees and a particular classification, then an overwhelming community of interest exists, and that classification must be included in the unit.

leading cases setting forth the traditional standard, “that would create inconsistency with Specialty Healthcare or with today’s decision,” they admit that Wheeling Island Gaming may be so interpreted when they add that “even if such an interpretation were correct, then we would limit Wheeling Island Gaming to its facts.”^[96] 

The majority’s reinstatement of Specialty Healthcare is flawed in other respects as well. Throughout their decision, our colleagues rely heavily on vague and subjective terms that are susceptible to a range of interpretations— e.g., “irrational” and “arbitrary”—in their attempt to redefine what it is for a unit to not be appropriate.  (Variations on “rational” and “irrational” are used nearly 15 times in today’s decision, and “arbitrary” is used even more frequently, to state what an employer has to prove to show that a petitioned-for unit is inappropriate.)  We do not believe that Congress intended that every petitioned-for unit would be accepted unless it is “arbitrary” or “irrational.”  To the contrary, Congress directed the Board to determine “in each case” “the unit appropriate for the purposes of collective bargaining.”  PCC Structurals, 365 NLRB No. 160, slip op. at 3.^[97]  In this respect, it is telling that in the years during which Specialty Healthcare was the governing precedent, there was only one published decision in

interests of the petitioned-for unit as distinct from those of excluded employees were to be assessed in the first step of the analysis.  See, e.g., DPI Secuprint, Inc., above; Macy’s Inc., above; DTG Operations, Inc., above.  Such confusion required clarification by reviewing courts.  See, e.g., Constellation Brands, above.  By contrast, the majority decision fails to identify any cases demonstrating that the approach reflected in PCC Structurals was a source of significant confusion in its application.  Despite the established confusion over the application of Specialty Healthcare, our colleagues heedlessly embrace that ambiguous approach, which is seemingly strategically designed to ensure that, for all practical purposes, the extent of organizing will be controlling but, as a hedge against reversal, includes contrary assurances at the expense of clarity.  

which the Board found that an employer met its burden under Specialty Healthcare.  See Odwalla, Inc., 357

NLRB 1608 (2011).^[98]

1. The PCC/Boeing Framework Provides a Clear Standard for Unit Determinations.

Contrary to our colleagues, the PCC Structurals/Boeing framework provides a clear standard for determining whether a petitioned-for unit is inappropriate because it excludes particular employees.  Specifically, the PCC/Boeing framework requires the Board to analyze the distinct and similar interests of included and excluded employees and determine “whether the employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities.”  Boeing, 368 NLRB No. 67, slip op. at 4 (quoting Constellation Brands, U.S. Operations, Inc. v. NLRB, 842 F.3d at 794 (emphasis in Constellation Brands)).  Contrary to the majority, this standard does not contemplate a numerical tally of shared versus distinct community-of-interest factors, a point the Board made clear in Boeing.  Id.  Rather, it requires the Board to determine whether “the excluded employees have distinct interests in the context of collective bargaining.”  Id. (internal quotation omitted; emphasis added).  This qualitative standard follows directly from Section 9(b) of the Act, which requires the Board to determine “the unit appropriate for the purposes of collective bargaining” (emphasis added).

The Act requires the Board to determine an appropriate unit for the purpose of collective bargaining—not, as our colleagues appear to believe, for the purpose of making it easier for unions to win elections.  And the purpose of collective bargaining is inseparable from the primary goal of the Act itself, which is to “achiev[e] industrial peace by promoting stable collective-bargaining relationships.” Auciello Iron Works, Inc. v. NLRB, 517 U.S. at 790 (emphasis added).  Correspondingly, one of the Board’s primary responsibilities under the Act is to foster labor-relations stability.  Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362–363 (1949) (“To achieve stability of labor relations was the primary objective of Congress in enacting the National Labor Relations Act.”).  Moreover, collective bargaining was intended by Congress to be a process that could conceivably produce agreements.  H.J. Heinz Co. v. NLRB, 311 U.S. 514, 523 (1941) (recognizing that the object of collective bargaining under the Act is “an agreement between employer and employees as to wages, hours and working conditions evidenced by a signed contract”); Altura Communications Solutions, LLC, 369 NLRB No. 85, slip op. at 4 (2020) (same), enfd. 848 Fed. Appx. 344 (9th Cir. 2021).  Accordingly, the PCC/Boeing framework requires the Board to consider whether the differences or similarities between petitionedfor and excluded employees will foster or undermine “efficient and stable collective bargaining.”  Kalamazoo Paper Box, 136 NLRB at 137.  And whether efficient and stable collective bargaining will be fostered depends to a significant extent on “the circumstances within which collective bargaining is to take place,” which are largely defined by the composition of the unit.  Id. 

Although it did not involve the PCC Structurals/Boeing framework, the Board’s recent decision in Starbucks, 371 NLRB No. 71 (2022), aptly illustrates how this inquiry works.  In Starbucks, the Board considered whether the nature and frequency of interchange between employees in a petitioned-for unit and excluded employees working at other stores negated the presumptive appropriateness of a single store unit.  The Board there stated that “the key question [was] the nature and degree of interchange and its significance in the context of collective bargaining.”  Id., slip op. at 1 (emphasis added).  The limited evidence of interchange in that case demonstrated that the petitioned-for employees did not have “frequent contact” with other employees and that they could “operate with relative independence.”  Id.  Mandating the inclusion of employees with whom the petitioned-for employees had little contact would have impeded employees’ ability to self-organize.  And a separate unit was appropriate for the purposes of collective bargaining because it could operate with “relative independence.”  Id.  As such, the unit corresponded to “the factual situation with which the parties must deal” at the negotiating table.  Kalamazoo Paper Box, 136 NLRB at 136.

1. The PCC/Boeing Framework Effectuates the Policies of the Act, While Specialty Healthcare Undermines Them.

As we have explained, PCC/Boeing effectuates the statutory policy of fostering labor-relations stability.  The Specialty Healthcare standard the majority reinstates today, in contrast, focuses almost exclusively on facilitating organizing while giving little, if any, weight to whether the unit thus organized will facilitate efficient and stable collective bargaining.  As a result, extent of organization is prioritized, contrary to the policy if not the letter of Section 9(c)(5), and “efficient and stable collective bargaining

inappropriate, so that issue was not before the Board for decision.  360 NLRB at 1252 fn. 1.  And in K&N Engineering, the proposed unit was found inappropriate because it lacked an internal community of interest, not on overwhelming-community-of-interest grounds.  365 NLRB No.

141, slip op. at 3–4.

is undermined rather than fostered.”  Kalamazoo Paper Box, 136 NLRB at 137.

Contrary to the majority, the PCC/Boeing framework does not improperly diminish employees’ Section 7 right to self-organize.  As explained above, it protects the Section 7 rights of included employees by requiring, in each case, that the unit have an internal community of interest.  Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. at 172–173.  Moreover, PCC/Boeing explicitly recognizes that a proposed unit need only be an appropriate unit and need not be the most appropriate unit.  PCC Structurals, 365 NLRB No. 160, slip op. at 12; Boeing, 368 NLRB No. 67, slip op. at 3.

Unlike the Specialty Healthcare standard, the majority reinstates today, however, PCC/Boeing accords appropriate weight to the Section 7 rights of employees who have been excluded from the petitioned-for unit, correctly recognizing that the two core principles at the heart of Section 9(a)—exclusive representation and majority rule—require bargaining-unit determinations that protect the Section 7 rights of all employees.  PCC Structurals, 365 NLRB No. 160, slip op. at 8.^[99]  Remarkably, our colleagues take the position that employees who are not included in a petitioned-for unit have no Section 7 interests that could be implicated by a Board determination that the unit is appropriate.  We disagree.  Employees improperly excluded from a unit under the majority’s scheme may be sufficiently aligned with their unit coworkers and have sufficiently similar interests that their working conditions will be collaterally controlled by a collective-bargaining agreement from which they derive no benefit.  Such an agreement may impact supervision shared with unionized coworkers, the ability to perform tasks flexibly and shift among tasks, opportunities to perform work that may be newly deemed unit work, and advancement if some of the work excluded employees previously performed is limited or denied them on that basis.  The impact of contract terms negotiated for coworkers whose interests align closely (but not overwhelmingly) with those of excluded employees may affect excluded employees’ seniority and consequently their vulnerability to layoffs, the cost of benefits for smaller groups of similarly positioned employees who cannot participate in a union plan, and myriad other effects on excluded employees who are closely aligned with the unit employees but fail to meet the “overwhelming community of interest” test.  All of these potential impacts resulting from an inappropriately approved bargaining unit implicate the excluded workers’ Section 7 rights to engage in or refrain from union activity—rights the Specialty Healthcare framework the majority reinstates today all but disregards.

Also, unlike Specialty Healthcare, PCC/Boeing accords appropriate weight to the policy of fostering efficient and stable collective bargaining, which the Board emphasized in Kalamazoo Paper Box, 162 NLRB at 137.  The majority views this as a novel argument in favor of PCC/Boeing despite the fact that Kalamazoo Paper Box was decided in 1962 and was cited and quoted at length in PCC Structurals itself.  365 NLRB No. 160, slip op. at 3 fn. 8.  This quibble aside, the majority agrees that fostering efficient and stable collective bargaining is an important statutory policy and that the Board’s unit determinations must take it into account.  In light of the importance of this statutory goal, however, we disagree with our colleagues’ view that the Board should mandate the inclusion in a petitioned-for unit of additional employees only if “the differences between the petitioned-for and excluded employees are so minimal that it would be truly irrational to engage in the process of collective bargaining without them.” 

In the end, the animating principle of the majority’s position is clear.  For them, the primary goal of a unit determination is to facilitate employees’ ability to organize in the unit selected by the petitioning union.  Indeed, our colleagues question why the Board should ever “add employees to units that otherwise possess a rational basis and the requisite mutuality of interests to bargain collectively.”  After all, the majority observes, excluded employees can always petition for inclusion later through a self-determination election.  See Warner Lambert Co., 298 NLRB 993, 995 (1990) (incumbent union may add unrepresented employees to its existing unit if the employees sought to be included share a community of interest with unit employees and “constitute an identifiable, distinct segment so as to constitute an appropriate voting group”).  Unions may well be more successful if they petition for segments of a workforce as they are organized, but this system of unit determinations effectively makes the extent of organizing the controlling factor, contrary to Section 9(c)(5) of the Act.^[100]  In our view, the policies of the Act are better served by endeavoring to reach the correct unit determination the first time.^[101] 

We believe that our approach best effectuates the neutral role that Congress envisioned that the Board would play in making unit determinations.  Accordingly, we agree with the Fourth Circuit that the significance of neutral rationales for inclusion or exclusion of particular employees in collective bargaining units cannot be overstated. Otherwise, reviewing courts will have no means of enforcing § 9(c)(5)’s prohibition; the Board can selectively rely on differences when the union desires exclusion of employees—and on similarities when the union desires inclusion. See Joan Flynn, The Costs and Benefits of “Hiding the Ball”: NLRB Policymaking and the Failure of Judicial Review, 75 B. U. L. Rev. 387 (1995). The deference owed the Board as the primary guardian of the bargaining process is well established. It will not extend, however, to the point where the boundaries of the Act are plainly breached.

NLRB v. Lundy Packing, 68 F.3d at 1583.  The majority’s decision today simply cannot be reconciled with these principles.

CONCLUSION

PCC Structurals and The Boeing Companyfacilitate the Board’s accomplishment of its statutory duty to consider in each case the interests of petitioned-for and excluded employees and embody the traditional community-of-interest standard the Board has applied for decades.  By overruling PCC Structurals and Boeing and returning to Specialty Healthcare, the majority guts that standard, undermines labor-relations stability, and shackles the Board in fulfilling its duties under Section 9(b) of the Act.  Because our colleagues advance no valid justification for taking this step, we respectfully dissent.

Dated, Washington, D.C.  December 14, 2022

______________________________________ Marvin E. Kaplan,                       Member

______________________________________

         John F. Ring,                                  Member

limitations on such aspirational words, indicating that employees’ freedom to select their desired bargaining units is not controlling and that their choice must be rejected when they seek to create inappropriate bargaining units.  Congress created this limitation in order to prevent inappropriate units from derailing the collective-bargaining process and to avoid disruptions resulting from, for example, gerrymandering, undue proliferation of units, and circumstances whereby an inappropriate unit creates an unworkable situation in the workplace as a whole.  Our colleagues’ failure to recognize and address these specific concerns undermines the legitimacy of their decision today.

                  NATIONAL LABOR RELATIONS BOARD

a proposed unit be the “most optimal” configuration, we have explicitly stated in this opinion that it does not, a point also emphasized in PCC Structurals and Boeing themselves.  For all their criticisms of PCC Structurals, our colleagues cannot with any accuracy identify any case applying that decision that illustrates their claim.  What we do contend is that Congress actually meant something when it enacted Section 9(c)(5), that excluded employees also have statutorily protected interests that may be trampled on by the approval of inappropriate bargaining units, and that fostering stable collective bargaining requires neutral and balanced assessments of petitioned-for units in the context of the workplace as a whole.  We make no apology for insisting that unit determinations should properly reflect these principles.

[1]  357 NLRB at 943–945.

[2]  365 NLRB No. 160, slip op. at 6.

[3] NLRB No. 23

[4]  Throughout this decision, we will refer to the collective standard established by PCC Structurals and Boeing as simply the PCC-Boeing standard.

[5]  Specifically, the Board received and reviewed briefs from the American Federation of Labor and Congress of Industrial Organizations; the Coalition for a Democratic Workplace, Chamber of Commerce, National Federation of Independent Business, National Retail Federation, National Association of Wholesaler-Distributors, and American Bakers Association; the HR Policy Association; the International Association of Machinists and Aerospace Workers; the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers, and Helpers, AFL–CIO; the International Franchise Association; the International Union of Operating Engineers; Members of the House Committee on Education and Labor; the National Labor Relations Board General Counsel; Service Employees International Union; and SHRM, the Society for Human Resource Management.

[6]  See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 165 (1941) (reiterating that the Board must comply with “the requirement that the

[7] Allied Chemical and Alkali Workers of America, Local Union No. 1

1. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157, 172– 173 (1971).

[8] NLRB v. Action Automotive, Inc., 469 U.S. 490, 494 (1985).

[9]  See, e.g., International Broadcasting Corp., 67 NLRB 1227, 1229 (1946) (“These [announcer-control operators] have a community of interest, and are distinguishable from other employees of the Company. 

We find that they may constitute an appropriate unit.”).

[10]  See United Operations, Inc., 338 NLRB 123, 123 (2002).

[11] Haag Drug Co., Inc., 169 NLRB 877, 877 (1968).  See also Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C. Cir. 2000) (observing that “more than one appropriate bargaining unit logically can

[12]  See, e.g., G. Fox & Co., Inc., 155 NLRB 1080, 1083 (1965) (finding that the petitioned-for unit was appropriate where it constituted “a homogeneous and identifiable group of employees with a sufficiently distinct and separate community of interests to constitute a separate appropriate bargaining unit”); Hampton Roads Broadcasting Corp. (WGH), 100 NLRB 238, 239 (1952); Lee Brothers Foundry, Inc., 106 NLRB 212, 213 (1953); Farmers Insurance Group, 164 NLRB 233, 233 (1967); J.C. Penney Company, Inc., 196 NLRB 708, 709 (1972); Southern Baptist Hospitals, Inc., 242 NLRB 1329, 1330 (1979).

[13]  See, e.g., The Grand, 197 NLRB 1105, 1106 (1972); Tuskegee Institute, 221 NLRB 944, 944 (1975); Hayes Aircraft Corp., 98 NLRB 362, 365 (1952).

[14]  See Champion Machine & Forging Co., 51 NLRB 705, 707–708 (1943).

[15]  See Johnson Controls, Inc., 322 NLRB 669, 672 (1996).

[16]  See Champion Machine, supra, at 708.  See also Loose Wiles Biscuit Co., Inc., 44 NLRB 865, 868–869 (1942).

[17]  See, e.g., Brand Precision Services, 313 NLRB 657 (1994) (concluding that “the grouping chosen by the Petitioner is an arbitrary one, and should be rejected” where the Board was unable to find that “the [petitioned-for] operators possess a separate community of interest from the Employer’s other production employees”).

[18]  See, e.g., Casino Aztar, 349 NLRB 603, 607 (2007) (“In sum, we find that the beverage employees have little community of interest with each other that is not also shared with most of the catering and restaurant employees.”).

[19]  See Engineered Storage Products Co., 334 NLRB 1063, 1063 (2001) (“[C]ontrary to the Employer’s contentions, the fact that the jointly employed employees supplied by Tandem Staffing may share a

[20]  See, e.g., id.; Colorado National Bank of Denver, 204 NLRB 243,

243 (1973); United Rentals, Inc., 341 NLRB 540, 541 (2004); Mc-MorHan Trucking Co., 166 NLRB 700, 701 (1967); Overnite Transportation Co., 322 NLRB 723, 726 (1996).

[21] Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421–422 (D.C. Cir.

2008).

[22]  Id. at 421.

[23]  Id. at 942–943.

[24]  Id. at 945.

[25]  Id. at 943. 

[26]  Id. at 944.

[27]  Id. at 944–945.

[28]  See Pratt & Whitney, 327 NLRB 1213, 1217 (1999); Seaboard Marine, 327 NLRB 556, 556 (1999).  In Specialty Healthcare, the Board observed that the Board has frequently referred to such arbitrary segmentations as “fractured units.”  See 357 NLRB at 956.  However, we note that the Board has used language referencing “arbitrary segments” in any situation where the petitioned-for unit is arbitrary, gerrymandered, or irrational, including when the petitioned-for unit does not share an internal community of interest (see, e.g., J.Weingarten, Inc., 191 NLRB 149, 150 (1971)) or when it is not identifiable (see, e.g., F. H. McGraw & Company, 106 NLRB 624, 626 (1953)).  Going forward, we encourage Regional Directors to focus their analysis on each of the three individual elements when making unit determinations, as opposed to using the broader, “fractured unit” phrasing.

[29]  357 NLRB at 944 (quoting Blue Man Vegas, LLC v. NLRB, 529 F.3d at 422).  Our dissenting colleagues assert that Blue Man Vegas “cannot bear the weight” that Specialty Healthcare places on it, because “[i]n enforcing that decision, the court did not hold that the Board must apply that standard, nor did it have before it the question of whether that standard should apply when a party does contend that the petitioned-for unit is inappropriate.”  But Blue Man Vegas does not “bear the weight” of Specialty Healthcare alone: the District of Columbia Circuit has since endorsed the Specialty Healthcare framework (as did every other Circuit

[30]  See Am. Hosp. Ass’n v. NLRB, supra, 499 U.S. at 609–610.

[31]  See Morand Bros. Beverage Co., 91 NLRB 409, 418 (1950), enfd. on other grounds 190 F.2d 576 (7th Cir. 1951) (“There is nothing in the statute which requires that the unit for bargaining be the only appropriate unit, or the ultimate unit, or the most appropriate unit; the Act requires only that the unit be ‘appropriate.’”) (emphasis in original).

[32]  A heightened showing is also justified by the fact that in exercising the statutory right to self-organization, petitioned-for employees are also exercising their broader Constitutional right to freely associate.  See 357 NLRB at 941 fn. 18.

[33]  See id. at 941–942.

[34] Marks Oxygen Co., 147 NLRB 228, 229 (1964).  See also NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438, 441–442 (1965) (explaining that Sec. 9(c)(5) “was not intended to prohibit the Board from considering the extent of organization as one factor, though not the controlling factor, in its unit determination”).

[35] NLRB v. Metropolitan Life Insurance Co., supra, at 441 (emphasis added).

[36] American Hosp. Ass’n v. NLRB, supra, 499 U.S. at 611–612.

[37]  See Constellation Brands v. NLRB, 842 F.3d 784 (2d Cir. 2016); FedEx Freight, Inc. v. NLRB, 832 F.3d 432 (3rd Cir. 2016); Nestle Dreyer’s Ice Cream Company v. NLRB, 821 F.3d 489 (4th Cir. 2016); Macy’s, Inc. v. NLRB, 824 F.3d 557 (5th Cir. 2016); Kindred Nursing Ctrs. East, LLC v. NLRB, 727 F.3d 552, 561 (6th Cir. 2013); FedEx Freight Inc. v. NLRB, 839 F.3d 636 (7th Cir. 2016); FedEx Freight, Inc.

1. NLRB, 816 F.3d 515 (8th Cir. 2016); Rhino Northwest, LLC v. NLRB, supra.

[38]  See NLRB v. Action Automotive, Inc., 469 U.S. at 496–497 (“[W]e do not make labor policy under § 9(b); Congress vested that authority in the Board, which brings its extensive experience in the administration of the Act to bear on questions of unit determinations” (citations omitted)).

[39] FedEx Freight Inc. v. NLRB, 839 F.3d at 638.

[40] Constellation Brands v. NLRB, 842 F.3d at 792.  There is accordingly no basis for the dissent’s argument that the “overwhelming community of interest” standard is inconsistent with Board precedent merely because the Board did not regularly use that precise phrase in evaluating the “sufficiently distinct” element prior to Specialty Healthcare.  The courts have recognized as much.  See Kindred Nursing Centers East, LLC v. NLRB, supra, at 562 (“[T]he Board explained the need to clarify its law, acknowledging that it had used some variation of a heightened

[41]  In this regard, there is no merit to the dissent’s assertion that Specialty Healthcare improperly imported the Board’s traditional accretion test into initial unit determinations.  First, the Board cannot find an accretion on the basis of an overwhelming community of interest alone: it must also find that “the additional employees have little or no separate group identity and thus cannot be considered to be a separate appropriate unit.”  Safeway Stores, Inc., 256 NLRB 918, 918 (1981).  Second, the Board applies the “overwhelming community of interest” standard differently in the accretion context, placing an emphasis on the “critical” community-of-interest factors of interchange and supervision.  See Frontier Telephone of Rochester, Inc., 344 NLRB 1270, 1271 (2005).  There are no “critical” factors under Specialty Healthcare.  Finally, to the extent that both the accretion test and Specialty Healthcare utilize similar language for one element of larger inquiries, that is because both tests implicate a similar issue: whether certain employees must be included in a unit (existing or petitioned-for) because they are too similar to unit employees to be excluded.  As the courts have recognized in upholding Specialty Healthcare, it makes sense for the Board to apply a broadly similar policy in both instances.  See, e.g., Nestle Dreyer’s Ice Cream Company, supra, at 501 (observing that “[a]s in the accretion context, the question is whether some employees share more than a community of interest with

[42] Boeing, supra, slip op. at 4 (emphasis in original) (internal quotations omitted).

[43] PCC Structurals, supra, slip op. at 6 (contending that Specialty Healthcare gives “all-but-conclusive deference to every petitioned-for ‘subdivision’ unit”).

[44]  Id. at 11.

[45]  See Specialty Healthcare, supra, at 945.

[46]  Id. (emphasis in original); Boeing, supra, slip op. at 4.

[47]  See fn. 25, supra, and cases cited therein.

[48] Boeing, supra, slip op. at 4.

[49]  Id.

[50]  See Neuhoff Bros. Packers, Inc., 154 NLRB 438, 438 (1965) (acknowledging “the statutory policy that questions preliminary to the establishment of the bargaining relationship be expeditiously resolved”) (internal quotations omitted).

[51] Ballantine, P. & Sons, 141 NLRB 1103, 1106 (1963).

[52]  Id.

[53]  See Black & Decker Mfg. Co., supra, at 828.

[54]  Because the Board’s dismissal of a representation petition has not been regarded as judicially reviewable, employees have little recourse to achieve representation in their chosen unit should the Board find it inappropriate, except to engage in recognitional picketing under Sec. 8(b)(7) of the Act—a tactic which is rarely used.  In contrast, employers can easily seek review of a Board’s unit determination by refusing to bargain and then litigating the appropriate unit in the ensuing test-of-certification case.

[55] PCC Structurals, supra, slip op. at 7–8.

[56]  Id., slip op. at 8 (emphasis in original).

[57]  As the Board explained in Specialty Healthcare, “[a] key aspect of the right to ‘self-organization’ is the right to draw the boundaries of that organization—to choose whom to include and whom to exclude.”  357 NLRB at 941 fn. 18.  See also Roberts v. U.S. Jaycees, 468 U.S. 609, 618 (1984) (recognizing that “individuals’ selection of those with whom they wish to join in a common endeavor” is a key element of freedom of association).

[58] Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 790 (1996).

[59]  See Warner Lambert Co., 298 NLRB 993, 995 (1990).

[60]  Nor, for that matter, will it prevent additional employees from petitioning for a self-determination election to join the unit (provided, of course, that the labor organization involved is also willing to represent those additional employees).  See, e.g., UMass Memorial Medical Center, 349 NLRB 369 (2007).

[61] PCC Structurals, supra, slip op. at 8 fn. 42.

[62]  Furthermore, as also shown, the overwhelming community of interest test does give “reasonable consideration” to the inclusion of additional employees in a petitioned-for unit; it simply clarifies that the party arguing for their inclusion must meet a high bar in order to prevail on that argument.

[63]  See Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, supra, at 172– 173.

[64] PCC Structurals, supra, slip op. at 8.

[65]  See FedEx Freight, Inc. v. NLRB, 832 F.3d at 943–945; Nestle Dreyer’s Ice Cream Company v. NLRB, 821 F.3d at 497; Kindred Nursing Ctrs. East, LLC v. NLRB, 727 F.3d at 563–565; FedEx Freight, Inc.

102. NLRB, 816 F.3d at 525–526; Rhino Northwest, LLC v. NLRB, 867 F.3d at 100–102.

[66]  See NLRB v. Metropolitan Life Insurance Co., 380 U.S. at 441.

[67]  Nor does limiting the “sufficiently distinct” inquiry to the narrow requirement imposed by Sec. 9(c)(5) abrogate the Board’s role as a neutral decision-maker.  As the Supreme Court has explained, “the Board’s policy may have the effect of favoring union representation; however, a disparate impact does not violate the principle of neutrality.  Indeed, virtually every Board decision concerning an appropriate bargaining unit—

e.g., the proper size of the unit—favors one side or the other.”  NLRB v.

Action Automotive, Inc., 469 U.S. at 498.

[68]  See Black & Decker Mfg. Co., supra, at 828.

[69]  While Circuit Court decisions such as Constellation Brands explicitly highlight “arbitrariness” as the key concern in evaluating whether a unit is “sufficiently distinct,” the dissent mischaracterizes Specialty Healthcare as a whole by suggesting that it requires the Board to approve any unit that is not irrational or arbitrary.  As we have explained, the overwhelming community of interest standard is but one element of the Board’s overall test: if the petitioned-for unit does not possess an internal community of interest that renders it suitable for the purposes of collective bargaining, then it is not appropriate, even if there is a rational basis for the exclusion of certain classifications.

[70]  See Constellation Brands, supra, at 794–795 (internal quotations omitted).  See also Nestle Dreyer’s Ice Cream Company v. NLRB, supra, 821 F.3d at 499 (observing that the Board’s unit determination is deficient if it “fails to guard against arbitrary exclusions”).

[71]  If no party contends that the unit is insufficiently distinct—i.e., that the unit is inappropriate absent the inclusion of additional employees— then there is no reason for the Board to analyze the distinctions between the petitioned-for and excluded employees.  In fact, the Board correctly recognized as much under the PCC-Boeing test. See Macy’s West Stores, Inc., 32–RC–246415 (May 27, 2020) (not reported in Board volumes) (explaining that the “sufficiently distinct” analysis is only applicable “when a party asserts that the smallest appropriate unit must include employees excluded from the petitioned-for unit”).

[72]  The dissent is therefore incorrect to suggest that the “overwhelming community of interest” standard and the Board’s “traditional community-of-interest factors” represent two independent “steps” of the Specialty Healthcare framework, as opposed to components of one integrated analysis (the “sufficiently distinct” element).  Although both the “sufficiently distinct” element and the “internal community of interest” element use the “traditional community of interest factors,” they are separate inquiries.  To determine whether a unit is “sufficiently distinct,” the

[73] Wheeling Island Gaming, 355 NLRB 637, 637 fn. 2 (2010) (emphasis and citation omitted).  We reject any interpretation of Wheeling Island Gaming that would create inconsistency with Specialty Healthcare or with today’s decision, and, even if such an interpretation were correct, then we would limit Wheeling Island Gaming to its facts.

[74]  The dissent argues that Specialty Healthcare is “susceptible” to a contrary interpretation.  Our decision today, however, is clear as to how the Specialty Healthcare framework should be applied and what each element does (and does not) require.

[75]  See Rhino Northwest, LLC v. NLRB, 867 F.3d at 101 (observing that units have been found inappropriate under Specialty Healthcare in Odwalla, Inc., 357 NLRB 1608 (2011), and A.S.V., Inc., 360 NLRB 1252 (2014)).  See also K&N Engineering, 365 NLRB No. 141 (2017) (finding the petitioned-for unit inappropriate under Specialty Healthcare).

[76]  Although the dissent frequently cites to the Fourth Circuit’s decision in NLRB v. Lundy Packing Co., 68 F.3d 1577, 1581 (4th Cir. 1995), the Fourth Circuit has held that Specialty Healthcare is consistent with Lundy.  See Nestle Dreyer’s Ice Cream Company v. NLRB, supra, 821 F.3d at 499.  Specialty Healthcare is also fully consistent with Nestle Dreyer’s Ice Cream.  As we have discussed at length above, the Board does not declare a unit appropriate (much less presumptively appropriate) under Specialty Healthcare before evaluating the distinctions between the petitioned-for and excluded employees and determining that

[77]  Contrary to the dissent’s contention, we do not reinstate the “overwhelming community of interest” standard to help unions win more elections—indeed, the data shows that the union win rate did not change under Specialty Healthcare.  See Br. AFL–CIO, Ex. A, Report of Professor John-Paul Ferguson.  Of course, we reject any implication in the dissent that there is something inherently suspect about the petitioned-for unit, or that an employer’s preference for a different unit—perhaps one it believes will better suit its interests or achieve its desired outcome—is entitled to any weight in the Board’s unit determination.

[78]  The same is true of the Board’s decision in Starbucks, 371 NLRB No. 71 (2022).  Although the Board determined that the petitioned-for and excluded employees did not share sufficient collective-bargaining interests requiring a multi-store unit, the decision contained no analysis of whether the exclusion of certain stores would have an effect on the unit’s ability to engage in effective collective bargaining.

[79]  See Haag Drug, supra, at 878 (observing that “though chainwide uniformity may be advantageous to the employer administratively, it is not a sufficient reason in itself for denying the right of a separate, homogeneous group of employees, possessing a clear community of interest, to express their wishes concerning collective representation”); Macy’s, Inc. v. NLRB, 824 F.3d at 566 (rejecting the argument that workers or businesses would suffer “grave consequences” because of the Board approving a departmental unit under Specialty Healthcare). 

[80]  See Kindred Nursing Centers East, LLC v. NLRB, supra, 727 F.3d at 563 (“Because the overwhelming-community-of-interest standard is based on some of the Board’s prior precedents, has been approved by the District of Columbia Circuit, and because the Board did cogently explain its reasons for adopting the standard, the Board did not abuse its discretion in applying this standard in Specialty Healthcare.”).

[81]  We observe that, aside from establishing the Board’s general unit determination test for “subdivisions,” Specialty Healthcare also overruled Park Manor Care Center, 305 NLRB 872 (1991), in which the Board addressed the standard for determining units in nonacute health care facilities (like the employer facility involved there).  PCC Structurals then reinstated Park Manor with no discussion, simply stating that it was doing so for “the reasons stated by former Member Hayes in his dissenting opinion in Specialty Healthcare.” PCC Structurals, supra, slip op. at 1 fn. 3.  However, PCC Structurals did not involve a unit at a nonacute healthcare facility, and accordingly, we view PCC Structurals’ reinstatement of Park Manor as dicta that is not binding on the Board. 

[82]  357 NLRB at 946 fn. 29.

[83]  In this regard, we observe that the Board’s “usual practice is to apply new policies and standards retroactively ‘to all pending cases in

[84]  Sec. 9(b) relevantly states:

The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof

[85]  See Allied Chemical and Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chemical Division, 404 U.S. 157, 172–173 (1971) (The Board must ensure that the proposed unit groups together “only employees who have substantial mutual interests in wages, hours, and other conditions of employment.  Such a mutuality of

[86]  Id.

[87]  Enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).

[88]  Quoting Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 422 (D.C.

Cir. 2008).

[89]  Our colleagues deny that Specialty Healthcare “improperly imported” the accretion standard into initial unit determinations, asserting that accretion is found only if the excluded employees also have little or no separate group identity and could not be an appropriate unit on their own.  But this is a distinction without a difference, as Specialty Healthcare imposes a similar burden on parties seeking to challenge a petitioned-for unit.  More realistically, our colleagues admit that the

[90]  The Fourth Circuit subsequently upheld Specialty Healthcare as consistent with Lundy Packing in Nestle Dryers Ice Cream Co. v. NLRB, 821 F.3d 489, 500 (4th Cir. 2016).  However, the court’s decision lends no real support to the majority’s position for the reasons explained below. 

[91]  Similarly, the application of the “overwhelming community of interest” standard to initial unit determinations was upheld in Nestle Dreyers Ice Cream Co. v. NLRB, 821 F.3d at 500, and Macy’s, Inc. v. NLRB, 824 F.3d 557, 568 (5th Cir. 2016), but only after a unit first had properly been found appropriate based on a consideration of whether the interests of the included employees were “sufficiently distinct” from those of other employees. As discussed below, Specialty Healthcare is at the very least susceptible to an interpretation that effectively deems petitioned-for units presumptively appropriate without meaningfully considering whether the interests of included employees truly are sufficiently distinct from the interests of excluded employees.  Indeed, the majority admits that under Specialty Healthcare, the Board determines whether a unit is

[92]  We further note that the unit at issue in Blue Man Vegas likely would have been found appropriate under any permissible standard.  Among other things, the MITs shared few relevant interests with the stage crew employees, and the two groups of employees were customarily organized in different units in that industry. 

