Good-Nite Inn SFO

SFO GOOD-NITE INN, LLC 357 NLRB No. 16 79 SFO Good-Nite Inn, LLC and UNITE HERE! Local 2. Case 20–CA–0032754 July 19, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES On March 20, 2008, the two sitting members of the Board issued a Decision and Order in this proceeding, which is reported at 352 NLRB 268.1 Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the District of Columbia Cir- cuit, and the General Counsel filed a cross-application for enforcement. On June 17, 2010, the United States Supreme Court issued its decision in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, holding that under Sec- tion 3(b) of the Act, in order to exercise the delegated authority of the Board, a delegee group of at least three members must be maintained. Thereafter, the court of appeals remanded this case for further proceedings con- sistent with the Supreme Court’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 The Board has considered the judge’s decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and conclu- sions and to adopt the recommended Order, as modified and set forth in full in the prior decision, to the extent and for the reasons stated in the decision reported at 352 NLRB 268 (2008), which we incorporate herein by ref- erence with the exception of section III. As to the Re- spondent’s withdrawal of recognition, discussed in sec- tion III of the prior decision, we adopt the judge’s rec- ommended Order only for the reasons explained below. The judge concluded that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by withdrawing recogni- tion from the Union on September 14, 2005, after com- mitting a number of unfair labor practices directly related to encouraging its employees’ decertification efforts. 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the powers of the National Labor Relations Board in anticipation of the expiration of the terms of Members Kirsanow and Walsh on December 31, 2007. Thereafter, pursuant to this delegation, the two sitting members issued decisions and orders in unfair-labor-practice and representation cases. 2 Consistent with the Board’s general practice in cases remanded from the courts of appeals, and for reasons of administrative economy, the panel includes a member who participated in the original decision. Furthermore, under the Board’s standard procedures, applicable to all cases assigned to a panel, the Board member not assigned to the panel had the opportunity to participate in the adjudication of this case at any time up to the issuance of this decision. Applying the causation analysis in Master Slack Corp. (Master Slack,3 he found that the Respondent’s unlawful conduct tainted employee petitions disavowing support for the Union. In limited cross-exceptions, the General Counsel argues that, besides the judge’s Master Slack causation analysis, the Respondent’s misconduct per se precluded its reliance on the petitions as a valid basis for withdrawing recognition. We agree. As we explain be- low, the disposition of this case is properly controlled by Hearst Corp.,4 holding that an employer may not with- draw recognition based on a petition that it unlawfully assisted, supported, or otherwise unlawfully encouraged, even absent specific proof of the misconduct’s effect on employee choice. I. An incumbent union enjoys a continuing presumption of majority status, which is irrebuttable during a union’s first year following certification or the first 3 years of a collective-bargaining agreement.5 When the presump- tion is rebuttable, an employer may withdraw recognition from an incumbent union upon receiving proof that an actual majority of its unionized employees no longer desire union representation.6 That privilege, however, is not absolute. Rather, it is well settled that an employer may only withdraw recognition if the expression of em- ployee desire to decertify represents “the free and unco- erced act of the employees concerned.”7 Both Master Slack and Hearst apply that limitation, but in two different contexts. As the Fourth Circuit re- cently observed, Master Slack prescribes a four-part cau- sation analysis8 to determine whether there is “a causal link between decertification efforts and other unfair labor practices distinct from any unlawful assistance by the 3 271 NLRB 78, 78 fn. 1 (1984). 4 281 NLRB 764 (1986), enfd. mem. 837 F.3d 1088 (5th Cir. 1988). 5 Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785–787 (1996); NLRB v. Curtin-Matheson Scientific, Inc., 494 U.S. 775, 778 (1990). 6 Levitz Furniture Co. of the Pacific, 333 NLRB 717, 723 (2001) (Levitz Furniture). Because we find that the Respondent’s withdrawal of recognition was based on a tainted employee petition, we do not reach the question whether an employer may lawfully withdraw recog- nition from a union after the third year of a contract of longer duration. See Shaw’s Supermarkets, 350 NLRB 585 (2007). 