United Scrap Metal PA, LLC

372 NLRB No. 49 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. United Scrap Metal PA, LLC and Laborers’ Interna- tional Union of North America, Local 57. Cases 04–CA–268183, 04–CA–269712, and 04–RC– 267642 February 8, 2023 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY MEMBERS KAPLAN, WILCOX, AND PROUTY 1 The Respondent argues that the judge’s rulings, findings, and con- clusions demonstrate bias and prejudice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Respond- ent’s contentions are without merit. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings. There are no exceptions to the judge’s finding that the Respondent violated Sec. 8(a)(1) by confiscating employees’ union t-shirts and in- structing employees not to accept the Union’s organizing materials. 3 We shall amend the judge’s recommended Order to conform to our findings and the Board’s standard remedial language, and in accordance with our decisions in Cascades Containerboard Packaging–Niagara, 370 NLRB No. 76 (2021), as modified in 371 NLRB No. 25 (2021), and Paragon Systems, Inc., 371 NLRB No. 104 (2022). Member Kaplan acknowledges and applies Paragon Systems as Board precedent, alt- hough he expressed disagreement there with the Board’s approach and would have adhered to the position the Board adopted in Danbury Am- bulance Service, Inc., 369 NLRB No. 68 (2020). In accordance with our decision in Thryv, Inc., 372 NLRB No. 22 (2022), we have amended the make-whole remedy and modified the judge’s recommended order to provide that the Respondent shall also compensate the employees for any other direct or foreseeable pecuniary harms incurred as a result of its unlawful unilateral and discriminatory schedule change. Compensation for these harms shall be calculated sep- arately 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). We have also corrected the unit description to conform to the Stipulated Election Agreement. We shall substitute a new notice to conform to the Order as modified. Unlike his colleagues, Member Kaplan would require the Re- spondent to compensate these employees for other pecuniary harms only insofar as the losses were directly caused by the unlawful unilateral and discriminatory schedule change, or indirectly caused by the unlawful unilateral and discriminatory schedule change where the causal link be- tween the loss and the unfair labor practice is sufficiently clear, con- sistent with his partial dissent in Thryv, Inc., supra. We find, in agreement with the judge, that a notice-reading remedy is appropriate here because a large portion of the Respondent’s work force cannot read in Spanish or English and thus cannot read and comprehend a posted notice. See Domsey Trading Co., 310 NLRB 777, 813 (1993) (collecting cases), enfd. 16 F.3d 517 (2d Cir. 1994); Marine Welding and On February 16, 2022, Administrative Law Judge Rob- ert A. Ringler issued the attached decision. The Respond- ent and the General Counsel each filed exceptions, a sup- porting brief, and an answering brief. The Charging Party, Laborers’ International Union of North America, Local 57 (the Union), filed an answering brief to the Respondent’s exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,1 findings,2 and conclusions, and to adopt the recommended Order as modified and set forth in full below.3 We also adopt the judge’s recommendation Repair Works, Inc., 174 NLRB 661, 681 (1969), enfd. in pertinent part, mod. on other grounds 439 F. 2d 395, 399 (8th Cir. 1971) (“A require- ment that employees be read their rights is proper where, as here, some employees lack necessary reading skills to comprehend a posted no- tice.”). No party excepts to the judge’s finding regarding the employees’ level of literacy. We thus find misplaced Member Kaplan’s reliance on Glazer Steel Corporation, 163 NLRB 7 (1967), where the Board, without comment, declined to adopt a trial examiner’s recommended notice read- ing. In Glazer, the trial examiner did not find that any employees could not read a posted notice, but instead recommended the notice reading based only on his general perception that employees had a “low level of literacy and education.” Id. at 15. Moreover, in the 53 years since Glazer issued, it has never been cited by the Board or any court to deny a notice- reading. Member Prouty emphasizes that “[t]here can be no doubt that a posted Board notice that is not read and not understood provides no remedy in the workplace and does not satisfy the Board’s obligation to ensure that the rights of employees under the Act are made known and are therefore protected.” CP Anchorage Hotel 2 d/b/a Hilton Anchorage, 371 NLRB No. 151, slip op. at 9–10 (2022) (Member Prouty, concurring). Em- ployee illiteracy is thus one obvious circumstance that demands notice- reading. See id. at 11, 9 (“a posted notice is an indisputably ineffective means of communicating with employees who are unable to read. . . .”; “If th[e employees] are unable to read and fully understand the notice the Board’s message will be lost.”). However, he also believes that the mere posting of the notice on a bulletin board is always an inadequate, inferior, and outdated method for the Board to fulfill its responsibility to fully remedy unfair labor practices, because, inter alia, employees may fear being seen standing and reading it, the notice may be lost in a deluge of other postings, and the onus is placed on the employees to locate the no- tice and read it. “[N]otice posting leaves too many ways for the notice to go unobserved, unread, and not understood by employees.” Id. at 11. Member Prouty has accordingly urged the Board in the past, and does so again here, to make the reading aloud of the official NLRB-approved Notice to Employees at a group meeting—in the employees’ own lan- guage or languages, accompanied by the distribution of the notice to em- ployees at the start of the meeting so that they may follow along—part of the standard remedy for all unfair labor practices found by the Board. Id. at 9, 15. “If the Board is determined to ensure that, notwithstanding the employer’s past unfair labor practices, employees feel free going for- ward to exercise their rights under the Act, employees must be fully in- formed that unlawful conduct occurred in their workplace and that it will be remedied.” Id. at 11. Member Kaplan would not order that the notice be read aloud to em- ployees. He agrees with the judge’s specific finding that the unfair labor practices were not “so pervasive and egregious that a notice reading is 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to overrule the Respondent’s election objections.4 We therefore certify Laborers’ International Union of North America, Local 57, as the exclusive bargaining repre- sentative of the employees in the unit.5 This case involves allegations that the Respondent com- mitted numerous unfair labor practices during the critical period before the representation election and after the election results were announced. We adopt, for the rea- sons set forth by the judge, his findings that the Respond- ent violated Section 8(a)(1) by interrogating employees, soliciting grievances and impliedly promising improved benefits, assisting and encouraging the circulation of an antiunion petition, and permitting employees’ antiunion activity at its facility while barring employees’ prounion activity.6 The judge also found that, shortly after learning the Un- ion prevailed in the election, the Respondent unlawfully changed its employees’ schedules. The judge found this to be a unilateral change in violation of Section 8(a)(5) and (1), and we adopt this finding for the reasons stated in his decision. The judge did not pass, however, on the com- plaint allegation that the change of employee schedules also violated Section 8(a)(3) and (1). As explained below, we find that the record strongly supports, and warrants, a finding of the Section 8(a)(3) violation as well.7 warranted” under the Board’s usual criteria. See, e.g., Postal Service, 339 NLRB 1162, 1163 (2003) (declining to order notice reading where the unfair labor practices, although “numerous,” were not egregious). Further, he disagrees with the majority’s suggestion that, even absent egregious conduct, a notice reading remedy is appropriate solely because a large portion of the Respondent’s mostly Hispanic work force speak Spanish but cannot read in either Spanish or English. The Board has not commonly ordered the extraordinary remedy of notice reading solely on the basis of the affected employees’ literacy, or lack thereof. See Glazer Steel Corporation, 163 NLRB at 8 fn. 4, 15 (declining to adopt the judge’s notice reading recommendation, which was based solely on his finding that “the employees in general appear[ed] . . . to be at a low level of literacy and education”). 