[93]  Citing a phrase from Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781 (1996), the majority also makes the irrelevant point that it is employers who are invariably the ones seeking to add additional employees to a petitioned-for unit and that employers cannot be trusted to have the unit employees’ Sec. 7 interests in mind.  See id. at 790 (finding employer unlawfully refused to execute a collective-bargaining agreement due to professed doubts about the union’s majority status, and stating that “the Board is entitled to suspicion when faced with an employer’s benevolence as its workers’ champion”).  First, an employer’s motives for seeking to add employees to a petitioned-for unit are irrelevant to the Board’s duty to evaluate the appropriateness of a unit in each case.  Second, the motivations of an employer provide no basis for eliminating the requirement that the extent of organizing shall not be controlling.  Third, the majority’s generalized expression of hostility toward employers, based on a phrase lifted from an unfair labor practice case involving a specific

[94]  The majority asserts that Specialty Healthcare’s placement of the burden of proof on the objecting party finds support in precedent that imposes a similar burden of proof on a party that disputes the appropriateness of a petitioned-for unit that is presumptively appropriate.  But that is precisely the point: Specialty Healthcare improperly treats unit that are not presumptively appropriate as though they are.

[95]  The majority tries to finesse this point by announcing what sounds for all the world like a three-step standard that incorporates sufficient distinctness as an essential element.  This illusion is dispelled, however, by their explanation of how this standard is to be applied.  Specifically, the majority holds as follows:

Accordingly, the Board will once again approve a petitioned-for “subdivision” of employee classifications if the petitioned-for unit: (1)

[96]  The majority asserts that pre–Specialty Healthcare precedent provided “no clarifying principle for what degree of difference renders a unit ‘sufficiently distinct.’”  We believe that the decades of experience embodied in the traditional community-of-interest standard deserve more respect than this.  Moreover, there is little merit in providing a “clarifying principle” for determining sufficient distinctness when the principle selected—i.e., that a petitioned-for unit readily identifiable as a group and possessing an internal community of interest is sufficiently distinct unless an objecting party proves that the interests of excluded employees are “near[ly] indistinguishable” from the interests of those within it (and good luck with that)—derogates from the Board’s fulfillment of its duties under Sec. 9(b) of the Act and contravenes Sec. 9(c)(5), as we have shown. 

We note that prior to PCC Structurals, there was significant confusion among union and management practitioners, regional directors, and reviewing courts about the interpretation and application of Specialty Healthcare. As described above, confusion existed regarding the proper application of the community-of-interest test—specifically, whether the

[97]  While our colleagues cite cases in which petitioned-for units were found arbitrary or inappropriate without the inclusion of additional employees, those cases do not hold that arbitrariness is the threshold for defining what it means for a unit to be inappropriate.  See, e.g., Casino Aztar, 349 NLRB 603, 607 (2007) (petitioned-for unit of beverage employees inappropriate where “beverage employees have little community of interest with each other that is not also shared with most of the [excluded] catering and restaurant employees”); Brand Precision Services, 313 NLRB 657 (1994) (petitioned-for unit of operators inappropriate where excluded laborers and leadmen, with whom they had constant contact, shared the same training, skills, and functions); Champion Machine and Forging Co., 51 NLRB 705, 707–708 (1943) (proposed unit was “clearly arbitrary” where it did not track craft or department lines and arbitrarily excluded employees performing similar work while including employees performing the same function as others who were excluded).  Notably, it is at the very least an open question whether those units would have been found inappropriate under Specialty Healthcare or today’s decision, inasmuch as they were decided without imposing any burden of proof on the party opposing the unit and did not apply the “overwhelming community of interest” standard.

[98]  The majority points to two other cases in which it says that proposed units were found inappropriate under Specialty Healthcare:  A.S.V., Inc., 360 NLRB 1252 (2014), and K&N Engineering, Inc., 365 NLRB No. 141 (2017).  But in A.S.V., no party requested review of the Regional Director’s finding that the petitioned-for unit was

[99]  Contrary to the majority, nothing in PCC Structurals, Boeing, or our opinion in this case remotely supports the claim that we seek to “maximize the participation of employees whose interests might be affected by the results of the election.”  Rather, we believe that the interests of excluded employees should be given “appropriate weight.”  Our colleagues, for their part, deny that those employees have any cognizable interest, and therefore give those interests no weight at all.

[100]  The majority fails to ground its standard in a meaningful discussion of the concerns that animated Congress in amending Sec. 9(b) and enacting Sec. 9(c)(5)—specifically, in requiring that the Board shall determine the appropriate unit in “each case” and ensure that the extent of organizing shall not be controlling.  To be sure, the majority repeatedly refers to the Board’s undisputed statutory duty to ensure employees the fullest freedom to exercise their rights under the Act and to organize in unions of their choosing.  It is equally clear, however, that Congress placed

[101]  Our colleagues disparage the PCC/Boeing standard as a “Goldilocks”-style insistence on unit determinations that are “just right.”  To the extent that our colleagues mean by this that our analysis requires that

Cemex Construction Materials Pacific, LLC and International Brotherhood of Teamsters. 

Cases 28–CA–230115, 28–CA–235666, 28–CA–249413, 31–CA–237882, 31–CA–237894, 31–CA–238094, 31–CA–238239, 31–CA–238240, and 28–RC–232059

August 25, 2023

DECISION AND ORDER

BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN, WILCOX, AND PROUTY

On December 16, 2021, Administrative Law Judge John T. Giannopoulos issued the attached decision.¹  The Respondent filed exceptions and a supporting brief, the General Counsel and the Charging Party filed answering briefs, and the Respondent filed reply briefs.  The General Counsel filed exceptions and a supporting brief and the Respondent filed an answering brief.

The National Labor Relations 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,² and conclusions only to the extent consistent with this Decision and Order.³

On March 7, 2019, employees of the Respondent in a unit of about 366 ready-mix cement truck drivers and driver trainers voted against representation by the Charging Party, International Brotherhood of Teamsters (the Union), by a margin of 179 to 166.⁴  The General Counsel and the Union allege that the Respondent engaged in extensive unlawful and otherwise coercive conduct before, during, and after the election, which requires, among other remedial measures, setting aside the results of the election and affirmatively ordering the Respondent to bargain with the Union under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). 

After a hearing conducted on 24 days between November 2020 and February 2021,^[1] the judge found that the Respondent violated Section 8(a)(1) of the Act more than two dozen times, including by threatening employees with plant closures, job loss, and other reprisals if they selected the Union, surveilling employees and interrogating them about their union activity, prohibiting employees from talking with union organizers or displaying prounion paraphernalia, and hiring security guards in order to intimidate employees immediately before the election.  The judge also found that the Respondent violated Section 8(a)(1) before the election by disciplining lead union activist Diana Ornelas for talking with union organizers on “company time” and Section 8(a)(3) and (1) after the election by suspending Ornelas for 8 days on July 10, 2019, and by discharging her on September 6, 2019, because of her union activity.  In addition, the judge found merit in the Union’s election objections alleging coercive threats of plant closure and other repercussions, surveillance, and increased use of security in order to intimidate employees.  Most of the judge’s findings and conclusions with respect to the Respondent’s unlawful and objectionable conduct are firmly rooted in his record-supported credibility resolutions, and, with minor exceptions and clarifications discussed below, we affirm them.

In addition to the Board’s ordinary remedies for the violations found, the judge recommended setting aside the election and ordering the Respondent to provide for the Board’s remedial order to be read aloud to employees and to provide the Union with several special access remedies prior to a rerun election.  The judge did not recommend the General Counsel’s requested Gissel bargaining order.  As discussed in detail below, we agree with the judge that the Respondent’s conduct requires setting aside the election.  We also adopt the judge’s recommended notice-reading remedy.  However, contrary to the judge, we find that the Respondent’s conduct also warrants a remedial affirmative bargaining order, and we shall amend the judge’s recommended remedy and Order accordingly.^[2]

Finally, the General Counsel asks the Board, inter alia, to overrule Linden Lumber^[3] and reinstate a version of the Joy Silk standard.^[4]  We find merit to the General Counsel’s arguments, and, as explained below we shall modify the Board’s approach in this area in certain respects.^[5]

I. BACKGROUND

The Respondent is a Delaware-registered subsidiary of a multinational building materials company that provides ready-mix concrete, cement, and aggregates to construction-industry customers including, relevantly here, in Southern California and Las Vegas, Nevada.

In late 2017 or early 2018, a group of the Respondent’s ready-mix drivers in Ventura County, California, approached the International Brotherhood of Teamsters (the Union) about organizing for the purpose of collective bargaining.  The Union had already been working with a group of the Respondent’s drivers who were trying to organize in Las Vegas, Nevada, and decided, upon the Ventura County drivers’ overtures, to expand its campaign to organize a large unit which would ultimately encompass approximately 366 ready-mix drivers and driver trainers employed by the Respondent at approximately 24 facilities in Southern California and Las Vegas.^[6] 

During the spring and summer of 2018, a union organizing committee consisting of more than 35 drivers from various facilities met by conference call every other week to coordinate organizing efforts.  Union organizers, both employees and nonemployees of the Respondent, distributed union paraphernalia and information and spoke with drivers during nonworking time at the Respondent’s numerous plants and jobsites.  The Union also set up public social media accounts, including YouTube and Facebook pages, which supported the campaign with photos and videos of prounion drivers.  The Union’s efforts achieved broad support: it gathered authorization cards signed by at least 207 drivers (approximately 57 percent of the unit) during October and November 2018.^[7]  The Union filed a petition for a Board-supervised representation election on December 3, 2018.

The Respondent reacted quickly and aggressively to the Union’s campaign.  Bryan Forgey, the Respondent’s vice president/general manager for ready-mix business in Southern California, learned in October 2018 that the Union was collecting authorization cards.^[8]  He alerted the Respondent's national labor relations team, and the Respondent established a “steering committee” to coordinate its response.  The steering committee consisted of Forgey, Iris Plascencia (the Respondent’s human resources manager for Southern California ready-mix), the Respondent’s vice president for national labor relations, and in-house and outside legal counsel.  Before the end of October, the steering committee hired a company called Labor Relations Institute (LRI) to help execute the Respondent’s campaign against the Union.¹³  The steering committee also reviewed all formal discipline issued during the campaign, and a version of the steering committee continued to operate as of the hearing in this matter.

Over the course of the campaign, LRI supplied as many as five independent consultants, who trained the Respondent’s managers and supervisors about the legal limits on their efforts to persuade unit employees not to support the Union.^[9]  Between late October 2018 and early March 2019, LRI consultants also met with unit employees, as often as daily, in small group and individual encounters at the various plants.^[10]  The consultants presented PowerPoint displays and answered questions at the small-group meetings.  As discussed further below, the content presented in these small-group meetings was pre-scripted so that the same message would be presented to drivers across the unit.  In December 2018, the Respondent recorded two video messages, which it referred to as “25th hour videos,” urging employees to reject the Union.^[11]  LRI consultants presented these videos to all unit employees in small-group meetings shortly before the March 7 election.  Throughout the campaign, the Respondent also distributed stickers, flyers, pamphlets, and letters encouraging employees to reject the Union, with a special emphasis on the Teamsters’ strike history and the potential economic impact of a strike on unit employees.  The Respondent also monitored the Union’s social-media messaging and communicated its antiunion message through its own social media sites.

As noted above, the Union lost the March 7, 2019 election by a margin of 166 to 179 and subsequently filed the election objections and unfair labor practice charges at issue here.

II. DISCUSSION

The unfair labor practice allegations

Unfair labor practices before the critical period:¹⁷

We affirm the judge’s conclusions, for the reasons given in his decision, that the Respondent violated Section 8(a)(1) of the Act on five occasions in August 2018, when Estevan Dickson, the Respondent’s plant foreman/batchman¹⁸ for the Las Vegas Sloan and Losee plants: (1) threatened drivers Ibrahim Rida and Chris Lauvao that they could be fired or written up for having union stickers on their hardhats; (2) threatened Rida and Lauvao with discharge or reduced hours or benefits if they unionized; (3) instructed drivers Oscar Orozco and Lauvao that they were not to speak to “these union guys”; (4) instructed Orozco and Lauvao to “take those damn [union] stickers” off their hats; and (5) threatened Orozco and Lauvao with discharge or discipline if they refused to remove union stickers from their hardhats.¹⁹ 

Critical period unfair labor practices:²⁰

We also agree with the judge that the Respondent further violated Section 8(a)(1) four more times in January 2019—after the Union filed its petition—when Dickson:

(1) threatened driver Gary Collins that “if the Union comes in . . . Cemex is just going to close their doors and take all their trucks to another state, because they don’t want the Union”;²¹ (2) interrogated Collins by asking why he was wearing a union sticker on his hardhat and what the union was going to offer;²² (3) implicitly threatened Collins by inviting him to go work for a different company if he wanted to be represented by the Union,^[12]and (4) repeatedly instructed Collins to remove union stickers from his hardhat.^[13]

We affirm the judge’s conclusion that the Respondent violated Section 8(a)(1), in January 2019, when Ryan Turner, the Respondent’s area manager for the Inland Empire and San Diego areas, interrogated driver Richard Daunch about his union sympathies by asking him “where’s your ‘Vote No’ sticker?  How come I don’t see a ‘Vote No’ sticker on your hardhat?”²⁵

We also affirm the judge’s conclusion that the Respondent violated Section 8(a)(1) twice on January 28, 2019, when Lorenzo Ponce, Inglewood (LA County) plant foreman/batchman, and Robert Nunez, Orange County and LA County superintendent, engaged in surveillance and created an impression of surveillance by lingering for an unusually long time at the entrance to the Inglewood plant and waving to drivers entering and exiting the plant while organizers standing near the same plant gate were displaying a poster and answering driver questions about comparative wages and benefits.²⁶

The judge found that the Respondent violated Section 8(a)(1) six more times on January 29, 2019, when VP/GM Forgey addressed drivers at a group meeting with LRI consultant Michael Rosado at the Respondent’s Oxnard (Ventura County) plant.  Forgey testified that he presented the same information at this meeting that he also presented at a large number of similar consultant small-group meetings throughout the unit.²⁷  LRI consultants Rosado and Amed Santana similarly testified that the content of the consultant group meetings was pre-scripted in consultation with legal counsel and that individual consultants did not have discretion to depart from the pre-scripted message, so that the Respondent delivered identical messages to drivers throughout the unit.

The judge considered testimony from Forgey, Rosado, and Oxnard driver Diana Ornelas in making factual findings about what Forgey said at this meeting.  Ornelas was a lead activist among the Ventura County drivers who helped initiate the Southern California campaign. She was a regular participant in the Union’s organizing committee conference calls, where union organizer Scott Williams testified that he had held up the quality of her careful notetaking at the Respondent’s consultant meetings as an example for other unit employees to follow.  Finally, as discussed in more detail below, the Respondent issued a series of unlawful discriminatory disciplines to Ornelas because of her union activity, beginning before the election and culminating in her discharge on September 6, 2019.

With respect to the January 29 meeting, first, we affirm the judge’s conclusions, for the reasons given in his decision, that the Respondent violated Section 8(a)(1) three times when Forgey: (1) threatened drivers by telling them that their work opportunities would be limited by strict contract classifications if they unionized; (2) blamed the Union for a delay in wage increases;^[14] and (3) threatened drivers by implying that wage increases could be delayed for years if employees unionized.^[15] 

The judge also found that the Respondent violated Section 8(a)(1) when Forgey told employees that, if they selected the Union and participated in a strike, their return to work would be contingent on the company’s operations and their level of seniority, pursuant to a “seniority status” provision of a future collective-bargaining agreement, implying that reinstatement of striking employees with low seniority would be indefinitely delayed. 

As the judge correctly found, it is well-settled Board law that both unfair labor practice and economic strikers are generally entitled to reinstatement without delay upon their unconditional offer to return to work, except that the return to work of economic strikers may be delayed based on an employer’s legitimate and substantial business justification, which may include its having hired permanent replacement workers.^[16]  The Board has long held, with court approval, that misrepresentations of striker reinstatement rights like Forgey’s here constitute unprotected threats of job loss for engaging in protected strike activity that violate Section 8(a)(1).^[17]  Moreover, to the extent that Forgey’s comments predicted that employees would necessarily suffer an adverse consequence as a result of seniority provisions contained in a future collective-bargaining agreement, they clearly fail to meet the Gissel Court’s requirement that an employer’s lawful predictions, protected under Section 8(c) of the Act, must be “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control,” because the Act does not permit unions to unilaterally impose contract terms, including seniority provisions governing the return to work of economic strikers.^[18] 

Particularly in the context of the Respondent’s persistent campaign focus on the Teamsters’ strike history, the likelihood of a strike at Cemex if employees selected the Union, and the potential impact of a strike on employees’ financial well-being, we find that drivers would have understood Forgey’s comments as a threat of permanent job loss if employees selected the union.^[19]  For these reasons and those given by the judge, we affirm the judge’s conclusion that the Respondent violated Section 8(a)(1) when Forgey implicitly threatened employees with job loss by misstating striking employees’ legal reinstatement rights.

The judge also found that the Respondent violated Section 8(a)(1) when Forgey told employees that, even if they unionized, the company would retain a management right to turn plants into “satellites,” meaning that Cemex could shift work from one plant to another, thereby “turning plants on and off as needed.”  The judge reasoned that Forgey’s description of “satellite plants” implicated a transfer of work, and Forgey’s statement conveyed a message that selecting union representation would be futile because the Respondent would not fulfill a bargaining obligation that would arise pursuant to any such transfer.  We agree with the judge that Forgey’s statements were unlawful threats, but as explained below, we find that employees would reasonably have understood Forgey’s comments as a threat to close individual plants rather than as a threat to unilaterally transfer work.³⁴

First, driver Ornelas testified that Forgey told drivers “that Cemex is a business and that they can legally close the plant down at any time, for any reason.”  The judge found that this testimony was a summary of what Forgey said about satellite plants.  But the accuracy and import of Ornelas’s summary depends on what it would mean to drivers for a facility to be converted to satellite status.  Record evidence on this point is sparse, but it appears from both the record and admissions in the Respondent’s briefing to the Board that for a plant that had previously operated on a full-time basis to become a satellite would mean that that plant was essentially closed, “dormant,” or “dark,” except for such occasions that business demand, as defined by the Respondent, warranted its operation, at which point it would be serviced by drivers from other plants.  There is no indication in the record that drivers previously based at a plant that was converted to satellite status would be maintained in employment, such as by being reassigned to another facility. 

From this context, we conclude that the Oxnard drivers would reasonably have understood Forgey’s remarks about satellite plants as a threat that, even if employees unionized, the Respondent would reserve the unilateral right effectively to close individual plants at any time, consistent with Ornelas’s direct testimony.^[20]  While Forgey, unlike Dickson and Santana, did not threaten to close the Respondent’s entire Southern California and Nevada ready-mix operations, the Board and the courts have treated an employer’s threats to close some facilities within a multifacility unit as among the most serious violations of Section 8(a)(1) in a preelection context.^[21]  We accordingly affirm the judge’s finding of this violation, but as a threat of plant closure rather than as a threat to refuse to bargain over work transfers.^[22]

The judge found that the Respondent violated Section 8(a)(1) when Forgey told drivers (1) that unionization would change their relationship with management; (2) that once they were under a collective-bargaining agreement, they would have to go through the Union instead of going directly to management; (3) that they would lose their ability to deal directly with their supervisors and instead, if they needed anything, would have to work through the union contract or union representative and could not go directly to him because he would not be able to do anything for them; and (4) that if employees unionized they were putting at risk their relationship with supervisors and batchmen.  In finding this violation, the judge relied on Economy Fire & Casualty Co., 264 NLRB 16, 20 (1982), Tipton Electric Co., 242 NLRB 202 (1979), enfd. 621 F.2d 890 (8th Cir. 1980), and Storktowne Products, Inc., 169 NLRB 974 (1968).  After the Board issued its decisions in those cases, however, it issued a different series of decisions holding that similar statements were nonobjectionable campaign propaganda under Midland National Life Insurance, 263 NLRB 127 (1982)), and did not violate the Act.  See, e.g., Tri-Cast, Inc., 274 NLRB 377 (1985); New Process Co., 290 NLRB 704, 707 (1988), enfd. 872 F.2d 413 (3d Cir. 1989).  Because the judge’s finding of this violation is inconsistent with currently controlling law, we reverse that finding and dismiss the relevant complaint allegation.^[23]

We affirm the judge’s conclusion, for the reasons given in his decision, that the Respondent violated Section 8(a)(1) on February 21, 2019, when plant superintendent Jason Faulkner told Ornelas and two other drivers that if the Union came in it might strip him of the ability to teach drivers to batch (i.e., work as a plant foreman/batchman) or drive a loader because the Union has a classification system and that he would lose the power to teach employees who wanted to learn and grow with the company if the drivers unionized.^[24]

We affirm the judge’s conclusion, for the reasons given in his decision, that the Respondent violated Section 8(a)(1) on February 25, 2019, when Faulkner and Daryl Charlson, the Respondent’s director of plant and fleet maintenance, orally promulgated an overly broad directive not to talk to union representatives “on company time.” In affirming this conclusion, we note that Ornelas testified that when plant foreman/batchman Juan Torres instructed her not to talk to the union representatives, she said she did not know this was prohibited, and Torres replied, “you can’t be talking to them.  Everybody knows it . . . . we told everybody.”  Similarly, Charlson testified that Faulkner told Ornelas that drivers had been informed about this in prior meetings, including meetings with the LRI consultants.  In addition, Faulkner’s contemporary written account of the disciplinary meeting recounts that he told Ornelas that she had previously been informed “during meetings with the consultant” that she was not allowed to talk to union organizers “on Company time,” or “during working hours.”⁴⁰  We accordingly conclude that the Respondent’s unlawful instruction to Ornelas not to talk with organizers on company time was not merely a one-time instruction to one employee, but a generally promulgated rule, broadly communicated to unit drivers by managers and LRI consultants.⁴¹ 

We also affirm the judge’s conclusion that the Respondent violated Section 8(a)(1) when Faulkner and Charlson issued a disciplinary verbal warning to driver Ornelas for her protected conduct of talking with Union organizers during downtime while waiting to load her truck.^[25]  In this respect, we note Ornelas’s uncontradicted testimony that drivers waiting to load could ordinarily eat lunch, get water, go to the bathroom, talk to coworkers, or take a phone call.  Accordingly, we find that the actual conduct for which the Respondent disciplined Ornelas— talking with union organizers during downtime in which personal activity was generally allowed—was itself protected and could not have been prohibited even under an appropriately narrowly drawn policy.^[26][27]  Furthermore, the record establishes that the Respondent had in place at the time a formal progressive discipline policy with steps including verbal warning, written warning, suspension, and discharge.  The Respondent’s human resources manager Plascencia testified that there was no difference between a verbal coaching or counseling and a documented verbal warning for the purposes of the progressive discipline policy.  We accordingly find, contrary to the Respondent’s suggestion in its brief to the Board, that its February 25, 2019, verbal warning to Ornelas was a formal disciplinary action within the scope of the Respondent’s progressive discipline policy.

We affirm the judge’s conclusions that the Respondent violated Section 8(a)(1) three more times in late February or early March 2019, when area manager Ryan Turner: (1) told Corona (Inland Empire) driver Bernard Molina that Turner would no longer be able to provide help as he had done in the past if drivers selected the Union;^[28] (2) told Temecula (Inland Empire) driver Donald Shipp that he would be granted a previously requested transfer if he voted against the Union;^[29] and (3) impliedly threatened Corona (Inland Empire) driver Richard Daunch with a loss of benefits by telling him that if employees selected the Union, Turner would no longer be able to approve Daunch’s periodic requests for time off in order to perform music.^[30]

The judge found that the Respondent violated Section 8(a)(1) when it deployed security guards at numerous plants for 2 weeks prior to the election and at all the plant polling places on the day of the election for the purpose of intimidating unit employees.  We affirm this conclusion for the reasons given by the judge and for the reasons stated below.  The Respondent contends that finding this violation exceeds the scope of the General Counsel’s complaint.  However, it is well established that “the Board may find and remedy a violation even in the absence of a specified allegation in the complaint if the issue is closely connected to the subject matter of the complaint and has been fully litigated.”⁴⁷  We find that the judge’s Section 8(a)(1) finding here meets the requirements of the rule.  First, the judge’s general finding that the Respondent’s overall use of security guards was unlawful coercive intimidation is closely connected to the General Counsel’s specific complaint allegation that it unlawfully utilized security guards at its Inglewood (La County) plant.⁴⁸  Second, the broader issue was fully litigated pursuant to the Union’s eighth election objection, which alleged that “[t]he Employer increased the use of security at all Employer locations during the critical period in attempts to intimidate employees.”  In this respect, we note that VP/GM Forgey and other managers and employees were examined in detail and testified at length about the Respondent’s use of security guards at all locations prior to and during the election.⁴⁹

Postelection unfair labor practices:

We affirm the judge’s conclusion, for the reasons given in his decision, that the Respondent violated Section 8(a)(3) and (1) when it suspended Ornelas without pay from July 10 through July 17, 2019.⁵⁰ The Respondent contends that the suspension was warranted under its progressive discipline policy in light of Ornelas’s prior disciplinary record.  But, as discussed above, Ornelas’s prior disciplinary record included the unlawful verbal warning the Respondent issued to her on February 25, 2019 for her protected union activity.  Because the Respondent does not contend that it would have issued the same discipline to Ornelas absent the prior unlawful warning, the suspension was unlawful, in addition to the reasons given by the judge, because it relied in part on the earlier unlawful warning.⁵¹  We also affirm the judge’s conclusions that the Respondent violated Section 8(a)(1) twice in relation to the same incident when Charlson interrogated Ornelas by asking whether she had called the Union for assistance at the Hallin & Herrera jobsite and when he threatened her by telling her that the Respondent had to do an investigation because Hallin & Herrera had reported that she had called a union organizer.⁵² Finally, we affirm the judge’s conclusion that the Respondent violated Section 8(a)(3) and (1) when it discharged Ornelas on September 6, 2019, both for the reasons given by the judge and because of the Respondent’s express reliance, in its discharge decision, upon both the earlier unlawful July 10 suspension and the earlier February 25 unlawful verbal warning.⁵³

1. The election and election objections

The Board ordinarily sets aside the results of a representation election whenever an unfair labor practice has occurred during the critical period between the filing of the petition and the election, unless it is virtually impossible to conclude that the misconduct has affected the outcome of the election.⁵⁴  In determining whether misconduct could have affected the results of the election, the Board considers the number and severity of the violations and their proximity to the election, the size of the unit and margin of the vote, and the number of employees affected and extent of dissemination of the misconduct.⁵⁵  A party seeking to set aside an election has the burden of establishing that coercive conduct was sufficiently disseminated to affect the election’s result.⁵⁶ 

Here, the impact of the Respondent’s coercive conduct on the election is clear.  As detailed above and in the judge’s decision, the Respondent engaged in more than 20 distinct instances of objectionable or unlawful misconduct spanning the entire critical period, including, but not limited to, numerous unfair labor practices related to the Union’s election objections.  Specifically, the Union’s second objection alleges that Cemex threatened employees with the closing of batch plants or other adverse consequences if they supported the Union.  Among the most serious threats supporting this objection were plant foreman/batchman Dickson’s telling drivers that “if the Union comes in . . . Cemex is just going to close their doors and take all their trucks to another state,” and VP/GM Forgey’s telling drivers that the Respondent retained the right to turn plants into “satellites,” which could be turned on and off as needed.  We also affirm the judge’s finding that the Respondent delivered a third coercive threat of plant closure—not alleged by the General Counsel as an unfair labor practice—when LRI consultant Amed Santana told drivers during a meeting at the Respondent’s Perris (Inland Empire) plant on January 28, 2019, that Cemex was a multibillion dollar company that did not need the ready-mix part of its business mix and could close its ready-mix operation if employees pushed enough and unionized.⁵⁷

We also find that the Respondent made at least 10 more coercive threats of adverse consequences during the critical period.^[31]  While all of these threats were serious, the Respondent’s implied threat of termination for engaging in protected strike activity, in the context of the Respondent’s pervasive and persistent message that a strike would be likely if employees selected the Teamsters, likely had a particularly significant impact because, as noted above, it was conveyed not only by VP/GM Forgey, but also by LRI consultant Rosado and by consultant presentation material that was shown to all or most unit employees.  Furthermore, the Board and the Courts have long recognized the particularly coercive nature of threats to close or transfer operations such as those delivered by Dickson, Santana, and Forgey.^[32]

In addition to these numerous coercive and unlawful threats, we have affirmed the judge’s findings of unfair labor practices supporting the Union’s seventh and eighth objections, alleging coercive surveillance and intimidation by increased use of security guards, respectively.  We have also affirmed the judge’s findings of at least seven more critical-period unfair labor practices not directly related to the Union’s objections.^[33]  Of these remaining unfair labor practices, the Respondent’s unlawful directive to employees not to talk with union representative on “company time” may have had a particularly broad impact because, as discussed above, the record suggests that LRI consultants conveyed the same unlawful directive to drivers across the unit during individual and small group campaign meetings.

In short, the Respondent engaged in a large number of severe unfair labor practices and otherwise coercive conduct throughout the critical period. While some of these instances would likely have directly affected only the individual employee involved,^[34] many others included threats or other coercive conduct with unitwide consequences that would directly affect any unit employee who learned of them.^[35] Though the unit here was large, the election margin was small—a change of only 7 votes in the Union’s favor from a total of 345 voting employees would have reversed the outcome.  On this record, the Union clearly carried its burden of establishing sufficient dissemination of the Respondent’s coercive conduct to affect the election result under Crown Bolt, above.^[36]  For these reasons and those given by the judge, we adopt the judge’s recommendation to set aside the results of the election.^[37]

1. The Gissel order^[38]

The Supreme Court held in Gissel that, where a union has at some point achieved majority support and a respondent has engaged in unfair labor practices which “have the tendency to undermine majority strength and impede the election processes,” the Board “should issue” an order for the respondent to bargain with the union without an election if “the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.”^[39]  In such a case, the Court emphasized, the bargaining order serves the two equally important goals of “effectuating ascertainable employee free choice” and “deterring employer misbehavior.”^[40]  The Court further observed that the Board “can properly take into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future.”^[41]  The Board accordingly properly considers a respondent’s entire course of misconduct, both before and after the election, in determining whether a bargaining order is warranted.^[42] 

The Board’s determination whether misconduct is more appropriately remedied by a bargaining order or a rerun election takes into account the seriousness of the violations and their pervasive nature, as well as such factors as the number of employees directly affected, the identity and position of the individuals committing the unfair labor practices, and the size of the unit and extent of dissemination of knowledge of the Respondent’s coercive conduct among unit employees.⁷⁰

Here, the General Counsel alleges that, prior to March 7, 2019, a majority of the Respondent’s employees in a unit appropriate for the purposes of collective bargaining had designated the Union as their exclusive collectivebargaining representative; that the Union requested that the Respondent recognize it as the exclusive collectivebargaining representative of employees in the unit by filing its December 3, 2018 petition; and that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain with the Union while engaging in serious and substantial unfair labor practices such that there is only a slight possibility of traditional remedies erasing their effects and permitting a fair rerun election.⁷¹

As noted above, by the end of November 2018, at least 207 of the Respondent’s 366 unit employees— approximately 57 percent—had signed authorization cards designating the Union as their exclusive representative for the purpose of collective bargaining.⁷²  As explained below, we agree with the judge that the Respondent’s pervasive coercive misconduct here, including its unlawful discharge of Ornelas, multiple threats of job loss and plant closure, and numerous other unfair labor practices, were at least as severe as those found warranting a bargaining order in the consolidated cases before the Court in Gissel, above, and clearly supports

• With respect to the Respondent’s refusal to recognize and bargain with the Union, the Respondent and the Union entered a stipulation in Case 28–RC–232059 on December 13, 2018, that provides, inter alia: “Petitioner claims to represent the employees described in the petition, and the entity or entities that employ those employees decline to recognize Petitioner."
• The cards read:

Authorization for Representation Under the National Labor Relations Act 

I the undersigned employee of

Company        Cemex

Address of Company _______________

Authorize the International Brotherhood of Teamsters (or one of its

Chartered Teamster Local Unions) to represent me in negotiations for better wages, hours and working conditions. [spaces for employee identification information and signature] This is not a dues deduction card.

The Respondent contends that cards are inherently unreliable as evidence of a union’s majority status, but the Supreme Court specifically rejected this proposition in Gissel, 395 U.S. at 602.  We also reject the Respondent’s argument that authorization cards did not establish the Union’s majority status in this case because some union agents allegedly verbally misrepresented the purpose of the cards while obtaining signatures.  The Gissel Court held that where, as here, cards state “clearly and unambiguously on their face that the signer designated the union as his representative . . . employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature.”  395 U.S. at 606.  We have carefully examined the record in this case and are satisfied that it does not support finding that any union adherent used language that deliberately and clearly cancelled or directed employees to disregard the clear authorization language printed on the cards here.

We further note that the Respondent has neither excepted to the judge’s determinations that 207 individual signatures were valid nor disputed that those 207 cards comprised a majority of unit members.