7 Eastern States Optical Co., 275 NLRB 371, 372 (1985) (quoting KONO-TV-Mission Telecasting, 163 NLRB 1005, 1006 (1967)). 8 The Master Slack factors include: (1) the length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their detrimental or lasting effect on employees; (3) any possible tendency of the unfair labor practices to cause employee disaffection from the union; and (4) the effect of the unlawful conduct on employee morale, organizational activities, and union membership. 271 NLRB 78, 78 fn. 1, 84 (1984). Accord: Williams Enters., 312 NLRB 937, 939–940 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995); Sullivan Industries. v. NLRB, 957 F.2d 890, 899 (D.C. Cir. 1992). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80 employer in the actual decertification petition.”9 In Mas- ter Slack itself, the Board considered whether the em- ployer’s threats of plant closure and discriminatory dis- charges of 28 employees, among other things, that oc- curred almost 10 years before the withdrawal of recogni- tion affected the employees’ rejection of the union, and concluded that they did not. In such cases, there is no straight line between the employer’s unfair labor practic- es and the decertification campaign, and the Master Slack test must be used to draw one, if it exists.10 By contrast, Hearst applies when an employer has en- gaged in unfair labor practices directly related to an em- ployee decertification effort, such as “actively soliciting, encouraging, promoting, or providing assistance in the initiation, signing, or filing of an employee petition seek- ing to decertify the bargaining representative.”11 In those situations, the employer’s unfair labor practices are not merely coincident with the decertification effort; rather, they directly instigate or propel it.12 The Board therefore 9 Narricot Industries, L.P. v. NLRB, 587 F.3d 654, 664–665 (4th Cir. 2009), petition for cert. dismissed, 131 S.Ct. 59 (2010). Although the underlying Board decision in Narricot was a two-member decision, we find the court’s discussion of the differences between Master Slack and Hearst well-stated and compelling, and cite the opinion for its persua- sive value only. In any event, the Fourth Circuit is not alone in recog- nizing the particular purpose of the Master Slack analysis. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727, 737–738 (D.C. Cir. 2000) (enfg. Board’s application of Master Slack to conclude that unlawful unilateral implementation of new working conditions and several other unremedied unfair labor practices tainted decertification petition). 10 See, e.g., Champion Enterprises, 350 NLRB 788, 791–793 (2007) (employer’s confiscation of union materials, threat against one employ- ee, and 1-day unbargained layoff not shown to affect withdrawal of recognition 6 months later); Flying Foods Group, Inc., 345 NLRB 101, 103 (2005) (no causal relationship between decertification petition and employer’s threatened loss of business opportunities and unlawful interrogation), enfd. 471 F.3d 178 (D.C. Cir. 2006); M&M Automotive Group, Inc., 342 NLRB 1244, 1247–1248 (2004) (finding causal rela- tionship between decertification petition and multiple unilateral raises and promotions during preceding year), enfd. sub nom. East Bay Auto Council v. NLRB, 483 F.3d 628 (9th Cir. 2007); LTD Ceramics, Inc., 341 NLRB 86, 88–89 (2004) (unilateral change to attendance policy 2 weeks prior to petition not shown to taint petition), enfd. sub nom. Machinists District Lodge. 190 v. NLRB, 185 Fed.Appx. 581 (9th Cir. 2006); Vincent Industrial Plastics, Inc., 328 NLRB 300, 301–302 (1999) (causal connection established where several unremedied viola- tions—including unilateral changes to terms of employment, coercive interrogation, and discriminatory discipline and discharge—occurred during the 9-month period preceding the petition), enfd. in relevant part 209 F.3d 727 (D.C. Cir. 2000). 11 Wire Products Mfg. Co., 326 NLRB 625, 640 (1998), enfd. mem. sub nom. NLRB v. R. T. Blankenship & Associates., 210 F.3d 375 (7th Cir. 2000). 