4 In adopting his recommendation to overrule election Objection 2, we find in agreement with the judge that the alleged employee threat on the eve of the election was not “so aggravated as to create a general at- mosphere of fear and reprisal rendering a free election impossible.” Westwood Horizons Hotel, 270 NLRB 802, 803 (1984). However, we note that the first factor of the Board’s test for assessing a third-party threat is not “the cumulative effect of the threat” as the judge stated but rather “the nature of the threat itself.” See PPG Industries, 350 NLRB 225, 226 (2007) (citing Westwood Horizons Hotel, above at 803). Mem- ber Kaplan observes that the record establishes that pro-Union employee Osman Rivera, while being questioned by another employee, said “You don’t know me, I have people. I can send you back to your country [motherfucker] in pieces.” Member Kaplan believes that this violent threat by a union supporter raises serious concerns about the election’s validity. However, because the Respondent failed to establish with any clarity who actually heard the threat or how widely it was disseminated, Member Kaplan agrees with his colleagues that the Respondent fell short of meeting its burden to show that this threat tainted the election. In adopting the judge’s recommendation to overrule election Objec- tion 7, we rely on his demeanor-based credibility assessments and find it Facts8 The Respondent operates a recycling plant in Philadel- phia, Pennsylvania. On October 15, 2020,9 the Union filed a petition to represent the Respondent’s employees. Thereafter, the Respondent hired a labor relations consult- ant, Michael Rosado, and conducted worktime meetings with employees to discuss the upcoming election. During its meetings with employees, the Respondent at- tempted to dissuade them from selecting the Union as their bargaining representative. It emphasized that it had not reduced their work hours despite the COVID-19 pan- demic’s impact on recycling business. Indeed, historically and during the pandemic, employees worked from 6 a.m. to 5 p.m. on weekdays and 6 a.m. to 2 p.m. on Saturdays,10 resulting in around 17 hours of weekly overtime pay. But the Respondent stated that it was free to change the sched- ule and that overtime was not mandatory. After one of these meetings, Rosado noted in an email to the Respond- ent’s officers that these overtime discussions generated the biggest reaction from employees. In addition, Rosado wrote in his personal notes that overtime discussions had been “very effective” and employees were “very con- cerned.” unnecessary to pass on his assertions that it was highly improbable that the Union would have risked harming its election campaign by taking photographs of the Respondent’s employees, that it was highly likely that the Respondent would have filed an unfair labor practice charge if the Union had photographed its employees, and that General Manager Darin Haas did not mention the alleged incident in a recorded conversation with an employee. In addition, we note that the judge stated that this alleged photographing incident occurred on October 16, 2020, instead of Octo- ber 19, 2020. This inadvertent error does not affect the disposition of this case. 5 Pursuant to a Stipulated Election Agreement between the parties, a secret-ballot election was conducted on November 20, 2020. The Tally of Ballots showed 17 ballots in favor of the Union and 10 against, with 3 nondeterminative challenged ballots. Under Sec. 102.69 of the Board’s Rules and Regulations, the Board itself has the authority to issue a certi- fication. Because the Union prevailed in the election, we so certify. See Con-Way Freight, Inc., 366 NLRB No. 183, slip op. at 1 fn. 5 (2018). 6 Member Kaplan agrees with his colleagues that the Respondent vi- olated Sec. 8(a)(1) by allowing employees to hold an antiunion meeting at the facility on November 3, 2020. In doing so, however, he notes that the judge failed to make any demeanor-based credibility determinations on this issue; instead, the judge simply concluded from the evidence that the employer knew about the meeting. Although the evidence here sup- ports the judge’s finding, Member Kaplan notes that demeanor-based credibility determinations resolving the conflicting witness testimony on this point would have been useful. 7 We deny the Respondent’s request to remand this issue, as the com- plaint alleged that the schedule change violated Sec. 8(a)(3) and (1) and the parties have fully litigated the issue. 9 All dates hereinafter are in 2020. 10 We have corrected the judge’s inadvertent error in stating that em- ployees worked until 3 p.m. on Saturdays. UNITED SCRAP METAL PA, LLC 3 On Friday, November 20, the Respondent learned that the Union had prevailed in the election. About an hour after the election results were announced, General Man- ager Darin Haas instructed employees to clock out at 3 p.m. and not report to work the next day. Haas offered employees no explanation for shutting down operations 2 hours early and cancelling the Saturday shift. Thereafter, the Respondent did not schedule employees after 3 p.m. on weekday shifts and ceased scheduling Saturday shifts altogether, eliminating employees’ overtime opportuni- ties. In his notes from a postelection conference call about union organizing at other United Scrap Metal plants, Ro- sado wrote that Philadelphia’s election demonstrated “what not to do,” explaining that the plant now had “no OT” and “[l]ow morale.” The General Counsel contends that the evidence sup- ports a finding that the Respondent discriminated against its employees by changing their schedule. We agree. Discussion First, we find that the General Counsel sustained her in- itial Wright Line11 burden of establishing that employees’ protected union activity was a motivating factor in the Re- spondent’s decision to change their schedule. It is undis- puted that the Respondent knew that some of its employ- ees had supported the Union’s organizing campaign and that a majority of them subsequently voted in favor of the Union as their bargaining representative. The Respond- ent’s animus toward its employees’ union activity is es- tablished in part by the timing of the schedule change, a mere hour after the election results were announced. See, e.g., DHL Express (USA), Inc., 360 NLRB 730, 730 fn. 1 (2014) (inferring animus where an employer discharged an employee just 1 day after the employee’s union activ- ity). The Respondent also demonstrated animus by its nu- merous Section 8(a)(1) violations, found by the judge and adopted herein, during the critical period leading up to the election. See, e.g., Space Needle, LLC, 362 NLRB 35, 35 fn. 2 (2015) (finding that an employer’s numerous Section 8(a)(1) violations supported the judge’s conclusion that the employer harbored antiunion animus), enfd. 692 Fed.Appx. 462 (9th Cir. 2017). The Respondent’s unlaw- ful motivation is further demonstrated by Rosado’s emails and notes, which clearly reveal that the Respondent de- sired that employees view opportunities for overtime and premium pay as dependent on the outcome of the election. All of this evidence amply demonstrates that the 11 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Man- agement Corp., 462 U.S. 393, 399–403 (1983). 12 In light of our finding, under Wright Line, that the schedule change violated the Act, we find it unnecessary to pass on the General Counsel’s employees’ protected union activity was a motivating fac- tor in the Respondent’s decision to change its employees’ schedule. Turning to the Respondent’s defense burden under Wright Line, we find that the Respondent failed to demon- strate that it would have changed its employees’ schedule in the absence of their protected union activity. The Re- spondent claims its decision was based on the economic impact of the COVID-19 pandemic, most specifically the resulting financial harm and overstaffing. The record shows, however, that the Respondent scheduled extensive employee overtime for many months during the pandemic, until the election results were revealed. Indeed, the Re- spondent presented no evidence that any change in finan- cial circumstances necessitated a modification to its hours of operation at that time (i.e., moments after the election results were announced). While the Respondent presented evidence that it timed the schedule change to start when a City of Philadelphia COVID-19 emergency order took ef- fect, the judge correctly concluded that the order did not require any reduction in hours. “Under Wright Line, an employer cannot carry its burden of persuasion by merely showing that it had a legitimate reason for [its action], but must show by a preponderance of the evidence that the ac- tion would have taken place even without the protected conduct.” Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989), enfd. 942 F.2d 1140 (7th Cir. 1991). Here, the Respondent’s COVID-related explanations for its sched- ule change fail to include evidence demonstrating that the Respondent would have made the change absent the pro- tected union activity and, therefore, they are insufficient to sustain its burden. In sum, the General Counsel has established that em- ployees’ protected union activity was a motivating factor in the Respondent’s decision to change their schedule, and the Respondent failed to demonstrate that it would have made the change in the absence of the employees’ union activity. Accordingly, we find that the Respondent vio- lated Section 8(a)(3) and (1) as alleged.12 ORDER The National Labor Relations Board orders that the Re- spondent, United Scrap Metal PA, LLC, Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from contention on exception that the schedule change was inherently destruc- tive of employees’ Sec. 7 rights under NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (a) Telling employees not to accept authorization cards, t-shirts or other organizing materials from Laborers’ Inter- national Union of North America, Local 57 (the Union). (b) Confiscating union t-shirts from employees’ vehi- cles. (c) Permitting employees to hold an antiunion meeting at its facility during working time, while simultaneously preventing employees from engaging in prounion activi- ties. (d) Soliciting grievances from employees and im- pliedly promising to remedy them in order to discourage employees from selecting union representation. (e) Coercively interrogating employees about their un- ion activities. (f) Assisting and encouraging the circulation of an an- tiunion petition. (g) Changing employees’ work schedule because of their support for and activities on behalf of the Union. (h) Changing the terms and conditions of employment of its unit employees without first notifying the Union and giving it an opportunity to bargain. (i) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit em- ployees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representative of em- ployees in the following bargaining unit:13 INCLUDED: All full-time and regular part-time labor- ers, press operators, shear operators, welders, burners, and hoist operators employed by the Employer at its 4301 Wissahickon Avenue, Philadelphia, Pennsylvania facility. EXCLUDED: All other employees, office clerical em- ployees, professional employees, managerial employ- ees, confidential employees, guards, and supervisors as defined in the Act. (b) Rescind the change in the terms and conditions of employment for its unit employees that was unilaterally implemented on November 20, 2020. (c) Make affected employees whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the uni- lateral and discriminatory schedule change, in the manner 13 In accordance with the parties’ Stipulated Election Agreement, me- chanics and dispatchers were neither included in nor excluded from the set forth in the remedy section of the judge’s decision as amended in this decision. (d) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 4, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. (e) File with the Regional Director for Region 4, 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 each backpay recipient’s corresponding W-2 forms reflecting the backpay award. (f) 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 desig- nated 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, neces- sary to analyze the amount of backpay due under the terms of this Order. (g) Post at its Philadelphia, Pennsylvania facility copies of the attached notice marked “Appendix” in English and Spanish. Copies of the notice, on forms provided by the Regional Director for Region 4, 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 phys- ical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, 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 Re- spondent at any time since October 16, 2020. (h) Hold a meeting or meetings during worktime at its facility in Philadelphia, Pennsylvania, scheduled to ensure the widest possible attendance of employees, at which the attached notice marked “Appendix” will be read to em- ployees in English and Spanish by a high-ranking bargaining unit. Based on the results of the election, it was unnecessary to resolve the status of these employees. UNITED SCRAP METAL PA, LLC 5 management official of the Respondent in the presence of a Board Agent and an agent of the Union if the Region or the Union so desires, or, at the Respondent’s option, by a Board agent in the presence of a high-ranking manage- ment official of the Respondent and, if the Union so de- sires, the presence of an agent of the Union.14 (i) Within 21 days after service by the Region, file with the Regional Director for Region 4 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for Laborers’ International Union of North America, Local 57, and that it is the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: INCLUDED: All full-time and regular part-time labor- ers, press operators, shear operators, welders, burners, and hoist operators employed by the Employer at its 4301 Wissahickon Avenue, Philadelphia, Pennsylvania facility. EXCLUDED: All other employees, office clerical em- ployees, professional employees, managerial employ- ees, confidential employees, guards, and supervisors as defined in the Act. However, mechanics and dispatchers are neither included in nor excluded from the bargaining unit covered by this certi- fication, because the parties did not agree on the inclusion or exclusion of mechanics and dispatchers, but agreed to vote them subject to challenge, and resolution of their inclusion or exclusion was unnecessary because their ballots were not de- terminative of the election results. Dated, Washington, D.C. February 8, 2023 ______________________________________ Marvin E. Kaplan, Member 14 If the facility involved in these proceedings is 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 facility involved in these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted and read within 14 days after the facility reopens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of em- ployees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such ______________________________________ Gwynne A. Wilcox, Member ______________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT tell you not to accept authorization cards, t-shirts or other organizing materials from Laborers’ Inter- national Union of North America, Local 57 (Union). WE WILL NOT confiscate union t-shirts from your vehi- cles. WE WILL NOT allow you to hold an antiunion meeting at our facility during working time, while also stopping you from engaging in prounion activities. WE WILL NOT solicit grievances from you and impliedly promise to remedy them in order to discourage you from selecting union representation. WE WILL NOT coercively question you about your union activities. electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days be- fore physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electron- ically 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.” 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT help and encourage you to circulate an antiunion petition. WE WILL NOT change your work schedules because of your union activities. WE WILL NOT change your terms and conditions of em- ployment without first notifying the Union and giving it an opportunity to bargain. 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, before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain with the Union as the exclusive collective-bargaining representa- tive of our employees in the following bargaining unit:15 INCLUDED: All full-time and regular part-time labor- ers, press operators, shear operators, welders, burners, and hoist operators employed by the Employer at its 4301 Wissahickon Avenue, Philadelphia, Pennsylvania facility. EXCLUDED: All other employees, office clerical em- ployees, professional employees, managerial employ- ees, confidential employees, guards, and supervisors as defined in the Act. WE WILL rescind the changes in the terms and condi- tions of employment for our unit employees that were uni- laterally implemented on November 20, 2020. WE WILL make affected employees whole for any loss of earnings and other benefits resulting from our unlawful unilateral and discriminatory change to your work sched- ules, plus interest, and WE WILL also make them whole for any other direct or foreseeable pecuniary harms suffered as a result of our unlawful unilateral and discriminatory change to their work schedules, plus interest. WE WILL compensate affected employees for the ad- verse tax consequences, if any, of receiving lump-sum backpay awards, and WE WILL file with the Regional Di- rector for Region 4, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL file with the Regional Director for Region 4, 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 15 In accordance with the parties’ Stipulated Election Agreement, me- chanics and dispatchers were neither included in nor excluded from the bargaining unit. Based on the results of the election, it was unnecessary