At the broadest level, the whole record here reflects that most of the Respondent’s extensive coercive and unlawful misconduct stemmed not from the mistakes of a few managers who failed to understand the rules, but rather from a carefully crafted corporate strategy designed to skirt as closely as possible the fine line between lawful persuasion and unlawful coercion.  The Board and the courts have long warned that an employer adopts such a strategy at its own risk.^[44]  The purposefulness of the Respondent’s unlawful conduct here strongly suggests that it would likely meet a rerun election with a similarly aggressive union-avoidance strategy, similarly prone to stray into unlawful coercion.  This inference is especially justified in light of the judge’s recordsupported findings that at least three high-level Respondent officials intentionally fabricated testimony at the hearing in this matter to conceal the Respondent’s unlawful conduct.  Specifically, as noted above, the judge found, and we agree that: (1) Charlson and Faulkner manufactured testimony after the fact that Faulkner warned Ornelas about speaking to union organizers on “working time,” not on “company time”; (2) Forgey fabricated testimony about what he told drivers about the Union’s impact on scheduled wage increases; and (3) Charlson intentionally offered non-credible testimony in an effort to disguise his involvement in the series of unlawful disciplines issued to Ornelas.^[45]

At a more granular level, the number and severity of the Respondent’s violations, absent other considerations, clearly support a bargaining order.  The Respondent engaged in at least three categories of conduct—threats of plant closure, other threats of job loss, and discipline and discharge of a prominent union supporter—that the Board and the courts have recognized as “hallmark” violations, which tend to have such a coercive and longlasting impact on employees’ free choice in a potential rerun election that, absent “some significant mitigating circumstance,” they generally warrant a bargaining order “without extensive explication.”⁷⁶

First, it is well established that threats of plant closure have an especially corrosive and long-lasting impact.^[46]  Because they implicate a potential loss of work for the entire unit, they directly affect all employees who learn of them,^[47] and, unlike other threats, they involve employer decisions that a union may have limited power to contest or mitigate even if it prevails in the election.^[48]  The Board and the courts have also recognized that the impact of a threat of plant closure may depend in part on its content and context.^[49]  Here, drivers would likely have found Dickson’s and Santana’s threats particularly plausible because, like one of the threats considered by the Supreme Court in Gissel, above, they expressly rested on the Respondent’s ability—as a multibillion-dollar, multinational company—to absorb financial losses after closing unionized operations that comprise only a relatively small part of its overall business.⁸¹  Forgey’s threat similarly emphasized the Respondent’s ability “as a business” to “turn plants on and off” at its discretion.  The plausibility of these threats would have been further enhanced by the fact that they were delivered by Forgey— the Respondent’s top official in charge of unit operations—and Santana, a labor relations specialist hired specifically to convey the Respondent’s official campaign position to its drivers.⁸²

Separately, the Board and the courts have also recognized the highly coercive impact of threats of job loss.⁸³  Here, in addition to Dickson’s threat of plant closure, his prepetition threats to discharge Las Vegas drivers Rida, Orozco, and Lauvao for displaying union stickers or otherwise supporting the Union were serious coercive conduct tending to support a Gissel order.⁸⁴  The Respondent’s implied threat of job loss for engaging in protected strike activity—which, as noted above, it conveyed broadly to all unit employees through presentations by the LRI consultants—also likely had a particularly widespread and long-lasting inhibitive impact in the context of the Respondent’s strong campaign emphasis on the Union’s strike history.⁸⁵

The Respondent’s series of disciplines and discharge of Ornelas fall clearly within a third category of conduct the Board and the courts have long recognized as having a particularly strong coercive effect.^[50]  As noted above, Ornelas was a prominent activist within the Ventura County market that originated the Union’s Southern California campaign in this case.  Union organizer Williams testified that he held Ornelas up as an example to organizers throughout the unit for engaging in the singularly visible protected union activity of taking careful notes during the Respondent’s campaign meetings.  Ornelas’s suspension and discharge would accordingly have acted as a powerful and enduring warning against supporting the Union to all employees who became aware of it.^[51]  Moreover, we agree with the judge that the record establishes that company officials at all levels, including VP/GM Forgey, were aware of Ornelas’s active role in the Union’s campaign, and that the Respondent’s supervisors and managers watched her closely and reported any incident that could serve as a pretextual basis for further discipline.^[52]  The intentionality of the Respondent’s targeting of Ornelas for further discipline and discharge even after the Union lost the election confirms that it remained intent on avoiding a collectivebargaining obligation even at the cost of continuing to violate the law and “evidences a strong likelihood of a recurrence of unlawful conduct in the event of another organizing effort.”^[53] 

The impact of these most severe violations would have been enhanced and prolonged by the context of many other serious unfair labor practices committed by managers and supervisors at all levels and extending over a year-long period from well before the Union filed its petition to well after the election.^[54]  As found above, these included: Dickson’s August 2018 instructions to Orozco and Lauvao not to speak with union organizers and to remove union stickers; Dickson’s instruction to Collins to remove union stickers and interrogation of Collins; Turner’s interrogation of Daunch; Ponce and Nunez’ surveillance of Inglewood drivers; Forgey’s threats that unionization would limit work opportunities; Forgey’s blaming the Union for lack of raises and threat that wage increases could be delayed for years;^[55] Faulkner’s threat that unionization would limit work opportunities; Charlson and Faulkner’s directive not to talk to union representatives while on company time; Turner’s threat to Molina to withhold favors; Turner’s promise of a requested transfer to Shipp—and follow-through by offering the transfer after the election; Turner’s threat to Daunch to withhold schedule flexibility; the Respondent’s use of security guards to intimidate drivers before the election; and Charlson’s post election interrogation and threat to investigate Ornelas for her continued union activity.  The Board and the courts have long recognized that such an extensive record of misconduct supports an inference that an order of a rerun election would be met by further misconduct undermining the potential accuracy of such a rerun election as an accurate measure of “ascertainable employee free choice.”^[56]  Finally, the backdrop for all this conduct was the Respondent’s vigorous campaign against the Union, involving many coordinated individual and group appeals by managers and hired consultants which, however individually lawful, could only have underscored to drivers the Respondent’s commitment to its campaign, and, by extension, the seriousness and plausibility of its unlawful coercive communications.

We accordingly agree with the judge that the whole record of this case clearly supports concluding that the possibility of erasing the effects of the Respondent’s highly coercive misconduct and ensuring a fair rerun election by the use of the Board’s traditional remedies is slight.  Simply requiring the Respondent to refrain from future threats and other coercive conduct, to reinstate Ornelas with backpay, and to post a notice, while remedially necessary, would not, in our view, be sufficient to dispel the coercive atmosphere the Respondent has carefully cultivated here.  We accordingly find that the majority of employees’ prior free designation of the Union as their representative by authorization cards would be better protected by the issuance of a bargaining order “unless some significant mitigating circumstance exists.”^[57]

Contrary to the judge, however, we do not find that a lack of dissemination of knowledge of the Respondent’s coercive conduct among unit employees constitutes a mitigating circumstance warranting withholding a bargaining order.  First, in determining the propriety of a bargaining order, the Board considers dissemination of knowledge of a respondent’s coercive conduct not in isolation, but rather in the full context of its overall evaluation of whether the Board’s traditional remedies are likely to suffice to ensure a fair rerun election.^[58] Most relevantly here, in cases in which an election has been held, the Board and the courts have considered the closeness of the election in evaluating whether the likely continuing impact of employer misconduct warrants a bargaining order.^[59]  Here, the record clearly establishes, and the judge found, that the Respondent’s most severely coercive misconduct was disseminated to a number of employees far greater than the seven whose changed votes would have sufficed to reverse the outcome of the election.  Given the close margin of union support demonstrated by the past election, we conclude that a sufficient number of employees to determinatively affect the result of a rerun election would likely be aware of, and coercively impacted, by the Respondent’s past misconduct.⁹⁶ 

Moreover, as noted above, in considering the likelihood that the Board’s traditional remedies will suffice to ensure a fair rerun election, the Board and the courts take into account not only the impact of a respondent’s past misconduct, but also the extent to which the record suggests that a renewed organizing drive is likely to be met by new misconduct.^[60]  Thus, independently of the continuing impact of the Respondent's past conduct, as we have found, that conduct itself—including particularly

the post-election unfair labor practices—suggests that the Respondent would likely meet a renewed organizing effort with further unfair labor practices tending to make a fair rerun election unlikely.^[61]

For all these reasons, we find that the extent of dissemination of knowledge of the Respondent’s past misconduct in this case does not constitute a mitigating circumstance that would warrant concluding that an affirmative bargaining order is not necessary here.

⁹⁶ As noted above, record evidence also suggests that some of the Respondent’s misconduct was, in any case, even more broadly disseminated than expressly discussed by the judge, including the Respondent’s unlawful prohibition on talking with union organizers on company time and its unlawful implied threat of discharge for engaging in protected strike activity.  Additionally, Forgey’s testimony that he presented the same information at the Oxnard meeting that he presented at a large number of other campaign meetings suggests that many unit drivers were likely also exposed to his coercive threat to turn plants into “satellites,” his blaming the union for a delayed wage increase, and his implied threat that future wage increases could be indefinitely delayed if employees selected the Union.  Similarly, LRI consultant Santana’s testimony that consultants were required to present the same information at all campaign meetings suggests that his coercive threat that the Respondent could afford to close its ready-mix operations if drivers selected the Union may also have been broadly disseminated.  We also find, contrary to the judge’s suggestion, that Ornelas’s prominent role in the Union’s regular committee meetings, both before and after the election,  organizer Williams’ testimony that after Ornelas’s discharge, the discharge was “the big topic of conversation” with “just about every driver [he] spoke with,” and Ornelas’s continuing work on the Union’s campaign throughout the unit after her discharge support concluding, as we do, that many employees throughout the unit—including drivers outside of Ventura County—became aware of her unlawful discipline.  With the additional impact of the Respondent’s other unfair labor practices, including its utilization of guards to intimidate drivers, surveillance, interrogation, and other discriminatory anti-union conduct, we conclude that the Respondent’s unfair labor practices clearly were disseminated to and impacted a substantial proportion of employees in the unit.

Next, the Respondent has argued that the passage of time and employee and management turnover make a bargaining order inappropriate in this case.  The Board’s traditional policy is to consider the appropriateness of a bargaining order as of the time of the unfair labor practices, because taking into account subsequent changes incentivizes prolonged litigation, undermining the deterrence goal identified by the Supreme Court in Gissel as of coequal importance with the purpose of implementing ascertainable employee free choice.⁹⁹  Some courts of appeals, including the Court of Appeals for the Ninth Circuit (in which this case arises) have similarly held that the Board may decline to consider changed circumstances during intervals of litigation because this rule “prevent[s] employers from intentionally prolonging Board proceedings in order to frustrate the issuance of bargaining orders.”^[62]  Other courts of appeals, however, including the Court of Appeals for the District of Columbia Circuit, have required, as a condition of enforcing a Gissel bargaining order, that the Board determine the appropriateness of the order in light of the circumstances existing at the time it is entered.^[63] 

Here, as discussed in detail above, we have found that the Union had clear majority support by the end of November 2018 and that the Respondent’s numerous severe unfair labor practices, including threats of plant closure or relocation and of job loss and its postelection discipline and discharge of a key union supporter, in combination with substantial other serious misconduct, clearly had a strong tendency to undermine the Union’s majority support and impede the election process.  We have also found that, absent mitigating circumstances, the possibility of erasing the effects of the Respondent’s highly coercive misconduct and ensuring a fair rerun election by the use of the Board’s traditional remedies is slight, and that the majority of employees’ prior free designation of the Union as their representative by authorization cards would be better protected by the issuance of a bargaining order.

After examining the appropriateness of a bargaining order under the circumstances existing at the present time, we find, for the reasons discussed below, that the passage of time and management and employee turnover do not constitute mitigating circumstances warranting withholding a bargaining order in this case.  In so finding, we have duly considered the Section 7 rights of all employees involved.  Consistent with the careful balancing of employee rights described by the Court in Gissel, we find that issuing a bargaining order in this case protects the rights of the majority of the Respondent’s employees who previously designated the Union as their representative for the purpose of collective bargaining, while the rights of those employees who may be opposed to representation are safeguarded by their access to the Board’s decertification procedure under Section 9(c)(1) of the Act, following a reasonable period of time to allow the collective-bargaining relationship a fair chance to succeed.^[64]  We have also considered whether other purposes of the Act override employees’ Section 7 right to choose their bargaining representative.  We find, again consistent with Gissel, that, because a majority of the Respondent’s employees in an appropriate unit have designated the Union as their representative for the purpose of collective bargaining, the Act’s dual purposes of effectuating ascertainable employee free choice and of deterring employer misbehavior are aligned, so that, absent the likelihood of a fair rerun election, a bargaining order simultaneously serves both purposes without subordinating either to the other.^[65] 

It has now been approximately 4 years since the Respondent discharged Ornelas on September 6, 2019.  Since then, the record shows that the Respondent promoted VP/GM Forgey to a larger role in the company,^[66]and transferred Las Vegas plant foreman/batchman Dickson to a position outside the unit.  The Respondent has also proffered evidence to show that, as of November 14, 2022, it had expanded the number of employees in the appropriate bargaining unit from 366 to 397, about half of whom—197 employees—were not employed in the unit at the time of the March 7, 2019, election.^[67] 

We cannot conclude, under the circumstances of this case, that these changes make it likely that the Board’s traditional remedies could ensure that a fair election could be held today.  First, we find it unlikely that the Respondent’s promotion of Forgey and transfer of Dickson will have significantly dissipated the impact of its coercive misconduct.  Despite these departures, many other managers directly involved in the Respondent’s unlawful conduct apparently remain in place.  More importantly, as explained above, we have found that the Respondent’s misconduct here stemmed primarily from its overall corporate campaign strategy, rather than from choices by individual managers.  In this context, we find that employees would be unlikely to conclude that such changes in management as have occurred reflect any fundamental change in the Respondent’s manifest willingness to oppose their choice of representation for the purposes of collective bargaining by unlawful means.

Next, the Respondent represents that only approximately half of the current unit employees were employed at the time of the Respondent’s unlawful preelection misconduct.^[68]  Taking these representations into consideration, we nevertheless find that the circumstances of this case do not warrant a conclusion that employee turnover has rendered a fair election possible.  While many new employees may have joined the unit, a substantial proportion of current employees remain who would recall events surrounding the 2019 election.  As the Board has found in other cases, these employees will likely have shared their experience with new employees, so that new employees will likely also be affected by the continuing influence of the Respondent’s unfair labor practices.^[69]  The high voter turnout for the 2019 election (at least 345 of 366 eligible employees voted) demonstrates a level of employee engagement in the Union’s campaign that reinforces our conclusion that employees present during the campaign would likely discuss the Respondent’s prior conduct with later-hired employees hired before any rerun election ordered by the Board.

As for the passage of time, as we have discussed in detail above, the Board and the courts have long and broadly recognized that employer misconduct such as the Respondent’s here tends to impede the possibility of a fair rerun election for extended periods of time after its commission.  Accordingly, courts that require consideration of changed circumstances as a condition of enforcing Board bargaining orders have regularly enforced such orders after comparable or longer periods of time where other circumstances have not determinatively weighed against enforcement.¹⁰⁸  Here, we find that the passage of time, considered either by itself or in combination with management and employee turnover, does not warrant concluding that the impact of the Respondent’s coercive misconduct has been sufficiently dissipated to permit a fair rerun election.^[70]

Finally, apart from our conclusions about the continuing impact of the Respondent’s past misconduct, we have found, as discussed above, that the whole record in this case—up to and including the noncredible testimony offered by several of the Respondent’s managers at the hearing in this matter—suggests that the Respondent would likely meet a renewed union campaign with further misconduct.¹¹⁰ 

For all of these reasons, we conclude that a bargaining order is warranted, necessary, and appropriate to effectuate the purposes and policies of the Act under presently existing circumstances.^[71]

III. JOY SILK, GISSEL, AND LINDEN LUMBER¹¹²

Statutory framework

Section 9(a) of the Act provides that “[r]epresentatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining[.]”  29 U.S.C. § 159(a) (emphasis added).  In turn, Section 8(a)(5) provides that it is an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of his employees, subject to the provisions of Section 9(a).”  Id. § 158(a)(5).  Section 9(c) of the Act describes the Board’s procedures for conducting representation elections and certifying unions that prevail in Board-conducted elections.  Id. § 159(c)(1)(A) & (B).¹¹³  Finally, Section 8(a)(2) prohibits an employer from recognizing and bargaining with a union that does not enjoy majority support.  Id. § 158(a)(2);¹¹⁴ Garment Workers (Bernhard-Altmann Texas Corp.) v. NLRB, 366 U.S. 731, 738-739 (1961).

As the Supreme Court has recognized, Section 9 is animated by the principle that representation cases should be resolved fairly and expeditiously.  See NLRB v. A.J. Tower Co., 329 U.S. 324, 331 (1946) (“[T]he Board must adopt policies and promulgate rules and regulations in order that employees’ votes may be recorded accurately, efficiently, and speedily.”).  When interpreting Section 9, the Court has relied on the Act’s legislative history, which reflects Congress’s judgment that delays in resolving questions of representation can risk undermining employees’ choice to seek union representation and increase the risk of labor disputes and disruptions to interstate commerce.^[72]  In interpreting Section 9(a), the Supreme Court has acknowledged that “a ‘Board election is not the only method by which an employer may satisfy itself as to the union’s majority status’ since § 9(a), ‘which deals expressly with employee representation, says nothing as to how the employees’ representative shall be chosen.’”  NLRB v. Gissel Packing Co., 395 U.S. 575, 597 (1969) (quoting United Mine Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 71, 72 fn. 8 (1956)).  The Court emphasized that because Section 9(a) “refers to the representative as the one ‘designated or selected’ by a majority of the employees without specifying precisely how that representative is to be chosen,” a union may establish a valid bargaining obligation “by convincing support, for instance, . . . by possession of cards signed by a majority of the employees authorizing the union to represent them for collective bargaining purposes.”  Gissel, 395 U.S. at 596–597.^[73] 

Although Congress considered an amendment to Section 8(a)(5) in an early version of the Taft-Hartley legislation that would “permit the Board to find a refusal-tobargain violation only where an employer had failed to bargain with a union ‘currently recognized by the employer or certified as such [through an election] under section 9,’” that proposed change was not incorporated in the Taft-Hartley amendments.  Gissel, 395 U.S. at 598.  Instead, the Taft-Hartley amendments provided that a Board election is a precondition to a bargaining representative’s certification by the Board, a status that confers certain additional advantages on the union.  See 29 U.S.C. § 159(c)(1)(A) & (B).  In Gissel, the Supreme Court relied upon this legislative history to reject the contention that the Taft-Hartley amendments undermined the use of signed union-authorization cards to establish an enforceable statutory bargaining obligation.^[74]

The Taft-Hartley amendments as enacted in 1947 did, however, create an avenue for employers to petition for a Board election when confronted with a demand for recognition.^[75]  Taft-Hartley expanded employers’ access to the Board’s election machinery by adding Section 9(c)(1)(B) to the Act.  Section 9(c)(1)(B) provides, in pertinent part, that:

[w]henever a petition shall have been filed, . . . by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in section 9(a) . . . the Board shall investigate such petition and if it has reasonable cause to believe that a question of representation affecting commerce exists shall provide for an appropriate hearing upon due notice . . . . If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.” 

29 U.S.C. § 159(c)(1)(B).

However, an employer’s right to invoke the Board’s election machinery is not inviolate.  The Board, with Supreme Court approval, has long issued remedial bargaining orders for violations of Section 8(a)(5) of the Act.  See, e.g., Franks Bros. Co. v. NLRB, 321 U.S. 702, 705 (1944) (“That the Board was within its statutory authority in adopting the [bargaining order] remedy which it has adopted to foreclose the probability of such frustrations of the Act seems too plain for anything but statement.”).  In Gissel, the Supreme Court made plain that “the 1947 amendments” creating the 9(c)(1)(B) election option “did not restrict an employer’s duty to bargain under § 8 (a)(5) solely to those unions whose representative status is certified after a Board election.”  Id. at 601.  The Court “agree[d] with the Board’s assertion . . . that there is no suggestion that Congress intended § 9 (c)(1)(B) to relieve any employer of his § 8 (a)(5) bargaining obligation where, without good faith, he engaged in unfair labor practices disruptive of the Board's election machinery.”  Id. at 600. 

Administrative/ judicial interpretations 

[Here, the Board discusses the history of Joy Silk, Gissel, and Linden Lumber.]

In the years immediately following the passage of the Wagner Act in 1935, the Board exercised the power “to certify a union as the exclusive representative of the employees in a bargaining unit when it had determined, by election or ‘any other suitable method,’ that the union commanded majority support.”  Brooks v. NLRB, 348 U.S. 96, 98 (1954) (quoting Section 9(c) of the Wagner Act).  After an employee or a union filed a petition requesting certification, the Board investigated the petition and conducted a hearing if it found that a question concerning representation existed.  If the union presented evidence during the hearing sufficient to establish that employees had designated the union as bargaining representative, the Board would certify the union without an election.^[76]

By 1939, the Board reversed course.  In Cudahy Packing Co., 13 NLRB 526 (1939), and Armour & Co., 13 NLRB 567 (1939), the Board held that a Boardconducted election was a prerequisite to certification.  In the Taft-Hartley amendments that followed in 1947, Congress amended the text of Section 9(c) of the Act to codify the requirement that an election precede Board certification.  However, after Cudahy Packing and the passage of the Taft-Hartley amendments, the Board continued to enforce an employer’s statutory bargaining obligation, regardless of certification, in unfair labor practice cases where a union that had not won a Board election could prove that it represented a majority when it requested recognition.^[77]   

Then, in Joy Silk Mills, Inc., 85 NLRB 1263, 1264 (1949), enfd. 185 F.2d 732 (D.C. Cir. 1950), cert. denied 341 U.S. 914 (1951), the Board reaffirmed and restated the principles that had begun to emerge in unfair labor practice cases involving allegations that an employer violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with a union that claimed majority support in an appropriate unit.  In Joy Silk, the Board held that an employer unlawfully refuses to recognize a union that presents authorization cards signed by a majority of employees in a prospective unit if it insists on an election motivated “not by any bona fide doubt as to the union’s majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union.’”  Id. (quoting Artcraft Hosiery, 78 NLRB 333 (1948)).  The Board explained that, in analyzing an employer’s good-faith doubt, it would consider “all relevant facts in the case, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct.”  Id. 

Applying that standard, the Board found that because the employer in Joy Silk had “engaged in unfair labor practices during the preelection period, the first of its illegal acts having occurred only 5 days after it agreed to a consent election and less than 3 weeks after the Union’s initial bargaining request,” the “Respondent’s insistence upon an election was not motivated by a good faith doubt of the Union’s majority,” but was instead intended “to gain time within which to undermine the Union’s support.”  Id. at 1264–1265.  The Board specifically emphasized that “the unfair labor practices, because of their nature and timing, color the [employer’s] intent . . . and support a finding that the doubt advanced” as “the reason for refusing to bargain with the Union, was feigned and advanced in bad faith.”  Id. at 1265 fn. 5.  The Board rejected the employer’s contention that a remedial order directing it to bargain with the Union would “deprive the [employer] of its right under Section 9(c)(1)([B]) of the Act to petition the Board for an election” as “untenable” because the employer’s refusal to recognize and bargain with the Union was not based on “an honest doubt as to the Union’s majority status.” Id. at 1265. 

The District of Columbia Circuit enforced the Joy Silk decision.  Joy Silk Mills, Inc. v. NLRB, 185 F.2d 732 (D.C. Cir. 1950).  The District of Columbia Circuit agreed with the Board’s view that determining “whether an employer is acting in good or bad faith at the time of the refusal is, of course, one which of necessity must be determined in the light of all relevant facts in the case, including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct.’”  Id. at 742.  In the years immediately following the District of Columbia Circuit’s enforcement, every circuit similarly approved the Joy Silk framework.^[78] 

Subsequent Board cases modified the Joy Silk framework in several significant respects.^[79]  In John P. Serpa, Inc., 155 NLRB 99, 100 (1965), the Board clarified that the General Counsel, and not the employer, carried the burden of proving both “that a majority of the employees in the appropriate unit signed cards designating the union as bargaining representative,” and “that the employer in bad faith declined to recognize and bargain with the union.”  Later cases required the General Counsel to show that the employer engaged in “substantial unfair labor practices calculated to dissipate union support” to establish that an employer did not have a good-faith doubt as to the union’s majority status.  Aaron Bros., 158 NLRB 1077, 1079 (1966).  For a time, the Board declined to issue remedial bargaining orders if a union lost an election after claiming that an employer unlawfully refused to recognize the union under Section 8(a)(5).  See Aiello Dairy Farms, 110 NLRB 1365 (1954).^[80] 

In many Joy Silk cases, parties argued that unionauthorization cards were not reliable indicators of employees’ preferences regarding unionization.  At times, individual Board Members also expressed skepticism about the evidentiary value of union-authorization cards.¹²⁴  But in Cumberland Shoe Corp., 144 NLRB 1268 (1963), the Board held that authorization cards that clearly state their purpose are valid.  Certain reviewing courts disagreed, priming the issue for consideration by the Supreme Court in Gissel.¹²⁵

In Joy Silk cases, the General Counsel was also required to establish that the union sought recognition in a “unit appropriate for” collective bargaining within the meaning of Section 9(b) of the Act in order to establish an unlawful refusal-to-bargain allegation. While some Joy Silk cases also involved underlying representation cases, the Board often determined the appropriate unit itself in the context of resolving the unfair labor practice allegations.¹²⁶  And even though many Joy Silk cases involved units all parties conceded were appropriate,¹²⁷ other Joy Silk precedent indicated that “an employer’s good-faith doubt as to the appropriateness of the unit is a good defense to a charge of unlawful refusal to bargain.”  Trend Mills, Inc., 154 NLRB 143, 147 (1965) (citing NLRB v. Dan River Mills, Inc., 274 F.2d 381, 386–389 (5th Cir. 1960)).¹²⁸ 

Although the employer in Joy Silk itself committed unfair labor practices that served to undermine the claim that it had a good-faith doubt as to the union’s majority support, the Board also applied Joy Silk’s requirement that an employer recognize a union not certified through an election to another category of cases where the employer’s actions at and after the presentation of signed authorization cards were deemed inconsistent with it having a good-faith doubt as to the union’s majority support, even absent independent unfair labor practices.  See Snow & Sons, 134 NLRB 709 (1961), enfd. 308 F.2d 687 (9th Cir. 1962).  As explained by the trial examiner in Groh, George & Sons, 141 NLRB 931, 939–940 (1963), in reasoning adopted by the Board:

An analysis of the cases wherein the Board has made this “good-or-bad faith determination” suggests rather strongly the pervading importance of contemporaneous unlawful conduct as a cardinal criteria.  However, it does not perforce follow that a finding of such unlawful conduct is the sine qua non to a rejection of a goodfaith defense.  While accompanying unlawful conduct may render more discernible an unlawful motive, its absence is but a factor, and not a preclusive one, to be weighed in a discriminating analysis and appraisal of all the relevant evidence.  The absence of good faith, then, may be manifested as well by attitudes and conduct demonstrating a rejection of the collectivebargaining concept as by more overt, readily discernible Section 8(a)(1) and 8(a)(3) conduct potentially more immediately destructive of the Union's majority status.

(footnotes and internal quotations omitted), enfd. 329 F.2d 265 (10th Cir. 1964).

The Supreme Court in Gissel explained that this “second category” of “Joy Silk doctrine” cases were cases in which:

[T]he Board could find [ ] that the employer had come forward with no reasons for entertaining any doubt and therefore that he must have rejected the bargaining demand in bad faith. An example of the second category was Snow & Sons where the employer reneged on his agreement to bargain after a third party checked the validity of the card signatures and insisted on an election because he doubted that the employees truly desired representation.  The Board entered a bargaining order with very broad language to the effect that an employer could not refuse a bargaining demand and seek an election instead “without a valid ground therefor.”

395 U.S. at 593 (internal citations omitted) (quoting Snow & Sons, 134 NLRB at 710–711).

As reviewing courts considered more cases involving the Joy Silk framework, some courts began to criticize the Board’s application of the good-faith doubt standard.  For example, in NLRB v. River Togs, Inc., 382 F.2d 198, 206–207 (2d Cir. 1967), the Second Circuit Court of Appeals criticized the Board’s application of Joy Silk, observing that it saw “no logical basis for the view that substantial evidence of good faith doubt is negated solely by an employer’s desire to thwart unionization whether by proper or even by improper means[.]”  Instead, the Second Circuit observed that the relevant inquiry appeared to be whether the employer’s unlawful conduct “made a fair election impossible.”  Id. at 207.^[81]

Joy Silk remained Board law until the late 1960s, but was significantly modified by cases such as John P. Serpa, Inc., supra, and Aaron Bros., supra, which placed the burden on the General Counsel to demonstrate the employer’s lack of good-faith doubt in its refusal to recognize and bargain with the union, and required a showing of “substantial unfair labor practices” to establish the lack of that doubt.  During oral argument in Gissel, the Board’s attorney stated that the Board had abandoned Joy Silk.¹³⁰  The Gissel Court acknowledged the Board attorney’s statement,^[82] but it found that, in the consolidated cases before it, it “need not decide whether a bargaining order is ever appropriate in cases where there is no interference with the election processes.” 395 U.S. at 594-595. 

As discussed extensively above, the Supreme Court held in Gissel that, where a union has achieved majority support and an employer engages in unfair labor practices which “have the tendency to undermine majority strength and impede the election processes,” the Board “should issue” an order for the respondent to bargain with the union without an election if “the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.”^[83]  In this context, the Court emphasized, the bargaining order serves the two equally important goals of “effectuating ascertainable employee free choice” and “deterring employer misbehavior.”^[84]  The Court in Gissel also explicitly approved the Board’s view that unionauthorization cards provided reliable evidence of employees’ views regarding unionization in Cumberland Shoe, concluding that “[w]e cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else.”  Id. at 607.

In Linden Lumber, the Board formally abandoned the Joy Silk doctrine and held that an employer does not violate Section 8(a)(5) “solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election.”^[85]  The Board emphasized the criticism that Joy Silk required the Board to enter the “‘goodfaith’ thicket” by incorporating an assessment of the employer’s subjective state of mind and relied significantly on its doubts as to “the wisdom of attempting to divine, in retrospect, the state of employer (a) knowledge and (b) intent at the time he refuses to accede to a union demand for recognition.”  Id. at 720. 

In a 5–4 decision, the Supreme Court upheld the Board’s interpretation of the Act as a permissible construction of the statute.  Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301, 309–310 (1974) (“[I]n light of the statutory scheme and the practical administrative procedural questions involved, we cannot say that the Board’s decision that the union should go forward and ask for an election on the employer’s refusal to recognize the authorization cards was arbitrary and capricious or an abuse of discretion.”).

Following the Supreme Court’s approval of the Board’s decision in Linden Lumber, the Board permitted employers to insist on a Board-conducted election as a precondition to an enforceable statutory bargaining obligation.  See, e.g., Churchill’s Supermarkets, Inc., 285 NLRB 138, 142 fn. 6 (1987), enfd. 857 F.2d 1474 (6th Cir. 1988) (per curiam).^[86][87]

New standard

The General Counsel asks that the Board overturn Linden Lumber and reinstate the standard from Joy Silk,^[88]under which an employer would violate Section 8(a)(5) and (1) by refusing to bargain upon request with a union that had majority support absent a showing that the employer had a good-faith doubt as to the union’s majority status.  The Respondent opposes this request and argues that the Joy Silk standard could not, in any case, be properly applied to it.  In the latter respect, the Respondent argues that the Union never presented evidence of a card majority, as would be required under the Joy Silk framework, and that the Respondent accordingly could not be held liable for a refusal to bargain even if that framework applied.

We find merit in the General Counsel’s argument on exception that the Board should overrule Linden Lumber.  The Supreme Court has held that the Board’s authority to fashion remedies “is a broad discretionary one.”  NLRB v. J. H. Rutter-Rex Manufacturing, 396 U.S. 258, 262– 263 (1969) (quoting Fiberboard Paper Products. v. NLRB, 379 U.S. 203, 216 (1964)); see also Fallbrook Hospital Corp. v. NLRB, 785 F.3d 729, 738 (D.C. Cir. 2015) (the Board acts at the “zenith of its discretion” when fashioning remedies) (internal quotation marks omitted).^[89]  Section 1 of the Act sets forth the central policies of the Act, including “encouraging the practice and procedure of collective bargaining” and “protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing[.]”  29 U.S.C. § 151.  Because we find that the current scheme for remedying unlawful failures to recognize and bargain with employees’ designated bargaining representatives is inadequate to safeguard the fundamental right to organize and bargain collectively that our statute enshrines, we hereby overrule Linden Lumber, supra.^[90] 

Instead, “draw[ing] on enlightenment gained from experience,” NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. at 346, we announce the following framework for determining when an employer has unlawfully refused to recognize and bargain with a designated majority representative of its employees.

Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly^[91] files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).^[92]  Section 9(c)(1)(B) of the Act grants employers an avenue for testing the union’s majority through a representation election if the Board, upon an investigation and hearing, finds that a question of representation exists.  In order to reconcile the provisions of Section 8(a)(5) and Section 9(a), which require an employer to recognize and bargain with the “designated” majority representative of its employees, with the language of Section 9(c)(1)(B) granting employers an election option, we conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union.[93]

However, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order.^[94]  Thus, this accommodation of the Section 9(c) election right with the Section 8(a)(5) duty to recognize and bargain with the designated majority representative will only be honored if, and as long as, the employer does not frustrate the election process by its unlawful conduct.^[95]  As the Supreme Court observed in Gissel, Section 9(c)(1)(B) was not intended to confer on employers “an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.” 395 U.S. at 599.  If the employer commits unfair labor practices that invalidate the election, then the election necessarily fails to reflect the uncoerced choice of a majority of employees.  In that situation, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means, as expressly permitted by Section 9(a), and will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer. 

Our focus, then, is on the unlawful conduct of the employer that prevents a free, fair, and timely representation election.  Given the strong statutory policy in favor of the prompt resolution of questions concerning representation, which can trigger labor disputes, we do not believe that conducting a new election—after the employer’s unfair labor practices have been litigated and fully adjudicated – can ever be a truly adequate remedy.¹⁴⁴  Nor is there a strong justification for such a delayed attempt at determining employees’ free choice again where the Board has determined that employees had already properly designated the union as their majority representative, consistent with the language of the Act, before the employer’s unfair labor practices frustrated the election process.  Simply put, an employer cannot have it both ways.  It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way.

An employer that refuses to bargain without filing a petition under Section 9(c)(1)(B) may still challenge the basis for its bargaining obligation in a subsequently filed unfair labor practice case.  However, its refusal to bargain, and any subsequent unilateral changes it makes without first providing the employees’ designated bargaining representative with notice and an opportunity to bargain, is at its peril.¹⁴⁵

In overruling Linden Lumber and limiting the employer’s ability to insist on an election as a preliminary threshold step to a duty to bargain, we will no longer look to Gissel bargaining orders—that is, bargaining orders imposed based on employer unfair labor practices only where the unlikelihood of holding a future fair election is proven.  Decades of experience administering the Gissel standard have persuaded us that Gissel bargaining orders are insufficient to accomplish the twin aims of “effectuating ascertainable employee free choice” and “deterring employer misbehavior” that the Supreme Court identified in that case.  395 U.S. at 614.  Specifically, the Gissel standard’s focus upon the potential impact of an employer’s unfair labor practices upon a future rerun election creates perverse incentives to delay, which we believe can be diminished by a modified standard.^[96]  Representation delayed is often representation denied.  Our experience leads us to conclude that the application of the Gissel standard has resulted in persistent failures to enable employees to win timely representation despite having properly designated a union to represent them, and thereby satisfying the Act’s requirement for recognition.  In our view, the standard we announce today, by making remedial bargaining orders more readily available, will “deter[] employer misbehavior” in the period before a Board election. Gissel, 395 U.S. at 614.  This approach has several important advantages over the current remedial framework. 

