Russell Reid Waste Hauling and Disposal Service Company, Inc.

373 NLRB No. 51 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. Russell Reid Waste Hauling & Disposal Service Com- pany, Inc. and International Union of Operating Engineers, Local 825. Cases 22–CA–263364 and 22–RC–261504 May 2, 2024 DECISION AND ORDER BY MEMBERS KAPLAN, PROUTY, AND WILCOX On August 5, 2022, Administrative Law Judge Lauren Esposito issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed an answering brief. The Respondent filed separate reply briefs to the General Counsel’s and the Charging Party’s answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the judge’s recommended Order as modified.1 We affirm the judge’s findings and conclusions, as clar- ified below, that the Respondent violated Section 8(a)(1) of the Act and engaged in objectionable conduct warrant- ing a rerun election by issuing a memorandum, dated July 21, 2020,2 announcing that a regularly scheduled wage in- crease would be delayed in a manner that placed the onus for the delay on the Union and was otherwise coercive. Contrary to the arguments of the Respondent and our dis- senting colleague, we agree with the judge that the July 21 memorandum, which was posted by the Respondent solely at its facility with an upcoming representation election, would have a reasonable tendency to coerce employees in the exercise of Section 7 rights based on its statement that employees who were “part of a collective bargaining unit (i.e., Union),” were ineligible for the wage increase. This reasonably suggested that the delay in implementation of the wage increase due to the upcoming representation elec- tion would become permanent should employees choose to unionize. 1 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language and in accordance with our decision in Paragon Systems, Inc., 371 NLRB No. 104 (2022). We shall also substitute a new notice to conform to the Order as modified. Member Prouty would grant the General Counsel’s request for a no- tice-reading remedy for the reasons stated in his concurrence in CP An- chorage Hotel 2 d/b/a Hilton Anchorage, 371 NLRB No. 151 (2022). 2 All subsequent dates are in 2020 unless otherwise specified. 3 Although United Site Services purchased the Respondent in 2018, the Respondent remains the operative legal entity with respect to the Keasbey facility. I. BACKGROUND The Respondent provides portable sanitation services (portable toilets, bathrooms, and other temporary sanita- tion services) and nonhazardous liquid waste management services (the transport and disposal of grease and servicing of large septic tanks). The Respondent’s facility in Keasbey, New Jersey, is part of the east region of United Site Services, which as of summer 2020 encompassed seven facilities in New Jersey and one in New York.3 Local 560, International Brotherhood of Teamsters (Teamsters Local 560), represents the portable-sanitation drivers working out of five of the Respondent’s eight fa- cilities. Local 676, International Brotherhood of Team- sters (Teamsters Local 676), represents the non-hazardous liquid waste employees working out of the facility in Deptford/Sewell, New Jersey. The non-hazardous liquid waste employees working out of the Keasbey facility have never been represented by a union.4 Historically, United Site Services has implemented an- nual wage increases during the summer (July or August) for all “all non-bargaining unit employees” in New York, New Jersey, and Pennsylvania. These annual wage in- creases are not provided to employees covered by the Re- spondent’s collective-bargaining agreements with Team- sters Local 560 and Teamsters Local 676, which have their own provisions for annual wage increases. In early May, the Union began organizing the Respond- ent’s non-hazardous waste employees (technicians, equip- ment specialists, and mechanics) at the Keasbey facility. The Union filed an election petition on June 9.5 On July 13, Christopher Yates, the Respondent’s re- gional vice president for the east region, sent an interoffice memorandum to east region employees regarding the an- nual wage increase for that year. The July 13 memoran- dum stated, in pertinent part: Our teams have done an outstanding job while dealing with the impact of COVID-19. Because of that focus I am happy to announce we will offer a merit-increase to eligible employees! There are some exceptions in order to be eligible. For example, you must not be part of a collective bargaining unit (i.e. Union) and you must have been employed over 90 days. The merit will be effective July 5th and will show in your July 17th paychecks. 4 Teamsters Local 560 represented the portable-sanitation drivers working out of the Keasbey facility until mid-2019, when the Respond- ent relocated those drivers to United Site Services’ facility in Old Bridge, New Jersey. Thus, at all relevant times, there were no unionized em- ployees working out of the Keasbey facility. 5 The Union’s petition was processed in Case 22–RC–261504. We affirm the judge’s decision to sever and remand that case for the purpose of conducting a second election. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 Many companies are either shutting their doors or have suspended all pay increase activities. Many of our com- petitors are struggling and some have shut their doors. USS is fortunate enough to have a diverse business. When one line of business falters, another can help carry the load. We are lucky to work for a company that is still going to issue a merit increase in the face of uncer- tain times and challenging revenue performance. On July 21, Yates issued another interoffice memoran- dum specifically addressed to the Keasbey facility em- ployees. It was posted on a bulletin board in the Keasbey drivers’ room and on the outside wall near the locker room. At the time, the Keasbey facility was the only United Site Services location where a petition for a repre- sentation election was pending.6 The July 21 memoran- dum stated, in pertinent part: Our teams have done an outstanding job while dealing with the impact of COVID-19. Because of that focus I am happy to announce we will offer a merit-increase to eligible employees! There are some exceptions in order to be eligible. For example, you must not be part of a collective bargaining unit (i.e., Union) and you must have been employed over 90 days. The merit will be effective July 5th and will show in your July 17th paychecks. However, due to the pending NLRB election, we believe we must postpone implementing merit increases for Keasbey employees in job classifications who are eligible to vote in the elec- tion. The only reason we are delaying implementing these merit increases is because we are concerned it might be viewed as “vote buying” or give the appear- ance we are trying to influence the outcome of the up- coming election. After the election is over, all affected employees will re- ceive their eligible merit increases retroactive to July 5th regardless of the results of the election and regardless of how anyone votes in the upcoming election. Please let me know if you have any questions about this decision. Many companies are either shutting their doors or have suspended all pay increase activities. Many of our com- petitors are struggling and some have shut their doors. USS is fortunate enough to have a diverse business. When one line of business falters, another can help carry the load. We are lucky to work for a company that is still going to issue a merit increase in the face of uncer- tain times and challenging revenue performance. 6 There is no credited evidence that any of the eligible voters at the Keasbey facility saw the July 13 memorandum. 7 We also agree, for the reasons stated in the judge’s decision, that the Respondent’s July 21 memorandum tainted the results of the election. On July 22, the Regional Director for Region 22 di- rected that a mail-ballot election be conducted beginning on August 5. The ballot count took place on September 14. The tally of ballots yielded 11 votes for and 23 votes against the Union, with 4 challenged ballots. On September 21, the Union filed two election objec- tions, the first of which was subsequently withdrawn. The second objection alleged that the July 13 and 21 memo- randums interfered with the election. On April 1, 2021, the Acting Regional Director for Region 22 scheduled the second objection (Objection No. 2) for a hearing and merged it with the unfair labor practice complaint in the instant case. At the hearing, the General Counsel with- drew the complaint allegation with respect to the July 13 memorandum. I. DISCUSSION The judge found that the Respondent violated Section 8(a)(1) by issuing the July 21 memorandum. We agree.7 Initially, the judge observed that two of the statements made in the July 21 memorandum—that the Respondent was postponing implementing the wage increase for em- ployees eligible to vote in the upcoming election and that it was doing so to avoid the appearance of trying to influ- ence the election—“comport with the Board’s require- ments for lawfully communicating with employees re- garding the status of a regular wage or benefit adjustment during the preelection period.” However, the judge added that “these Board-sanctioned statements are interposed be- tween language which places the onus for delaying the wage increase on [the Union] and is otherwise coercive pursuant to the objective analysis which the Board uses to evaluate such communications.” The judge cited Earthgrains Baking Cos., 339 NLRB 24, 25, 27–28 (2003) (“exculpatory effect” of permissible language regarding postponement of wage increase “eviscerated” by man- ager’s other remarks and accompanying “extemporaneous gesture”), enfd. 116 Fed.Appx. 161 (9th Cir. 2004), and Atlantic Forest Products, 282 NLRB 855, 858–859 (1987) (“evenhanded impression” created by opening paragraphs of newsletter announcing postponement of scheduled wage was “repudiated” by newsletter’s “remaining con- tent”). The judge found that the July 21 memorandum—spe- cifically the part that states that “you must not