to resolve the status of these employees. copy of affected employees’ corresponding W-2 forms re- flecting the backpay award. UNITED SCRAP METAL, PA, LLC The Board’s decision can be found at www.nlrb.gov/case/04-CA-268183 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940. David Rodriguez, Esq., for the General Counsel. David Watkins. Jr. and Mark Belland, Esqs. (O’Brien, Belland & Bushinsky, LLC), for the Charging Party. Christopher Murphy and Kelcey Phillips, Esqs. (Morgan, Lewis & Bockius, LLP), for the Respondent. DECISION STATEMENT OF THE CASE ROBERT A. RINGLER, Administrative Law Judge. This consol- idated unfair labor practice (ULP) and objections hearing was held over several days in July and September 2021. The ULP phase of the hearing considered whether United Scrap Metal PA, LLC (United Scrap) violated §8(a)(1), (3), and (5) of the Na- tional Labor Relations Act (the Act) by, inter alia, threatening and interrogating employees, soliciting their grievances and uni- laterally reducing their hours and days of work. The objections part of the hearing considered whether the Laborers’ Interna- tional Union of North America, Local 57’s (the Union’s) election victory was tainted by various unlawful acts and should be over- turned. As will be discussed, the ULP allegations have merit, while the objections do not. On the record, I make the following FINDINGS OF FACT1 I. JURISDICTION United Scrap recycles metals and non-metals. Annually, it sells and ships goods exceeding $50,000 from its Philadelphia, Pennsylvania plant (the plant) directly to points outside of Penn- sylvania. It, thus, engages in commerce under §2(2), (6), and (7) of the Act. Additionally, the Union is a §2(5) labor organization. The Board, thus, has jurisdiction over this matter. 1 Unless otherwise stated, factual findings arise from joint exhibits, stipulations and undisputed evidence. The cover page of the September 23, 2021 transcript (i.e., tr. 750–886) was mislabeled (i.e., it reads July 23, 2021) and is hereby corrected. UNITED SCRAP METAL PA, LLC 7 II. UNFAIR LABOR PRACTICES A. Record Evidence 1. Introduction On October 15, 2020,2 the Union filed an RC-petition with Region 4 of the National Labor Relations Board (the Board) seeking to represent the following appropriate bargaining unit of United Scrap employees employed at the plant (the Unit): Included:All full time and regular part time unskilled laborers, press operators, shear operators, welders, burners and hoist op- erators. Excluded: All other employees, supervisors and guards as de- fined by the Act. (GC Exh. 1(a)). A Stipulated Election Agreement then set an election for November 20. 2. October 16—Union T-shirt Distribution and Threats At around 6 a.m., as part of the organizing campaign, Union Business Agent Confessor Plaza and other Union officials dis- tributed union t-shirts and other materials on the road outside of the plant to arriving employees. See also (GC Exh. 2). About 12 workers stopped and accepted materials. Later that morning, General Manager Darin Haas approached former employee Car- los Galvez and made this statement about the Union’s cam- paign:3 [T]here were two people outside today …. Giving you t-shirts …. [We] do not accept anything from that organization …. [We] do not accept t-shirts either …. Cards[,] …. Letters[,] …. Notes [,] …. Nothing …. [We] do not recognize or know about them …. [We] don’t … acknowledge them …. (GC Exh. 3)(transcript). Haas acknowledged these comments. (Tr. 599–600). 3. October 16—Union T-shirt Confiscation Later that day, former employee Roberto Duarte Acosta ob- served Haas throw several union t-shirts into a dumpster at the plant.4 Former employee Pablo Granados testified that, although he left his union t-shirt in his unlocked car during the workday, it was gone when he returned. Former employee Orlin Rivera testified that he also left a union t-shirt in his car, was then told by Haas during the workday to throw it away, and that when he returned to his car to discard it, it was also gone. Regarding the union t-shirts, Haas conceded that, he “decided … to confiscate them and throw them away.” (Tr. 599). 4. October 19—Promises of Benefits Employee Dagoberto Acosta met with labor relations consult- ant Michael Rosado.5 In his affidavit, which was admitted as past recollection recorded, Acosta recalled that Rosado: [A]sked us if we were with the Union …. [and] said that we could talk to the Company before the Union came so that the Union would not interfere …. 2 All dates that follow are in 2020, unless otherwise stated. 3 Galvez recorded their exchange on his cellphone. 4 This testimony was corroborated by Haas, who acknowledged that he discarded the shirts. (GC Exh. 7).6 5. October 26—Interrogation In his affidavit, Acosta also memorialized this exchange with Rosado: [He] called me … [to] the same office …. [and] was the only other person present …. [and] asked me how we were all going to vote …. (GC Exh. 7). 6. November 2—Antiunion Petition, Soliciting Grievances and Interrogation Former employee Osman Rivera and several employees met with Rosado in the office area, where Rosado told them that, “we could reach an agreement with the Company without including the Union.” (Tr. 327). He also recalled him saying that: [T]he Company could give us a raise to leave the Union on the side. And … we could collect signatures …. [that] could be sent to a city or a judge … [and] be used to stop the Union from entering the Company. (Tr. 329–330). Former employee Osman Rivera met privately with Rosado, who told him that employees had not reached an agreement with the company and should not believe what the Union was offer- ing. When Rivera said that he “knew what a union was … [and] had been in a union before,” Rosado asked him to “name … the union.” (Tr. 335). 7. November 3—Discriminatorily Permitting Nonunion Activities at the Plant Former employees Pablo Granados, Orlin Rivera and Osman Rivera testified that, at 3 pm, the entire Unit (i.e., about 27 em- ployees) left their workstations without management’s express authorization to attend a meeting, where employee Luis Sardinas promised raises if they voted against the Union and asked them to sign an antiunion petition. Although management (i.e., Chief Operating Officer James Sause and General Manager Haas) never attended the meeting, Granados argued that their absences had to be plainly obvious because the noisy plant was silent for 30 minutes. United Scrap never investigated why production stopped, attempted to disband the meeting, or disciplined anyone for stopping work. Former employee Osman Rivera credibly in- sisted that management never left the plant unsupervised. (Tr. 349). Sause and Haas denied knowledge, which requires a cred- ibility resolution. For several reasons, I find that Sause and Haas knew about the antiunion meeting, took no action to stop it and refrained from disciplining workers for leaving their jobs. First, if management was truly unaware of the meeting, it is likely that they would have investigated once production stopped. It’s improbable that both managers left the plant unsupervised at exactly the same time or somehow failed to notice a 30-minute standstill. Second, 5 United Scrap admitted that Rosado was a §2(13) agent. 6 Rosado was, without explanation, not called to refute any of his comments, which were unrebutted and credited. 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD beyond generalized denials, neither Sause nor Haas substantiated where they were. It is probable that, if both were absent, at least one would have offered a substantiated excuse. Third, it is un- likely that both managers would have abandoned the plant in the middle of a Union campaign (i.e., if anything, they would have been more vigilant at such a time). Fourth, it is improbable that Rosado, who was aware of the meeting and memorialized it in his notes,7 never informed Sause about the antiunion meeting; on the contrary, it is probable that Rosado would have highlighted such a meeting as a successful development in United Scrap’s efforts to counter the Union campaign. Fifth, even if the meeting somehow went unnoticed, it is probable that a 30-minute produc- tion lapse would have been later detected, once production was reviewed. United Scrap’s ongoing failure to investigate the root cause of a major production lapse suggests tacit acceptance. Fi- nally, the purpose of this meeting (i.e., to encourage the distribu- tion of an antiunion petition) mirrored Rosado’s identical efforts from just a day before. This consistency suggests a coordinated plan, and further undercuts any claims of ignorance. 