First, as the facts of this case illustrate, employees are harmed by delay when they must wait for their chosen representative to be able to bargain on their behalf.¹⁴⁷  Under the standard we adopt, once a majority of employees has designated a union as their bargaining representative, the employer has a duty to bargain under Section 8(a)(5), subject to its right to file an election petition.  Its refusal to immediately do so – while simultaneously committing unfair labor practices that frustrate the election process – contravenes both the fundamental purpose of the Act in “encouraging the practice and procedure of collective bargaining” and “protecting the exercise by workers of . . . designation of representatives of their own choosing.”  29 U.S.C. § 151.  This approach better ensures that employees enjoy the ability to bargain through their designated representative.^[97] 

Second, even when the employer responds to the union’s bargaining demand by promptly filing a petition for an election, our standard places the Board’s focus on the appropriate time period:  the runup to an initial election.  In Gissel cases, the Board focuses on “the extensiveness of an employer’s unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future.”  395 U.S. at 614.  Reviewing courts have sometimes disagreed with the Board’s assessment of the likely continuing effects of an employer’s unfair labor practices, particularly where the fair adjudication of unfair labor practice allegations has resulted in substantial delays.^[98]  However, the Board has unquestioned authority to protect the integrity of its election processes.  See NLRB v. A.J. Tower Co., 329 U.S. at 330 (“Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.”); NLRB v. Waterman S.S. Corp., 309 U.S. 206, 226 (1940) (“The control of the election proceeding, and the determination of the steps necessary to conduct that election fairly were matters which Congress entrusted to the Board alone.”).  It is our considered view that our new standard will more effectively disincentivize employers from committing unfair labor practices prior to an election.  It thus protects the interests of an employer that prefers an election while protecting the election’s integrity by increasing the chance that employees can participate with less chance of unlawful employer interference.  Because a Boardconducted election “can serve its true purpose only if the surrounding conditions enable employes to register a free and untrammeled choice for or against a bargaining representative,” this standard will advance the Board’s interest in “provid[ing] a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees.”  General Shoe Corp., 77 NLRB 124, 126127 (1948).^[99]  As the Supreme Court has recognized, it is “the duty of the Board . . . to establish the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.”  NLRB v. Savair Mfg. Co., 414 U.S. 270, 276 (1973) (internal quotation omitted).

In contrast to current Board case law, requiring that employers who insist on an election do not frustrate a timely election by committing unfair labor practices addresses one of the greatest weaknesses of Gissel: under the new standard, we expect that employers seeking an election will be incentivized not to commit unfair labor practices in response to a union campaign, both before and after the filing of the election petition.  It is our judgment that the risks to an employer of a Gissel bargaining order, with its emphasis on whether a future, often second (or even third) election can be fairly conducted, has not served as an adequate deterrent to employer unfair labor practices during the election period.  Under current Board law, there is no effective remedy to deter an employer bent on defeating a union campaign by committing serious unfair labor practices that tend to make a free and fair election unlikely.¹⁵¹  In particular, the remedies available for violations of Section 8(a)(3) and (1) of the Act, no matter how serious, are, in many cases, incapable of rectifying the harm that can be caused to the election process by the unlawful conduct of an employer intent upon delaying or altogether avoiding its bargaining obligations under the Act.¹⁵²  Under the new standard, by contrast, if the Board finds that an employer has committed unfair labor practices that frustrate a free, fair, and timely election, the Board will dismiss the election petition and issue a bargaining order, based on employees’ prior, proper designation of a representative for the purpose of collective bargaining pursuant to Section 9(a) of the Act.  This standard disincentivizes unlawful employer conduct during an election campaign because such conduct would be counterproductive for the employer.  The employer who commits unlawful conduct to dissipate support for a union that has already been designated by employees as their representative gains no ultimate advantage.  Its misconduct ensures that it will be subject to a Board order requiring good-faith bargaining with the union. 

Third, in response to the criticisms of reviewing courts and our recognition of relevant intervening changes in Board law, our standard does not rely on an employer’s subjective “good-faith doubt” of a union’s majority status.^[100]  In order to invoke the Board’s election machinery in response to a union’s demand for bargaining, an employer will not need to prove a good-faith doubt of the union’s majority status, nor will the General Counsel have to prove a lack of good-faith doubt.  Rather, the employer is free to seek a Board election in which the union’s majority can be tested.  However, in the event of employer unfair labor practices that make a fair election unlikely, the bargaining order imposed under the revised standard appropriately focuses on the best objective evidence of a union’s majority support at the time of a request for recognition – before the employer’s unfair labor practices were committed.  The Board has similarly abandoned the good-faith doubt standard in cases involving alleged unlawful withdrawals of recognition.  See Levitz Furniture, above, 333 NLRB at 717.  And the Supreme Court has long recognized that an employer violates Section 8(a)(2) by recognizing a minority union and that such “prohibited conduct cannot be excused by a showing of good faith.”  Bernhard-Altmann, supra, 366 U.S. at 739.  By declining to examine an employer’s subjective belief about a union’s majority status, the standard we announce today aligns our treatment of “good faith” in this context with current law in these related areas. 

Application and retroactivity

Having announced our new approach to remedial bargaining orders, we apply that framework to this case. 

Here, the General Counsel alleged that the Respondent violated Section 8(a)(5) and (1) by failing and refusing to bargain with the Union after the Union requested, by filing the December 3, 2018 petition,^[101] that the Respondent recognize it as the exclusive bargaining representative of the employees.  Further, as discussed above, the parties litigated the question of the Union’s card majority, and we have affirmed the judge’s conclusion that a majority of unit employees had designated the Union as their bargaining representative by the end of November 2018.  In addition, the parties stipulated to the appropriateness of the unit at issue.  Finally, the Respondent’s extensive unfair labor practices detailed above required the election in this case to be set aside.  Thus, we conclude, based upon the complaint allegations and record, that: (1) the Respondent refused the Union’s request to bargain;^[102] (2) at a time when the Union had in fact been designated representative by a majority of employees; (3) in a concededly appropriate unit; and then (4) committed unfair labor practices requiring the election to be set aside, violating Section 8(a)(5) under the standard we announce today. 

The “Board’s usual practice is to apply new policies and standards retroactively ‘to all pending cases in whatever stage,’” unless retroactive application would work a “manifest injustice.” SNE Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006-1007 (1958)).  See, e.g., Valley Hospital Medical Center, Inc., 371 NLRB No. 160, slip op. at 15-17 (2022).  The Supreme Court has acknowledged the Board’s authority to reconsider and change its law, characterizing the administrative process as a “constant process of trial and error.”^[103] 

Under Supreme Court precedent, “the propriety of retroactive application is determined by balancing any ill effects of retroactivity against ‘the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles.’”  SNE Enterprises, supra at 673 (quoting SEC v. Chenery Corp., 332 U.S. 194, 203 (1947)). In making that determination, the Board considers “the reliance of the parties on preexisting law, the effect of retroactivity on accomplishment of the purposes of the Act, and any particular injustice arising from retroactive application.”  Id.

There can be no claim of manifest injustice here.  First, while under our new standard the threshold for issuing a bargaining order as a remedy for a violation of Section 8(a)(5) is lower, the order we issue is premised on the Respondent’s unfair labor practices in violation of Section 8(a)(1) and 8(a)(3) of the Act requiring the setting aside of an election, and the standard for finding those violations has not changed.  The Respondent may not be heard to say that it only committed those violations because it did not believe that they would result in a bargaining order.^[104]

Moreover, in any event, as explained, this case was litigated under the Gissel standard.  Because we have found that the Respondent violated Section 8(a)(5) by refusing to recognize and bargain with the Union while engaging in unfair labor practices that would prevent a fair rerun election—warranting a remedial bargaining order under the Gissel standard—the application of the revised standard in this case results in neither finding any additional violation of the Act nor any additional remedial obligation.  Because the same violation and remedy would lie under either the prior standard or the standard we announce today, we find that the application of the new standard in this case does not prejudice the Respondent. 

Finally, any harm to the interest of employers who might have relied on the prior framework for imposing bargaining orders is outweighed by the clear harm to the achievement of the Act’s policies by continuing to apply the prior standard in cases involving serious misconduct prior to a Board-conducted election.  Applying today’s holding retroactively will avoid the potential for inconsistency in pending cases, will restore judicially approved standards to this area of law, and will ensure that our decision serves its intended goal of adequately protecting employees’ exercise of Section 7 rights.

1. IV. RESPONSE TO THE PARTIAL DISSENT

Our dissenting colleague advances several reasons for declining to join Section III of the majority’s decision. 

We address these each in turn.

As a threshold matter, our colleague contends that our decision to overrule Linden Lumber is without precedential effect because it does not change the result for the Respondent in this case.  We respectfully disagree.  Congress has delegated to the Board the authority to interpret the National Labor Relations Act and to set national labor policy.¹⁵⁸  The Supreme Court has long recognized the Board’s authority to change national labor policy through adjudication by adopting alternate permissible interpretations of the Act.^[105]  Historically, the Board has modified policies through adjudication, including in cases in which the change in standard has not changed the result for the respondent in the case.^[106]   

Here, as explained in detail above, the General Counsel’s complaint allegations and the record squarely present the issue of the circumstances under which an employer’s refusal to bargain with a representative designated or selected for the purposes of collective bargaining by the majority of its employees in an appropriate unit violates Section 8(a)(5) and warrants a remedial bargaining order.  The Board clearly has authority to address this question in this case and put forward an alternative rationale in support of its finding that the Respondent violated Section 8(a)(5), even though, as we have found, the Respondent’s refusal to bargain in this case violated Section 8(a)(5) and requires a remedial bargaining order under either the old or the new standard.  The framework our colleague describes is not now, and never has been, the framework governing Board decision making.^[107] 

Our dissenting colleague further contends that the Supreme Court’s decision in Linden Lumber¹⁶² precludes judicial enforcement of bargaining orders issued under the new standard, and that we have provided no reasoned justification for overruling the Board’s decision in Linden Lumber.¹⁶³  These assertions fundamentally misapprehend both the several decisions in Linden Lumber and our decision today. 

To review, the Board initially held in Linden Lumber that an employer “should not be found guilty of a violation of Section 8(a)(5) solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election,” but rather, when faced with a request for bargaining by a union that may, in fact, have been designated representative by a majority of employees in an appropriate unit, could lawfully refuse either to bargain or to petition the Board for an RM election.¹⁶⁴  On review of the Board’s decision, the United States Court of Appeals for the District of Columbia Circuit concluded, based upon the relevant statutory language and legislative history, that “[t]hese statutory provisions plainly contemplate employer duty of recognition even in the absence of election, and give a safeguard to the employer who has doubts about majority status by assuring him the right to file his own petition for an election.”¹⁶⁵  The court thus found that the Board was statutorily foreclosed from excusing an employer entirely from either petitioning for an RM election or bargaining, upon request, with a union that had been designated representative by a majority of its employees in an appropriate unit under Section 9(a).  The court remanded the matter for the Board to articulate a standard to govern the conditions under which a bargaining obligation would attach absent an RM petition.¹⁶⁶ 

A five-Justice majority of the Supreme Court subsequently reversed the District of Columbia Circuit and sustained the Board’s holding based on the Court’s conclusion that “[i]n light of the statutory scheme and the practical administrative procedural questions involved, we cannot say that the Board’s decision that the union should go forward and ask for an election on the employer’s refusal to recognize the authorization cards was arbitrary and capricious or an abuse of discretion.”¹⁶⁷  In other words, the Court held that in adopting the policy established in Linden Lumber, the Board acted within its discretion—not that the policy was mandated by the Act.  Significantly, a four-Justice minority concluded that the Board’s policy at issue represented an impermissible interpretation of the Act, and would have affirmed the judgment of the court of appeals remanding the case to the Board.¹⁶⁸  The dissenting Justices examined the plain language of the Act and the legislative history of the Taft-Hartley amendments and concluded, consistent with our decision today, that, where an employer refuses, upon request, to bargain with a majority-supported union without taking any other action, “the Act clearly provides that the union may charge the employer with an unfair labor practice under [Section] 8(a)(5) for refusing to bargain collectively with the representatives of his employees[, and i]f the General Counsel issues a complaint and the Board determines that the union in fact represents a majority of the employees the Board must issue an order directing the employer to bargain with the union.”¹⁶⁹ 

Given the similarity between our interpretation of the Act today and that of the dissenting Justices in Linden Lumber, had the Court majority there meant to foreclose our reading, it surely would have said so.  But it did not.  Instead, it held only that the Board’s interpretation below was permissible.  For the policy reasons set forth extensively above, we select a different, permissible interpretation of the Act today.  We accordingly respectfully disagree with our colleague’s contention that Linden Lumber in any way forecloses our decision.

Next our colleague contends that we present no reasoned justification for “overruling Linden Lumber, shifting the burden to file a representation petition from the union to the employer, and finding an 8(a)(5) violation and imposing a bargaining order if the employer fails to file that petition.”  This contention misapprehends the import of our decision.  Contrary to our colleague, our decision places no burden on any employer beyond those imposed by the Act itself: to bargain collectively with a representative designated or selected by its employees pursuant to Sections 8(a)(5) and 9(a), and should it choose to petition for an election, to refrain from engaging in conduct that would interfere with that election.^[108]  As Justice Stewart explained in Linden Lumber, under the permissible alternative interpretation of the Act we adopt today, an employer is not in any way obliged to file an RM petition, but, if it neither files a petition nor voluntarily recognizes the union, it “must take the risk that [its] conduct will be found by the Board to constitute a violation of [its Section] 8(a)(5) duty to bargain.  In short, petitioning for an election is not an employer obligation; it is a device created by Congress for the employer’s self-protection, much as Congress gave unions the right to petition for elections to establish their majority status but deliberately chose not to require a union to seek an election before it could impose a bargaining obligation on an unwilling employer.”^[109]

Our colleague’s suggestion that overruling Linden Lumber necessarily depends on reinstituting some version of a “good-faith doubt” standard misses the mark for similar reasons.  Neither an employer’s statutory option to file an RM petition nor its duty to bargain with a representative designated or selected for that purpose by a majority of its employees turns on the employer’s subjective beliefs about a union’s majority status.  Thus, as we have explained above, an employer faced with a request for recognition may test the basis of a union’s claim to majority support in an appropriate unit—without examination of the employer’s beliefs about that claim—in a hearing pursuant to an RM petition.  Alternatively, should the employer refuse to bargain without filing an RM petition, and should the union file a charge alleging that the employer’s refusal violates Section 8(a)(5), the employer may test the basis of the union’s claim to majority status in a subsequent unfair labor practice proceeding—again without inquiry into the employer’s subjective beliefs about the union’s majority status.  However, as also explained above, an employer that chooses the latter route does so at its peril should the proceedings establish that the union was, in fact, the representative designated by a majority of employees in an appropriate unit at the time of the employer’s refusal to bargain.

The core of our dissenting colleague’s disagreement with the merits of our decision to overrule Linden Lumber is his contention that, in all but the most extreme circumstances, requiring an employer to bargain with a “card-majority union” runs counter to the policies of the Act because it deprives employees of their “right to vote in a secret-ballot election” and predictably risks forcing unions upon nonconsenting majorities of unit employees.  This contention cannot bear scrutiny in the light of the plain language of the Act and controlling Supreme Court precedent. 

To begin at the heart of the Act, the plain language of Section 7 guarantees employees the “right . . . to bargain collectively through representatives of their own choosing.”  29 U.S.C. § 157.  Section 9(a), in turn, defines a collective-bargaining representative as one “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes.”  Id. § 159(a). And Section 8(a)(5) provides that it is an unfair labor practice for an employer to refuse to bargain collectively with a representative its employees have designated or selected pursuant to Section 9(a).  Id. § 158(a)(5).  Accordingly, to the extent that the Act ensures, as our colleague asserts, a “right to vote in a secret-ballot election,” this right derives from, and is exercised in the service of, the statutory right to bargain collectively through a representative designated or selected for that purpose by a majority of the employees in an appropriate unit.  What our colleague calls a “cardmajority union” is simply a representative “designated,” within the plain meaning of the Act, by a majority of unit employees.  Thus, any true statement about a “cardmajority union” should also ring true if the phrase “cardmajority union” is replaced by the statutory phrase “representative designated for the purposes of collective bargaining by a majority of employees in an appropriate unit.”  But our dissenting colleague’s core contention cannot bear such a substitution:  No one could seriously argue that a Board bargaining order entered as a remedy for an employer’s refusal to bargain with the representative designated for that purpose by a majority of its employees in an appropriate unit frustrates the policies of the Act, deprives employees of a distinct “right to vote in a secret-ballot election,” or risks forcing a union on a nonconsenting majority of unit employees.^[110] 

The key to this apparent contradiction is that, based on our colleague’s partial dissent, he does not appear to accept that a “card-majority union” could be a representative freely designated for the purposes of collective bargaining by a majority of employees.  He expresses concern that workers who truly do not want to be represented may nevertheless sign cards designating a representative to avoid offending their coworkers, or because of “group pressures,” or because their employer has not yet had the opportunity to fully inform them of its views on the question of representation.  In these circumstances, he posits, employees’ freedom to choose for themselves is not a real freedom.

Our experience of labor relations and the administration of the Act suggests that our dissenting colleague exaggerates the inevitable impact of these concerns on the reliability of a union’s card-based showing of majority support.  But both our colleague’s instincts about this matter and our own are really beside the point, because, as extensively described in Section III of our decision above, the Supreme Court long ago authoritatively settled the issue as a matter of law.  The Gissel Court addressed the specific question of whether authorization cards are such inherently unreliable indicators of employee desire that they may not establish a union’s majority status and an enforceable bargaining obligation.^[111]  The Court expressly rejected the several contentions underlying our dissenting colleague’s position, that:

[A]s contrasted with the election procedure, the cards cannot accurately reflect an employee’s wishes, either because an employer has not had a chance to present his views and thus a chance to insure that the employee choice was an informed one, or because the choice was the result of group pressures and not individual decision made in the privacy of a voting booth; and . . . that quite apart from the election comparison, the cards are too often obtained through misrepresentation and coercion which compound the cards’ inherent inferiority to the election process.^[112]

The Court noted that “[t]he Board itself has recognized, and continues to do so here, that secret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support,” but concluded that “[t]he acknowledged superiority of the election process . . . does not mean that cards are thereby rendered totally invalid, for where an employer engages in conduct disruptive of the election process, cards may be the most effective—perhaps the only—way of assuring employee choice.”^[113]  The Court went on to hold that “[a]s for misrepresentation, in any specific case of alleged irregularity in the solicitation of the cards, the proper course is to apply the Board’s customary standards . . . and rule that there was no majority if the standards were not satisfied.  It does not follow that because there are some instances of irregularity, the cards can never be used; otherwise, an employer could put off his bargaining obligation indefinitely through continuing interference with elections.”^[114]

The standard that we announce today is fully consistent with the Gissel Court’s recognition that a free and fair election is the preferred method of ascertaining whether a union has majority support, as well as with its recognition that, where an employer engages in conduct disruptive of the election process, authorization cards or other nonelection evidence of majority status “may be the most effective—perhaps the only—way of assuring employee choice.”^[115]  Under this standard, an employer faced with a request for recognition is always free, without reference to its subjective belief about the validity of a union’s claim of majority status, to test the union’s claim by petitioning the Board for an RM election. Whether or not the employer chooses to petition for an election rather than recognizing the union, it is fully free, either after recognizing the union or prior to any election, consistent with Section 8(c), to express to its employees its views, arguments, or opinions on the question of representation, so long as such expressions contain no threat of reprisal or force or promise of benefit.  The employer is also fully free to contest the union’s claim by presenting evidence in a hearing conducted pursuant to Section 9(c)(1)(B) that the union’s showing of majority support is deficient because of irregularities in the procurement of cards or otherwise, or that the unit claimed by the union is inappropriate.^[116]  In those circumstances, employees will have a genuine opportunity “to register a free and untrammeled choice for or against a bargaining representative.”^[117]  What the employer is not free to do, however, is to “put off [its] bargaining obligation indefinitely through continuing interference with elections.”^[118]  If an employer, having petitioned for an election, proceeds to undermine the validity of that election as a showing of the true preferences of unit employees, the Board may, consistent with Gissel, rely on a prior nonelection showing such as authorization cards as “the most effective—perhaps the only—way of assuring employee choice.”^[119]  The authorities cited by our dissenting colleague affirming that elections are the “preferred” method of determining employees’ preference are based on a fundamental premise: that an election will be untainted by the employer’s unlawful misconduct.  As the Court in Gissel recognized, where that premise does not hold, elections may not adequately assure employee choice.

Because the new standard meets an employer’s interference with a free and fair election by imposing a bargaining order based on its employees’ objectively demonstrable current preferences, it properly focuses the analysis on the union’s current majority status, rather than depending—as under the prior standard—upon speculation about the impact of the employer’s coercive conduct on the free choices of some future contingent of employees.  In this way, the new standard safeguards the freely expressed choice of a majority of current employees while minimizing the risk of imposing a union on a future majority whose support for the union has predictably eroded or been undermined during delays caused by the employer’s unlawful conduct.^[120] By guarding against interference with employee free choice both at the time of card solicitation and in the runup to an election, the standard announced today thus preserves, rather than undermines employees’ fundamental statutory right to bargain collectively through representatives of their own choosing.

Our dissenting colleague further contends that our decision today is unenforceable in the federal courts of appeals because it contemplates that bargaining orders may issue based on employer misconduct that the Gissel Court held would not sustain a bargaining order.  This is incorrect, because bargaining orders under the new standard rest upon a fundamentally different rationale than those under Gissel. 

The Court in Gissel held that the Board should issue a bargaining order if it concluded (1) that a future reliable election could not be held because of an employer’s “outrageous” and “pervasive” conduct whose impact could not be eliminated by the Board’s traditional remedies; or (2) that the possibility of conducting a future reliable election was slight because of the continuing impact of an employer’s “less pervasive” misconduct; but that a third category (3) of “minor or less extensive unfair labor practices,” would not sustain a bargaining order because they would not prevent the Board’s traditional remedies from assuring a free and fair election at some undefined future date.^[121]  As discussed above, the Board and reviewing courts of appeals have regularly reached different conclusions about the likely impact of employers’ unlawful conduct and the Board’s traditional remedies upon employees’ ability to exercise free choice in an election at an undefined future date—that is, whether particular misconduct supports a bargaining order under the Gissel framework’s first or second categories, or falls short, in the third category.  The inability of the Board and the courts to reach common ground on the line between conduct that will or will not sustain a bargaining order under the forward-looking Gissel framework has had the predictable, and unfortunate, result that Board bargaining orders in individual cases become increasingly less likely to issue or be enforced the longer litigation over unfair labor practices persists, creating obvious perverse incentives to prolong litigation, as discussed above.^[122]The standard we adopt today addresses this persistent problem by replacing the Gissel standard’s necessary speculation about the likely continuing impact of an employer’s misconduct over some unpredictable span of time with an appropriate focus on the best currently existing objective evidence of a union’s current majority status.  Thus, as described above, the Board may find a current bargaining obligation based on nonelection evidence where an employer’s misconduct has rendered a recent or pending election a less reliable indicator of current employee sentiment.^[123]  Contrary to our dissenting colleague, then, a bargaining order under the new standard could not issue as a remedy for such “minor or less extensive unfair labor practices” as the Court found would not sustain a bargaining order under the Gissel rationale, but only as a remedy for an employer’s violation of Section 8(a)(5) by refusal to bargain with a union whose status as a current majority-designated bargaining representative—within the plain meaning of Section 9(a)—has been established by the most reliable available means. 

Our dissenting colleague relatedly contends that, under the standard announced today, in combination with the Board’s recent revision to its framework for evaluating the lawfulness of employer work rules in Stericycle, Inc., 372 NLRB No. 113 (2023), “it is virtually impossible for an employer not to commit a critical-period unfair labor practice that would require setting aside the results of an election, which means it is virtually impossible for an employer’s RM petition not to be dismissed, for the employer not to be found to have violated Section 8(a)(5), and for a bargaining order not to issue.”  Again, we respectfully disagree.  First, our colleague’s conclusion depends upon an attenuated chain of speculative and exaggerated suppositions about how the Board will apply this and other standards going forward.  Our colleague’s speculation is without basis in this or any other Board decision.^[124]  Unlike our colleague, we do not doubt employers’ ability to refrain from unlawful conduct—most manage to do so most of the time.  Moreover, while it is true that our standard provides for a bargaining order to remedy an employer’s refusal to bargain with a union that has been designated representative by a majority of its employees in an appropriate unit while committing unfair labor practices that would require setting aside an election, it does not, contrary to our colleague, require a bargaining order as “the first and only option” whenever an employer commits any unfair labor practice during the critical period prior to an election, no matter how attenuated the impact of the employer’s conduct upon the validity of the election.^[125]

Rather, as we have explained, the new standard, consistent with Gissel, appropriately focuses on the question of whether an employer’s unlawful coercive misconduct has so undermined the reliability of the election as an indicator of employees’ free choice that a prior nonelection showing becomes the more reliable indicator.  As also explained above, the applicable standard does not require concluding that any unfair-labor-practice conduct at all is disruptive of the election process, but rather requires consideration of all relevant factors, including the number of violations, their severity, the extent of dissemination, the size of the unit, the closeness of the election (if one is held), the proximity of the misconduct to the election date, and the number of unit employees affected.^[126]   

Finally, our dissenting colleague contends that we err by applying our new standard retroactively to the Respondent in this case.  We respectfully disagree. As discussed above, in considering the propriety of applying a new rule retroactively to the parties in the case in which it is announced and to parties in other cases pending at that time, the Board evaluates whether such application would cause a “manifest injustice” because of “the reliance of the parties on preexisting law, the effect of retroactivity on accomplishment of the purposes of the Act, and any particular injustice arising from retroactive application.”¹⁸⁹ 

Our dissenting colleague first contends that reliance interests overwhelmingly oppose retroactive application because under Linden Lumber and Gissel, employers could “confidently refuse demands for recognition” by representatives designated by a majority of their employees, and federal courts of appeals would hold the Board to a “demanding standard,” before enforcing a Boardissued bargaining order.  However, as we have discussed in detail above, the Respondent’s conduct in this case fully supports our conclusion that its refusal to bargain, upon request, with the Union, in the context of its numerous other serious violations of the Act, violated Section 8(a)(5) and warrants a remedial bargaining order under either the old or the new standard.  While our new standard would likely also result in finding a violation of Section 8(a)(5) based on a lesser volume and seriousness of accompanying violations of Section 8(a)(1) and (3), the standards governing our findings of those violations have not changed, and we cannot recognize any claim by the Respondent to a legitimate reliance interest under the old standard on an expectation of being able to engage in some degree of unlawful conduct without triggering a bargaining order. 

Our colleague next contends that retroactivity does not further the purposes of the Act because our new standard will predictably result in unions being imposed on nonconsenting majorities, which is inimical to the purposes of the Act.  To the contrary, as we have explained in detail above, our new standard furthers the purposes of the Act by minimizing the risk of imposing representation on a nonconsenting majority of unit employees because it only permits the issuance of a bargaining order based on the best available evidence of a union’s current majority support.  In particular, as explained in detail above, we have concluded, after careful consideration of all of the circumstances of this case, that an affirmative bargaining order is warranted and furthers the Act’s purposes of safeguarding employees’ Section 7 rights and encouraging the practice and procedure of collective bargaining under either the old or the new standard.

Finally, our colleague speculates that retroactive application may inflict particular injustice upon employers in other pending cases who, unlike the Respondent here, would not have been found to have violated Section 8(a)(5) under the old standard, but would be found to have done so under the new standard.  This argument poses no impediment to the retroactive application of the new standard to the Respondent in this case, and we decline to speculate upon how the Board will resolve any specific claims of particular injustice that may arise in future cases.

AMENDED CONCLUSIONS OF LAW

1. Cemex Construction Materials Pacific, LLC (the Respondent) is an employer engaged in commerce within

the meaning of Section 2(2), (6), and (7) of the Act.

2. International Brotherhood of Teamsters (the Union) is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Actby:

• Threatening employees, on multiple occasions, with discharge, replacement, loss of work hours, work opportunities, benefits, and training opportunities, discontinuation of past favors, and other unspecified reprisals if they select the Union as their bargaining representative or engage in union activities.
• Instructing employees not to speak with union representatives or otherwise not to engage in activities on behalf of the Union.
• Threatening employees with discharge by inviting them to quit if they wanted to be represented by the Union.
• Threatening employees by telling them that the Respondent would close plants or relocate operations if employees chose union representation.
• Interrogating employees on multiple occasions about their union membership, activities, and sympathies.
• Creating the impression that it was engaged in surveillance of its employees’ union activities.
• Placing employees under surveillance while they engaged in union activities.
• Threatening employees with plant closure by telling them that, even if they unionized, the Respondent would retain the right to convert plants to “satellite” status at any time.
• Threatening employees with discharge for engaging in protected strike activity by misrepresenting striker reinstatement rights.
• Blaming the Union for delayed wage increases.
• Threatening employees by implying that wage increases would be delayed indefinitely if they selected union representation.
• Promulgating on overly broad directive not to talk with union representatives while on “company time” or “during working hours.”
• Disciplining Diana Ornelas, pursuant to an overly broad directive not to talk with union representatives on “company time” or “during working hours,” for talking with union representatives during nonworking time.
• Promising benefits to an employee if they opposed the Union or voted against representation.
• Hiring security guards to intimidate union supporters immediately before the election.
• Threatening to investigate an employee because of their union activity.

4. The Respondent violated Section 8(a)(3) and (1) of the Act by:

• Suspending Diana Ornelas on July 10, 2019, because of her union activity.
• Discharging Diana Ornelas on September 6, 2019, because of her union activity.

5. The Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain collectively with the Union as the exclusive bargaining representative of the employees in the following appropriate unit, while engaging in the conduct described above that undermined the Union’s support and prevented a fair rerun election:

INCLUDED:  All full-time and regular part-time ready-mix drivers, plant operators II who regularly operate ready-mix trucks, and driver trainers employed by CEMEX Construction Materials Pacific, LLC at its ready-mix facilities in Southern California and Southern Nevada, including its plants in Las Vegas, Nevada and Compton, Corona, Escondido, Fontana, Hollywood, Irvine, Inglewood, Los Angeles, Moorpark, Oceanside, Orange, Oxnard, Perris, Rialto, Redlands, San Diego, San Juan Capistrano, Santa Barbara, Santa Paula, Simi Valley, Temecula, and Walnut, California.

EXCLUDED:  All plant foremen, batchmen, dispatchers, yardmen, senior driver trainers/safety champions, fleet mechanics (I and II), plant maintenance (I and II), quality control representatives, office clerical employees, professional employees, guards and supervisors as defined by the Act.

6. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act.

AMENDED REMEDY

Having found that the Respondent engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act.  Specifically, we amend the judge’s remedy in the following respects.

In addition to the provisions set forth in the judge’s recommended remedy, in accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), the Respondent shall also compensate Diana Ornelas for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful suspension and discharge, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings.  Compensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to recognize and bargain collectively with the Union as the exclusive bargaining representative of its employees in an appropriate bargaining unit, while engaging in the conduct described above that undermined the Union’s support and prevented a fair rerun election, we shall order the Respondent to meet with the Union on request and bargain in good faith concerning the terms and conditions of employment of the bargaining unit employees, and, if an agreement is reached, embody such agreement in a signed contract.

The Board has held that where a union has not made a demand for recognition, a respondent will be ordered to bargain with the union retroactively as of the date on which the respondent initiated its campaign of unfair labor practices if, as of that date the union had obtained majority status in the bargaining unit.¹⁹⁰  Alternatively, where a respondent has denied a union’s majoritysupported request for recognition, the Board has ordered the respondent to bargain with the union as of the date of the respondent’s denial of recognition.¹⁹¹  Here, as noted above, the Respondent stipulated on December 13, 2018, that it declined to recognize the Union’s claim to represent its employees in an appropriate unit.  While the Respondent’s earliest unfair labor practices in this case began before the union had achieved majority status, the bulk of its misconduct took place after it had rejected the Union’s claim to represent its employees.  Accordingly, we find that, consistent with precedent, the Respondent’s bargaining obligation should attach as of December 13, 2018, the date of the Respondent’s denial of the Union’s majority-supported claim to recognition.

Because we have determined that a bargaining order, rather than a second election, is warranted, we shall delete certain remedial provisions recommended by the judge (provisions (b), (c), (d), (e), and (f) of the judge’s recommended remedy) designed to enhance the Union’s access to unit employees prior to a second election.¹⁹²

ORDER

The Respondent, Cemex Construction Materials Pacific, LLC, Southern California and Las Vegas, Nevada, its officers, agents, successor, and assigns, shall

1. Cease and desist from

(a)  Threatening employees with discharge, replacement, loss of work hours, work opportunities, benefits, or training opportunities, discontinuation of past favors, or other reprisals if they select International Brotherhood of Teamsters (the Union) as their bargaining representative or engage in union activities.

• Instructing employees not to speak with union representatives or otherwise not to engage in activities on behalf of the Union.
• Threatening employees with discharge by inviting them to quit if they want to be represented by the Union.
• Threatening employees by telling them that the Respondent would close plants or relocate operations if employees choose union representation.
• Interrogating employees about their union membership, activities, and sympathies.
• Creating the impression that it is engaged in surveillance of its employees’ union activities.
• Placing employees under surveillance while they engage in union activities.
• Threatening employees with plant closure by telling them that, even if they unionize, the Respondent will retain the right to convert plants to “satellite” status at any time.
• Threatening employees with discharge for engaging in protected strike activity by misrepresenting striker reinstatement rights.
• Blaming the Union for delayed wage increases.
• Threatening employees by implying that wage increases will be delayed indefinitely if they select union representation.
• Promulgating overly broad directives not to talk to union representatives while on “company time” or “during working hours.”
• Disciplining employees pursuant to an overly broad directive not to talk with union representatives on “company time” or “during working hours,” or for talking with union representatives during nonworking time. (n) Promising benefits to employees if they oppose the Union or vote against representation.
• Hiring security guards to intimidate union supporters.
• Threatening to investigate employees because of their union activity.
• Discharging, suspending, or otherwise disciplining or discriminating against employees because of their support for and activities on behalf of the Union or any other labor organization.
• Failing and refusing to recognize to recognize and bargain with the Union as the exclusive collectivebargaining representative of the employees in the bargaining unit.
• In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

2. Take the following affirmative actions necessary to effectuate the policies of the Act.

• Within 14 days from the date of this Order, offer Diana Ornelas full reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.
• Make Diana Ornelas whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the judge’s decision as amended in this decision.
• Compensate Diana Ornelas for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 28, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year.
• File with the Regional Director for Region 28, within 21 days of the date the among of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Diana Ornelas’s corresponding W-2 form reflecting the backpay award.
• Within 14 days of the date of this Order, remove from its files any reference to the unlawful discharge, suspension, and warning of Diana Ornelas and within 3 days thereafter, notify her that this has been done and that the discharge, suspension, and warning will not be used against her in any way.
• On request, bargain with the Union as the exclusive collective-bargaining representative of the employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:

INCLUDED:  All full-time and regular part-time ready-mix drivers, plant operators II who regularly operate ready-mix trucks, and driver trainers employed by CEMEX Construction Materials Pacific, LLC at its ready-mix facilities in Southern California and Southern Nevada, including its plants in Las Vegas, Nevada and Compton, Corona, Escondido, Fontana, Hollywood, Irvine, Inglewood, Los Angeles, Moorpark, Oceanside, Orange, Oxnard, Perris, Rialto, Redlands, San Diego, San Juan Capistrano, Santa Barbara, Santa Paula, Simi Valley, Temecula, and Walnut, California.