be part of a collective bargaining unit (i.e., Union)” to be eligible for the wage increase—“explicitly premises ineligibility for the merit increase upon the presence of a union and an em- ployee’s performing work encompassed by a union-repre- sented collective-bargaining unit.” (Emphasis in origi- nal.) The judge rejected the Respondent’s argument that a reasonable employee eligible to vote in the upcoming We therefore affirm the judge’s decision to sustain the Union’s Objection 2, set aside the results of the election, and order a rerun election. RUSSELL REID WASTE HAULING & DISPOSAL SERVICE CO. 3 election would have understood that the July 21 memoran- dum was referring solely to employees in the existing bar- gaining units represented by Teamsters Local 560 and Teamsters Local 676 and not to the petitioned-for unit of employees at the Keasbey facility. She further found that the confusing nature of the July 21 memorandum was compounded by subsequent language stating that “[a]fter the election is over, all affected employees will receive their eligible merit increases,” as the memorandum had “already defined eligibility as specifically excluding em- ployees who are “part of a collective bargaining unit (i.e., Union).” Thus, the judge concluded that “[i]t would not be unreasonable for the voting-eligible employees to con- clude that if they became ‘Union’ as a result of the im- pending election they would not in fact receive the merit increase, despite the memorandum’s Board-approved lan- guage to the contrary.” Finally, the judge found that the coercive nature of the July 21 memorandum was “reinforce[d]” by the following statements in its third paragraph: After the election is over, all affected employees will re- ceive their eligible merit increases retroactive to July 5th regardless of the results of the election and regardless of how anyone votes in the upcoming election. Please let me know if you have any questions about this decision. (Emphasis added.) Specifically, the judge stated that the ital- icized language “impermissibly raise[s] the possibility that individual employee votes might be somehow implicated in the granting of merit increases and solicit[s] individual em- ployee reactions to Russell Reid’s decision to withhold the annual merit increases, in a manner which renders the July 21 Memorandum coercive pursuant to Section 8(a)(1).” She found that employees would interpret the word “anyone” in the first sentence to imply that the Respondent might some- how know or discover how each individual employee voted in the election. The judge also observed that the second sen- tence “tends to solicit individual employee complaints re- garding [the Respondent’s] withholding of the merit increase pending the results of the representation election.” On exceptions, the Respondent argues that the July 21 memorandum is lawful under Dallas Morning News, 285 NLRB 807 (1987).8 In that case, the employer circulated a notice to employees concerning a sick pay plan that ex- pressly excluded “those represented by unions or covered by collective-bargaining agreements.” Id. at 808. The ad- ministrative law judge found that the notice violated Sec- tion 8(a)(1) because the exclusion inherently discouraged union membership. Id. The Board, however, disagreed, finding that the notice did not violate the Act because no benefits were taken away from unit employees due to their 8 The Respondent also argues that the statements in the July 21 mem- orandum were protected by Sec. 8(c). However, Sec. 8(c) does not pro- tect statements that contain a threat of reprisal or promise of benefit. Ac- cordingly, the key question is whether, as the General Counsel alleged, union status. Id. (citing Handleman Co., 283 NLRB 451 (1987)) (clauses in benefit plans that automatically ex- clude employees in a collective-bargaining unit violate the Act where they suggest that employees will necessarily lose existing benefits if they join a union). The Board ob- served that the reason that the unit employees (who had been represented by the union for nearly 100 years) did not have a sick pay plan was because their union “simply valued other benefits more highly and traded off its sick- pay proposals for benefits in other areas.” 285 NLRB at 808. Dallas Morning News is clearly distinguishable. Unlike the unit employees in that case, the employees in the peti- tioned-for Keasbey unit had an existing benefit: an annual merit increase. The July 21 memorandum stated that those employees who were “part of a collective bargaining unit (i.e., Union)” would be excluded from that increase. The Respondent further contends that a reasonable em- ployee would understand that the July 21 memorandum’s exclusionary language only applied to those employees who were already represented by a union, namely, the em- ployees at the other facilities who are represented by Teamsters Local 560 and Teamsters Local 676. We disa- gree. Unlike the facility in Dallas Morning News, which included represented and unrepresented employees, there were no represented