8. November 20—Election Results and Change of Work Hours and Days a. General Counsel’s Position After the Union won the election by a 17 to 10 vote, Haas ab- ruptly sent the Unit home and reduced their hours of work in the following way: Workday Before Election8 After Election Monday to Friday 6 a.m. to 5 p.m. 6 a.m. to 3 p.m. Saturday 6 a.m. to 3 p.m. No work assigned United Scrap did not notify the Union or bargain before enacting the Unit’s schedule changes.9 b. United Scrap’s Stance Sause stated that the schedule change was prompted by de- creased sales, which dropped from 2019 to 2020, while staffing remained constant.10 (GC Exh. 14). He averred that work hours were cut in lieu of layoffs and insisted that the election was not a factor. He added that the City of Philadelphia’s Emergency Or- dinance also prompted the schedule change, although he did not explain its specific role. (R. Exh. 2).11 To date, the lost hours have not been restored. 7 Rosado’s notes from November 3 stated that, “Luis requested that the employees … meet with no supervisors around,” and “Luis and Erik want to hold a meeting with no supervisors … we hope a withdrawal petition may result.” (GC Exh. 10(c). 8 This was roughly 57 hours per week with overtime. Former employ- ees Granados, Orlin Rivera and Osman Rivera credibly testified that they worked this schedule for several years before the election. See also (R. Exh. 3). 9 Orlin Rivera said that Haas said that, “they would cut hours because the majority voted for the Union.” (Tr. 285). 10 He related that business declined in early 2020 because the manu- facturing and construction industries that generated scrap materials slowed down during the pandemic. 11 There is nothing in the Ordinance, which expressly required a re- duction in the Unit’s hours of work. B. Analysis12 1. §8(a)(1) —Instruction to Not Accept Union Authorization Cards and Materials13 United Scrap violated §8(a)(1), when Haas told employees to not accept Union authorization cards, t-shirts or other materials on October 16. (GC Exh. 3). See, e.g., Chipotle Services, 363 NLRB 336 (2015); Evolution Mechanical Services, 360 NLRB 164 (2014); Hunter Outdoor Products, 176 NLRB 449 (1969) (telling employees not to accept union pamphlets). 2. §8(a)(1) —Confiscating Union T–Shirts14 United Scrap violated §8(a)(1), when Haas confiscated union t-shirts from employees’ vehicles on October 16. See, e.g., Earthgrains Co., 336 NLRB 1119, 1125 (2001); Emergency One, Inc., 306 NLRB 800, 806 (1992). 3. §8(a)(1)—Allowing Employees to Engage in the Antiunion Meeting at the Plant15 United Scrap violated §8(a)(1), when it allowed employees to hold an antiunion meeting at the plant on November 3 during working time, while broadly barring prounion activities (e.g., telling them to not accept cards or t-shirts, and discarding their union t-shirts). See, e.g., Kenmore Mercy Hospital, 319 NLRB 345 (1995); Gencorp, 294 NLRB 717, 732 (1989). 4. §8(a)(1)—Soliciting Grievances16 United Scrap violated §8(a)(1), when Rosado told Acosta on October 19 that employees “could talk to the Company before the Union came so that the Union would not interfere.” (GC Exh. 7). CPL (Linwood) LLC, 367 NLRB No. 14, slip op. at 1 (2018) (unlawful to tell workers that their grievances will be resolved, if they refrain from unionizing).17 5. §8(a)(1)—Interrogation18 United Scrap violated §8(a)(1), when Rosado asked Acosta on October 26 how he was voting. (GC Exh. 7). In Westwood Healthcare Center, 330 NLRB 935 (2000), the Board held that these factors determine whether an exchange constitutes an un- lawful interrogation: (1) The background, i.e., is there a history of employer hostility and discrimination? (2) The nature of the information sought, e.g., did the interro- gator appear to be seeking information on which to base taking action against individual employees? 12 At the hearing, the GC withdraw complaint ¶8, renumbered the resulting complaint, and amended the newly renumbered ¶8(a) to add that the conduct alleged therein was inherently destructive of employees’ §7 rights. 13 This allegation is pled under complaint ¶¶6(a) and 9. 14 This allegation is pled under complaint ¶¶6(b) and 9. 15 This allegation is pled under complaint ¶¶6(c) and 9. 16 This allegation is pled under complaint ¶¶7(a) and 9. 17 Although an employer with a past practice of soliciting grievances may continue to do so during an organizing drive, there is no evidence that United Scrap had such a practice. Wal-Mart, Inc., 339 NLRB 1187 (2003). 18 This allegation is pled under complaint ¶¶7(b) and 9. UNITED SCRAP METAL PA, LLC 9 (3) The identity of the questioner, i.e., how high was he in the company hierarchy? (4) Place and method of interrogation, e.g., was employee called from work to the boss’s office? Was there an atmosphere of unnatural formality? (5) Truthfulness of the reply. Id. at 939. In applying these factors, however, the Board con- cluded that: In the final analysis, our task is to determine whether under all the circumstances the questioning at issue would reasonably tend to coerce the employee at whom it is directed so that he or she would feel restrained from exercising rights protected by Section 7 of the Act. Id. at page 940. The October 26 exchange was an unlawful interrogation. These factors are determinative: the questioning involved a pro- tected activity (i.e., Acosta’s vote); there is extensive evidence of animus (e.g., interrogation, solicitating grievances, discarding union t-shirts, antiunion petition, etc.); Rosado reported to man- agement and led meetings with them; and the questioning oc- curred in an office area, which involved Acosta being summoned from his workstation. 6. §8(a)(1)—Soliciting Grievances, Antiunion Petition and Interrogation19 United Scrap violated §8(a)(1) on November 2, when Rosado told employees that, “[they] could reach an agreement with the Company without including the Union,” and “the Company could [grant] … a raise to leave the Union on the side.” (Tr. 327, 329–330). CPL (Linwood) LLC, supra. United Scrap also violated §8(a)(1) on November 2, when Rosado told employees that, “[they ] could collect signatures …. [that] could be sent to a city or a judge … [and] be used to stop the Union from entering the Company.” (Tr. 327, 329–330). See, e.g., Central Washington Hospital, 279 NLRB 60, 64 (1986) (soliciting employees to sign antiunion petition is unlawful); Placke Toyota, Inc., 215 NLRB 395 (1974). United Scrap further violated §8(a)(1) on November 2, when Rosado interrogated Rivera during a one-on-one meeting in the office area about the name of the union that he previously joined. (Tr. 335). Westwood Healthcare Center, supra. 7. §8(a)(5)—Unilateral Change of Work Hours and Days20 United Scrap violated §8(a)(5), when it changed the Unit’s work hours and days on November 20 without notice or bargain- ing. Under §§8(a)(5) and 8(d), the duty to bargain collectively requires an employer “to meet … and confer in good faith with respect to wages, hours, and other terms and conditions of em- ployment.” NLRB v. Katz, 369 U.S. 736, 742–743 (1962). In or- der to trigger a bargaining duty, a change must be material, sub- stantial and significant. Crittenton Hospital, 342 NLRB 686 19 This allegation is pled under complaint ¶¶7(c) and 9. 20 This allegation is pled under complaint ¶¶8 and 11. 21 It is unnecessary to also pass on whether the schedule change vio- lates §8(a)(3), inasmuch as such a finding would not materially affect the remedy. See El Paso Electric Co., 350 NLRB 151 (2007). (2004). The GC can establish a prima facie unilateral change vi- olation, if it shows that an employer made a material and sub- stantial change in a term of employment without negotiating. The burden then shifts to the employer to show that the change was permissible (e.g., consistent with established past practice). Fresno Bee, 339 NLRB 1214 (2003). Once a Union has won an election, an employer must generally refrain from making uni- lateral changes in wages, hours and working conditions, absent notice and bargaining with the Union. Northwest Graphics, 342 NLRB 1288, 1297 (2004); Mike O’Connor Chevrolet, 209 NLRB 701 (1974). There are, however, two limited exceptions to this general prohibition: (1) where a union has delayed bar- gaining; and (2) where economic exigencies require prompt ac- tion. RBE Enterprises of S.D., Inc., 320 NLRB 80, 81–82 (1995). Economic exigencies do not include the loss of accounts or con- tracts, operating at a competitive disadvantage or supply short- ages; an economic exigency is limited to an unforeseen event, which has a major economic effect that requires “immediate ac- tion.” Id. In the instant case, the GC established that United Scrap made a material and substantial change in the Unit’s terms and condi- tions of employment without negotiating, when it changed their work schedule after the election. Mi Pueblo Foods, 360 NLRB 1097 (2014); 88 Transit Lines, 300 NLRB 177, 184 (1990). United Scrap has failed to show that its unilateral change was a permissible past practice, i.e., on the contrary, the record reflects that Unit employees consistently performed a Monday to Satur- day schedule with extensive overtime hours. Furthermore, in spite of United Scrap’s contentions to the contrary, the City of