EXCLUDED:  All plant foremen, batchmen, dispatchers, yardmen, senior driver trainers/safety champions, fleet mechanics (I and II), plant maintenance (I and II), quality control representatives, office clerical employees, professional employees, guards and supervisors as defined by the Act.

• Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
• Post at its Southern California and Las Vegas, Nevada, facilities copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted.  In addition to physical 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 Respondent customarily communicates with its employees by such means.  Reasonable steps shall be taken by the Respondent 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, a copy of the notice to all current employees and former employees employed by the Respondent at any time since August 2018.^[127]
• Hold a meeting or meetings during worktime at its facilities in Southern California and Las Vegas, Nevada, scheduled to ensure the widest possible attendance of bargaining unit employees, at which the attached Notice to Employees marked “Appendix” will be read to employees by a high-ranking responsible management official of the Respondent in the presence of a Board Agent and, if the Union so desires, a Union representative, or, at the Respondent’s option, by a Board agent in the presence of a high-ranking responsible management official of the Respondent and, if the Union so desires, a Union representative.
• Within 21 days after service by the Region, file with the Regional Director for Region 28 a sworn certification 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 election in Case 28– RC–232059 is set aside.

Dated, Washington, D.C.  August 25, 2023

______________________________________

         Lauren McFerran,                              Chairman

______________________________________

Marvin E. Kaplan,                              Member

________________________________________

Gwynne A. Wilcox,                            Member

________________________________________

David M. Prouty,                              Member

(SEAL)            NATIONAL LABOR RELATIONS BOARD

MEMBER KAPLAN, dissenting in part.

[Member Kaplan's dissent from the decision to overrule Linden Lumber is omitted.]

Dicta is language in an opinion “that is unnecessary to the decision in the case and therefore not precedential.”^[128]  Here, what would otherwise be the most consequential part of my colleagues’ decision is unquestionably dicta; it concerns facts that are neither present in the case before us nor necessary in order to decide the case before us.

In Section III of their decision, the majority purports to hold that the commission of just one critical-period^[129] violation of Section 8(a)(1) or (3) may result in an order requiring the employer to recognize and bargain with a card-majority union.  Indeed, they would hold that an employer may be ordered to bargain with a card-majority union without having committed any violation of Section 8(a)(1) or (3) at all.  But the Respondent in this case did not commit zero unfair labor practices or just one.  My colleagues find that it committed no fewer than 28 unfair labor practices.  More specifically, they find that the Respondent made thirteen unlawful threats, issued three coercive instructions, conducted three coercive interrogations, and committed one instance each of the following:  surveilling employees’ union activities, creating an impression that employees’ union activities were under surveillance, blaming the Union for the withholding of a wage increase, promising an employee a benefit in exchange for his “no” vote in the election, posting security guards at its facilities in the runup to the election, promulgating an overly broad directive not to talk to union representatives on “company time,” disciplining an employee for talking to union representatives on “company time,” unlawfully suspending that employee, and unlawfully discharging that employee.  Based on these unfair labor practice findings and their further finding that the Respondent “would likely meet a renewed union campaign with further misconduct,” my colleagues issue, among other remedies, an affirmative bargaining order pursuant to NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

As detailed above in my several footnote dissents, I disagree with some of the majority’s unfair labor practice findings.  And as I will explain below, I also disagree with their decision to issue a Gissel bargaining order because changed circumstances since the unfair labor practices were committed render a bargaining order inappropriate and unenforceable.  But for present purposes, these differences between my position and my colleagues’ are beside the point.

After finding that the Respondent committed 28 unfair labor practices, and after concluding that a bargaining order is warranted under Gissel, the majority adds a further section to their decision—Section III—in which they announce dramatic changes in Board law.  They purport to overrule Linden Lumber, a decision upheld by the Supreme Court that has been the governing precedent for 52 years.  That case holds that when a union requests voluntary recognition as the bargaining representative of a unit of employees, the employer may lawfully decline the request, and it is up to the union to take the next step by filing a petition for a Board-conducted election.^[130]  Instead of following that precedent, however, my colleagues declare that an employer presented with a request for recognition from a card-majority union must either grant the request or “promptly” file an election petition under Section 9(c)(1)(B), i.e., an RM petition, and that if the employer fails to do one or the other, its employees will lose the right to vote in a secret-ballot election, and the employer will be found to have violated Section 8(a)(5) and will be ordered to recognize and bargain with the union.  They further say that even if the employer promptly files an RM petition, the petition will be dismissed, the employees will lose the right to vote in a secret-ballot election, and the employer will be found to have violated Section 8(a)(5) and ordered to recognize and bargain with the union if it commits a critical-period violation of Section 8(a)(1) or (3)—just one is all it takes—that would warrant setting aside the results of an election.^[131] 

None of these purported departures from long-standing precedent makes the slightest difference to any of the majority’s unfair labor practice findings, and none of them affects the remedy and order in any way.  Indeed, my colleagues concede as much.  They acknowledge that “the application of the revised standard in this case results in neither finding any additional violation of the Act nor any additional remedial obligation,” and they admit that “the same violation and remedy would lie under either the prior standard or the standard [they] announce today.” 

More importantly, none of the changes in Board law set forth in Section III of the majority’s opinion is necessary to the decision in this case insofar as Section III attempts to address scenarios involving facts not present in this case.^[132]  Specifically, because this case involves a Respondent that, as they have found, committed numerous unfair labor practices, the majority's musings regarding what the law should be in cases where respondents have not committed numerous unfair labor practices is unquestionably dicta, devoid of precedential effect.^[133] 

Nevertheless, my colleagues take the position that the standards they announce here are not dicta.  As already discussed, I do not believe that there is any merit in that position.^[134]  Given the fact that my colleagues have chosen to reach beyond the parameters of this case to address these issues, however, I harbor little hope that they will acknowledge that Section III of their decision is dicta.  Instead, the majority clearly believes that they have changed Board law, and it is equally clear that they intend to apply their new standards to pending and future cases that do present the issue of what standard should apply where the employer has committed no or only one unfair labor practice.  For these reasons, and because the changes my colleagues are making are deeply flawed, I will address their purported changes in Board law as if they did have precedential effect.  Treated as such, the

a hypothetical question may afford it little or no adversarial testing.”  Agreeing with this sentiment, my colleagues have recently recognized that dicta purportedly changing precedent should be disregarded when it concerns facts not before the Board.  See American Steel Construction, Inc., 372 NLRB No. 23, slip op. at 13 fn. 89 (2022) (“PCC Structurals did not involve a unit at a nonacute healthcare facility, and accordingly, we view PCC Structurals’ reinstatement of Park Manor as dicta not binding on the Board.”). 

standards my colleagues announce today are unsound as a matter of policy and unenforceable as a matter of law.

For all these reasons, I respectfully dissent from my colleagues’ decision to engage in this exercise in futility.

1. The majority’s new standard undermines employees’ statutory rights.

The changes my colleagues either propose (my view) or implement (their view) will predictably result in many more card-based bargaining orders and far fewer representation elections.  Indeed, under the majority’s new standard, where the results of an election are set aside based on unfair labor practices, there is no longer any such thing as a rerun election.  As I will show, the new standard conflicts with Supreme Court and circuit court precedent, and my colleagues fail to articulate a persuasive reasoned analysis—or, with respect to the first step of their standard, any reasoned analysis—in support of making these changes in Board law.  First, however, it is important to remind ourselves that, whatever interests the majority seeks to advance in the instant case, it is the rights of employees that Congress placed at the heart of the Act, and those rights are better served by Boardconducted secret-ballot elections than by unionauthorization cards.   

“One of the principal protections of the NLRA is the right of employees to bargain collectively through representatives of their own choosing or to refrain from such activity.”  Skyline Distributors v. NLRB, 99 F.3d 403, 411 (D.C. Cir. 1996).  These rights are protected by Section 7 of the Act; Section 9, in turn, “guarantees employees freedom of choice and majority rule.”  International Ladies’ Garment Workers’ Union v. NLRB (BernhardAltmann), 366 U.S. 731, 737 (1961).  Although it is not the exclusive means of ascertaining the will of the majority, the method that best protects employees’ freedom of choice and best ensures majority rule is a Boardconducted, secret-ballot election.  The Supreme Court recognized as much in NLRB v. Gissel Packing.  See 395 U.S. at 602 (“[S]ecret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.”); id. at 603 (recognizing that union-authorization cards are “admittedly inferior to the election process”).  Moreover, although Congress, in 1947, decided not to do away with card-based recognition altogether, it expressed a policy

in favor of Board-conducted elections by incentivizing unions to choose that option by reserving certain benefits for unions that “survive[] the crucible of a secret ballot election.”  Id. at 598.⁸

⁸ These benefits include “protection against the filing of new election petitions by rival unions or employees seeking decertification for

One reason union-authorization cards are inferior to a secret-ballot election is that signing an authorization card is an observable and, often, an observed act, and employees may sign a union card not because they want the union as their bargaining representative but because they feel pressured by their coworkers to sign.  Courts have cited the public nature of card signing as a reason why authorization cards provide a less reliable means of ascertaining the will of employees than a secret-ballot election.  See NLRB v. Village IX, Inc., 723 F.2d 1360, 1371 (7th Cir. 1983) (“Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing (except that if enough workers sign, the employer may decide to recognize the union without an election).”); NLRB v. Cayuga Crushed Stone, Inc., 474 F.2d 1380, 1383 (2d Cir. 1973) (“There is no doubt but that an election supervised by the Board which is conducted secretly and presumably after the employees have had the opportunity for thoughtful consideration, provides a more reliable basis for determining employee sentiment than an informal card designation procedure where group pressures may induce an otherwise recalcitrant employee, to go along with his fellow workers.”).

Relying on union-authorization cards rather than a Board-conducted election to ascertain the will of the majority also runs the risk that employees will make a less than fully informed choice.  The Board has long recognized the importance of ensuring that employees have “an effective opportunity to hear the arguments concerning representation.”  Excelsior Underwear Inc., 156 NLRB 1236, 1240 (1966).  In Excelsior, the Board observed that among the factors “that prevent or impede a free and reasoned choice” is “a lack of information with respect to one of the choices available. . . . [A]n employee who has had an effective opportunity to hear the arguments concerning representation is in a better position to make a more fully informed and reasonable choice.”  Id.  However, a card-signing campaign may be conducted outside an employer’s awareness.  Where that is the case, it is less likely that employees will have the opportunity to learn of, and consider, arguments against representation.  Under those circumstances, employees’ free-

12 months ([§ 9(c)(3)]), protection for a reasonable period, usually 1 year, against any disruption of the bargaining relationship because of claims that the union no longer represents a majority

(see Brooks v. NLRB, 348 U.S. 96 (1954)), protection against recognitional picketing by rival unions ([§ 8(b)(4)(C)]), and freedom from the

restrictions placed in work assignments disputes by [§ 8(b)(4)(D)], and on recognitional and organizational picketing by [§ 8(b)(7)].”  Id. at 599.

dom to choose for themselves whether or not to be represented by a union will not be a real freedom, but rather a circumscribed freedom based on partial information.

Empirical studies further support the conclusion that union-authorization cards provide an inferior means of determining the will of the majority compared to Boardconducted secret-ballot elections.  One study, cited by the Court of Appeals for the Seventh Circuit, found that “even where the union had authorization cards from between 50 and 70 percent of the employees, it won only 48 percent of the elections.”  NLRB v. Village IX, Inc., 723 F.2d at 1371.  Significantly, the circuit court also cited a second study finding that “18 percent of those signing authorization cards did not want union representation at the time they signed.”  Id.

For all these reasons, courts have emphasized that means other than a secret-ballot election for determining employees’ wishes regarding representation carry a risk of forcing unionization on a nonconsenting majority.  See, e.g., Skyline Distributors v. NLRB, 99 F.3d at 411 (observing that “courts have been strict in requiring the Board to justify Gissel bargaining orders . . . because employees lose the final say over whether to endorse or reject unionization with the issuance of a bargaining order,” and that the right to have that final say by means of a secret-ballot election “is a core right under the NLRA”); NLRB v. Marion Rohr Corp., 714 F.2d 228, 230 (2d Cir. 1983) (“This preference [for an election] reflects the important policy that employees not have union representation forced upon them when, by exercise of their free will, they might choose otherwise.”); Rapid Manufacturing Co. v. NLRB, 612 F.2d 144, 150 (3d Cir. 1979) (“[T]he large scale disenfranchisement which would flow from the indiscriminate and ready imposition of bargaining orders would be in express contradiction to the preference for elections which inheres in our labor law.”).

Because the right to vote by secret ballot in a representation election is at the very heart of workplace democracy, and a secret-ballot election is the best means of determining the will of the majority, the Board has emphasized, repeatedly and for decades, that when an employer’s unfair labor practices require the results of an election to be set aside, the “preferred route is to provide traditional remedies for the unfair labor practices and to hold an election, once the atmosphere has been cleansed by those remedies.”  Aqua Cool, 332 NLRB 95, 97 (2000); accord Intermet Stevensville, 350 NLRB 1349,

1359 (2007); Hialeah Hospital, 343 NLRB 391, 395 (2004); see also EMR Photoelectric, 273 NLRB 256, 257 (1984) (Before issuing a bargaining order, the Board must consider “the principle that generally a secret-ballot Board-conducted election is the preferred method of ascertaining employee choice.”).  The Board has consistently held that a bargaining order is “to be used only in circumstances where it is unlikely that the atmosphere can be cleansed by traditional remedies.”  Aqua Cool, 332 NLRB at 97.  The courts agree.  See, e.g., Novelis Corp. v. NLRB, 885 F.3d 100, 108 (2d Cir. 2018) (“We have recognized the superiority of, and our preference for, secret ballot elections over bargaining orders.”); St.

Agnes Medical Center v. NLRB, 871 F.2d 137, 147 (D.C. Cir. 1989) (“A bargaining order is an extreme remedy that is only appropriate . . . if a fair rerun election cannot be held.”). In sum, the Board and the courts have long regarded the bargaining order as a disfavored and last option.

Under my colleagues’ purported new standard, however, when a union has a card majority and the employer commits a critical-period unfair labor practice that would require the results of an election to be set aside, a bargaining order is the first and only option. If the election has not yet been held, it will not be held; if it has, there will be no rerun election.  Instead, the Board will issue bargaining orders in all such cases, based on less reliable methods of ascertaining employees’ wishes, depriving employees of a final say in a secret-ballot election and increasing the likelihood that union representation will be forced on employees against the will of the unit majority.  The new standard will thus have “the primary effect of negating the rights of current employees rather than furthering them” and therefore “defeats, rather than effectuates, the policies of the [Act].”  NLRB v. Ship Shape Maintenance Co., 474 F.2d 434, 443 (D.C. Cir. 1972).^[135]

1. Step one of the majority’s new standard conflicts with the Supreme Court’s decision in Linden Lumber v. NLRB.

With these overarching principles in mind, I turn now to a more focused analysis of the specific changes the majority would make in Board law.  At the first step of their new standard, they overrule Linden Lumber and require that an employer presented with a request for recognition from a card-majority union either grant the request or promptly file an RM petition.  If it fails to do one or the other, it will be found to have violated Section 8(a)(5) of the Act and ordered to recognize and bargain.   

In Linden Lumber, the Board held that an employer does not violate Section 8(a)(5) of the Act “solely upon the basis of its refusal to accept evidence of majority status other than the results of a Board election.”  190 NLRB at 721.  As the Supreme Court observed, implicit in this holding was the proposition that an employer that refuses to recognize a card-majority union has no duty to file an RM petition.  See Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S. 301, 310 (1974) (sustaining the Board’s holding that “a union with authorization cards purporting to represent a majority of the employees, which is refused recognition, has the burden of taking the next step in invoking the Board's election procedure”). 

Obviously, Linden Lumber stands in the way of the changes in Board law my colleagues purport to announce in Section III of their opinion.  To make those changes, then, the majority must overrule Linden Lumber.  But any attempt to do so must confront the fact that the Supreme Court upheld the Board’s decision.  It did so over the contrary decision of the District of Columbia Circuit, in which the circuit court held—as my colleagues purport to hold today—that an employer that refuses a request for recognition from a card-majority union must file an RM petition.  See Truck Drivers Union Local No. 413 v.

NLRB, 487 F.2d 1099, 1111 (D.C. Cir. 1973) (“[W]hile

. . . cards alone . . . do not necessarily provide such convincing evidence of majority support so as to require a bargaining order, they certainly create a sufficient probability of majority support as to require the employer . . . to resolve the possibility through a petition for an election . . . .”) (internal quotation marks omitted).  The Supreme Court considered the reasons the D.C. Circuit advanced for its holding and rejected them.  See Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S. at 307–309 (finding, contrary to the D.C. Circuit, that the

See National Nurses Organizing Committee-Texas/National Nurses United, 371 NLRB No. 132 (2022) (holding that union lawfully refused to give employee a copy of its secret neutrality agreement with employer).

legislative history of Taft-Hartley does not support putting the onus on the employer to file an RM petition, and disagreeing with the circuit court’s belief that requiring the employer to file an election petition would promote efficiency by narrowing “the litigable issues”).

My colleagues say that certain language in the Supreme Court’s opinion demonstrates that the Board’s decision in Linden Lumber “represents a permissible, but not mandatory, construction of the Act.”  I do not dispute the point, but that is not the end of the matter.  Even if the holding of Linden Lumber is not statutorily compelled, the Supreme Court sustained that holding on its merits.  Moreover, in doing so, the Court had before it the contrary holding of the D.C. Circuit, which was all but identical to the first step of the standard my colleagues announce today—i.e., that an employer violates Section 8(a)(5) if it refuses to recognize a card-majority union without filing an RM petition—and which the Supreme Court rejected.  The Court majority also had before it the opinion of the justices in the minority that the Board’s decision in Linden Lumber represented an impermissible interpretation of the Act, and the Court rejected that position as well. Accordingly, the first step of the majority’s standard conflicts with Supreme Court precedent, and decisions and orders that rest on the application of that step must remain unenforceable unless and until the Supreme Court overrules its decision in Linden Lumber v. NLRB.^[136]

1. The majority fails to provide a reasoned explanation for step one of its new standard.

Assuming arguendo that the Board’s decision in Linden Lumber “represents a permissible, but not mandatory, construction of the Act,” and even if the Supreme Court’s decision in that case does not preclude step one of the new standard, the majority still must provide a reasoned explanation for overruling Linden Lumber and implementing that first step.  See, e.g., Auto Workers

Local 1384 v. NLRB, 756 F.2d 482, 492 (7th Cir. 1985)

(stating that the Board is “free to change its mind on matters of law that are within its competence to determine, provided it gives a reasoned analysis in support of the change”) (citing Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983)).  The majority has not done so.

It is not merely that my colleagues provide an unpersuasive justification for step one of their new standard.  Rather, they provide no reasoned justification for overruling Linden Lumber, shifting the burden to file a representation petition from the union to the employer, and finding an 8(a)(5) violation and imposing a bargaining order if the employer fails to file that petition and to do so “promptly.”^[137]  They cite judicial decisions holding that the Board’s remedial power “is a broad discretionary one,” NLRB v. J. H. Rutter-Rex Manufacturing, 396 U.S. 258, 262–263 (1969), and that the Board acts at the “zenith of its discretion” when fashioning remedies, Fallbrook Hospital Corp. v. NLRB, 785 F.3d 729, 738 (D.C. Cir. 2015).  As I explain below, my colleagues have mistaken the extent of the Board’s remedial discretion.  But even if they have not, simply invoking the Board’s discretionary power to alter its remedial scheme fails to explain why the majority has decided to exercise this power by overruling Linden Lumber and adopting step one of their new standard.  In addition, overruling Linden Lumber and implementing step one is not solely, or even primarily, a remedial matter.  By doing so, the majority makes conduct that was lawful under Linden Lumber—refusing a request for recognition from a cardmajority union without filing an RM petition—into a violation of Section 8(a)(5).  Naturally, that violation has remedial consequences, but the Board’s discretion in remedial matters has no bearing whatsoever on their decision to create the violation in the first place. 

Aside from invoking the breadth of the Board’s remedial discretion, the only so-called explanation the majority provides for overruling Linden Lumber is a conclusory finding that “the current scheme for remedying unlawful failures to recognize and bargain with employees’ designated bargaining representatives is inadequate to safeguard the fundamental right to organize and bargain collectively that our statute enshrines.”  But the eloquence of this language cannot conceal the fact that the majority has not explained why the employer must file the petition rather than the union.

This is not surprising.  Placing the burden on the em-

ployer to file the representation petition is logically linked to the “good-faith doubt” standard of Joy Silk,^[138]which the majority does not reinstate.  In Joy Silk, the Board simply took it for granted that when an employer refuses a request for recognition based on good-faith doubt of the union’s majority status, it is incumbent on the employer to resolve its doubt by petitioning for an election under Section 9(c)(1)(B).  Similarly, the Linden Lumber Board assumed that placing the onus on the employer to file the election petition only made sense in light of Joy Silk’s good-faith doubt standard.  This is apparent from the fact that the only explanation the Linden Lumber Board gave for holding that employers incur no duty to file an RM petition by refusing a request for recognition was that it was declining “to reenter the ‘good faith’ thicket of Joy Silk.”  190 NLRB at 721.  The Court of Appeals for the District of Columbia Circuit also recognized the linkage between the good-faith doubt standard and the duty to file an RM petition.  In reversing the Board’s decision and order in Linden Lumber, the circuit court explained that

[w]hile we have indicated that cards alone . . . do not necessarily provide such "convincing evidence of majority support" so as to require a bargaining order, they certainly create a sufficient probability of majority support as to require an employer asserting a doubt of majority status to resolve the possibility through a petition for an election, if he is to avoid both any duty to bargain and any inquiry into the actuality of his doubt.

Truck Drivers Union v. NLRB, 487 F.2d at 1111 (emphasis added).

My colleagues, however, do not reinstate the goodfaith doubt standard of Joy Silk.  They recognize, rightly, that doing so would be inconsistent with Levitz,^[139] where the Board abandoned the good-faith doubt standard for determining whether an employer violates Section 8(a)(5) by withdrawing recognition.  But without the good-faith doubt standard, there is no basis in law or logic for placing the burden on an employer that refuses a request for recognition to file an RM petition.^[140] 

As for the scope of the Board’s remedial discretion, the cases my colleagues cite fail to establish that such discretion encompasses bargaining orders.  In fact, court cases that do address that question establish that it does not.  My colleagues cite J. H. Rutter-Rex, but the issue presented in that case was whether the Board acted within its remedial discretion when it refused to toll the running of the backpay period despite its own prolonged delay in issuing a compliance specification.¹⁵  Similarly, my colleagues cite Fallbrook Hospital, where the issue presented was whether the Board acted within its remedial discretion in ordering the employer to reimburse the union for its bargaining expenses.¹⁶ 

In the case before us, however, the issue presented is whether the Board’s remedial discretion privileges it to issue affirmative bargaining orders based solely on “evidence of majority status other than the results of a Board election.”  Linden Lumber, 190 NLRB at 721.  Neither J. H. Rutter-Rex nor Fallbrook Hospital involved the question whether the Board's decision to issue an affirmative bargaining order was justified solely as a result of its broad remedial authority.  By contrast, the courts have made clear that judicial deference to the Board’s choice of remedies does not extend to such orders.  For instance, in Charlotte Amphitheater Corp. v. NLRB, 82 F.3d 1074 (D.C. Cir. 1996), the court refused to enforce a bargaining order, despite acknowledging the deference it typically grants “to the Board’s choice of remedy.”  Id. at 1077.  In rejecting the bargaining order, the court noted that it had "emphasized and reemphasized that a bargaining order is an extraordinary remedy that is not automatically entitled to enforcement.”  Id.; accord NLRB v. American Spring Bed Manufacturing Co., 670 F.2d 1236, 1247 (1st Cir. 1982) (denying enforcement of bargaining order despite being “fully aware of the deference accorded the Board’s expertise in fashioning remedies”); Rapid Manufacturing Co. v. NLRB, 612 F.2d at 150-151 (acknowledging deference owed to Board but denying bargaining order because the court did “not think that the [Supreme] Court intended the Board to dispense casually with the election process which is by far the superior and preferred means of determining employee sentiment”).

The majority also relies on the Supreme Court’s statement in NLRB v. A.J. Tower Co., 329 U.S. 324 (1946), that “Congress has entrusted the Board with a wide degree of discretion in establishing the procedure and safeguards necessary to insure the fair and free choice of bargaining representatives by employees.”  Id. at 330. The question presented in A.J. Tower was whether the Board has discretion to refuse to entertain post-election challenges to the eligibility of voters.  In concluding that

• 396 U.S. at 259.
• 785 F.3d at 732.

it does, the Supreme Court held that the Board has the authority to “adopt policies and promulgate rules and regulations in order that employees' votes may be recorded accurately, efficiently and speedily.”  Id. at 331 (emphasis added).  Therefore, my colleagues are attempting to rely on A.J. Tower, which held that the Board has discretion to adopt election procedures for determining whether or not employees are eligible to vote in a Boardconducted election, for the proposition that the Board has discretion to adopt measures that predictably will lead to a dramatic increase in bargaining orders issued without a Board-conducted election.  To say that my colleagues' reliance on A.J. Tower to support their decision makes no sense is an understatement. 

1. Step two of the majority’s new standard conflicts with

NLRB v. Gissel Packing and decades of circuit court precedent applying that decision.

In NLRB v. Gissel Packing, the Supreme Court approved the Board’s use of bargaining orders in two categories of cases.  The first category consists of “exceptional” cases marked by unfair labor practices so “outrageous” and “pervasive” that traditional remedies cannot erase their coercive effects, rendering a fair election impossible.  395 U.S. at 613–614.  The second category consists of “less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes.”  Id. at 614.  The Court approved the use of bargaining orders in cases coming within this second category if (a) the union had majority support at one time, and (b) the “possibility of erasing the effects of past practices and of ensuring a fair election . . . by the use of traditional remedies, though present, is slight,” and “employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order.”  Id.  In making this determination, the Court held that the Board must conduct a case-by-case analysis, “tak[ing] into consideration the extensiveness of an employer’s unfair practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future.”  Id. at 614–615. 

The Gissel Court left undecided “whether a bargaining order is ever appropriate in cases where there is no interference with the election processes”—i.e., “whether, absent election interference by an employer's unfair labor practices, [the employer] may obtain an election only if he petitions for one himself[, and] whether, if he does not, he must bargain with a card majority if the Union chooses not to seek an election.”  Id. at 594–595; 601 fn.

18. As discussed above, the Board answered those questions in the negative in Linden Lumber, and the Supreme Court sustained the Board’s holding over the contrary holding of the District of Columbia Circuit. But the Gissel Court did answer a different question:  whether there is a threshold beneath which the commission of unfair labor practices that interfere with an election would fail to support the issuance of a bargaining order.  The Court found that such a threshold exists.  After discussing the two categories of cases in which unfair labor practices do warrant a bargaining order, the Court referred to a third category of cases, involving “minor or less extensive unfair labor practices, which, because of their minimal impact on the election machinery, will not sustain a bargaining order.”  Id. at 615 (emphasis added).

The circuit courts have long recognized that Gissel limits the circumstances under which the Board may issue a bargaining order on the basis that unfair labor practices interfered or would interfere with an election.  The District of Columbia Circuit, which has plenary jurisdiction to review the Board’s decisions and orders, observed that although the Supreme Court upheld the Board’s authority to issue bargaining orders “based upon majority authorization card support . . . [in order] to remedy [S]ection 8(a)(5) violations which were accompanied by other independent unfair labor practices,” it “expressly noted that bargaining orders would not be appropriate in all such cases, and it carefully delineated the factors which the Labor Board must consider in determining whether a bargaining order should issue in a particular case.”  NLRB v. Ship Shape Maintenance Co., 474 F.2d at 441; see also St. Francis Federation of Nurses & Health Professionals v. NLRB, 729 F.2d 844, 854 (D.C. Cir. 1984) (“In Gissel, the Court made clear that it was the Board’s responsibility to ascertain on a case-by-case basis whether in fact conditions were not conducive to a fair and reliable election.”) (internal quotation marks omitted).  And the D.C. Circuit has not hesitated to refuse to enforce bargaining orders where the Board fails to provide a sufficient justification.  See, e.g., Avecor, Inc.

1. NLRB, 931 F.2d 924, 938 (D.C. Cir. 1991) (remanding because the Board failed to explain “why the cloud created by the[] violations was likely to linger” or to “explore[] the possibility that other remedies might cleanse the environment enough to permit a fair election”); St. Agnes Medical Center v. NLRB, 871 F.2d at 148 (remanding because “the Board failed to provide the detailed analysis required . . . to justify [the] extreme remedy [of a bargaining order]”); NLRB v. Ship Shape Maintenance Co., 474 F.2d at 444 (remanding because “the proposed bargaining order would not be remedial, but rather only punitive”).

Consistent with Gissel, and in agreement with the D.C. Circuit, other federal courts of appeals also require that the Board provide specific justifications for each bargaining order, including by explaining why traditional remedies would fail to dissipate the effects of the employer’s unfair labor practices so as to permit a fair election.  See J.L.M., Inc. v. NLRB, 31 F.3d 79, 83 (2d Cir. 1994) (holding that “[t]he issuance of a bargaining order is a rare remedy warranted only when it is clearly established that traditional remedies cannot eliminate the effects of the employer's past unfair labor practices,” and that “the Board must analyze not only the nature of the misconduct but ‘the surrounding and succeeding events in each case’”) (quoting J.J. Newberry Co. v. NLRB, 645 F.2d 148, 153 (2d Cir. 1981)); NLRB v. Apple Tree Chevrolet, Inc., 671 F.2d 838, 840 (4th Cir. 1982) (“[T]o avoid the appointment of bargaining agents not desired by employees and to encourage reliance upon elections as the preferred method for determining bargaining agents, we emphasize once again that a bargaining order is appropriate only when the Board's findings and analysis under the Gissel standard are specific and detailed.”) (internal quotation marks omitted); NLRB v. American Spring Bed Manufacturing Co., 670 F.2d at 1247 (1st Cir. 1982)

(“[W]e, like other circuits, have insisted that the Board articulate specific examples and precise reasons for concluding that: (1) the employer's unfair labor practices so undermined the Union’s majority that conducting a fair election would be unlikely; (2) the employer's unlawful conduct was likely to continue; and (3) the ordinary remedies of back pay, reinstatement, and posting of notices would be inadequate to ensure a fair election.”); Hedstrom Co. v. NLRB, 629 F.2d 305, 309 (3d Cir. 1980) (“[I]t is fitting for the [B]oard to ‘explain with specificity the results of the unfair labor practices and, in particular, the unlikelihood of a fair election’ before seeking enforcement of [a Gissel bargaining] order.”) (quoting NLRB v. Craw, 565 F.2d 1267, 1272 (3d Cir. 1977));

Peerless of America, Inc. v. NLRB, 484 F.2d 1108, 1118 (7th Cir. 1973) (“We have consistently held that Gissel contemplates that the Board must make specific findings as to the immediate and residual impact of the unfair labor practices on the election process and that the Board must make a detailed analysis assessing the possibility of holding a fair election in terms of any continuing effect of misconduct, the likelihood of recurring misconduct, and the potential effectiveness of ordinary remedies.”) (internal quotation marks omitted); NLRB v. Kaiser Agricultural Chemicals, 473 F.2d 374, 382 (5th Cir. 1973) (holding that under Gissel, “the [B]oard must consider [the] seriousness of the unfair labor practices, the likelihood of their recurrence, and the possibility of a fair rerun election”). 

The second step of the majority’s announced standard cannot be reconciled with the Supreme Court’s decision in NLRB v. Gissel Packing or circuit court decisions applying it.  My colleagues purport to hold that if an employer satisfies step one of their standard by filing an RM petition in response to a request for recognition from a card-majority union, the petition will be dismissed, employees will lose the right to vote in a secret-ballot election, and the employer will be found to have violated Section 8(a)(5) and ordered to recognize and bargain with the union, if it commits a single violation of Section 8(a)(1) or (3) after filing its petition.  To warrant dismissal of the petition, the unfair labor practice must be such as would require the results of an election to be set aside, but this would amount to little more than a speed bump for the Board, if even that, given the state of Board law.  The Board has recognized both that “[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election,” Dal-Tex Optical Co., Inc., 137 NLRB 1782, 1786–1787 (1962), and that an unfair labor practice committed during the critical period requires the setting aside of an election unless it is “virtually impossible to conclude that [the violation] could have affected the results of the election,” Super Thrift Markets, Inc., 233

NLRB 409, 409 (1977).^[141]

Plainly, the second step of the majority’s new standard will result in the issuance of bargaining orders in cases that come within the third category identified by the Gissel Court—cases in which the employer’s “minor or less extensive unfair labor practices . . . will not sustain a bargaining order.”  NLRB v. Gissel Packing, 395 U.S. at 615.  This is especially clear in light of the Board’s work-rules precedent.  The Board has held that the mere maintenance of an unlawful work rule during the critical period requires the results of an election to be set aside. IRIS U.S.A., Inc., 336 NLRB 1013, 1013 (2001).^[142]  And my colleagues’ recent decision in Stericycle, Inc., 372 NLRB No. 113 (2023), made it extraordinarily easy for the General Counsel to establish that a work rule is unlawful.  Under Stericycle, a work rule is presumptively unlawful if a “reasonable employee,” as the majority defines that individual—i.e., a hypervigilant employee poised to find references to protected concerted activity where none exists—could interpret (not reasonably would interpret) any isolated word or phrase in a work rule to restrict the exercise of Section 7 rights.  As I explain in my Stericycle dissent, it is virtually impossible for employers not to maintain at least one unlawful rule under this standard.  Accordingly, it is virtually impossible for an employer not to commit a critical-period unfair labor practice that would require setting aside the results of an election, which means that it is virtually impossible for an employer’s RM petition not to be dismissed, for the employer not to be found to have violated Section 8(a)(5), and for a bargaining order not to issue, even though the mere unlawful maintenance of a work rule “[would] not sustain a bargaining order” under controlling Supreme Court precedent.