employees at the Keasbey facility at the time of the July 21 memorandum. Accordingly, there was no need for the Respondent to differentiate between unrepresented employees, who would receive the annual merit increase, and those who are “part of a collective bar- gaining unit (i.e., Union),” who would not. As the judge found, this (unnecessary) language effectively conflates representation by Teamsters Local 560 and Teamsters Lo- cal 676, which represented the established collective-bar- gaining units at other facilities, with representation by any union (including the Charging Party), and therefore rea- sonably conveys that any employees represented by a un- ion would not receive a merit increase for that reason. The Respondent and our dissenting colleague argue that any potential confusion was cleared up by Board-ap- proved language appearing later in the July 21 memoran- dum that, according to the Respondent, provided “specific and explicit assurances . . . to the Keasbey drivers—that they will receive their annual merit increases after the election and regardless of the results of the election.” The Respondent contends that this language “clearly contem- plates the possibility that those employees may vote to un- ionize and still receive their increase.” The Respondent also argues that the July 21 memorandum’s reference to “affected employees” refers to those at the Keasbey facil- ity who were “affected” by its decision to delay the in- crease until after the election. the July 21 memorandum implicitly threatened employees with the loss of an existing benefit (their annual wage increase) if they voted for union representation. If it did, then Sec. 8(c) provides no protective shield for the Respondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 We agree with the judge that this subsequent lan- guage—stating that “all affected employees will receive their eligible merit increases” after the election—com- pounds, rather than clears up, any confusion. As the judge observed, the July 21 memorandum already defined eligi- bility for the increase as specifically excluding employees who are “part of a collective bargaining unit (i.e., Union).” As mentioned, there were no unionized employees at the Keasbey facility at the time of the July 21 memorandum. In these circumstances, we agree with the judge that the July 21 memorandum would have a reasonable tendency to coerce employees in the petitioned-for unit, as employ- ees reading the memorandum would tend to reasonably be concerned that if they voted to unionize as a result of the impending election they would not receive the merit in- crease.9 Finally, the Respondent argues that the judge improp- erly relied on two “allegations”—impression of surveil- lance and solicitation of grievances—that were neither al- leged in the complaint nor litigated at the hearing. It con- tends that rather than strike these additional theories, the judge “perpetuated [the] error” by agreeing with them. In response, the General Counsel and the Union argue that the judge properly “found” that the Respondent engaged in the unlawful impression of surveillance and solicitation of grievances via the July 21 memorandum. They contend that both “violations” are closely related to the complaint allegation and were fully litigated under Pergament United Sales, 296 NLRB 333 (1989). Contrary to the General Counsel and the Union, the judge did not “find” that the Respondent engaged in the unlawful impression of surveillance and solicitation of grievances. Rather, she explained that her finding that the July 21 memorandum was unlawfully coercive was “rein- force[d]” by her view that it created the impression of sur- veillance and solicited grievances. In any event, in affirm- ing the judge’s conclusion that the Respondent’s July 21 memo was unlawfully coercive, we find it unnecessary to rely on the judge’s statements suggesting that the July 21 9 The Respondent argues that Sam’s Club, 349 NRLB 1007 (2007), supports the lawfulness of the July 21 memorandum. In that case, the Board found that the employer did not violate Sec. 8(a)(1) by announcing that a wage increase would be postponed, in order to avoid the appear- ance of influencing the upcoming election, because the announcement informed employees that the increases would resume after the election. Id. at 1013. The Respondent notes that the July 21 memorandum con- tained similar language as the announcement in Sam’s Club. However, there is no question that the language in this part of the July 21 memo- randum—which the judge accurately referred to as “Board-approved”— was lawful. Sam’s Club and the cases cited by the Respondent in fn. 4 of its exceptions brief are distinguishable because, unlike the July 21 memorandum, the announcements in those cases did not include other qualifying or conditional language that confused which employees were eligible for the benefit. 