Philadelphia’s Emergency Ordinance concerning COVID-19 was not an economic exigency, which required “immediate ac- tion” and relieved its bargaining duty. The Ordinance, as noted, did not limit its hours of operation or otherwise require a sched- ule change. Finally, United Scrap’s contention that the over- staffing situation prompted by the pandemic was an economic exigency requiring immediate actions is also without merit. To the contrary, it successfully operated with this over-staffing model for several months before making the unilateral change and, although the status quo might have been economically un- desirable and caused it to operate at a “competitive disad- vantage,” there is nothing in the record to suggest that it had to take “immediate action” regarding Unit scheduling or risk the very existence of its enterprise. Simply put, it had the time and resources to bargain over this scheduling issue, and just chose not to do so. This scenario did not, as a result, excuse its bargain- ing obligation. RBE Enterprises of S.D., Inc., supra.21 III. OBJECTIONS United Scrap filed 3 objections22 to the Union’s conduct dur- ing the critical period before the election (i.e., October 15 to No- vember 20).23 (GC Exh. 1(h)). These objections lack merit.24 22 United Scrap initially filed seven objections, but, then withdrew objections 3 to 6, which left 1, 2 and 7. 23 Ideal Electric Mfg. Co., 134 NLRB 1275 (1961) (critical period is span between petition and election dates). 24 “Representation elections are not lightly set aside.” NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328 (5th Cir. 1991) (citing NLRB v. 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. Objection 1 This objection provides, in relevant part, that: [The Union] … coerced eligible voters … [when] … Acosta ... demand[ed] employees [to] take a picture of their ballots after they marked them … so that he could see who they voted for …. Unit employee Jaime Rivas testified that, a few days before the election, Acosta asked employees to take photos of their bal- lots with their mobile phones, in order to permit the Union to see their votes. He said that Acosta said this to a coworker, Francisco Vidal, who relayed the comment to him, but, confirmed that Acosta never said it directly to him. (Tr. 816). He recalled this exchange with Vidal: [H]e told me … that Osman [Acosta] … told him to shoot a photograph … [of] the ballot so they would know who vote[d], … for who. (Tr. 820). Vidal was not called to testify.25 Acosta denied the comment. Inasmuch as Rivas testified that Acosta told employees to photograph their ballots, and Acosta denied the comment, I must make a credibility determination. Although Rivas seemed to be a straightforward witness, his testimony was double hearsay (i.e., Acosta to Vidal to Rivas),26 which does not meet any recognized hearsay exceptions and cannot be afforded weight. Auto Workers Local 651 (General Motors), 331 NLRB 479, 481 (2000) (dou- ble hearsay is inadmissible, unless both parts satisfy the Board’s requirements); Kamtech, Inc., 333 NLRB 242, fn. 4 (2001). On this basis, Acosta’s denial has been credited. Objection 1 is, thus, overruled. B. Objection 2 This objection provides, in relevant part, as follows: Acosta made threats of violence … against another eligible voter after the individual stated his support of the Company. Acosta made this statement in front of at least 5-6 other eligible voters while blocking … [them] into a small space …. 1. Factual Findings a. Acosta’s November 19 Statements Former employee Luis Salinas testified that employees at- tended a meeting, which was led by President Serlin. (Tr. 775). He recalled Acosta complaining about employees being fired without reason. (Tr. 765). He said that, after the meeting, Former employee Erik Larios told Acosta that United Scrap treated peo- ple fairly and asked him why he was always threatening people.27 (Tr 766). He recalled Acosta reacting by threatening Larios. (Id.). Monroe Auto Equipment Co., 470 F.2d 1329, 1333 (5th Cir. 1972), cert. denied 412 U.S. 928 (1973)). Thus, “[t]here is a strong presumption that ballots cast under specific NLRB procedural safeguards reflect the true desires of the employees.” NLRB v. Hood Furniture Mfg. Co., supra, 941 F.2d at 328. Accordingly, “the burden of proof on parties seeking to have a Board-supervised election set aside is a ‘heavy one.’” Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6 th Cir. 1989) (quoting Harlan #4 Coal Co. v. NLRB, 490 F.2d 117, 120 (6th Cir.), cert. denied 416 U.S. 986 (1974). Larios recalled Acosta stating that United Scrap was “mis- treating” workers and “people were punished without reason.” (Tr. 789). He said that Serlin stated that he would investigate. (Tr. 803). Larios averred that, after the meeting, he asked Acosta, “why he was lying?,” which prompted Acosta to threaten him. (Tr. 790). Acosta denied threatening Larios. He claimed that Larios was the aggressor, who grabbed his shirt and threatened him. (Tr. 903). I credit Salinas and Larios and find that Acosta threatened Lar- ios after the meeting ended. They were generally consistent wit- nesses, who believably corroborated each other’s accounts. There is scant evidence, however, regarding how many employ- ees were in the vicinity of this exchange and whether anyone, beyond Salinas, heard what was said. b. Acosta’s Agency Status Larios said that Acosta told coworkers that he was the “jefe” of the Union. (Tr. 797). He claimed that he said that he would become the Union representative after the election. (Tr. 791). Union Business Agent Plaza denied that Acosta was author- ized to speak for the Union. He said that Acosta never: worked for the Union; received payment; collected authorization cards; held a steward or other position; or led meetings. He agreed, however, that Acosta was 1 of 5 employees, who the Union pe- riodically spoke with about its campaign, and that he likely in- vited coworkers to upcoming meetings. Acosta attended 1 or 2 of the Union’s organizing meetings, which were led by Business Agents. Plaza denied knowing that Acosta was allegedly going around telling employees that he was the “jefe,” or a future rep- resentative. Acosta denied saying that he was the “jefe” or future repre- sentative. (Tr. 906). He agreed that he was the Union’s election observer. Although there is a credibility dispute between Larios and Acosta regarding whether he told employees that he was the Union’s “jefe” or representative, it is unnecessary to resolve this dispute. As will be discussed, even assuming arguendo that he made these comments, they were insufficient to confer agency status. 2. Analysis a. Agency Acosta was not a Union agent.28 His conduct is not attributable to the Union, without proof that it was authorized by, partici- pated in, condoned by, ratified by, or adopted by Union officials. Aladdin Hotel Corp., 229 NLRB 499 (1977). The mere fact that Acosta served as an election observer, attended some Union meetings, and invited coworkers to meetings is insufficient con- fer agency status, in the absence of proof that the Union knew and ratified him allegedly holding himself as the Union “jefe” or 25 United Scrap did not explain its failure to call Vidal to testify. 26 As discussed below, Acosta is not a Union agent. 27 Although Salinas testified that half of the Unit attended the meet- ing, he was ambiguous regarding how many workers witnessed the ex- change between Acosta and Larios. 28 The burden of proving agency is on the party asserting it. Millard Processing Services, 304 NLRB 770, 771 (1991), enfd. 2 F.3d 258 (8th Cir. 1993), cert. denied 510 U.S. 1092 (1994). UNITED SCRAP METAL PA, LLC 11 representative.29 See, e.g., Advance Products Corp., 304 NLRB 436, 436 (1991) (employee who was member of in-house organ- izing committee, solicited support for union, distributed union literature, buttons, hats, and shirts, kept union informed of events occurring in plant, and served as the union’s election observer was not a union agent); United Builders Supply Co., 287 NLRB 1364, 1365 (1988) (employee who solicited and obtained signa- tures on authorization cards, scheduled union meetings and in- formed employees and served as an election observer was not an agent); Aladdin Hotel Corp., supra (mere fact that an employee was prominent in the organizing campaign is insufficient to es- tablish agency); Mike Yurosek & Sons, 225 NLRB 148, 149–150 (1976) (serving on in-plant organizing committee and as observ- ers), enfd. 597 F.2d 661 (9th Cir. 1979), cert. denied 444 U.S. 839 (1979). See also Catherine’s, Inc., 316 NLRB 186, 189 (1995) (“where employee members of the in-house organizing committee make prejudicial or inflammatory remarks against the Employer … [such statements] do not constitute a basis for set- ting aside the election, where there is no evidence that the Union authorized or condoned these offensive sentiments.”). I find, as a result, that United Scrap failed