My colleagues contend that their new standard does not conflict with Gissel because, they say, bargaining orders under the new standard “rest upon a fundamentally different rationale than those under Gissel”—namely, that under the new standard, a bargaining order “could not issue as a remedy for . . . ‘minor or less extensive unfair labor practices’ . . . but only as a remedy for an employer’s violation of Section 8(a)(5).”  But bargaining orders under Gissel also are issued only to remedy a violation of Section 8(a)(5).  They are not issued as a remedy for other unfair labor practices—i.e., violations of Section 8(a)(1) and (3)—whether those violations are minor, major, or off the charts.  Violations of Section 8(a)(1) and (3) are remedied by the Board’s traditional remedies—cease-and-desist orders, reinstatement, backpay, notice posting, and so forth—plus any extraordinary remedies deemed warranted (such as notice reading).  But under the Gissel standard, the majority’s new standard, or any other conceivable standard, a bargaining order issues and can only issue as a remedy for a failure or refusal to bargain in violation of Section 8(a)(5).  And the fact of the matter is, should the Board use the new standard to issue bargaining orders under circumstances where they are precluded from issuing under Gissel, such orders will not be enforced by reviewing courts unless and until the Supreme Court overrules Gissel. Given that we have no reason to believe that the Supreme Court is going to overrule Gissel, my colleagues today are establishing a new standard that, in many cases, is going to result in lengthy litigation over an alleged violation that will never survive judicial review. 

1. The majority fails to provide an adequate justification for the second step of their new standard.

At the first step of their announced standard, my colleagues purport to hold that affirmative bargaining orders will issue against employers that have committed no violation of Section 8(a)(1) or (3) but have merely declined a request for recognition without “promptly” filing an RM petition.  At the second step, they say that the same remedy will be ordered against any employer that does promptly file an RM petition but then commits an 8(a)(1) or (3) violation that would warrant setting aside an election under the “virtually impossible” standard.¹⁹  As explained above, this second step is precluded by the Supreme Court’s decision in Gissel and numerous circuit court decisions applying it.  But it also represents a dramatic departure from the Board’s own precedent.²⁰  As such, if the majority’s aim is the eventual overruling of Gissel, the majority must provide “a reasoned analysis in

• Super Thrift Markets, Inc., 233 NLRB at 409. Again, I note that the issue of whether a single unfair labor practice would be sufficient to warrant a bargaining order is not presented in the instant case, where the Respondent committed numerous unfair labor practices.  Accordingly, any suggestion by my colleagues that a single unfair labor practice would be sufficient is dicta.
• The Board has consistently recognized that it may only issue a bargaining order on the basis of election-interfering unfair labor practices where the extensiveness of the employer’s violations and the likelihood of their recurrence make it unlikely that traditional remedies can make a fair election possible. See, e.g., North Texas Investment Group d/b/a Whitehawk Worldwide, 371 NLRB No. 122, slip op. at 3-6 (2022) (finding traditional remedies would not “safeguard employee rights” and issuing bargaining order based on case-specific facts regarding the nature and extent of the violations, the size of the unit, and the likelihood of recurrence, among other factors); Hialeah Hospital, 343 NLRB at 395 (stating that “[the Board] must consider both the extensiveness of the employer’s unfair labor practices and their likelihood of recurrence in determining whether a bargaining order is appropriate”); Garney Morris, Inc., 313 NLRB 101, 103 (1993) (issuing bargaining order based on, inter alia, a “strong likelihood of a recurrence of unlawful conduct”), enfd. 47 F.3d 1161 (3d Cir. 1995); Angelica Corp., 276 NLRB 617, 617 (1985) (“Consistent with the principles of Gissel, the Board must assess the question of appropriate remedy on a case-by-case basis.”).  And the Board has found traditional remedies sufficient to permit the holding of a fair election where the employer committed numerous unfair labor practices.  See, e.g., Intermet Stevensville, 350 NLRB at 1359 (finding traditional remedies sufficient, and declining to issue bargaining order, where employer committed one violation of Sec. 8(a)(3) and thirteen violations of Sec. 8(a)(1)); Aqua Cool, 332 NLRB at 97 (finding “traditional remedies . . . adequate to cleanse the atmosphere of the effects of the [r]espondent’s misconduct and permit the holding of a fair election” where employer committed seven violations of Sec. 8(a)(1)); Burlington Times, Inc., 328 NLRB 750, 752 (1999) (declining to issue bargaining order where employer committed six violations of Sec. 8(a)(1) because “[a]lthough the [r]espondent’s unfair labor practices were serious, they are not of a nature or number likely to have so lasting an effect that traditional remedies would be inadequate to ensure a fair election”); Uarco, Inc., 286 NLRB 55, 59 (1987) (declining to issue bargaining order—despite finding that employer’s violations of Sec. 8(a)(3), (2), and (1) demonstrated a proclivity to violate the Act and warranted a broad cease-anddesist order—because “they [were] not so pervasive, severe, or lingering in effect to render unlikely the holding of a fair second election”).

support of the change.”  Auto Workers Local 1384 v.

NLRB, 756 F.2d at 492.^[143]

My colleagues advance three reasons for the change.  They assert that “the remedies available for violations of Section 8(a)(3) and (1) of the Act . . . are, in many cases, incapable of rectifying the harm that can be caused to the election process by the unlawful conduct of an employer . . . .”  They say that conducting a rerun election cannot “ever be a truly adequate remedy” in light of “the strong statutory policy in favor of the prompt resolution of questions concerning representation.”  And they argue that step two of their new standard will deter employers from committing unfair labor practices during the critical period.  None of these contentions is persuasive, and some of them are contrary to Supreme Court and circuit court precedent.

Before I address them, however, a clarification of the majority’s position is in order.  My colleagues assert that traditional remedies for violations of Section 8(a)(1) and (3)—cease-and-desist orders, reinstatement, backpay, posting of a remedial notice—are incapable of rectifying the harm caused to the election process by those violations “in many cases.”  If that were truly their position, it would follow that in some cases, that harm may be rectified by traditional remedies, and the majority would adopt a standard under which traditional remedies followed by an election would be ordered in some cases, and a bargaining order would issue in the rest—a standard, in other words, like the Gissel standard in form, but with fewer elections and more bargaining orders.  But my colleagues do not adopt such a standard.  They ordain issuance of bargaining orders in all cases where a critical-period 8(a)(1) or 8(a)(3) violation would warrant setting aside election results under the “virtually impossible” standard.  Accordingly, I can only conclude that although they say that traditional remedies are unavailing in “many” cases, their real position must be that traditional remedies are unavailing in all such cases.

This position encounters several difficulties.  It contradicts longstanding judicial precedent holding that the Board’s traditional remedies are perfectly capable of dissipating the coercive effects of unfair labor practices so as to permit a free and fair election in all but extreme cases.  See, e.g., Somerset Welding & Steel v. NLRB, 987 F.2d 777, 779, 782 (D.C. Cir. 1993) (disapproving “the Board’s apparent partiality for bargaining orders” and holding that “‘where a fair rerun election is possible, it must be held’” (quoting Avecor, Inc. v. NLRB, 931 F.2d at 934)); M.P.C. Plating, Inc. v. NLRB, 912 F.2d 883, 888 (6th Cir. 1990) (stating that “the election process is the preferred method” and a bargaining order is warranted only in “extreme cases”); Rapid Manufacturing Co. v. NLRB, 612 F.2d at 151 (denying enforcement of bargaining order where record failed to show that possibility of ensuring a fair election was slight); NLRB v. Pilgrim Foods, Inc., 591 F.2d 110, 120 (1st Cir. 1978) (denying enforcement of bargaining order where record did not show that the company would ignore the Board’s traditional cease-and-desist order); First Lakewood Associates v. NLRB, 582 F.2d 416, 424 (7th Cir. 1978) (denying enforcement of bargaining order because the impact of the employer’s violations “will have dissipated prior to the next election, especially if the Board's ordinary remedies of a cease and desist order and a posted notice intervene”); NLRB v. Ship Shape Maintenance Co., 474 F.2d at 442 (denying enforcement of bargaining order because even though the unfair labor practice “rendered the meaningful holding of that particular election impossible . . . . this does not mean that the effects of this unfair labor practice were sufficiently pervasive and lingering to warrant a determination that a subsequent election could not be held which would be reasonably free from the adverse influence of the Company’s unlawful action”). 

Indeed, the majority’s position that traditional remedies can never ameliorate the effects of even just one 8(a)(1) or (3) violation so as to enable a fair election is as inconsistent with NLRB v. Gissel Packing as the second step of the new standard itself.  There, the Supreme Court held that the coercive effects of unfair labor practices cannot be eliminated by traditional remedies, and “a fair and reliable election cannot be had,” only in socalled category one Gissel cases, i.e., “‘exceptional’ cases marked by ‘outrageous’ and ‘pervasive’ unfair labor practices.”  395 U.S. at 613–614.  In “category two” Gissel cases—“less extraordinary cases marked by less pervasive practices,” id. at 614—there is still some possibility, although slight, of holding a fair election following the application of traditional remedies.  My colleagues now hold, however, that an election will not be held, and a bargaining order will issue instead, where an employer commits just one critical-period violation of Section 8(a)(1) or (3) that would warrant setting an election aside under the “virtually impossible” standard.^[144] This is, of course, contrary to the Supreme Court’s holding that a free and fair election cannot be had only in exceptional cases marked by outrageous and pervasive violations of the Act.

The majority’s position is also contrary to empirical evidence.  If traditional remedies are incapable of rectifying the harm caused to the election process by unfair labor practices, unions would invariably lose rerun elections.  The facts are to the contrary.^[145]     

In defense of their holding that where an employer commits a critical-period violation that would warrant setting aside the results of an election, bargaining orders are always mandated, my colleagues say that nip-in-thebud discharges “can irreparably harm the organizing process.”  Even if that were true, a nip-in-the-bud discharge is only one type of unfair labor practice (albeit an exceptionally serious one), so this rationale does not explain why traditional remedies are categorically inadequate to dissipate the coercive effect of any and all violations of Section 8(a)(1) or (3).  Moreover, the Board already has in place a mechanism for addressing this concern:  seeking interim reinstatement of the discharged employees under Section 10(j)—i.e., reinstatement through a temporary injunction pending issuance of the Board’s decision.  The purpose of court-ordered interim reinstatement under Section 10(j) is to prevent a nip-in-the-bud discharge from irreparably harming an ongoing organizing drive.  The majority fails to explain why Board-ordered traditional remedies in the administrative proceeding— including reinstatement of, and backpay for, unlawfully discharged employees—can never produce conditions under which a renewed organizing drive has a fair chance of succeeding.  The majority’s unsupported assertion that nip-in-the-bud discharges cause harm that can never be repaired is just that, an unsupported assertion, not a reasoned explanation for changing the law.^[146]

My colleagues also say that certain Section 8(a)(1) violations “can erode employees’ majority support for the union,” but they do not explain why the Board’s traditional remedies are intrinsically incapable of creating an atmosphere in which the erosion of that support may be reversed.  And they certainly do not provide a reasoned explanation why the effects, if any, of the mere maintenance of a single unlawful work rule during the pre-election critical period—which, under the second step of their announced standard, could compel issuance of a bargaining order, even if the General Counsel fails to establish that any unit employee was aware of the rule—cannot be ameliorated by the traditional remedies of a cease-and-desist order, rescission of the offending rule, and the posting of a remedial notice.

As a further justification for the second step of their standard, my colleagues assert that conducting a new election cannot “ever be a truly adequate remedy” in light of “the strong statutory policy in favor of the prompt resolution of questions concerning representation.”  Putting aside the question whether directing a new election is a “remedy,” it is without question that the primary policy of the Act is not to ensure that unions gain representational status as quickly as possible, but rather to guarantee employees “freedom of choice and majority rule.” International Ladies’ Garment Workers’ Union v. NLRB (Bernhard-Altmann), 366 U.S. at 737.  The Garment Workers Court further held that “[t]here could be no clearer abridgment of [Section] 7 of the Act” than “grant[ing] exclusive bargaining status to an agency selected by a minority of its employees, thereby impressing that agent upon the nonconsenting majority.”  Id.  The right of employees to choose their bargaining representative, or no bargaining representative at all, “is an inviolate right under the NLRA,” Skyline Distributors v. NLRB, 99 F.3d at 411, yet my colleagues subordinate it to their preference for the speedy issuance of bargaining orders based on union-authorization cards, which do not protect employees’ right to choose for themselves whether to be represented by a union as effectively as secret-ballot elections do.  The “strong statutory preference” for speedy bargaining orders claimed by the majority does not override the explicit guarantees, already discussed, of Sections 7 and 9 of the Act.²⁵

Agency as well as the courts—to pursue “relief” that serves no real purpose.

²⁵ At the same time that my colleagues are using this case to vindicate a “strong statutory preference” in favor of ensuring speedy issuance of bargaining orders, they have also issued a Notice of Proposed Rulemaking in which they propose, among other things, to reinstate the blocking-charge policy.  See "Representation-Case Procedures:  Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships," 87 FR 9796 (Nov. 4, 2022).  My col-

Finally, the majority argues that its new standard will deter employers from committing unfair labor practices during the critical period.  But so would ordering that managers wear sandwich boards around the workplace that list employees’ rights under the Act and prominently display the phone number of the local Board regional office.  The fact that such an order would presumably deter employers from committing unfair labor practices hardly makes the order permissible. 

For that matter, it is questionable to what extent my colleagues’ new standard will actually deter employers.  “The potential deterrent effect of a bargaining order is lessened in a case in which the initial violation was marginal and apparently committed in good faith.” Peoples Gas System, Inc. v. NLRB, 629 F.2d 35, 50 (D.C. Cir. 1980).  Under the majority’s standard, however, a bargaining order would be warranted where employers are found to have violated the Act solely by continuing to maintain a facially neutral work rule implemented long before the critical period began.  In such circumstances, it is hard to see how a bargaining order could possibly be justified as a “deterrent” to prevent employers from interfering with elections.  Indeed, “[f]acts suggesting that a bargaining order would have little or no deterrent value have been heavy factors in prior decisions not to enforce proposed bargaining orders.”  Id. (citing NLRB v. Ship Shape Maintenance Co., 474 F.2d at 434; NLRB v. General Stencils, Inc., 472 F.2d 170 (2d Cir. 1972)).

Furthermore, by suggesting, in dicta, that even a single unfair labor practice will result in a bargaining order, the majority has effectively implemented a zero-tolerance standard.  Such a standard will not withstand appellate scrutiny.  The D.C. Circuit has found that a zerotolerance standard to maximize deterrence regardless of the circumstances “cross[es] the line from a permissible remedy . . . to an impermissible punitive measure” beyond the Board’s authority.  Peoples Gas System, Inc. v. NLRB, 629 F.2d at 50.  The Supreme Court has recognized that the Board’s “authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any

leagues profess to be puzzled that I mention this NPRM, but the reason is obvious.  Here, the emphasis is on speeding up processes to put unions in place.  Reinstatement of the blocking-charge policy, on the other hand, will slow down the process for removing them, since blocking charges can delay decertification elections for months and years on end.  See "Representation-Case Procedures:  Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships," 85 FR 18366, 18377 (Apr. 1, 2020) (collecting cases in which blocking charges created substantial delay in decertification elections).  It stands to reason that if the policies of the Act favor the speedy resolution of questions of representation, those policies should be equally promoted without regard to whether the installation or the removal of a bargaining representative is at issue. 

penalty it may choose because he is engaged in unfair labor practices, even though the Board be of the opinion that the policies of the Act might be effectuated by such an order.”  Consolidated Edison Co. v. NLRB, 305 U.S. 197, 235–236 (1938); see also Republic Steel Corp. v. NLRB, 311 U.S. 7, 11 (1940) (“[T]he power to command affirmative action is remedial, not punitive.”).  Deterrence is a justifiable reason, among others, for imposing bargaining orders on employers that engage in extensive pre-election campaigns of coercion,^[147] but under the majority’s decision, the same order will be imposed on employers that commit only a single violation of Section 8(a)(1).

1. The majority further errs by applying their new standard retroactively.

The Board must not apply a new rule of decision retroactively—meaning in all pending cases in whatever stage—if doing so would work a manifest injustice.  SNE Enterprises, 344 NLRB 673, 673 (2005).  To determine whether retroactive application would cause manifest injustice, the Board considers “the reliance of the parties on preexisting law, the effect of retroactivity on accomplishment of the purposes of the Act, and any particular injustice arising from retroactive application.”  Id.  Each of these considerations militates against retroactive application here.

First, reliance interests overwhelmingly oppose retroactive application.  The Supreme Court issued the Gissel decision more than 50 years ago.  Ever since, the federal courts of appeals have held the Board to a demanding standard, requiring the Board to justify the issuance of a bargaining order by demonstrating that on the specific facts of the particular case, traditional remedies would be inadequate to ensure a fair election.  If my colleagues dicta today were to become binding law in the future, the commission of one critical-period unfair labor practice would render traditional remedies insufficient as a matter of law in every case.  Worse still, under Linden Lumber, which my colleagues purport to overrule, an employer was entitled to refuse a union demand for recognition without filing an RM petition.  This has been the law since 1971, and in reliance on it, employers could confidently refuse demands for recognition and wait for the union to make the next move.  Reliance interests obviously militate against retroactive application where, as a result, parties in pending cases would be penalized for failing to take an action they had no duty to take under precedent in place for over half a century.

Next, retroactivity does not further the purposes of the Act because, for reasons already stated, the majority’s decision, far from accomplishing the purposes of the Act, would predictably result in unions being imposed on nonconsenting majorities, which is inimical to the purposes of the Act.

Retroactive application may also inflict particular injustice upon employers in pending cases.  There may well be employers in pending cases who, under the law in effect before today, would not have been found to have violated Section 8(a)(5) under Gissel but will now be found to have done so under Cemex applied retroactively to their cases.  And they will be subjected to bargaining orders where, under prior law, any duty to bargain would have depended on the results of an election yet to be held.  Where retroactive application will result in unfair labor practice findings and the imposition of remedial obligations that would not have been found and imposed under prior law, particular injustice is patently obvious.^[148]

Each of the traditional factors under SNE Enterprises points to the same conclusion.  Applying the majority’s decision retroactively will cause manifest injustice.  If my colleagues attempt to apply their dicta as binding law, they should at least apply it prospectively only.

1. A Gissel bargaining order is not warranted.

I would affirm the judge’s decision not to issue a bargaining order in this case, due to changed circumstances.  By taking into consideration changes such as turnover in the work force and the passage of time since unfair labor practices were committed, the Board avoids the “danger that a bargaining order that is intended to vindicate the rights of past employees will infringe upon the rights of the current ones to decide whether they wish to be represented by a union.”  Charlotte Amphitheater Corp. v. NLRB, 82 F.3d at 1078.  Accordingly, consistent with the views of most circuits,^[149] the Board has declined to issue bargaining orders based on delays of about four years and employee turnover above 30 percent.  See Sysco Grand Rapids, 367 NLRB No. 111, slip op. at 2 (2019) (no Gissel order where about four years had elapsed since unfair labor practices occurred and the unit had experienced 30 percent turnover), enfd. mem. in relevant part 825 Fed. Appx. 348 (6th Cir. 2020); see also Stern Produce Co., 368 NLRB No. 31, slip op. at 4–5 (2019) (no Gissel bargaining order where more than three-and-ahalf years had passed since unfair labor practices, and there was limited dissemination of “hallmark” unfair labor practices).

Here, nearly four years have elapsed since the most recent unfair labor practice, the discharge of employee Ornelas on September 6, 2019.  According to the Respondent’s motion to reopen the record, as of November 14, 2022, only 200 of the Respondent’s 397 current employees had also been employed by the Respondent at the time of the election, making a turnover rate of approximately 50 percent.^[150]  Additionally, Forgey and Dickson, two of the managers responsible for, and the face of, much of the misconduct on which a bargaining

order would be based, no longer have contact with the unit employees and have not for a significant period of time.  Accordingly, due to the passage of time, the extensive turnover in the unit, and the removal of key management officials, I would not issue a bargaining order.  Indeed, even without more, the 50-percent turnover in the unit creates an unacceptable “danger that a bargaining order that is intended to vindicate the rights of past employees will infringe upon the rights of the current ones to decide whether they wish to be represented by a union.”  Charlotte Amphitheater Corp. v. NLRB, 82 F.3d at 1078.  Instead, I would order traditional remedies plus certain special remedies^[151] to dissipate the effects of the Respondent's unfair labor practices, and sever Case 28– RC–232059 and remand it to the Regional Director with instructions to direct a second election at a time he deems appropriate.^[152]

CONCLUSION

It is broadly understood by the federal courts of appeals—and until today, it was also understood by the Board—that Gissel permits the Board to issue bargaining orders in limited circumstances where specific conditions are present.  Such an order must be based on the facts of each case and supported by a detailed analysis to ensure that a bargaining order is warranted despite the risk that it will impose union representation on a nonconsenting majority.

The standard the majority purports to implement today disregards this established law, to its peril.  My colleagues conclude that whenever an employer commits a critical-period unfair labor practice that warrants setting aside the results of an election—and under the rule of Super Thrift Markets, 233 NLRB at 409, virtually any unfair labor practice will suffice—traditional remedies are insufficient to protect employee choice as a matter of

the Union to respond to, any address made by the Respondent to its employees on the question of union representation.  These remedies are consistent with those the Board has ordered in similar cases.  See Stern Produce Co., 368 NLRB No. 31, slip op. at 5 (ordering same access remedies “in light of the significant and pervasive nature of the Respondent’s unfair labor practices” and in lieu of affirmative bargaining order); Sysco Grand Rapids, LLC, 367 NLRB No. 111, slip op. at 3 (same).

law, and the Board will find a violation of Section 8(a)(5) and issue a bargaining order forthwith.  In reaching this conclusion, the factors delineated by the Supreme Court and required by the circuit courts are conveniently ignored. In order to be enforceable, it is clear that any bargaining orders issued under my colleagues’ new standard must be warranted under Gissel—and since they find that to be the case here, one may reasonably question the need for this new standard in the first place.

It was bad enough that, under Iris U.S.A., the mere maintenance of a single work rule during the pre-election critical period was sufficient to set aside the results of a free and fair election.  Before today, however, the consequence was simply that a second election would be directed by the Regional Director once he or she determined that the employer had remedied the work-rule violation.  That second election was unnecessary, but at least the unit employees could vote again and, assuming they remained of the same mind as before, vote “no” again.  Now, that second chance to vote “no” is gone.  A bargaining order will issue, and the unit employees will be saddled with a union that a majority of the unit does not want.

The right of citizens to vote in a secret-ballot election is the very cornerstone of American democracy, and the right of employees to vote in a secret-ballot representation election is foundational to the system of workplace democracy created by the Act. Nevertheless, were my colleagues' decision to be treated as binding precedent, it would mean that if an employer is found to have committed a single violation of the Act during the critical period—regardless of whether that violation was intentional or not—that action by the employer is sufficient to rob employees of their right to a secret-ballot election.  As the Supreme Court has recognized, employee rights under Section 7 and 9 of the Act are best protected by Board-conducted secret-ballot elections, “the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support,” and unionauthorization cards are “admittedly inferior to the election process.”  NLRB v. Gissel Packing, 395 U.S. at 602603.  Today, however, my colleagues implement

measures the predictable effect of which will be to sharply limit secret-ballot elections while dramatically increasing card-based bargaining orders.  These changes are unnecessary to their decision and therefore dicta, since by the majority’s own admission “the application of the revised standard in this case results in neither finding any additional violation of the Act nor any additional remedial obligation.”  Nevertheless, as I have shown, my colleagues fail to provide a reasoned explanation for departing from decades of Board precedent.  More importantly, their “revised” standard conflicts with Supreme Court and circuit court precedent. Moreover, once the majority reinstates blocking charges, that action in combination with this case will embed a double standard in Board law, since it will be as difficult to terminate a union’s representative status as today’s decision—particularly in tandem with Stericycle—makes it easy for that status to be created.^[153]  Making bad even worse, the majority unfairly applies their decision retroactively.  Accordingly, although I join my colleagues in finding that the Respondent committed numerous violations of the Act, I respectfully dissent from the sea change they purport to make in Board law.

    Dated, Washington, D.C.  August 25, 2023

______________________________________

Marvin E. Kaplan,                                Member

                 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 benefit and protection

Choose not to engage in any of these protected activities.

WE WILL NOT threaten you with discharge, replacement, loss of work hours, work opportunities, benefits, or training opportunities, discontinuation of past favors, or other reprisals if you select the International Brotherhood of Teamsters (the Union) as your bargaining representative or if you engage in union activities.

WE WILL NOT instruct you not to speak with union representatives or otherwise not to engage in activities on behalf of the Union.

WE WILL NOT threaten you with discharge by inviting you to quit if you want to be represented by the Union.

WE WILL NOT threaten you by telling you that we will close plants or relocate operations if you choose union representation.

WE WILL NOT interrogate you about your union membership, activities, or sympathies.

WE WILL NOT create the impression that we are engaged in surveillance of your union activities.

WE WILL NOT place you under surveillance while you engage in union activities.

WE WILL NOT threaten you with plant closure by telling you that, even if you unionize, we will retain the right to convert plants to “satellite” status at any time.

WE WILL NOT threaten to discharge you for engaging in protected strike activity by misrepresenting your striker reinstatement rights.

WE WILL NOT blame the Union for delayed wage increases.

WE WILL NOT threaten you by implying that wage increases will be delayed indefinitely if you select union representation.

WE WILL NOT promulgate overly broad directives prohibiting you from talking to union representatives while on “company time” or “during working hours.”

WE WILL NOT discipline you pursuant to an overly broad directive not to talk with union representatives on “company time” or “during working hours,” or for talking with union representatives during nonworking time.

WE WILL NOT promise you benefits if you oppose the Union or vote against representation.

WE WILL NOT hire security guards to intimidate you.

WE WILL NOT threaten to investigate you because of your union activity.

WE WILL NOT discharge, suspend, or otherwise discipline or discriminate against you because of your support for or activities on behalf of the Union or any other labor organization.

WE WILL NOT fail and refuse to bargain with the Union as the exclusive collective-bargaining representative of our employees in the bargaining unit.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above.

WE WILL, within 14 days from the date of the Board’s Order, offer Diana Ornelas full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed.

WE WILL make Diana Ornelas whole for any loss of earnings and other benefits resulting from the unlawful discrimination against her, less any net interim earnings, plus interest, and WE WILL also make her whole for any other direct or foreseeable pecuniary harms suffered as a result of the unlawful discrimination, including reasonable search-for-work and interim employment expenses, plus interest.

WE WILL compensate Diana Ornelas for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and WE WILL file with the Regional Director for Region 28, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Diana Ornelas’s corresponding W-2 form reflecting the backpay award.

WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful discharge, suspension, and warning of Diana Ornelas, and WE WILL, within 3 days thereafter, notify her in writing that we have done so and that we will not use the unlawful disciplines against her in any way.

WE WILL, on request, bargain with the Union as the exclusive collective-bargaining representative of our employees in the following appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:

INCLUDED:  All full-time and regular part-time ready-mix drivers, plant operators II who regularly operate ready-mix trucks, and driver trainers employed by CEMEX Construction Materials Pacific, LLC at its ready-mix facilities in Southern California and Southern Nevada, including its plants in Las Vegas, Nevada and Compton, Corona, Escondido, Fontana, Hollywood, Irvine, Inglewood, Los Angeles, Moorpark, Oceanside, Orange, Oxnard, Perris, Rialto, Redlands, San Diego, San Juan Capistrano, Santa Barbara, Santa Paula, Simi Valley, Temecula, and Walnut, California.

EXCLUDED:  All plant foremen, batchmen, dispatchers, yardmen, senior driver trainers/safety champions, fleet mechanics (I and II), plant maintenance (I and II), quality control representatives, office clerical employees, professional employees, guards and supervisors as defined by the Act.

WE WILL hold a meeting or meetings during worktime at our facilities in Southern California and Las Vegas, Nevada, scheduled to ensure the widest possible attendance of bargaining unit employees, at which this Notice to Employees marked “Appendix” will be read to employees by a high-ranking responsible management official in the presence of a Board Agent and, if the Union so desires, a Union representative, or, at our option, by a Board agent in the presence of a high-ranking responsible management official and, if the Union so desires, a Union representative. 

[1] The hearing involved testimony from 41 witnesses and produced a 3162-page transcript.

[2] In light of our determination that an affirmative bargaining order is warranted, we find it unnecessary to order the judge’s recommended access remedies or to reach the Respondent’s related exceptions.  Absent a bargaining order, we would adopt these recommended remedies.

For the reasons stated in his separate partial dissent, Member Kaplan would not issue an affirmative bargaining order.  Instead, he would order certain special remedies.

[3] Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971), revd. sub nom Truck Drivers Union Local No. 413 v. NLRB, 487 F.2d 1099 (D.C. Cir. 1973), affd. 419 U.S. 301 (1974).

[4] Joy Silk Mills, Inc., 85 NLRB 1263 (1949), enfd. in relevant part, 185 F.2d 732 (D.C. Cir. 1950), cert. denied 341 U.S. 914 (1951).

[5] Member Kaplan does not join his colleagues in overruling Linden Lumber for the reasons given in his separate partial dissent below.

[6] The parties stipulated at the hearing that the appropriate unit included at most 366 drivers and driver trainers based at 24 facilities in six areas or districts: Las Vegas; Ventura County; Los Angeles County; Inland Empire; Orange County; and San Diego County.

[7] Based on testimony, stipulation, and his examination of cards and signature comparators at the hearing, the judge found that at least 207 of 281 signed authorization cards that the Union provided to the Board’s regional office were valid. 

[8] Forgey was in overall control of all of the Respondent’s operations relating to this case, reporting directly to Cemex’s regional president for the West Region.  The Respondent promoted Forgey to a larger role in the company in March 2020 before he left the company in July 2020. ¹³ The Respondent paid LRI approximately $1.14 million between October 2018 and July 2019.

[9] LRI paid each consultant $3000 per day plus travel expenses.

[10] The General Counsel requests that we overrule Babcock & Wilcox, 77 NLRB 577 (1948), which addresses the lawfulness of employermandated campaign meetings. But the General Counsel did not allege or litigate any issue relating to the lawfulness of mandatory meetings in this case, and the record does not establish, as a factual matter, that all or most employees here were required to attend the Respondent’s consultant meetings on threat of discipline.  We accordingly decline the General Counsel’s request that we address that issue in this case.

[11] The term “25th hour video” reflects the Respondent’s strategy to present the videos to employees at the last permissible hour under the Board’s prohibition on mass campaign speeches during the 24 hours

[12] Member Kaplan does not find the question Dickson asked Collins—“If you want the Union, why don’t you just go to work at Nevada Ready-Mix?”—unlawful on its face, but rather because it was accompanied by the other unlawful statements described above, including Dickson’s threat that Cemex would “close their doors” if the Union came in. The context created by Dickson’s other coercive statements reveals the threat of discharge implicit in the question, i.e., that supporting the Union is inconsistent with continued employment by the Respondent.

[13] The General Counsel excepts to the judge’s failure to find that Dickson’s repeated instructions to Collins violated the Act both by directly interfering with protected union activity and as implied threats of unspecified reprisals.  We agree with the judge that Dickson’s instructions did not constitute two separate violations of the Act.

The Respondent contends that, in evaluating the January 5, 2019 interaction between Collins and Dickson, the judge erroneously relied upon a handwritten note in which Collins documented the exchange.  The Respondent read the contents of the note into the record for the purpose of impeaching Collins before objecting that the document itself should be excluded as hearsay and cumulative.  The Board reviews administrative law judges’ evidentiary rulings for abuse of discretion.  Pain Relief Centers, P.A., 371 NLRB No. 70, slip op. at 2 fn. 3 (2022) (citing Aladdin Gaming, LLC, 345 NLRB 585, 587 (2005)). Moreover, the Board may rely on hearsay if it is “rationally probative in force and . . . corroborated by something more than the slightest amount of other evidence.” Meyers Transport of New York, Inc., 338 NLRB 958, 969

(2003). Given that the Respondent had already introduced the contents of the note into the transcript when the General Counsel sought to

[14] In finding this violation, the judge credited Forgey’s initial account of what he told drivers about the impact of the Union’s campaign on scheduled wage increases and found that Forgey fabricated later contrary testimony in an effort to aid the Respondent’s defense. The Respondent excepts to this credibility resolution, but the record does not support overruling it.  See Standard Dry Wall Products, above.

[15] Member Kaplan agrees that the Respondent, by Forgey, violated the Act when Forgey told employees that their wage increases were delayed “because of the Union,” but he disagrees that Forgey unlawfully threatened that wage increases could be delayed for years if employees unionized. Forgey simply described the collective-bargaining process. He explained “that everything was negotiable,” that “things could get better, worse, or stay the same,” and that bargaining could take days, weeks, months, or years. That description was accurate and lawful.

[16] See, e.g., NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378–379 & fn. 5 (1967).

[17] See, e.g., Care One at Madison Ave., LLC v. NLRB, 832 F.3d 351, 361 (D.C. Cir. 2016) (blanket statement that striking could cost employees their jobs was not truthful and could reasonably be construed as threatening in violation of Sec. 8(a)(1)), enfg. 361 NLRB 1462 (2014); Grinnell Fire Protection Systems, 236 F.3d 187, 201 (4th Cir. 2000) (employer’s telling striking employees that it intended to hire permanent replacements without distinguishing between reinstatement rights of unfair labor practice and economic strikers was unlawful threat), enfg. 328 NLRB 585 (1999); Virginia Concrete Corp., 334 NLRB 796, 796 (2001) (“It is well established that an employer may not tell employees, without explanation, that they could lose their jobs to permanent replacements in the event of a strike.”) (citing cases).

[18] Gissel, above, 395 U.S. at 618 (emphasis added).