10 The judge properly described the standard for determining whether the July 21 memorandum was unlawfully coercive, and the overall con- text of her decision makes clear that she applied the correct objective standard. For example, the judge noted: “The Board analyzes employer statements which allegedly violate Sec[.] 8(a)(1) pursuant to an objective memorandum created the impression of surveillance and/or solicitated grievances. Our dissenting colleague states that the majority “con- clude[s]” that the July 21 memorandum “‘could reasona- bly be construed to attribute the delay in [wage] increases for voting-eligible employees to the presence or activities of the Charging Party Union,’” even though “the applica- ble objective standard looks to whether the language ‘would reasonably have a tendency to interfere with, re- strain, or coerce employees in the exercise of their Section 7 rights.’” (Our colleague’s emphasis). Our colleague’s parsing misperceives the correct application of the stand- ard and the judge’s overall findings.10 As our colleague recognizes, “the basic test for evaluating whether there has been a violation of Section 8(a)(1) is an objective test, i.e., whether the conduct in question would reasonably have a tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.” Multi-Ad Ser- vices, 331 NLRB 1226, 1227–1228 (2000). In affirming the judge, we find that the July 21 memorandum, because of its exceptions language stating, as it clearly does, that unionized employees are not eligible for the wage in- crease, would reasonably have a tendency to interfere with, restrain, or coerce employees in their upcoming ex- ercise of their Section 7 right to choose union representa- tion. At a minimum, the language would have a reasona- ble tendency to sow doubt among employees about whether their selection of union representation would re- sult in loss of the annual wage increase.11 Relatedly, our colleague takes issue with the judge’s finding that the July 21 memorandum’s use of the phrase “all affected employees” compounded the confusion of the Keasbey employees in light of the language exempting employees who are “part of a collective bargaining unit (i.e., Union)” from the wage increase. We disagree with our colleague that a plain reading of this language demon- strates that “all affected employees” refers to those who are voting in “the election.” Rather, we agree with the judge that the July 21 memorandum’s use of the phrase standard, evaluating the manner in which a reasonable employee would interpret the employer’s remarks given the pertinent context.” (Empha- sis added). The judge also found: “This language effectively conflates IBT Locals 560 and 676, which represented the established collective bargaining units, with any labor union, and therefore reasonably conveys that any employees represented by a labor union would not receive a merit increase for that reason.” (Final emphasis added). 11 As explained above, we reject our colleague’s assertion that consid- eration of “how the July 21 memorandum’s language ‘could’ be inter- preted by the Keasbey employees” departs from the applicable objective standard for assessing coerciveness. The memorandum is coercive if it has a tendency to suggest to objectively reasonable employees that they will be ineligible for the wage increase if they vote to unionize, even if there are other reasonable interpretations. See Cintas Corp., 372 NLRB No. 34, slip op. at 4 (2022) (the “standard for determining whether an unlawful threat was made is ‘whether the words could reasonably be con- strued as coercive, whether or not that is the only reasonable construc- tion’”) (quoting Double D. Construction Group, Inc., 339 NLRB 303, 303–304 (2003)). RUSSELL REID WASTE HAULING & DISPOSAL SERVICE CO. 5 “all affected employees” compounded the confusion of voting-eligible employees in light of the other language exempting employees who are “part of a collective bar- gaining unit (i.e., Union).”12 We therefore conclude that the Keasbey employees would reasonably have a tendency to fear that this language meant that, if they voted to un- ionize, the delay in implementation of the wage increase may become permanent because, as “part of a collective bargaining unit,” they would not be eligible to receive the increase.13 Finally, our colleague argues that we have inappropri- ately considered the context in which the July 21 memo- randum was issued. He points to the judge’s findings that employees had questioned a manager during summer of 2020 about the status of their merit increases and that the employees did not receive an explanation from the Re- spondent as to why they did not receive the wage increase in their July 17 paychecks until they received the July 21 memorandum. According to our colleague, by consider- ing this context, we have “cross[ed] the line from consid- ering whether, based on all the facts, an objective em- ployee would be coerced by the July 21 memorandum to instead considering whether employees were in fact co- erced by the language and timing of the memorandum.” (Emphasis added). The dissent’s argument is simply wrong. As our colleague acknowledges, the proper 12 Pointing to the judge’s acknowledgment