12 See Hearst, supra, 281 NLRB at 764 (employer tainted petition by its direct solicitation of signatures on petition, interrogation of employ- ees about their sympathies, promise of benefits, and threats to “keep away” from the union); see also V&S ProGalv, Inc., 323 NLRB 801, 808 (1997) (employer’s president tainted petition by soliciting employ- presumes that the employer’s unlawful meddling tainted any resulting expression of employee disaffection, with- out specific proof of causation, and precludes the em- ployer from relying on that expressed disaffection to overcome the union’s continuing presumption of majori- ty support.13 II. Here, the Respondent unlawfully attempted to coerce three of its housekeepers to sign employee decertification petitions and threatened another employee with disci- pline for speaking against decertification. Specifically, the judge made the following findings:  In late August 2005, Respondent’s general manag- er and banquet manager called housekeepers Christina Valencia and Maria Maldonado—whom the Respondent later unlawfully terminated for their union support—to a meeting, told them that the Union was “no good,” and unlawfully attempt- ed to coerce them to sign a petition to “deunion- ize.”  Immediately thereafter, another manager ap- proached housekeeper Margarita Taloma, asked her to sign a decertification petition, threatened that the Union might attempt to reduce her hours, and promised that the Respondent would protect her from the Union’s efforts, if Taloma signed the petition. When Taloma demurred, the same man- ager later unlawfully pressured Taloma at her home. ees to sign), enfd. 168 F.3d 270 (6th Cir. 1999); American Linen Supply Co., 297 NLRB 137, 137–138 (1989) (employer tainted petition by unlawfully soliciting an employee to sign and giving withdrawal forms and access to notaries during work hours), enfd. 945 F.2d 1428 (8th Cir. 1991); Hancock Fabrics, 294 NLRB 189, 192 (1989) (employer tainted petition by promising at an employee meeting better benefits if em- ployees decertified), enfd. mem. 902 F.2d 28 (4th Cir. 1990); Manhat- tan Eye, Ear & Throat Hospital, 280 NLRB 113, 115 (1986) (employ- er’s supervisor tainted petition by soliciting 4 of 100 employees to resign from the union and by conditioning their return to work after an economic strike on their union resignations), enfd. mem. 814 F.2d 653 (2d Cir. 1987); Weisser Optical Co., 274 NLRB 961, 961–962 (1985) (petition tainted by employer’s involvement in decertification drive that amounted to more than ministerial aid), enfd. mem. 787 F.2d 596 (7th Cir. 1986); Texaco, Inc., 264 NLRB 1132, 1132–1133 (1982) (employ- er’s explicit instructions to employees on procedures for decertifying, including dictating language of petition, typing petition, and granting employee afternoon off to distribute it, as well as supervisory involve- ment in collecting signatures, tainted petition), enfd. 722 F.2d 1226 (5th Cir. 1984); Crafttool Mfg. Co., 229 NLRB 634, 636–638 (1977) (em- ployer’s participation in circulation of antiunion petitions tainted its withdrawal). 13 See Tyson Foods, Inc., 311 NLRB 552, 556 (1993); see also V&S ProGalv, Inc. v. NLRB, 168 F.3d 270, 281–282 (6th Cir. 1999); Ron Tirapelli Ford, Inc. v. NLRB, 987 F.2d 433, 442 (7th Cir. 1993). SFO GOOD-NITE INN, LLC 81  As the decertification campaign picked up in early September 2005, Respondent’s general manager and one of its owners unlawfully threatened room inspectress and union negotiating committee member Consuelo Contreras with discharge for urging her coworkers not to sign the decertifica- tion petition, despite the absence of any rule against such solicitation during work hours. The judge found that all of those acts violated Section 8(a)(1), and we agree. After committing these violations, the Respondent withdrew recognition on September 14, 2005, based on petitions signed by 14 of the 24 unit employees. The Respondent’s unfair labor practices were obviously di- rectly related to furthering the employees’ decertification campaign. Consequently, we agree with the General Counsel that the judge should have applied Hearst, rather than a Master Slack analysis. Doing so, we find that the Respondent’s violations tainted the resulting employee petitions and rendered them an unreliable indicator of employee choice. The Respondent’s withdrawal of recognition based on those petitions therefore violated Section 8(a)(5) and (1) of the Act. III. Despite its unlawful attempts to coerce employees to sign decertification petitions and its threat to discipline an employee for opposing decertification, the Respond- ent argues that its withdrawal of recognition from the Union was lawful because neither Valencia, Maldonado, nor Taloma actually succumbed to its coercion, and there was no evidence that any of the 14 employees who did add his name to the decertification petitions knew about the Respondent’s coercive acts. The Board’s decision in Hearst forecloses that argument, however. In Hearst, the Board rejected an employer’s attempt to resuscitate the reliability of a decertification petition by proving that a majority of petition signers were unaware of its unfair labor practices.14 There, the employer’s vio- lations were similar to the Respondent’s here— promising better benefits if employees rejected the union, interrogating employees about their union sympathies, explicitly soliciting union repudiation, and threatening employees to keep away from union representatives, among other things.15 The employer pointed to testimo- ny from 19 employees (out of a unit of 56) that they were unaware of the unfair labor practices, suggesting that the 14 281 NLRB at 765. 