[19] We further find that the Respondent communicated its unlawful misrepresentation of striker reinstatement rights far more broadly than to the drivers present at Forgey’s January 29 meeting at Oxnard.  As the judge found, testimony elicited by the Respondent showed that LRI consultant Rosado also told employees at a different meeting that “if a strike occurs, Cemex has the ability to replace drivers who go on strike, and when the strike ends, anyone who has been replaced would go on a preferential recall list.”  One of the Respondent’s consultant PowerPoint decks, which were shown to all unit drivers, includes a slide stating that “[i]n both [unfair labor practice and economic strike] situations employees can be replaced” (emphasis in original).  This slide is

[20] In this respect it is telling that Forgey responded to the question of whether he told drivers that the Respondent could close the Oxnard plant by discussing what he told them about the Respondent’s authority to convert plants to satellite status.

[21] See, e.g., Piggly Wiggly, Tuscaloosa Division, 258 NLRB 1081, 1081, 1091 (1981) (employer’s statements that unionization would result in closing some smaller stores in multistore unit violated Sec. 8(a)(1)), enfd. 705 F.2d 1537 (11th Cir. 1983). In enforcing the Board’s bargaining order in Piggly Wiggly, the court noted that, while the company had not contested the Board’s findings of unlawful threats of plant closure, these were among “the most serious of the company’s violations,” and “[t]hreats of plant closure are ‘more effective [in] destroy[ing] election conditions for a longer period of time than other’ unfair labor practices.”  Piggly Wiggly, Tuscaloosa Division Commodores Point Terminal Corp. v. NLRB, 705 F.2d 1537, 1541, 1543 (11th Cir. 1983) (quoting Gissel, above, 395 U.S. at 611 fn. 31).

[22] The General Counsel’s complaint also alleged that the Respondent violated Sec. 8(a)(1) when Forgey told employees that the Respondent would no longer allow them to leave early in cases of emergency because they engaged in union activities.  As the judge found, Ornelas testified that Forgey told the Oxnard drivers that he would not be able to let them go home early if they unionized.  However, the judge did not expressly address this complaint allegation, and no party has excepted to the omission. 

[23] The General Counsel has asked the Board to affirm the judge’s finding of this violation by overruling Tri-Cast and related precedent.  We decline to do so in this case.  Chairman McFerran and Members Wilcox and Prouty are willing to reexamine Tri-Cast and related precedent in a future appropriate case.

[24] Member Kaplan would not find that the Respondent threatened employees when Faulkner told the drivers that if the Union came in it may strip him of the ability to teach drivers to batch or drive a loader because the Union has a classification system.  Sec. 8(c) permits an employer to make predictions about the effects unionization will have on its company so long as the prediction is based on “objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control” and does not carry “any implication that an employer may or may not take action solely on [its] own initiative.”  Gissel, 395 U.S. at 618.  Consistent with Sec. 8(c), the Board has allowed employers to make predictions of what bargaining outcomes a union might seek based on objective facts gleaned from the employers' past experience.  See, e.g., Didlake, Inc., 367 NLRB No. 125, slip op. at 3 (2019) (finding unobjectionable employer’s prediction that if union

[25] The General Counsel did not allege that this conduct violated Sec. 8(a)(3).  As director of plant and fleet maintenance, Charlson reported directly to VP/GM Forgey and was generally not directly involved in management of the Respondent’s ready-mix operations.  However, during the relevant period, Forgey had instructed Faulkner to seek, and Charlson to provide, guidance in Faulkner’s management of several Ventura County ready-mix plants, including the Oxnard plant where Ornelas worked.  In this capacity, Charlson was involved in all three unlawful disciplines issued to Ornelas.  We agree with the judge’s finding that Charlson’s non-credible testimony about these incidents evidenced an effort to disguise his involvement in the unlawful disciplines.

[26] See, e.g., Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 fn.

[27] (1945).

[28] In finding this violation, the judge relied in part on an adverse inference related to the Respondent’s failure to elicit testimony about the exchange between Turner and Molina from plant foreman/batchman Mike Carmody.  Molina testified that Carmody was among those present when Turner made the statements at issue, but Molina also testified that at least eight people were all talking at the time, and his testimony does not otherwise establish that Carmody would necessarily have heard Turner’s remarks.  We accordingly do not rely on the judge’s inference from the absence of testimony from Carmody.  Even absent the judge’s inference, however, a preponderance of the record evidence does not support overturning the judge’s determination to credit Molina’s account over Turner’s.  See Standard Dry Wall Products, above.

[29] The General Counsel’s complaint characterized this exchange as an unlawful threat of loss of benefits, but we find that it is better characterized as an unlawful promise of benefits.  We further find that Turner followed through on this unlawful promise based on Turner’s testimony that he offered Shipp the requested transfer after the election.

Member Kaplan agrees that Turner unlawfully promised Shipp a benefit but finds it unnecessary to pass on whether Turner followed through on his promise because a finding that he did so is irrelevant to the violation.

[30] The General Counsel excepts to the judge’s failure to find that Turner additionally violated the Act by telling Shipp that drivers would only receive new trucks and raises if they rejected the Union.  We find it unnecessary to pass on whether the General Counsel presented sufficient evidence to establish this violation because finding the violation would not materially affect the remedy.

[31] These include unfair labor practices found above: (1) foreman/batchman Dickson inviting driver Collins to quit; (2) VP/GM Forgey’s threats of limited work opportunities; (3) Forgey’s threat of discharge for engaging in protected strike activity; (4) Forgey’s threat of indefinitely delayed wage increases; (5) superintendent Faulkner’s threats of lost ability to learn and grow in the company; (6) area manager Turner’s threat to driver Molina to discontinue help provided in the past; and (7) Turner’s threat to driver Daunch to cease allowing Daunch to leave early for musical performances.  We also affirm the judge’s findings of several more objectionable threats not alleged as unfair labor practices: (1) Santana separately threatened employees with futility by telling drivers that they would not be able to achieve anything with the union because of Cemex’s size; (2) Forgey threatened employees that the Respondent’s policy of providing work boots would be up for negotiation, a false assertion because California regulations require employers like Cemex to pay for footwear protection for their employees; and (3) Forgey threatened driver Ornelas individually by asking her to consider what she had to lose by supporting the Union in the context of various other threats at the January 29, 2019 Oxnard meeting.  The Respondent does not except to the judge’s findings of these last two threats.

[32] See, e.g., Gissel, above, 395 U.S. at 611 fn. 31 (“[C]ertain unfair labor practices [such as threats to close or transfer plant operations] are more effective to destroy election conditions for a longer period of time than others.”).

[33] These are: (1) Dickson’s instructions to Collins to remove union stickers; (2) Dickson’s interrogation of Collins; (3) Turner’s interrogation of Daunch; (4) Forgey’s blaming the Union for delayed wage increases; (5) Charlson and Faulkner’s overly broad directive against talking to union representatives on “company time”; (6) Charlson and Faulkner’s discipline of Ornelas for talking to union representatives; and (7) Turner’s promise of benefit to Shipp in exchange for opposing the Union.

[34] These include threats, interrogation, or other coercive conduct directed to individual employees Collins, Daunch, Ornelas, Molina, and Shipp.

[35] These include threats of plant closure, job loss, or other unit-wide repercussions and other coercive conduct directed at unit employees in general.

[36] Because the Union clearly met its evidentiary burden under Crown Bolt, we decline the General Counsel’s request that we revisit that precedent in this case.

[37] For the reasons he has already stated, Member Kaplan disagrees with some of his colleagues’ violation findings.  He agrees, however, that the Respondent’s unlawful and objectionable conduct requires the results of the election to be set aside.

[38] For the reasons stated below in his separate partial dissent, Member Kaplan would not issue a Gissel bargaining order.  Accordingly, he does not join in this section of the decision.

[39] Gissel, above, 395 U.S. at 614-615.

[40] Id. at 614; see also Seattle-First National Bank v. NLRB, 892 F.2d 792, 796 (9th Cir. 1989) (“[A] long line of cases . . . stands for the proposition that the purpose of an order to bargain is not simply to effectuate majority rule in a particular case but also to deter wrongful refusals by employers to recognize majorities promptly.”).  This is the Gissel “Category II” standard, under which the parties and the judge have analyzed this case.    

[41] Gissel, above, 395 U.S. at 614.

[42]  See, e.g., Aldworth Co., 338 NLRB 137, 150 (2002) (finding “pernicious effects of the Respondent’s preelection unfair labor practices were exacerbated and renewed by independent unlawful postelection conduct.”), enfd. sub nom. Dunkin Donuts Mid-Atlantic Distribution Center v. NLRB, 363 F.3d 437 (D.C. Cir. 2004); General Fabrications Corp., 328 NLRB 1114, 1115 (1999) (“An employer’s continuing hostility toward employee rights in its postelection conduct ‘evidences a strong likelihood of a recurrence of unlawful conduct in the event of another organizing effort.’”) (quoting Garney Morris, Inc., 313 NLRB 101, 103 (1993)), enfd. 222 F.3d 218 (6th Cir. 2000). ⁷⁰ See, e.g., Garvey Marine, Inc., 328 NLRB 991, 993 (1999) (citing Holly Farms Corp., 311 NLRB 273 (1993)), enfd. 245 F.3d 819 (D.C.

Cir. 2001).

[43] NLRB v. Jamaica Towing, Inc., 632 F.2d 208, 212 (2d Cir. 1980), denying enf. in part to 247 NLRB 353 (1980).

[44] See Gissel, above, 395 U.S. at 620 (“[A]n employer . . . cannot be heard to complain that he is without an adequate guide for his behavior.  He can easily make his views known without engaging in ‘brinksmanship’ when it becomes all too easy to ‘overstep and tumble (over) the brink.’”) (quoting Wausau Steel Corp. v. NLRB, 377 F.2d 369, 372 (7th Cir. 1967)); see also NLRB v. Solboro Knitting Mills, 572 F.2d 936, 940 (2d Cir. 1977) (holding ambiguous employer speech violated Act as threat of plant closure because “an employer who goes so close to the brink takes the risk that employees may honestly misunderstand him”) (quoting NLRB v. Rollins Telecasting, Inc., 494 F.2d 80, 82 (2d Cir. 1973)); Georgetown Dress Corp., 201 NLRB 102, 116 (1973) (finding unlawful “preelection communications [which] . . . constantly hovered on the thin edge of what judges and lawyers know to be the shadow realm of ambivalence, double-edged expression, half-truth, and the potentially misleading—what has been called ‘“brinksmanship” when it becomes all too easy to “overstep and tumble into the brink”’ [Gissel, above, 395 U.S. at 620] . . . .  It is only simple justice that a person who seeks advantage from his elected use of the murky waters of double entendre should be held accountable therefor at the level of his audience rather than that of sophisticated tribunals, law professors, scholars of the niceties of labor law or ‘grammarians.’”) (second citation omitted).

[45] See Eddyleon Chocolate, 301 NLRB 887, 891 (1991) (“The futility of holding a fair rerun election is evident not only from the likely lingering effect of the Respondent’s misconduct on employee free

[46] See, e.g., Stevens Creek Chrysler Jeep Dodge, 357 NLRB 633, 638 (2011) (“Threats of job loss and plant closure are ‘hallmark’ violations, long considered by the Board to warrant a remedial bargaining order because their coercive effect tends to ‘destroy election conditions, and to persist for longer periods of time than other unfair labor practices.’”) (quoting Evergreen America Corp., 348 NLRB 178, 180 (2006)), enfd. sub nom Mathew Enterprise, Inc. v. NLRB, 498 Fed. Appx. 45 (D.C. Cir. 2012); see also Piggly Wiggly, Tuscaloosa Division Commodores Point Terminal Corp., above, 705 F.2d at 1542 (“[I]t is well established that threats of plant closures, by themselves, can justify a Gissel order.”) (citing Gissel, above, 395 U.S. at 587-589, 618-620), enfg. 258 NLRB 1081 (1981).

[47] Cf. Scott v. Stephen Dunn & Associates, 241 F.3d 652, 665 (9th Cir. 2001) (directing entry of Sec. 10(j) interim bargaining order: “Because these violations affected the entire 97-person bargaining unit, there is no basis to contend that this violation will not continue to impact the deliberations of all of the eligible voters.  The size of the bargaining unit did not lessen the impact of the unfair labor practices here.”).

[48] See, e.g., Jamaica Towing, above, 632 F.2d at 213 (“The prospect of unionization is not a sure safeguard against such tactics.”).

[49] Cf. NLRB v. General Stencils, Inc., 472 F.2d 170, 173 (2d Cir. 1972) (discounting impact of threat of plant closure made to single employee based in part on court’s finding employees would “know how unlikely it is that a small local employer will in fact close down a flourishing operation simply in a fit of pique.”); Crown Bolt, above, 343 NLRB at 779 (“[A] clear and unequivocal threat of plant closure is more likely than not to be disseminated [but] . . . the probability . . . and . . . extent of its dissemination may be reduced by the circumstances, including the manner in which the threat is conveyed, to whom, by whom and under what circumstances, and the size and makeup of the

[50] See, e.g., Stevens Creek Chrysler, above, 357 NLRB at 638 (discharge of prominent union supporter “is a ‘hallmark’ violation, perhaps the most flagrant, ‘because no event can have more crippling consequences to the exercise of Sec[.] 7 rights than the loss of work.”) (quoting Mid-East Consolidation Warehouse, 247 NLRB 552, 560 (1980)).

[51] See, e.g., id. (“[T]he discharge of an active union adherent would likely ‘have a lasting inhibitive effect on a substantial percentage of the work force,” and would remain in employees’ memories for a long time.”) (quoting Jamaica Towing, above, 632 F.2d at 212-213). 

[52] In addition to the considerations discussed by the judge, we find it telling that, as noted above, Forgey directed Charlson to assist Faulkner in managing the Ventura County drivers, Charlson was involved in all three unlawful disciplines issued to Ornelas, and Charlson attempted to disguise or deny his involvement in these disciplines in his testimony at the hearing in this matter.

[53] Garney Morris, Inc., 313 NLRB 101, 103 (1993), enfd. 47 F.3d 1161 (3d Cir. 1995); see also MJ Metal Products, 328 NLRB 1184, 1185 (1999) (respondent’s continuing hostility to employee rights in postelection misconduct evidences likelihood of recurrence supporting bargaining order), enfd. 267 F.3d 1059 (10th Cir. 2001); General Fabrications Corp., above, 328 NLRB at 1115 (same); Eddyleon Chocolate, supra, 301 NLRB at 891 (“The likelihood of the Respondent’s misconduct recurring in a rerun election is high, as the Respondent’s postelection conduct reveals continued hostility to employee rights.”).

[54] See, e.g., Stevens Creek Chrysler, above, 357 NLRB at 638 (pattern of continuing violations “particularly the interrogations and impressions of surveillance, accentuated the coercive effect of the hallmark violations by serving as a continuing warning of the dangers attendant to union adherence”). 

[55]  We note in addition that Forgey confirmed in his testimony that the unitwide wage increase the Respondent would otherwise have given at the beginning of 2019 was withheld because he “understood” that – as he unlawfully told employees – “the National Labor Relation Board rules” required that the unit’s terms and conditions of employment be frozen “in a status quo state” before the election. Although the withholding of the wage increase itself was not alleged to be independently unlawful, it affected the entire unit and would clearly have added to the ongoing coercive impact of the Respondent’s misconduct.

[56] Gissel, above, 395 U.S. at 614; Garney Morris, above, 313 NLRB at 103.

[57] Jamaica Towing, above, 632 F.2d at 212.

[58] See, e.g., Garvey Marine, above, 328 NLRB at 993.

[59] See, e.g., Chromalloy Mining & Minerals, 620 F.2d 1120, 1130 (5th Cir. 1980) (“a threat made to a single individual . . . assumes significance here because the Union lost by one vote”), enfg. 238 NLRB 688 (1978); Amalgamated Clothing Workers of America v. NLRB (Jimmy-Richard Co.), 527 F.2d 803, 807 (D.C. Cir. 1975) (noting “effect of . . . less pervasive violations on bare majority situations,” and finding “promise of an additional holiday made to a small number of employees could have affected some of the six critical votes”), enfg. 201 NLRB 802 (1974), cert. denied 426 U.S. 907 (1975).  While the closeness of the election bears on our analysis of dissemination in this case, we note that the Board does not require a close election as a condition of a bargaining order because “[s]uch a requirement might encourage an employer to escalate its misconduct in order to achieve an overwhelming election victory and avoid a bargaining order, thereby rewarding those who engage in the greatest misconduct.” United Dairy Farmers, above, 257 NLRB at 775 & fn. 22.

[60] Gissel, above, 395 U.S. at 614 (“the Board can properly take into consideration . . . the likelihood of [misconduct’s] recurrence in the future”). 

[61] Cf. e.g., Garney Morris, above, 313 NLRB at 103 (respondent’s postelection discriminatory actions “evidence[d] a strong likelihood of a recurrence of unlawful conduct in the event of another organizing effort.”).

[62] NLRB v. Bakers of Paris, 929 F.2d 1427, 1448 (9th Cir. 1991)

(citing cases), enfg. 288 NLRB 991 (1988).  See also, e.g., East Bay Automotive Council v. NLRB, 483 F.3d 628, 635 (9th Cir. 2007) (enforcing non-Gissel bargaining order despite 8-year litigation delay: “it would be inappropriate to upset the Board’s order in light of a loss of employee support that was brought about by the very wrongs being remedied,” and “changed circumstances during intervals of adjudication ‘have been held irrelevant to the adjudication of enforcement proceedings.’”) (quoting Bakers of Paris, above, 929 F.2d at 1448), enfg. 342 NLRB 1244 (2004); United Dairy Farmers Cooperative Assn. v. NLRB, 633 F.2d 1054, 1069 (3d Cir. 1980) (remanding for reconsideration of Gissel order 6 to 7 years after last unfair labor practice: holding Board may “ignore a possible dissipation of majority support through employee turnover after the unfair labor practice [because] ‘[t]o require the Board to determine whether a continuing majority supports unionization . . . would be to put a premium upon continued litigation by the employer’ and allow the employer ‘to avoid any bargaining obligation indefinitely.’”) (quoting Hedstrom Co., above, 629 F.2d at 312), remanding in relevant part 242 NLRB 1026 (1979).

[63] See, e.g., Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166, 1171 & fn. 4 (D.C. Cir. 1998) (citing precedent from other courts of appeals considering changed circumstances, including passage of time and employee and management turnover), remanding in relevant part 324 NLRB 72 (1997).  More specifically, the District of Columbia

Circuit has held that, absent “outrageous and pervasive ULP’s,” the Board must find, based on substantial evidence, that: (1) the union, at some time, had majority support within the bargaining unit; (2) the employer’s unfair labor practices had the tendency to undermine majority strength and impede the election process; and (3) the possibility of erasing the effects of past practices and of ensuring a fair rerun election by the use of traditional remedies is slight and that employee sentiment once expressed in favor of the union would be better protected by a bargaining order.  Traction Wholesale Center Co. v. NLRB, 216 F.3d 92, 104 (D.C. Cir. 2000), enfg. in relevant part 328 NLRB 1058 (1999).  The court additionally requires the Board to explicitly balance three considerations, as considered at the time the Board issues its order: (1) the employees’ Sec. 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.  Cogburn Health Center, Inc. v. NLRB, 437 F.3d 1266, 1273 (D.C. Cir. 2006), denying enf. in relevant part to 335 NLRB 1397 (2001).

[64] Cf. Orland Park Motor Cars, Inc., 333 NLRB 1017, 1018-1019 (2001) (quoting Gissel, above, 395 U.S. at 612-613 & fn. 33), enfd. 309 F.3d 452 (7th Cir. 2002); Stevens Creek Chrysler, above, 357 NLRB at 639. 

[65] Gissel, above, 395 U.S. at 614. 

[66] As noted above, Forgey later resigned and is no longer employed by the Respondent.

[67] The Respondent proffered this evidence in a motion to reopen the record filed on December 6, 2022.  The General Counsel opposed the Respondent’s motion to reopen the record, arguing that the Respondent’s postelection misconduct considered in this case and further conduct that is the subject of currently pending unfair labor practice charges evidences a strong likelihood of recurring violations.  In this respect, we note that on January 20, 2023, the General Counsel issued a new consolidated complaint in Cases 28–CA–287970, 28–CA–293695, 28– CA–294448, and 28–CA–294908, alleging that the Respondent has engaged in further unlawful surveillance and interrogation of, and threats to, unit employees and has unlawfully suspended and discharged another unit employee because of their union activity.  As discussed below, our careful consideration of the evidence and arguments contained in the Respondent’s motion does not persuade us that, taking the Respondent’s factual representations as true, a fair election is likely at this time.  We accordingly deny the motion. 

[68] The Respondent has made no representation to the Board about how many current unit employees were employed at the time of its unlawful postelection misconduct.

[69] See, e.g., Garvey Marine, above, 328 NLRB at 995, 996 (finding that approximately 70 percent employee turnover was not likely to have sufficiently dissipated the impact of respondent’s unlawful conduct to ensure a free rerun election); Dunkin Donuts, above, 363 F.3d at 441442 (District of Columbia Circuit affirming Board’s finding that employer’s retention of “a core of steady employees with whom the experience of [the companies’] unlawful conduct will remain” supported its determination that an affirmative bargaining order was necessary).  The respondents in Dunkin Donuts had proffered evidence showing 74 percent turnover in the year before the election, 81 percent in the year of the election, and 27 percent in the first half of the year following the election, but the Board concluded that “those who remain not only will recall [the respondent’s unfair labor practices] but will continue to be affected by them, and will relate their experience to those newly hired.”  Aldworth Co., above, 338 NLRB at 151, 152.

[70] See Flamingo Hilton-Laughlin, above, 148 F.3d at 1178 (Rogers, J., concurring) (explaining that “while the passage of time, in and of itself, should not be dispositive,” Board must consider “whether the intervening years, in conjunction with the changed circumstances, have helped dissipate the remaining effects of [the respondent’s] unfair labor practices.”).

Courts reviewing Board Gissel orders have required the Board “to explain its own delay,” and to address the impact of “extraordinary delays” upon the propriety of a bargaining order, as conditions of enforcing the Board’s order.  See NLRB v. Intersweet, Inc., 125 F.3d 1064, 1069 (7th Cir. 1997) (reviewing 7th Circuit cases), enfg. 321 NLRB 1 (1996); Cogburn Health Center, above, 437 F.3d at 1275.  While the Board strives for expeditious adjudication, it is impossible entirely to eliminate “procedural delays necessary fairly to determine charges of unfair labor practices.”  Franks Bros. Co., above, 321 U.S. at 705; see also Intersweet, above, 125 F.3d at 1068–1069 (characterizing a 3– to 4–year period between unfair labor practices and Board

[71]  The Respondent argued to the judge, and continues to contend to the Board, that the passage of time spent litigating this case should preclude a bargaining order under Board decisions like Stern Produce Co., 368 NLRB No. 31 (2019), and Sysco Grand Rapids, LLC, 367 NLRB No. 111 (2019).  We disagree.  As discussed above, the Board and some courts have traditionally recognized that considering the passage of time spent in litigation as a condition on the issuance of a bargaining order risks creating an incentive for employers to complicate and prolong Board proceedings.  See, e.g., Garvey Marine, above, 328 NLRB at 995; Intersweet, Inc., 321 NLRB 1, 1 (1996), enfd. 125 F.3d 1064 (7th Cir. 1997); Bakers of Paris, above, 929 F.2d at 1448; United Dairy Farmers, above, 633 F.2d at 1069.  Nevertheless, the Board has concluded in some cases, including Sysco Grand Rapids, that—despite the presence of severe unfair labor practices that would otherwise warrant the issuance of a bargaining order—employees’ rights would be better served by proceeding directly to a second election, however flawed, because entering a bargaining order would likely engender further delay in litigation over the propriety of that order, and litigation delays might ultimately render a bargaining order unenforceable in some courts of appeals.  Sysco Grand Rapids, above, 367 NLRB No. 111, slip op. at 2 (citing cases).  We do not read Sysco Grand Rapids and other cases where the Board has declined to issue a bargaining order on similar pragmatic grounds as binding on our remedial determination in cases that present different facts.  Cf., e.g., Parts Depot, above, 332 NLRB at 676 & fn. 35 (entering Gissel order more than 4 years after unfair labor practice, distinguishing cases in which Board declined to enter bargaining order based on enforceability considerations); Garvey Marine, above, 328 NLRB at 997-998 (same).  Additionally, as discussed above, our order in this case rests not only on the continuing impact of the Respondent’s extensive pre-election miscon-

[72] See Boire v. Greyhound Corp., 376 U.S. 473, 477-479 (1964) (quoting H. R. Rep. No. 972, 74th Cong., 1st Sess., 5).

[73] See also Linden Lumber, 419 U.S. at 312 (Stewart, J., dissenting) (“After rejection of the proposed House amendment, the House Conference Report explicitly stated that § 8(a)(5) was intended to follow the provisions of ‘existing law.’  And ‘existing law’ unequivocally recognized that a union could establish majority status and thereby impose a bargaining obligation on an unwilling employer by means other than petitioning for and winning a Board-supervised election.”).

[74] Gissel, 395 U.S. at 596-598. 

[75] See, e.g., Linden Lumber, above, 419 U.S. at 307-308.

[76] See, e.g., Woodville Lime Products Co., 7 NLRB 396, 399–400 (1938) (certifying a union as employees’ bargaining representative based on affidavits signed by a majority of employees in an appropriate unit); Wilmington Transportation Co., 4 NLRB 750, 753–754 (1937) (certifying a union after a majority of employees in an appropriate testified that they desired union representation).

[77] See, e.g., Georgia Twine & Cordage Co., 76 NLRB 84, 85–86 (1948) (employer violated Sec. 8(a)(5) by “stat[ing] that he would not bargain until the Union proved its majority in a Board election” where the employer’s “challenge of the Union’s representative status was not founded upon a good faith doubt of the majority”), enfd. sub. nom. NLRB v. Lovvorn, 172 F.2d 293 (5th Cir. 1949); Consolidated Machine Tool Corp., 67 NLRB 737, 740 (1946) (“[B]y refusing to recognize or otherwise bargain with the [union] until its majority status was established in an election, after having engaged in unfair labor practices directed toward the dissipation of the [union’s] majority status, the respondent refused to bargain collectively with the [union] in violation of Sec[.] 8(5) of the Act”), enfd. 163 F.2d 376 (2d Cir. 1947).  As mentioned above, the version of the Taft-Hartley amendments that Congress ultimately enacted omitted the provision that would have required a Board election as a precondition to an enforceable statutory bargaining obligation. 

[78] See, e.g., NLRB v. Lunder Shoe Corp., 211 F.2d 284, 288 (1st Cir. 1954); NLRB v. Pyne Molding Corp., 226 F.2d 818, 821 (2d Cir. 1955); NLRB v. Epstein, 203 F.2d 482, 484 (3d Cir. 1953); NLRB v. Inter-City Advertising Co.,  190 F.2d 420, 422 (4th Cir. 1951); NLRB v. Stewart, 207 F.2d 8, 13 (5th Cir. 1953); NLRB v. Model Mill Co., 210 F.2d 829, 829-30 (6th Cir. 1953); NLRB v. Taitel, 261 F.2d 1, 4-5 (7th

Cir. 1958); NLRB v. Wheeling Pipe Line, Inc., 229 F.2d 391, 393 (8th

Cir. 1956); NLRB v. W. T. Grant Co., 199 F.2d 711, 712 (9th Cir. 1952); NLRB v. Burton-Dixie Corp., 210 F.2d 199, 201 (10th Cir. 1954).  These cases were considered before Congress established the Court of Appeals for the Eleventh Circuit in 1981.

[79] For a more extensive treatment of post-Joy Silk developments in Board law, see generally Brandon R. Magner, The Good-Faith Doubt Test and the Revival of Joy Silk Bargaining Orders, 56 U. MICH. J.L. REFORM 151, 167–178 (2022).

[80] In Bernel Foam Products Co., 146 NLRB 1277, 1293 (1964), the Board overruled Aiello Dairy Farms.  In subsequent cases, the Board issued remedial bargaining orders in certain cases where a union lost a representation election, but only if the election was set aside because of meritorious objections.  See, e.g., Kolpin Bros. Co., 149 NLRB 1378, 1380 (1964) (“Where, as here, the election has not been set aside on [the] basis [of meritorious objections] and its validity stands unimpaired, we will presume that the election, which the Union lost, truly expressed the employees’ desires as to representation.”). ¹²⁴ See, e.g., Southeastern Rubber Mfg. Co., 106 NLRB 989, 994 (1953) (Chairman Farmer, dissenting).

[81] As noted above, other courts specifically objected to the role union-authorization cards played in the Board’s application of the Joy Silk framework.  See, e.g., S. S. Logan Packing Co., 386 F.2d at 564–568. ¹³⁰ Brian J. Petruska, Adding Joy Silk to Labor’s Reform Agenda, 57 SANTA CLARA L. REV. 97, 108-110 (2017). 

[82] Gissel, 395 U.S. at 594 (“[T]he Board announced at oral argument that it had virtually abandoned the Joy Silk doctrine altogether.  Under the Board’s current practice, an employer’s good faith doubt is largely irrelevant, and the key to the issuance of a bargaining order is the commission of serious unfair labor practices that interfere with the election processes and tend to preclude the holding of a fair election.”). 

[83] Gissel, above, 395 U.S. at 614-615. 

[84] Id. at 614; see also Seattle-First National Bank v. NLRB, 892 F.2d 792, 796 (9th Cir. 1989) (“[A] long line of cases . . . stands for the proposition that the purpose of an order to bargain is not simply to effectuate majority rule in a particular case but also to deter wrongful refusals by employers to recognize majorities promptly.”). 

[85] Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971), revd. sub nom Truck Drivers Union Local No. 413, 487 F.2d 1099 (D.C. Cir. 1973), affd. 419 U.S. 301 (1974).

[86] Subsequent cases in other contexts continued the Board’s retreat from the “good-faith doubt” formulation of the Joy Silk Mills standard.  For example, in Levitz Furniture Co. of the Pacific, 333 NLRB 717,

[87] (2001), the Board abandoned the Celanese Corp., 95 NLRB 664 (1951), rule, under which an employer was permitted to withdraw recognition if it had “a good-faith doubt, based on objective considerations, of the union’s continued majority status.” 

[88] Joy Silk Mills, Inc., 85 NLRB 1263 (1949), enfd. in relevant part, 185 F.2d 732 (D.C. Cir. 1950), cert. denied 341 U.S. 914 (1951).

[89] Sec. 10(c) “charges the Board with the task of devising remedies to effectuate the policies of the Act” by “draw[ing] on enlightenment gained from experience.”  NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 346 (1953).  The Board’s remedial authority “will not be disturbed unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.”  Fibreboard Paper Products, 379 U.S. at 203 (quoting Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 539 (1943)) (internal quotations omitted).  Finally, the Board, with Supreme Court approval, has long issued remedial bargaining orders for violations of Sec. 8(a)(5) of the Act.  See, e.g., Franks Bros. Co., 321 U.S. at 705 (“That the Board was within its statutory authority in adopting the [bargaining order] remedy which it has adopted to foreclose the probability of such frustrations of the Act seems too plain for anything but statement.”).

[90] As noted above, and as discussed further in our response to the dissent, Linden Lumber represents a permissible, but not mandatory, construction of the Act.  See Linden Lumber, 419 U.S. at 309-310 (“In light of the statutory scheme and the practical administrative procedural questions involved, we cannot say that the Board’s decision that the union should go forward and ask for an election on the employer’s refusal to recognize the authorization cards was arbitrary and capricious or an abuse of discretion.”).

[91] Allowing for unforeseen circumstances that may be presented in a particular case, we will normally interpret “promptly” to require an employer to file its RM petition within 2 weeks of the union’s demand for recognition. 

[92] Our framework does not limit an individual or labor organization’s ability to file a petition seeking a Board-conducted representation election pursuant to Sec. 9(c)(1)(A).  Many unions may prefer pursuing certification following a Board election, as certification confers certain benefits on unions.  These include: Sec. 9(c)(3)’s 1-year nonrebuttable presumption of majority status; Sec. 8(b)(4)(C)’s prohibition against recognitional picketing by rival unions; Sec. 8(b)(4)(D)’s exception to restrictions on coercive action to protect work jurisdiction; and Sec. 8(b)(7)’s exception from restrictions on recognitional and organizational picketing.  See also Gissel, 395 U.S. at 598-599 & fn. 14 (1969) (“A certified union has the benefit of numerous special privileges which are not accorded unions recognized voluntarily or under a bargaining order[.]”).

[93] If the employer neither recognizes the union nor promptly files a petition, the union may file a Sec. 8(a)(5) charge against the employer, and, if majority support in an appropriate unit is proven, the Board will find that the employer violated Sec. 8(a)(5) by failing and refusing to recognize and bargain with the union as employees’ designated collective-bargaining representative and issue a remedial bargaining order.  As in other cases involving remedial bargaining orders, in such situations, the bargaining obligation attaches from the date of the union’s demand for recognition.  See, e.g., Atlas Microfilming, 267 NLRB 682, 685, 697 (1983) (finding, where the union made a majority-supported request for bargaining, the employer’s bargaining obligation attached retroactively to date of that request), enfd. 753 F.2d 313 (3d Cir 1985).

[94] Under long-established Board law, an election will be set aside when an employer violates Sec. 8(a)(3) of the Act during the “critical period” between the filing of an election petition and the election. See, e.g., Lucky Cab Co., 360 NLRB 271, 277 (2014) (citing Baton Rouge Hospital, 283 NLRB 192, 192 fn. 5 (1987)).  An election will be set aside based on an employer’s critical-period violation of Sec. 8(a)(1) unless the “violations . . . are so minimal or isolated that it is virtually impossible to conclude that the misconduct could have affected the election results.’” Id. at 277 (quoting Longs Drug Stores California, 347 NLRB 500, 502 (2006), and Clark Equipment Co., 278 NLRB 498, 505 (1986)).  In determining whether unlawful misconduct could affect the results of an election, the Board considers all relevant factors, including the number of violations, their severity, the extent of dissemination, the size of the unit, the closeness of the election (if one has been held), the proximity of the conduct to the election date, and the number of unit employees affected.  See, e.g., Bon Appetit, above, 334 NLRB at 1044 (citing cases).

[95] The standard we announce today addresses only situations where an employer frustrates the election process by the commission of independent unfair labor practices—that is, unfair labor practices other than the refusal to recognize and bargain with employees’ designated majority representative.  We do not address other situations in which an employer may be deemed to have forfeited or waived its right under Sec. 9(c)(1)(B) to seek an election, and violated Sec. 8(a)(5) by refusing to recognize and bargain with the union, such as where an employer had previously agreed to recognize and bargain with the union based on the union’s showing of majority support and then reneged on its agreement, see, e.g., Snow & Sons, 134 NLRB 709 (1961), enfd. 308 F.2d 687 (9th Cir. 1962), or where the employer refused to recognize and

[96] The passage of time between the underlying events and the Board’s resolution of this case, while not atypical, illustrates this problem.  As noted above, the Respondent here has consistently argued that time elapsed in litigating this case will ultimately preclude the Board’s issuance of an enforceable bargaining order.  The standard we announce today aims to eliminate such delays in effectuating employees’ expressed free choice of bargaining representative.