that the record contains “some evidence” that the Keasbey employees interacted and sometimes worked with employees from other facilities represented by IBT Locals 560 and 676, our colleague argues that this “interchange between al- ready-represented Teamsters employees and the unrepresented, voter-el- igible Keasbey employees militates against the interpretation . . . that the memorandum was coercive.” He contends that objectively reasonable Keasbey employees would understand that the exceptions language only applied to those other already-unionized employees, not to “the active- election situation of the Keasbey employees.” Underlying our col- league’s interpretation, however, is a major assumption for which there is no support: that the voter-eligible Keasbey employees were familiar with the terms of the Respondent’s collective-bargaining agreements with Locals 560 and 676 and would therefore have understood that em- ployees subject to those agreements received annual wage increases pur- suant to the agreements’ terms in lieu of the annual merit increase. Con- trary to our colleague, there is no reason to assume that the Keasbey em- ployees possessed this knowledge based solely on the fact that they in- teracted and sometimes worked with the other employees. Moreover, as mentioned, on its face, the memorandum’s language exempting employ- ees who are “part of a collective bargaining unit (i.e. Union)” applies to all employees who are unionized, which would include the Keasbey em- ployees if they voted to unionize. In these circumstances, we disagree with our colleague that an objectively reasonable Keasbey employee— even one who occasionally interacted with union-represented employees from other facilities—would understand that the exclusionary language only applied to the employees at other facilities who are represented by IBT Locals 560 and 676. 13 Once again, our colleague focuses on a phrase used by the judge— here, her statement that “[i]t would not be unreasonable for the voting- eligible employees to conclude that if they became ‘Union’ as a result of the impending election they would not in fact receive the merit in- crease”—to claim that she wrongly applied a subjective, rather than ob- jective, standard. As stated above, the judge’s overall decision makes clear that she correctly applied an objective standard. In any event, we find that objectively, the July 21 memorandum would have a reasonable analysis in this case is whether “objectively reasonable employees in the position of the Keasbey voters” would be coerced by the July 21 memorandum. (Emphasis added). That determination appropriately takes account of the sur- rounding circumstances.14 Here, the judge's point, with which we agree, is that the Respondent’s failure to provide the increase on July 17—and the queries that failure caused—provided objective context for how reasonable employees in the position of the Keasbey voters would in- terpret the July 21 memorandum.15 Thus, the judge appro- priately considered objective context, not subjective im- pact.16 ORDER The National Labor Relations Board adopts the recom- mended Order of the administrative law judge and orders that the Respondent, Russell Reid Waste Hauling & Dis- posal Service Company, Inc., Keasbey, New Jersey, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). “(a) Informing employees that a regularly scheduled wage increase will be delayed for certain employees in a manner that placed the onus for the delay on the Charging Party Union and is otherwise coercive.” 2. Substitute the following for paragraph 2(a). tendency to interfere with employees’ Sec. 7 activity because a Keasbey employee reading it would reasonably be concerned that this language meant that employees who voted to unionize would forfeit the wage in- crease. 14 See, e.g., The Roomstore, 357 NLRB 1690, 1690 fn. 3 (2011) (not- ing that the determination of how a reasonable employee would interpret an employer’s statement “appropriately takes account of the surrounding circumstances”); Double D. Construction, 339 NLRB at 304 (consider- ing the surrounding circumstances, including a previous threat, in finding that employer’s statement could reasonably be construed as a similar threat). In MedCare Associates, 330 NLRB 935, 940 fn. 17 (2000), cited by our colleague, the Board explained that an objective standard “does not mean” that the Board “is barred from taking into account events or statements that occurred before or after the particular incident in question that may throw light on its significance,” and that “considering the full context in which the particular events at issue here occurred” does not amount to applying a subjective standard. 15 The sole allegation in this proceeding involves the July 21 memo- randum. There is no allegation that the Respondent violated the Act by failing to provide the wage increase on July 17. 