to satisfy its burden of proof on the agency issue (i.e., it showed that he was the Union’s ob- server, attended its meetings and invited coworkers to meetings, which is insufficient to establish agency, and wholly failed to show that the Union ratified his alleged “jefe” comments). How- ever, even though Acosta is not an agent, it is still necessary to examine whether his third-party conduct regarding Larios was objectionable. b. Findings Acosta’s third-party conduct regarding Larios was not objec- tionable (i.e., his threats). Objection 2 is, accordingly, overruled. Although third-party conduct may present grounds for setting aside an election, the Board “accords less weight to such conduct than to conduct of the parties.” Orleans Mfg. Co., 120 NLRB 630, 633 (1958). Third-party conduct will be grounds for setting an election aside, only when “the conduct was so aggravated as to create a general atmosphere of fear and reprisal rendering a free election impossible.” Westwood Horizons Hotel, 270 NLRB 802, 803 (1984). In gauging third-party threats, the Board exam- ines these factors: (1) the cumulative effect of the threats; (2) whether the threats were directed at all employees in the bargaining unit; (3) whether the persons making the threats are capable of carrying out the threats; (4) the degree to which the threats were dissem- inated; and (5) whether the threats were made in close proxim- ity to the date of the election. Nor-Cal Ready Mix, Inc., 327 NLRB 1091 (1999). However, “the subjective reactions of employees are irrelevant to the ques- tion of whether there was, in fact, objectionable conduct.” Em- erson Electric Co., 247 NLRB 1365, 1370 (1980), enfd. 649 F.2d 589 (8th Cir. 1981). The Board assesses “whether it is likely that 29 As noted, even assuming arguendo that Acosta made these com- ments about his elevated Union status, the record fails to demonstrate that the Union was even remotely aware that he was allegedly holding himself out as the Union “jefe” or telling others that he was the future Union representative or steward. the employees acted in fear of [a third party’s] capability of car- rying out the threat.” Westwood Horizons Hotel, 270 NLRB 802, 803 (1984). In applying the Board’s third-party balancing test to objection 2, I find that Acosta’s actions were not “so aggravated as to cre- ate a general atmosphere of fear and reprisal rendering a free election impossible.” Regarding factor one (i.e., the cumulative impact of his physical threat to Larios), there is no evidence that Acosta’s threat had any cumulative impact whatsoever. It is dif- ficult to even decipher whether his threat to Larios was based upon Union support or general animosity. Larios also marginal- ized the threat, when he told Acosta that he was always threaten- ing people. There is also no evidence that other employees took Acosta’s comments seriously or that his comments impacted their thinking. To the contrary, it’s not even clear whether any- one other than Salinas heard the exchange. Moreover, if Acosta’s physical threat to Larios were deemed serious, it would have been reported to management and the police; the absence of such reports undercuts the threat’s cumulative impact. Factor one, as a result, strongly gravitates against finding objectionable con- duct. Regarding factor two (i.e., whether the threat was directed at the entire Unit), this factor detracts from finding objectionable conduct, inasmuch as the threat was solely directed at Larios. Regarding factor three (i.e., Acosta’s ability to carry out the threat), this factor detracts from finding objectionable conduct, inasmuch as there was no evidence that Acosta was empowered to harm Larios at a later date. It is unlikely that a rational em- ployee would have taken this matter seriously. Regarding factor four (i.e., dissemination), there is, again, no evidence that Acosta’s empty threat was disseminated to anyone beyond Lar- ios and Salinas. Regarding factor 5 (i.e., proximity to the elec- tion), the threat was made the day before the election. However, this factor, in isolation, is grossly insufficient to “create a general atmosphere of fear and reprisal rendering a free election impos- sible.” Westwood Horizons Hotel, 270 NLRB 802, 803 (1984). C. Objection 7 This objection provides, in relevant part, that: [T]he Union … coerced eligible voters by attempting to stop employees in their vehicles as they entered the facility, and if employees did not stop, the Union’s agents openly took photo- graphs of employee vehicles as the entered the facility.30 1. United Scrap’s Witnesses Haas testified that, on October 16, he saw 5 men with Union jackets and insignia flag down arriving employees on the private road that led to the plant. He said that the group recorded work- ers, who failed to stop. He said that he alerted Security Guard Charles Nelson, who told the organizers to leave.31 2. Union’s Witnesses Union Business Agent Plaza recalled visiting the plant with other organizers and distributing union t-shirts and materials to 30 See Randell Warehouse of Arizona, Inc., 347 NLRB 591, 598 (2006) (photographing employees during a union campaign constitutes objectionable conduct unless the reason is explained to the employees or is self-evident). 31 Nelson corroborated that he directed the organizers to leave. 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD arriving workers. He denied that the Union photographed any- one. Union organizer Raymond Richardson corroborated his tes- timony. 3. Analysis Objection 7 is overruled. Given that Haas said that the Union recorded employees who refused organizing materials, and Plaza and Richardson denied such activity, a credibility resolution must be made. For several reasons, I credit Plaza and Richard- son. First, regarding demeanor, Plaza and Richardson were strong and believable witnesses. Second, I find it highly improb- able that the Union, during the early stages of its campaign, would have risked irreparably destroying the good will that it was trying to create by recording employees, who were either unwilling or too fearful to talk at that point. It is doubtful that the Union decided that the best way to attract skittish workers was to record and disenfranchise them. Third, if recording actually occurred, I find that it is highly likely that United Scrap would have made this an important electioneering point and filed a re- lated ULP, which never occurred. Finally, the purest evidence of what occurred is contained in Haas’ recorded statement, which only described 2 people distributing materials and omits talk of videotaping. I find it plausible that, if videotaping actually oc- curred, Haas would have cited it. (GC Exh. 3). On these bases, each of which would suffice in isolation, Plaza and Richardson have been credited; I, thus, find that arriving employees were not recorded by the Union. CONCLUSIONS OF LAW 1. United Scrap is an employer engaged in commerce within the meaning of §2(2), (6), and (7) of the Act. 2. The Union is a §2(5) labor organization and the designated exclusive collective-bargaining representative of United Scrap’s employees at its Philadelphia, Pennsylvania plant in the follow- ing appropriate collective-bargaining unit: Included:All full time and regular part time unskilled laborers, press operators, shear operators, welders, burners and hoist op- erators. Excluded: All other employees, supervisors and guards as de- fined by the Act. 3. United Scrap violated §8(a)(1) by: (a) Telling employees to not accept union authorization cards, t-shirts or other organizing materials. (b) Confiscating union T-shirts from employees’ vehicles. (c) Allowing employees to hold an antiunion meeting at the plant during working time, while simultaneously preventing them from engaging in prounion activities. (d) Soliciting grievances from employees and making im- plied promises to remedy their grievances in order to undermine their Union support. (e) Interrogating employees about their Union and other pro- tected activities. 32 Homer D. Bronson Co., 349 NLRB 512, 515 (2007); Domsey Trad- ing Co., 310 NLRB 777, 779–780 (1993). 33 Domsey Trading Co., supra, at 813; Marine Welding and Repair Works, Inc., 174 NLRB 661, 681 (1969). (f) Assisting and encouraging the circulation of a petition to oust the Union. 4. United Scrap violated §8(a)(5) by unilaterally changing the Unit’s scheduled hours and days of work. 5. These unfair labor practices affect commerce within the meaning of §2(6) and (7). 