[97] Importantly, an affirmative bargaining order does not establish a permanent bargaining relationship, though it gives a bargaining relationship “a reasonable period in which it can be given a fair chance to succeed.”  Franks Bros., 321 U.S. at 705.

While the Supreme Court explicitly validated the use of unionauthorization cards that clearly state their purpose to uphold an enforceable statutory bargaining obligation in Gissel, 395 U.S. at 607, additional safeguards help ensure that cards are a reliable indicator of employee sentiment.  Under Board law, if a union organizer misrepresents the nature or purpose of a union- authorization card, the card is invalid.  See Gissel, above, 395 U.S. at 606; Cumberland Shoe Corp., 144 NLRB 1268 (1963) (union-authorization card invalid if organizer misrepresents the card’s nature or purpose), enfd. 351 F.2d 917 (6th Cir. 1965).  Further, in some circumstances, these misrepresentations can also violate Sec. 8(b)(1)(A).  See, e.g., Clement Bros., 165 NLRB 698, 707 (1967).

[98] See, e.g., Cogburn Health Center, above, 437 F.3d at 1275.

[99] See generally Petruska, supra, 57 SANTA CLARA L. REV. at 138 (arguing that a restored Joy Silk standard would have the effect of “increasing the number of elections overall, reducing ULPs committed during elections, and securing fairer elections consistent with the standard of laboratory conditions”).

[100] See, e.g., NLRB v. River Togs, Inc., 382 F.2d at 206 (criticizing Board’s reliance on employer’s lack of good-faith doubt as basis for bargaining order).

[101] As noted above, the Respondent stipulated on December 13, 2018, that the Union claimed to represent the employees described in the petition, and that the Respondent declined to recognize the Union.

[102] As mentioned previously, the General Counsel amended the complaint to allege that “[a]bout December 3, 2018, the Union, by filing the petition in Case 28–RC–232059, requested that Respondent recognize it as the exclusive collective-bargaining representative of the Unit.”  The Respondent’s December 13, 2018 stipulation confirmed that the Union claimed to represent the employees in the petitioned-for unit and that the Respondent refused the Union’s demand.  Cf., e.g., Aldworth Co., 338 NLRB 137, 137, 152–153 (2002) (concluding an employer violated Sec. 8(a)(5) by refusing, since date of recognitionrequest refusal, to bargain with a union, while engaging in conduct undermining union support and preventing a fair rerun election), enfd. sub nom. Dunkin Donuts Mid-Atlantic v. NLRB, 363 F.3d 437 (D.C.

Cir. 2004).

[103] NLRB v. J. Weingarten, Inc., 420 U.S. at 266.

[104] Cf. Kentucky River Medical Center, 356 NLRB 6, 10 (2010) (applying new compound-interest remedy for backpay awards retroactively) (“We are deciding a remedial issue, not adopting a new standard concerning whether certain conduct is unlawful.  No respondent, then, can fairly be said to have relied on the Board’s prior rule of awarding only simple interest on backpay awards in deciding to take the unlawful action on which their liability is based.”).

[105] See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266-267 (1975) (“The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board.”).

[106] See, e.g., Alstate Maintenance, LLC, 367 NLRB No. 68, slip op. at 1 (2019) (stating “although we believe WorldMark by Wyndham is distinguishable, we conclude that WorldMark cannot be reconciled with Meyers Industries and must be overruled.).

[107] Additionally, as the Supreme Court has long recognized, all alternative rationales supporting a legal conclusion have precedential value, even if more than one rationale is relied upon.  See United States v. Title Insurance & Trust Co., 265 U.S. 472, 486 (1924) (“[W]here there are two grounds, upon either of which an appellate court may rest its decision, and it adopts both, ‘the ruling on neither is obiter [dictum], but each is the judgment of the court and of equal validity with the other.”); Railroad Cos. v. Schutte, 103 U.S. 118, 143 (1881) (“It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was found in the end which disposed of the whole matter.”).  See also O’Gilvie v. United States, 519 U.S. 79, 84, (1996) (an independent ground in support of a decision is not dictum); United States Steel Corp. v. United States Environmental Protection Agency, 444 U.S. 1035, 1038 (1980) (“[A]n independent, alternative basis” for a decision is “no more dicta than its companion holding[.]”).

Our dissenting colleague insists that our new standard is dicta because the Respondent committed numerous unfair labor practices that

[108] Cf. id. at 316 (Stewart, J. diss.) (agreeing with the Court majority that it would be improper to impose upon an employer the burden of obtaining a Board-supervised election but observing that “[t]he only employer obligation relevant to this case, apart from the requirement that the employer not commit independent unfair labor practices that would prejudice the holding of a fair election, is the one imposed by [Secs.] 8(a)(5) and 9(a) of the Act: an employer has a duty to bargain collectively with the representative designated or selected by his employees.”).

[109] Id. (Stewart, J. diss.) (citing Gissel, above, 395 U.S. at 598-599).

[110] See, e.g., Franks Bros. Co., above, 321 U.S. at 705 (“That the Board was within its statutory authority in adopting [a bargaining order] remedy . . . seems too plain for anything but statement.”).

[111] Gissel, above, 395 U.S. at 601, 607.

[112] Id. at 602 (footnote omitted).

[113] Id.

[114] Id. at 602–603.  To the extent that circuit court decisions cited by our dissenting colleague can be read to suggest that authorization cards are inherently unreliable indicators of a union’s majority status, we are bound by the Supreme Court’s contrary conclusion. 

[115] Id. at 602.  We are unpersuaded by our colleague’s suggestion that our new standard incentivizes employers and unions to unlawfully collude at the expense of employees by entering into secret deals whereby employers would commit unfair labor practices in order to incur Board bargaining orders in exchange for union concessions at the bargaining table.  In any case, of course, absent actual majority support for the union, such a collusive agreement would expose both the employer and the union to liability under Sec. 8(a)(2) and 8(b)(1)(A) of the Act. 

[116] Because a bargaining order issued under today’s standard is a remedy for an employer’s violation of Sec. 8(a)(5) by refusal to bargain with a union that has been designated representative by a majority of employees in an appropriate unit, an employer faced with an unfair labor practice complaint may also contest the validity of a union’s showing of majority support or the appropriateness of the claimed unit in an unfair labor practice proceeding, to the extent these issues have not previously been resolved in a representation proceeding.

[117] General Shoe Corp., 77 NLRB 124, 126–127 (1948).  Similar concerns about the importance of “provid[ing] a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees,” General Shoe Corp., 77 NLRB at 126–127, prompted the Board to issue a notice of proposed rulemaking to solicit public input on the desirability of restoring its historical blocking charge policy.  See RepresentationCase Procedures:  Election Bars; Proof of Majority Support in Construction Industry Collective-Bargaining Relationships, 87 Fed. Reg. 66890, 66902–66903 (Nov. 4, 2022).  We are puzzled by our colleague’s suggestion that today’s decision stands in tension with this proposal. 

[118] Gissel, above, 395 U.S. at 602.

[119] Id.  See also id. at 599 (Sec. 9(c)(1)(B) “was not added, as the employers assert, to give them an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.”) (emphasis added).

[120] Our dissenting colleague points out that unions have on some occasions lost an election due to employer coercion and then been able to overcome the effects of that coercion and win – after a lengthy delay – a second election.  This does not negate the fact that on many other occasions employer coercion has chilled employees’ willingness to continue pursuing representation.  More importantly, employees should not have to endure employer coercion and participate in multiple elections as a precondition to exercising their statutory rights to bargain through their chosen representative. 

[121] Id. at 613–615.

[122] See, e.g., Stern Produce, above; Sysco Grand Rapids, above.

[123] As discussed in detail above, the Gissel Court definitively established that the 1947 Taft-Hartley amendments did not, by providing employers with a right to petition for a Board election, impair the longstanding principle—upon which we rely today—that a union can establish an enforceable bargaining obligation by means other than a Board election, including by authorization cards.  Gissel, above, 395 U.S. at 595–600.

[124] To the extent our colleague seizes on our description of the deterrent effect of remedial bargaining orders to suggest that today’s decision strays beyond the permissible bounds of make-whole relief, his quarrel is with the Supreme Court.  See Gissel, 395 U.S. at 614 (explaining that bargaining orders advance the dual goals of effectuating ascertainable employee free choice and deterring employer misbehavior).  In any event, as noted in Sec. III of our decision, we will be guided by the requirements of Sec. 10(c) in fashioning bargaining orders in future cases.

[125] Nor will our decision minimize the need for Sec. 10(j) interim injunctive relief in appropriate cases.  Under the framework we set forth today, interim injunctive relief will remain a vital tool for restoring the status quo ante following serious unfair labor practices and preventing the remedial failure of a subsequently issued Board Order.

[126] See, e.g., Bon Appetit, above, 334 NLRB at 1044 (citing cases).  Our colleague correctly points out that the Board has found, under specific factual circumstances, that an employer’s maintenance and dissemination to all employees of a generally applicable handbook confidentiality policy which impaired employees’ ability to campaign for their preferred position by inhibiting their discussion of wages, hours, and working conditions required setting aside an election in which the union failed to establish majority support by a margin of 43 ballots cast for and 43 against representation.  Iris U.S.A., Inc., 336 NLRB 1013, 1013 & fn. 3, 1015 (2001). 

[127] If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notice must be posted and read within 14 days after service by the Region.  If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notice must be posted and read within 14 days after the facilities reopen and a substantial complement of employees have returned to work.  If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region.  If the notice to be physically 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.”

[128] Black’s Law Dictionary 1100 (7th ed. 1999).

[129] The critical period “commences at the filing of the representation petition and extends through the election.”  E.L.C. Electric, Inc., 344 NLRB 1200, 1201 fn. 6 (2005) (citing Ideal Electric Mfg. Co., 134 NLRB 1275 (1961)).

[130] Linden Lumber Division, Summer & Co., 190 NLRB 718 (1971), revd. sub nom. Truck Drivers Union Local No. 413 v. NLRB, 487 F.2d 1099 (D.C. Cir. 1973), revd. 419 U.S. 301 (1974) (upholding Board's decision).

[131] As this case amply illustrates, Board members may, and often do, reasonably disagree whether conduct alleged to violate the Act in fact does so. Accordingly, under the majority’s purported standard, employees’ right to a secret-ballot election hinges on whether or not an employer successfully anticipates and avoids all actions that could be viewed as violations of the Act. An employee’s right to a secret-ballot election should not be conditioned on employer perfection.    

[132] As Justice Gorsuch observed in his dissent to Torres v. Madrid, 141 S. Ct. 989, 1005 (2021) (citing Cohens v. Virginia, 19 U.S. 264 (1821)), “whatever utility it may have, dicta cannot bind future courts.  This ancient rule serves important purposes.  A passage unnecessary to the outcome may not be fully considered.  Parties with little at stake in

[133] Alternatively, Sec. III of the majority’s decision is an advisory opinion regarding the legal consequences that would flow from facts this case does not present.  Regarded as such, it is not just nonprecedential, it is impermissible.  See Board’s Rules & Regulations Sec. 102.98 (providing for advisory opinions regarding the Board’s jurisdiction when requested by an agency or court of any state or territory); James M. Casida, 152 NLRB 526, 527 (1965) (rejecting request for advisory opinion on the basis that it “[did] not fall within the intendment of the Board’s Advisory Opinion rules”); Broward County Port Authority, 144 NLRB 1539, 1540 (same).

[134] My colleagues assert that their decision is binding precedent as an "alternative rationale."  However, because simple application of their alleged alternative rationale, without consideration of the Respondent's numerous unfair labor practices, would not be sufficient to support the majority's full result here, it cannot truly be considered an alternative rationale.

I further note that the Supreme Court cases cited by my colleagues do not stand for the proposition that the Board has the authority to change the law through case adjudication rather than rulemaking, as it pertains to facts that are not before the Board.

In addition, my colleagues state that "[h]istorically, the Board has regularly modified policies through adjudication, including in cases in which the change in standard has not changed the result for the respondent in the case."  Again, my colleagues are missing my point.  It is not a question of whether or not a violation is found under a different theory; it is a question of whether or not the different theory can be considered binding precedent in future cases that present entirely different factual scenarios. 

[135] The majority mischaracterizes my position when they say that I do not accept that a card-majority union—a term my colleagues make a todo over but that I use merely for the sake of convenience—could enjoy majority support.  Neither do I say that union-authorization cards are “inherently unreliable” or “cannot accurately reflect an employee’s wishes” regarding representation.  My point is simply that there are good reasons to prefer secret-ballot elections, and every time the Board issues a Gissel bargaining order—or, after today, a Cemex bargaining order—the “most satisfactory” and “preferred” means (the Supreme Court’s words, not mine) of ascertaining employees’ wishes is sacrificed.  In rare cases, it is appropriately sacrificed.  With today’s decision, it will always be sacrificed.

My colleagues fail to appreciate that the standard they have adopted is susceptible to exploitation.  Since just one violation of Sec. 8(a)(1) that would warrant setting aside the results of an election is now sufficient to support the issuance of a bargaining order, a union and an employer might strike a secret deal, whereby the employer agrees to commit a critical-period 8(a)(1) violation in order to install a union that will return the favor by making certain concessions in collective bargaining.  Board law should eliminate opportunities for employers and unions to collude at the expense of employees.  Today’s decision will create them.  The majority notes that such a deal would expose both parties to unfair labor practice liability, but who would file the charge? 

[136] Disputing this point, the majority relies on the D.C. Circuit’s decision and the opinion of the justices in the minority.  I rely on the Court’s decision.

Since reviewing courts will be constrained by contrary Supreme Court precedent to deny enforcement of bargaining orders that rest on the overruling of Linden Lumber, my colleagues should acknowledge as much (either here or in a future appropriate case) and declare their intention to ask the Solicitor General to petition for certiorari to the Supreme Court. 

[137] My colleagues say that they “place[] no burden on any employer beyond those imposed by the Act itself.”  But there is no disputing that for the past 52 years, employers did not violate Sec. 8(a)(5) if they declined a request for recognition without filing an RM petition, and now they do (assuming the union has a card majority in an appropriate unit).  And my colleagues do not contend that Linden Lumber is statutorily impermissible and that the standard they adopt here is statutorily compelled, so it is not the case that they place no burden on employers “beyond those imposed by the Act itself.”

[138] Joy Silk Mills, Inc., 85 NLRB 1263 (1949), enfd. in part 185 F.2d 732 (D.C. Cir. 1950), cert. denied 341 U.S. 914 (1951).

[139] Levitz Furniture Company of the Pacific, 333 NLRB 717 (2001).

[140] The majority says I “suggest[]” that overruling Linden Lumber “necessarily depends on reinstituting some version of a ‘good-faith doubt’ standard.”  That is not what I am saying.  My point is that imposing a duty on employers to file an RM petition only makes sense in tandem with the good-faith doubt standard.  My colleagues impose that duty without returning to Joy Silk’s good-faith doubt standard.  Accordingly, their imposition of that duty lacks a supporting rationale, as I explain above. 

[141] Precedent illustrates the difficulty of finding that the “virtually impossible” standard has been met.  See, e.g., Intertape Polymer Corp., 363 NLRB No. 187, slip op. at 1–2 (2016) (single violation based on removal of union literature from breakroom one month before election warranted setting aside election despite lopsided result of 97 for and 142 against representation); Diamond Walnut Growers, Inc., 326 NLRB 28, 28–29 (1998) (setting aside election based on single unfair labor practice affecting one employee in unit of 1300 employees based on “implicit” dissemination). 

[142] My colleagues suggest a limiting construction of IRIS U.S.A., but nothing they say will preclude the Board, in future cases, from construing that decision more broadly.

[143] Again, because reviewing courts will be constrained by contrary Supreme Court precedent to deny enforcement of bargaining orders that rest on “minor or less extensive unfair labor practices,” NLRB v. Gissel Packing, 395 U.S. at 615, my colleagues should acknowledge as much (either here or in a future appropriate case) and declare their intention to ask the Solicitor General to petition for certiorari to the Supreme Court.

[144] It is worth noting that my colleagues fail to cite a single prior case where, under their new standard, a bargaining order would not have been warranted.

[145] In each of the following cases, the employer violated Sec. 8(a)(1) or Sec. 8(a)(3) and (1), the union lost the initial election, and records maintained in the Board’s NxGen case-processing system reveal that the union won the second election:  Kumho Tires Georgia, 370 NLRB No. 32 (2020); Union Tank Car Co., 369 NLRB No. 120 (2020); Pacific Coast Sightseeing Tours & Charters, Inc., 365 NLRB No. 131 (2017); First Student, Inc., 359 NLRB 1090 (2013).  The union did so even where the employer had committed extensive and egregious unfair labor practices.  See Kumho Tires Georgia (finding that employer repeatedly interrogated employees, repeatedly threatened loss of customers, loss of jobs, and plant closure, and threatened loss of benefits, transfer of work, and that electing the union would be an exercise in futility).

[146] If my colleagues are taking the novel position that Sec. 10(j) interim injunctive relief is insufficient to ameliorate the “irreparable harm” of nip-in-the-bud discharges, then I assume they will stop their current practice of authorizing the General Counsel to seek this extraordinary relief as a matter of course.  Otherwise, they will be continuing to authorize a significant expenditure of federal resources—both of our

[147] See Gissel, 395 U.S. at 612 (stating that “a bargaining order is designed as much to remedy past election damage as it is to deter future misconduct”).

[148] With respect to the retroactive application of today’s decision in pending cases, my colleagues engage in double talk.  On one hand, they make it clear that the decision will apply retroactively in pending cases.  “[A]ny harm to the interest of employers who might have relied on the prior framework for imposing bargaining orders,” they say, “is outweighed by the clear harm to the achievement of the Act’s policies by continuing to apply the prior standard in cases involving serious misconduct prior to a Board-conducted election. Applying today’s holding retroactively will avoid the potential for inconsistency in pending cases . . . ” (emphasis added).  On the other, they “decline to speculate upon how the Board will resolve any specific claims of particular injustice that may arise in future cases.”  Although it is relieving to hear that employers in pending cases are not absolutely foreclosed from opposing retroactive application, my colleagues miss the point, which is that in all cases except those in which a bargaining order would have been warranted anyway under Gissel, retroactive application will be unjust.

[149] As the D.C. Circuit observed in Charlotte Amphitheater Corp., “all but one of [the circuits] that have considered the issue agree that changed circumstances, such as the passage of time or turnover in the work force, are relevant to the Board's decision to issue a bargaining order.”  Id. (citing NLRB v. Cell Agricultural Mfg. Co., 41 F.3d 389, 398 (8th Cir. 1994), which in turn cited decisions by the First, Third, Fourth, Fifth, Seventh, Eleventh, and D.C. Circuits).

[150] I would grant the Respondent’s motion to reopen the record because the evidence it contains only became available since the close of the hearing and would require a different result.  See Sec. 102.48(c) of the Board’s Rules and Regulations.

[151] In addition to the administrative law judge’s recommended traditional remedies, I would order the recommended notice-reading remedy and the following special access remedies: (1) that the Respondent, upon request, grant the Union reasonable access to company bulletin boards and all places where notices to employees are customarily posted; (2) that the Respondent, upon request, supply the Union with the names and addresses of the Respondent’s current unit employees; and

(3) that the Respondent give notice of, and equal time and facilities for

[152] My colleagues respond to my reliance on Charlotte Amphitheater by saying that the D.C. Circuit merely required the Board to explain why a bargaining order was necessary as of the time of its issuance and that they have provided that explanation here.  For the most part, however, the explanation they provide lacks specificity.  Regarding the extensive turnover in the unit, they say that it is “likely” that employees who were around when the unfair labor practices were committed have shared their experience with new employees. This copy-and-paste justification could be invoked in any case.  Regarding the passage of time, they simply cite cases where courts have enforced bargaining orders notwithstanding a comparable lapse of time.  They acknowledge, however, that the D.C. Circuit has also declined to enforce bargaining orders in cases involving a comparable passage of time—see Cogburn Health Center, Inc. v. NLRB, 437 F.3d 1266 (D.C. Cir. 2006); Flamingo Hilton-Laughlin v. NLRB, 148 F.3d 1166 (D.C. Cir. 1998)—and they do not explain, with respect to this case, why a reviewing court should rely on the former cases and not the latter.  In addition, although my colleagues acknowledge that reviewing courts require the Board to explain its own role in contributing to delay, their explanation on this score omits salient facts.  They do not mention the fact that the General Counsel added to the delay by using this case to urge the Board to overrule five cases.  More importantly, they fail to mention their own substantial contribution to delay by their decision to use this case to adopt a new (and unenforceable) standard for determining when bargaining orders should issue, even though doing so was completely unnecessary because, as they admit, “the same . . . remedy would lie under either the prior standard [i.e., Gissel] or the standard [they] announce today.”       

[153] I note as well that if the majority's dicta were to become binding precedent in a later case, it would create a double standard because it operates in only one direction.  An unfair labor practice committed by an employer during the critical period preceding an RM or RC election installs a card-majority union as the unit employees’ bargaining representative, but where a decertification petition is supported by a majority of unit employees, an unfair labor practice committed by a union during the critical period preceding an RD election does not remove the union as the unit employees’ bargaining representative. 

[154] Testimony contrary to my findings has been specifically considered and discredited.  To the extent possible, and unless otherwise noted, witness demeanor was considered in making all credibility resolutions.

[155]                                                                                                                           See

https://www.sec.gov/Archives/edgar/data/0001076378/0001193125201 26557/d863784d20f.htm (last accessed on December 10, 2021).  For purposes of background information, I take administrative notice of form 20-F filed by CEMEX, S.A.B. de CV with the Securities and Exchange Commission on April 29, 2020.  Pacific Greyhound Lines, 4 NLRB 520, 522 fn. 2 (1937) (Board takes judicial notice of facts stated in company’s annual report filed with the Security and Exchange Commission); Fed. R. Evid. 201(b).

[156] Transcript citations are denoted by “Tr.” with the appropriate page number.  Citations to the General Counsel, Respondent, Union, Joint, and Administrative Law Judge exhibits are denoted by “GC,” “R,” “U,” “JX,” and “ALJ,” respectively.  Transcript and exhibit citations are intended as an aid only.  Factual findings are based upon the entire record and may include parts of the record that are not specifically cited.

[157] Respondent held refresher training on “TIPS” and “FOE” in December 2018.  (R. 21; Tr. 2021)

[158] In its complaint, the government has not alleged that anything said in the videos constitute an unfair labor practice, nor has the Union alleged that the videos amounted to objectionable conduct.  Compare Desert Aggregates, 340 NLRB 289, 290, 297–298 (2003), remedy and order modified 340 NLRB 1389 (2003) (Statement from employer’s agent, who had spoken with employees to determine their concerns, that the union campaign had “rung bells all the way at the top” of the company and that workers should “give the company a year” and see what changes would be made constitutes a violation); Lutheran Home of NW Indiana, Inc., 315 NLRB 103, 104 (1994) (“Objectionable conduct where employer said that he cannot make promises because that would be illegal but the company was “definitely looking into getting

[159]  I take administrative notice of the Regional Director’s March 11, 2020 letter in Case 28-CA-230115, which all parties received during the underlying investigation.  See Lord Jim’s, 264 NLRB 1098, 1098 fn.1 (1982) (The Board may take judicial notice of its own files); Registry of Interpreters for the Deaf, Inc., 370 NLRB No. 18, slip op at 4 fn. 11 (2020) (Board may take administrative notice of the procedural history of a case); American Electric Power, 362 NLRB 803, 804 (2015)  (Board takes administrative notice of Regional Director’s partial dismissal letter). 

[160] The issue of Respondent’s trucks with stickers/signs is discussed in Section III(L) below.

[161] Any claim that Cemex had a legitimate safety concern is without any basis, as the evidence shows that during this same time period the company made available to employees large “Vote No” stickers for

them to wear and company officials were wearing these, and other, stickers on their own hardhats.  (Tr. 363–365; 1290–1294; U. 13–14, 16)

[162] Although this issue was not before the Board on exceptions, I find the Judge’s analysis regarding this topic in Athens Services, 370 NLRB No. 111 (2021) as persuasive.  

[163] In Hood’s opinion, Dickson was speaking loud enough for the drivers to hear what was being said. (557–558) 

[164] Hood said that it was a calm morning at the housing tract.  That there was construction going on at the other end of the housing tract, but at his area it was wide open.  Hood said that he did not have trouble

hearing Dickson. (559)

[165] In its posthearing brief, Respondent admits that both Lauvao and Orozco are still employed with Cemex, and faults the General Counsel and the Union for not calling either as witnesses.  (Cemex Br., at pp. 30. 38, Attachment A pp. 4, 6).  Because current employees cannot be considered predisposed to testify in one manner or another, and are equally available to all parties, taking an adverse inference because a particular party failed to call either Lauvao or Orozco as a witness is not warranted.  Schuff Steel, 367 NLRB No. 76, slip op. at 6 (2019).

[166] Whether Dickson said Cemex “might just close the[ir] doors” as set forth in Collins’s written statement, or said that Cemex was “just going to close their doors” as Collins testified, is immaterial as Dickson never provided any objective facts to support a probable conclusion beyond Respondent’s control that a union election victory would cause the company to close.  Kmart Corp., 316 NLRB 1175, 1178 (1995) (telling employees that the company would have to think about closing the warehouse if company expenses went up because of a union victory was an unlawful threat as the statement was not based on any objective facts);  Metfab, Inc., 344 NLRB 215, 218 (2005) (shop foreman’s statement that company “might have to shut its doors if the union prevailed in the election” a violation as it was not based on any objective facts).

[167] Regarding all of the 8(a)(1) allegations in this matter, I have considered the fact that Respondent provided “TIPS” and “FOE” campaign training to its supervisors and managers.  However, simply providing training does not negate the finding of a violation based upon credible witnesses testimony of what occurred.  Goodyear Tire & Rubber Co., 273 NLRB 36, 40 (1984) (Respondent committed multiple violations, including threats to close the plant, despite manager’s testimony that employer’s supervision received extensive “TIPS” campaign training that they could not engage in treats, interrogation, promises, or spying).

[168] During his testimony, Daunch could not remember Becerra’s last name, and called him “Daniel the batch plant foreman.”  (Tr. 274)  It was clear that Daunch was referring to Becerra, as Respondent’s organizational charts shows that Becerra was the plant foreman for the Perris

[169] In June 2019 Hernandez left Cemex and went to work for the Union as an organizer on the Cemex campaign. (Tr. 1305, 1357) 

[170] Hernandez had transferred to Las Vegas in 2017, and then after about 10 months, he transferred back to the Inglewood plant. (Tr. 1262)

[171] Any claim by Respondent that Hernandez and Williams were interrupting the drivers’ work are simply not credible.  Because of the plant’s layout, drivers needed to slow down, if not stop, to cross the railroad tracks.  There is no credible evidence that either Hernandez or Williams interrupted the work of the drivers that day.

[172] The issue of strikes and the specter that the union election could affect employees and their families for years was a theme that appeared in Respondent’s campaign literature. (R. 23, 26, 30, 31)  And, during at least one meeting, Forgey admitted talking to employees about the company’s right to turn existing plants into satellites even if they unionized.  (Tr. 2073–2074)

[173] Transcript page 970, line 12 should read “ready-mix driver” instead of “administrator” and transcript page 975, line 10 should read “2019” instead of “2018.”

[174] I credit Forgey’s original testimony as to what he told employees about wage increases, as it was given spontaneously and without hesitation.  As such, I find that Forgey did not say anything to drivers about raises typically being given in April.  This was something he added to his testimony later in an effort to aid Respondent’s defense, which I do not credit. 

[175] All of these talking points also appear in various other presentations that Respondent made to employees about bargaining. (R. 24, 25, 30, 31, 49, 51, 52, 61; Tr. 2039– 2047, 2051–2058)

[176] Forgey’s description of satellite plants, turning plants on and off as needed and shifting work, implicates a transfer of work and does not involve a change in the scope or direction of the enterprise that would exempt the company from a bargaining obligation if unionized.  See Geiger Ready-Mix Co. of Kansas City, Inc., 315 NLRB 1021, 1023 (1994), enfd. in pert. part 87 F.3d 1363 (DC. Cir. 1996).  Moreover, even if there would be no obligation to bargain over the decision itself, a unionized employer would be obligated to bargain over the effects of such a decision.  Comau, Inc., 364 NLRB No. 48, slip op. at 1–2 (2016).

[177] I believe Ornelas misunderstood Forgey’s muddled attempt to explain striker reinstatement rights when she testified Forgey said the company could pick and choose who would return to work when the strike ended.  I also find that her testimony about Forgey telling drivers that Cemex was a business and could close down plants at any time for any reason was a summary of what Forgey said during the meeting about satellite plants. 

[178] In its brief, the General Counsel withdrew Complaint paragraphs 5(j) and 5(o).  (GC. Br. at 6)  Complaint paragraph 6(c) was withdrawn by the General Counsel at the hearing.  (Tr. 1991)

[179] Transcript page 983, line 25 should read “union” instead of “unit.”

[180] Transcript page 987, lines 1-2 should read “Ventura County” instead of “Ventura economy.” 

[181] Transcript page 128, line 3 should read “organizing drive started” instead of “organizing strike started.”

[182] Transcript page 2748, line 13 should read “drive between” instead of “decide between.”

[183] The facts fully support a finding that the security guards were Respondent’s agents under Section 2(13) of the Act, as the guards were performing their duties under apparent authority to act on behalf of Cemex, and stopped people from entering the property before certain specified times on election day.  Poly-America Inc. v. NLRB, 260 F.3d 465, 483 (5th Cir. 2001) (security guards who were authorized to exclude people from property were the employer’s agents regardless of whether they were specifically authorized to engage in any section 8(a)(1) prohibited activity).

[184] At various points when describing this incident, the transcript reads “she” when it should read “he.” (Tr. 994)

[185] Transcript page 1001, line 23 should read “Daryl Charlson” instead of “Dell Tovin (ph.),” and transcript page 1002, line 4 should read “Hallin & Herrera” instead of “Colin Hethera.” 

[186] Transcript page 1005, line 9 should read “with the union” instead of “with the unit.”  

[187] Respondent’s brief confirms that Ramino Real was the “chute man” referred to by Resendez. (Cemex. Br. at 152).

[188] Charlson also denied being present at the September 6 meeting when Ornelas was fired, but both Faulkner and Ornelas testified that he was, in fact, there.  (Tr. 423, 472, 1023)  And the evidence shows that Charlson signed the September 6 disciplines of other employees who were disciplined along with Ornelas for the same incident.  (GC. 12; Tr. 484–485)  Along with detracting from his credibility generally, Charlson’s denial further supports a finding that he was trying to hide his involvement in the disciplines issued to Ornelas. 

[189] I credit Resendez’ original answer that this is why he wanted to know the identity of the union agent.  (Tr. 2343)

[190] I credit Ornelas’s testimony that she never received a response from Plascencia regarding her July 12 email.  (Tr. 1013–1014)  I do not credit Plascencia’s testimony that she “believe[d]” she “briefly” discussed the Hallin & Herrera incident with Ornelas over the phone, as I find her testimony was simply an afterthought in an attempt to bolster Respondent’s case.  (Tr. 2994)  There were no notes or other documentary evidence that this conversation occurred, and when originally asked what she did during her investigation into the matter, Plascencia did not mention speaking with Ornelas over the telephone.  Instead Plascencia said that she only collected and reviewed written statements.  (Tr. 2912)

[191] The fact that Cemex may have believed some of the other drivers who deadheaded to Moorpark were also union supporters, but were not fired, is not relevant in the analysis of whether Ornelas’s discharge was unlawfully motivated.  An employer’s failure to discharge all union supporters “does not disprove the fact that an employee’s discharge is based upon an unlawful discriminatory motive.”  NLRB v. ChallengeCook Bros. of Ohio, 374 F.2d 147, 152 (6th Cir. 1967); See also George A. Tomasso Construction Corp., 316 NLRB 738, 742 (1995).

[192] When Daniel Gonzalez was eventually fired, his termination letter specifically stated that he breached his last chance/return to work agreement.  (GC. 15) 

[193] All parties have analyzed the facts presented under a Gissel Category II standard.  (GC. Br. at 97–99; Union Br. at 65–74; Cemex Br. at 171–187)

[194] At hearing I ruled that 39 cards matched the comparator evidence. But, the card for J. Estrada was already part of the parties’ stipulation as being authentic, and is therefore not counted as part of the signature review.  (JX. 12)

[195] While Ibrahim Rida told the 11 drivers from whom he solicited authorization cards that they were for a “vote,” this does preclude those cards from being included, as he did not say that securing an election was the “only” purpose for the cards.  Duthler, Ben, Inc., 157 NLRB 69, 80 (1966), enfd. 395 F.2d 28 (6th Cir. 1968). Even if they were excluded, the remaining 196 cards possessed by the Union still constitutes a majority (54%) of the Unit. 

[196] Regarding unfair labor practices affecting the entire Unit, I am mindful of the statements made in the 25th hour videos, particularly what was said by Hill to Las Vegas drivers, and the context in which these statements were made.  See footnote 5, supra. (citing Desert Aggregates, 340 NLRB 289 (2003); Lutheran Home of NW Indiana,

Inc., 315 NLRB 103 (1994); and Wake Electric Membership Corp., 338 NLRB 298 (2002)).  However, neither the General Counsel nor the Union point to these statements as supporting a Gissel remedy.

[197] At the hearing the Union and Respondent stipulated to this unit description, which makes minor corrections to the wording of the unit found appropriate by the Regional Director in Case 28-RC-232059 but does not add or subtract from the unit any job classifications, plant locations, or employees eligible to vote.  (JX. 12)  The General Counsel has adopted the parties’ stipulation as to the wording of the appropriate unit.  (GC. Br. at 95–96)

[198] If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.

[199] 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.”

[200] 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. Any delay in the physical posting of paper notices also applies to the electronic distribu-

tion of the notice if the Respondent customarily communicates with its employees by electronic means, and to the reading of the notice to employees. 

[201] Subpars. (j), (k), (l), and (m) herein shall be applicable only so long as the Regional Director has not issued an appropriate certification following a free and fair election.