15 Id. at 764. decertification petition signers expressed an untainted desire to repudiate the union.16 The Board rejected counting the number of petition signers the unfair labor practices affected. The Board made clear that, where “an employer engages in unlawful activity aimed specifically at causing employee disaffec- tion with their union, its misconduct . . . will bar any reliance on an expression of disaffection by its employ- ees, notwithstanding that some employees may profess ignorance of their employer’s misconduct.”17 Justifying the rule, the Board explained that, when an employer unlawfully foists itself into an employee decertification campaign, it “cannot expect to take advantage of the chance occurrence that some of its employees may be unaware of its actions,” but rather “must be held respon- sible for the foreseeable consequence of its conduct.”18 Hearst thus creates a conclusive presumption that an employer’s commission of unfair labor practices assist- ing, supporting, encouraging, or otherwise directly ad- vancing an employee decertification effort taints a result- ing petition. As described, this presumption is based on the predictable result of an employer’s unlawful, direct participation in an employee decertification effort—a petition plagued with uncertainty because of the very nature of the employer’s unfair labor practices, which is per se insufficient to rebut the presumption of continuing majority status.19 We reaffirm the Hearst presumption today for the reasons given in Hearst itself, described above, and for those that follow. Initially, we emphasize the narrow role the Hearst pre- sumption plays in the mechanics of how and when a bar- gaining relationship may be ended. As the Supreme Court explained in Brooks v. NLRB, “[i]f employees are dissatisfied with their chosen union, they may submit their own grievance to the Board.”20 Thus, at appropriate times employees may present their untainted petition to the Board—with only a 30-percent showing of employee support, much lower than the necessary 50-percent-plus- one to justify a unilateral withdrawal of recognition21— and the Board will conduct a decertification election to 16 Id. at 765 fn. 9. 17 Id. at 765. 18 Id. 19 See TNT USA, Inc. v. NLRB, 208 F.3d 362, 368 fn. 3 (2d Cir. 2002) (“The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.’) (quoting Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265 (1946)). 20 348 U.S. 96, 103 (1954). 21 See Levitz Furniture, supra, 333 NLRB at 727–728 (requiring proof of an actual loss of majority support to justify a withdrawal of recognition). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 82 determine their choice by secret ballot.22 For an employ- er that has not unlawfully interfered in a decertification campaign, it too may petition at appropriate times for an election if it has a good-faith uncertainty as to the un- ion’s continuing majority status, again a lower standard than proof of actual loss of majority support.23 Further, as indicated, Levitz permits an employer that has been timely presented with untainted evidence establishing that an actual majority of its employees no longer desire union representation to end the bargaining relationship without resort to the Board’s election procedures at all. The Hearst presumption does not apply in any of those circumstances. We are thus dealing only with the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employees’ representative. In that circumstance, it is particularly appropriate, as the Court stated in Auciello Iron Works v. NLRB, to give a “short leash to the employer as vindicator of its employees’ organizational freedom.”24 Thus, as the Court further observed in Auciello, “[t]he Board is accordingly entitled to suspicion when faced with an employer’s benevolence as its workers’ champion against their certified union, which is subject to a decertification petition from the workers if they want to file one.”25 Nevertheless, the Hearst presumption is not the prod- uct of mere suspicion. Rather, it is grounded in the Board’s approach, in all cases, of objectively assessing whether an employer’s unlawful interference with em- ployee rights likely undermined the reliability of an ex- pression of employee choice. 