6. United Scrap’s election objections in Case 04–RC–267642 are overruled. REMEDY The appropriate remedy for the violations found herein is an order requiring United Scrap to cease and desist from its unlaw- ful conduct and to take certain affirmative action. Having found that it unlawfully unilaterally changed Unit schedules, it is di- rected to reinstitute the terms and conditions of employment that existed before its unlawful changes, upon request from the Un- ion. It shall make employees whole for any loss of earnings and other benefits resulting from its unlawful unilateral changes as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest at the rate pre- scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016), it shall compensate affected em- ployees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 4, 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 years for each em- ployee. Regarding the GC’s notice reading request, the Board grants such a remedy in these 2 situations: (1) where the ULPs are so pervasive and egregious that a notice reading is necessary to dis- pel the impact of such conduct;32 and (2) when the evidence es- tablishes that a significant number of the employees cannot read a notice.33 Although I do not find that the ULPs herein are so pervasive and egregious that a notice reading is warranted on this basis,34 I do find that a large portion of United Scrap’s mostly Hispanic workforce can only speak Spanish (i.e., cannot read in Spanish or English) and that a notice reading in Spanish is war- ranted on this basis. As a result, in order to ensure that such em- ployees understand the notice, United Scrap shall hold a meeting or meetings during worktime at its Philadelphia, Pennsylvania facility, scheduled to ensure the widest possible attendance of employees, at which time the notice is to be read to employees in Spanish “by a high-ranking manager in the presence of a Board agent and a union representative if the Region or the Un- ion so desires, or, at the Respondent’s option, by a Board agent in the presence of management and, if the Union so desires, a union representative.” Johnston Fire Services, LLC, 371 NLRB No. 56, slip op. at 8 (2021). Finally, United Scrap shall post the attached notice in English and Spanish in accordance with J. Picini Flooring, 356 NLRB 11 (2010). 34 A notice-reading remedy is neither necessary nor appropriate based strictly upon the ULPs at issue herein because the Board’s traditional remedies will sufficiently advise employees about the unlawful conduct. See, e.g., Queen of the Valley Medical Ctr., 368 NLRB No. 116, slip op. at 4 (2019). UNITED SCRAP METAL PA, LLC 13 On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended 35 ORDER United Scrap Metal PA, LLC, Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Telling employees to not accept Union authorization cards, t-shirts or other organizing materials. (b) Confiscating union t-shirts from employees’ vehicles. (c) Permitting employees to hold an antiunion meeting during working time, while simultaneously preventing workers from engaging in prounion activities. (d) Soliciting grievances from employees and making im- plied promises to remedy their grievances in order to undermine their union support. (e) Interrogating employees about their Union activities. (f) Assisting and encouraging the circulation of an antiunion- petition. (g) Changing terms and condition of employment of Unit em- ployees, including their scheduled hours and days of work, with- out first notifying the Union and giving it an opportunity to bar- gain. (h) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by §7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the Act’s policies (a) Before implementing any changes in wages, hours, or other terms and conditions of employment, notify and, upon re- quest, bargain with the Union as the designated exclusive collec- tive-bargaining representative of its employees at its Philadel- phia, Pennsylvania plant in the following appropriate collective- bargaining unit: Included:All full time and regular part time unskilled laborers, press operators, shear operators, welders, burners and hoist op- erators. Excluded: All other employees, supervisors and guards as de- fined by the Act. (b) Upon request by the Union, and to the extent it has not already done so, rescind the unilateral changes in the hours and days of work of the Unit made on November 20, 2020. (c) Make affected employees whole for any loss of earnings and other benefits suffered as a result of the unilateral change, in the manner set forth in the remedy section. (d) Compensate affected employees for the adverse tax con- sequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 4, within 21 days of the date the amount of backpay is fixed, either by agreement or Board Order, a report allocating the backpay awards to the ap- propriate calendar year for each employee. 35 If no exceptions are filed as provided by §102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Or- der shall, as provided in §102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. (e) Preserve and, within 14 days of 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, time- cards, personnel records and reports, and all other records, in- cluding 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. (f) Within 14 days after service by the Region, post at its Phil- adelphia, Pennsylvania facility the attached notice marked “Ap- pendix” in English and Spanish. 36 Copies of the notice, on forms provided by the Regional Director for Region 4, 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 the physical posting of paper notices, notices shall be distributed electroni- cally, 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 in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since October 16, 2020. (g) Hold a meeting or meetings during working hours at its Philadelphia, Pennsylvania plant, scheduled to ensure the widest possible attendance of employees, at which the attached notice marked “Appendix” will be read to employees in Spanish by a high-ranking management official of the Respondent in the pres- ence of a Board Agent and an agent of the Union if the Region or the Union so desires, or, at the Respondent’s option, by a Board agent in the presence of a high-ranking management offi- cial of the Respondent and, if the Union so desires, the presence of an agent of the Union. (h) Within 21 days after service by the Region, file with the Regional Director for Region 4 a sworn certification of a respon- sible official on a form provided by the Region attesting to the steps the Respondent has taken to comply. It is further recommended that the objections filed by Re- spondent in Case 04–RC–267642 are overruled and that a Certi- fication of Representative should issue. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 36 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.” 14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. WE WILL NOT tell you not to accept Union authorization cards, t-shirts or other organizing materials. WE WILL NOT take union t-shirts from your vehicles. WE WILL NOT allow you to hold an antiunion meeting at the plant during working time, while also stopping you from engag- ing in prounion activities. WE WILL NOT solicit your grievances and make implied prom- ises to remedy your grievances in order to undermine your sup- port for the Union. WE WILL NOT question you about your Union and other pro- tected activities. WE WILL NOT help and encourage you to circulate a petition to oust the Union. WE WILL NOT change your terms and condition of employ- ment, including your scheduled hours and days of work, without first notifying the Union and giving it an opportunity to bargain over these issues. WE WILL NOT in any like or related manner interfere with, re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, before making any changes in the wages, hours or other terms and conditions of employment of our bargaining unit employees, notify and, upon request, bargain with the Union as the exclusive collective-bargaining representative of our em- ployees in the following appropriate collective-bargaining unit: Included:All full time and regular part time unskilled laborers, press operators, shear operators, welders, burners and hoist op- erators. Excluded: All other employees, supervisors and guards as de- fined by the Act. WE WILL, upon request by the Union, and to the extent we have not already done so, rescind the changes in scheduled hours and days of work for our bargaining unit employees that were unilaterally implemented on November 20, 2020, and restore the scheduled hours and days of work that existed prior to the change until such time as we have bargaining with the Union to an agree- ment or impasse. WE WILL make employees whole for any loss of earnings and other benefits suffered as the result of our unlawful unilateral change to your scheduled hours and days of work, plus interest. WE WILL compensate employees for the adverse tax conse- quences, if any, of receiving lump-sum backpay awards, and we will file with the Regional Director for Region 4, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the ap- propriate calendar year for each employee. UNITED SCRAP METAL,PA,LLC The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CA-268183 or by using the QR code be- low. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.