26 Unlike a Master Slack 22 It is true that, under the Board’s “blocking charge” policy, the Board would hold in abeyance an employee petition seeking a decerti- fication election if charges were filed alleging that the employer unlaw- fully participated in, or supported, the decertification campaign. See U.S. Coal Co., 3 NLRB 398, 398 (1937) (establishing policy of refus- ing to process representation petitions when related unfair labor prac- tice charges are pending). If the charges are found meritless, the Board will conduct the election based on the 30 percent showing of interest. Even if the Board dismisses the employees’ petition as tainted, howev- er, the burden on employee choice, while regrettable, is temporary. After the employer remedies its unlawful acts—which it has an incen- tive to do quickly—employees will be able to submit a new decertifica- tion petition, if they desire, collected in a coercion-free environment. 23 See Levitz Furniture, supra, 333 NLRB at 727–728. 24 517 U.S. 781, 790 (1986) (holding that an employer violates Sec. 8(a)(5) by disavowing a newly executed collective-bargaining agree- ment and withdrawing recognition from the union based on alleged evidence of employee disaffection that was known to the employer before the contract was consummated). 25 Id. 26 Even the Master Slack test, supra, which assesses whether em- ployer unfair labor practices not directly related to a decertification campaign tainted employee choice, is an objective test, assessing only situation, however, when an employer unlawfully thrusts itself into its employees’ decertification debate there is little need for extended analysis of the likely impact of the employer’s misconduct. As recognized in Hearst and in other cases, the objective “foreseeable consequence”27 of such misconduct—and frequently its purpose—is “an inherent tendency to contribute to the union’s loss of majority status.”28 Thus, no direct proof of the unfair labor practices’ effect on petition signers is necessary to conclude that the violations likely interfered with their choice.29 Further, as a matter of policy, to the extent Hearst broadly prohibits employers from withdrawing recogni- tion based on decertification petitions that they them- selves unlawfully assisted, it provides a strong incentive to employers to steer clear of potentially unlawful con- duct. Any other rule would condone the employer’s un- lawful acts, allowing it to take advantage of its coercion so long as its victims remained silent. As the Board stat- ed in Hearst, “we are unwilling to allow [the employer] to enjoy the fruits of its violations by asserting that cer- tain of its employees did not know of its unlawful behav- ior.”30 The likelihood that employees would remain silent about their employer’s unlawful conduct and/or its im- the likelihood that causation exists. See Saint Gobain Abrasives, Inc., 342 NLRB 434, 434 fn. 2 (2004) (“The Master Slack test is an objec- tive one . . . [t]he relevant inquiry at the hearing does not ask employ- ees why they chose to reject the Union.”). 27 Hearst Corp., supra, 281 NLRB at 765. 28 Caterair International, 309 NLRB 869, 880 (1992), enfd. in rele- vant part 22 F.3d 1114 (D. C. Cir. 1994). 29 Nonetheless, we observe that the likelihood of such interference is actually reflected in the facts of this case. Although none of the 14 petition signers here testified that he was aware of, or affected by, the Respondent’s unfair labor practices (only 1 testified at all), the record shows that the victims told coworkers about the Respondent’s coercive acts. In our experience, these conversations are not unique, and prov- ing they occurred is not necessary to conclude that an employer’s coer- cive participation in a decertification effort undermines the reliability of a resulting petition. As the Board observed in Caterair International, supra, “it may be presumed that employees who signed the petition on the solicitation of other unit employees were aware of the Respondent’s [unlawful acts], and such knowledge is likely to have influenced their decision.” 309 NLRB at 880. Accord: Franks Bros. Co. v. NLRB, 321 U.S. 702, 704 (1944) (accepting the Board’s established view that an employer’s refusal to bargain with its employees’ representative dis- rupts their morale, deters their organizational activities, and discourages their membership in the union). 30 281 NLRB at 765. The Board’s and the courts’ reluctance to per- mit parties to profit from their own wrongdoing is well established. See, e.g., Franks Bros. Co. v. NLRB, 321 U.S. 702, 704–705 (1944) (endorsing the Board’s view that, where an employer unlawfully refus- es to bargain with its employees’ union, and the union subsequently loses majority status, a remedy requiring the employer to bargain with the union is nonetheless appropriate to avoid the employer profiting from its refusal to abide by the law). SFO GOOD-NITE INN, LLC 83 pact on their choice is quite real, moreover. To the ex- tent that an employer seeks to elicit employee testimony about their reasons for signing documents supporting or rejecting a union, the Board and the courts have long recognized the inherent unreliability of such testimony. As the Supreme Court observed in upholding the Board’s rule prohibiting employers from demanding employee testimony explaining why they signed authorization cards, “employees are more likely than not, many months after a card drive and in response to questions by compa- ny counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of § 8(a)(1).”31 Consequently, in logic that applies equally here, the Court explained that questioning employees about the subjective motives for their representation preferences would result in “endless and unreliable in- quiry.”32 For those reasons, as well, we are unwilling to subject petition signers to ex post facto examination about their reasons for supporting decertification. IV. For all of the foregoing reasons, we find that the Hearst presumption advances important statutory and salutary policy goals of the Act, and we reaffirm it to- day.33 Applying it here, we affirm the judge’s conclusion that the Respondent’s withdrawal of recognition violated Section 8(a)(5) and (1). MEMBER HAYES, concurring in part and dissenting in part. I agree with my colleagues that the Respondent’s un- lawful involvement with the employees’ petition tainted its reliability as an indicator of disaffection with the Un- ion. However, I believe that the Hearst1 presumption of taint should be rebuttable rather than irrebuttable, thereby raising the possibility in future cases that the representa- tional desires of a majority of employees unaffected by, or possibly even unaware of, unlawful employer in- volvement can be honored.2 31 NLRB v. Gissel Packing Co., 395 U.S. 575, 608 (1969). 32 Id.; see also Ladies Garment Workers Local 153 v. NLRB, 443 F.2d 667, 668–669 (D.C. Cir. 1970). 33 To the extent prior cases may have applied Master Slack to deter- mine whether unfair labor practices directly related to a decertification effort caused employee disaffection, we clarify them in accordance with this decision. 1 Hearst Corp., 281 NLRB 764 (1986). 2 Under extant Board law, the showing of an actual loss of majority support is a defense to the withdrawal of recognition of an incumbent In my view, the evidentiary issue of whether an em- ployer’s unlawful involvement in decertification taints a petition stands at midpoint between Master Slack, 271 NLRB 78 (1984), where the General Counsel bears the burden of proving that unfair labor practices caused em- ployee disaffection, and Lee Lumber & Building Materi- al Corp., 322 NLRB 175, 177 (1996) (Lee Lumber II), enfd. in relevant part and remanded in part 117 F.3d 1454 (D.C. Cir. 1997), where the presumption of taint in a showing of disaffection after an unlawful withdrawal of recognition is irrebuttable. In the former instance, there is no warrant for presuming that any unfair labor prac- tice, no matter how remote in time from the employee petition or limited in degree or scope, has an impact on employee free choice. In the latter instance, there are sound policy reasons for denying an employer from even attempting to prove that its unlawful withdrawal of recognition, which necessarily impacts the entire bar- gaining unit, had no impact on a subsequent showing of disaffection. There are, as well, valid policy reasons for discourag- ing material employer involvement in employee decerti- fication efforts. Those reasons support a presumption of taint arising from unlawful involvement, shifting the evi- dentiary burden to the wrongdoing employer to present objective proof that its misconduct did not cause or fur- ther disaffection with an incumbent bargaining repre- sentative. However, unlike in refusal to recognize and bargain situations, the employer’s unlawful conduct does not necessarily impact all bargaining unit employees. It remains possible, even if not likely, that subsequent evi- dence of disaffection by an employee majority is an ac- curate and reliable expression of free choice on the issue of continued collective-bargaining representation. I therefore disagree with my colleagues that in such cir- cumstances employee free choice must be denied or de- ferred as the result of an irrebuttable presumption of taint. The difference between a rebuttable presumption and an irrebuttable presumption is of no significance in the present case, where the Respondent has failed to show that its misconduct could not have tainted the employees’ petition. I therefore agree that its withdrawal of recogni- tion based on this petition violated Section 8(a)(5) and (1) of the Act. union. Levitz Furniture Co. of the Pacific, 333 NLRB 717, 723–727 (2001).