16 Our dissenting colleague observes that there were two non-voter- eligible employees at the Keasbey facility (an operations coordinator and an equipment specialist) who were not part of the bargaining unit and ineligible to vote in the election. The presence of two ineligible employ- ees does not alter our conclusion that the eligible employees at the facil- ity would reasonably tend to fear, based on the July 21 memoran- dum, that they would not receive the wage increase if they voted to un- ionize. Because the General Counsel did not allege or argue that the Respond- ent violated Sec. 8(a)(5), we do not consider whether a bargaining order is warranted in this case under the standard announced in Cemex Con- struction Materials Pacific, LLC, 372 NLRB No. 130, slip op. at 35 (2023) (“[A] bargaining order under the new standard” can issue “only as a remedy for an employer’s violation of Sec[.] 8(a)(5) by refusal to bargain with a union.”). See Spike Enterprise, Inc., 373 NLRB No. 41, slip op. at 8 fn. 26 (2024). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 “(a) Within 14 days after service by the Region, post at its facility in Keasbey, New Jersey, copies of the attached notice marked “Appendix.”17 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. In addition to physical posting of paper notices, notices shall be distributed elec- tronically, 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. If Respondent has gone out of business or closed the Keasbey, New Jersey facility, Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respondent at any time since July 21, 2020. 3. Substitute the attached notice for that of the admin- istrative law judge. Dated, Washington, D.C. May 2, 2024 ______________________________________ David M. Prouty, Member ______________________________________ Gwynne A. Wilcox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD MEMBER KAPLAN, dissenting. Today, my colleagues effectively disregard the over- whelming vote of bargaining unit voters against represen- tation by ordering a rerun election where, under Board law, the Respondent did not violate the Act. Specifically, they erroneously conclude that the Respondent’s July 21, 20201 memorandum announcing that a regularly sched- uled wage increase would be delayed violated Section 8(a)(1) of the Act and constituted objectionable conduct justifying a rerun election because it purportedly “placed 17 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in these pro- ceedings is closed or not staffed by a substantial complement of employ- ees due to the Coronavirus Disease 2019 (COVID-19) pandemic, the no- tice must be posted within 14 days after the facility reopens and a sub- stantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before the onus for the delay on the Union and was otherwise co- ercive.” In order to find this violation, however, my col- leagues ignore controlling Board precedent directly on point. Because my colleagues’ decision both conflicts with Board law and fails to respect the statutorily pro- tected right of employees to choose not to be represented by a union, I must dissent. Background The Respondent provides portable sanitation services and non-hazardous liquid waste management services. The Respondent’s facility in Keasbey, New Jersey, is part of the eastern region of United Site Services, which as of summer 2020 encompassed 7 facilities in New Jersey and 1 in New York.2 Some of the employees at these eight facilities were represented by either Local 560 or Local 676 of the International Brotherhood of Teamsters. How- ever, none of the employees at the Keasbey facility were unionized. United Site Services has regularly implemented annual wage increases during the summer (July or August) for “all non-bargaining unit employees” in New York, New Jersey, and Pennsylvania. These annual wage increases are not provided to employees covered by the Respond- ent’s collective-bargaining agreements with Teamsters Local 560 and Teamsters Local 676, each of which has its own provision for annual wage increases. In early May 2020, International Union of Operating Engineers, Local 825 (the Union) began organizing the Respondent’s non-hazardous liquid waste employees at the Keasbey facility. The Union filed an election petition on June 9. On July 13, Christopher Yates, the Respondent’s Re- gional Vice President for the eastern region, sent an inter- office memorandum to eastern region employees regard- ing the annual wage increase for that year. The July 13 memorandum stated, in pertinent part: Our teams have done an outstanding job while dealing with the impact of COVID-19. Because of that focus I am happy to announce we will offer a merit-increase to eligible employees! There are some exceptions in order to be eligible. For example, you must not be part of a collective bargaining unit (i.e., Union) and you must have been employed over 90 days. The merit will be physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 1 Unless otherwise noted, all dates are 2020. 2 Although United Site Services purchased the Respondent in 2018, the Respondent remains the operative legal entity with respect to the Keasbey facility. RUSSELL REID WASTE HAULING & DISPOSAL SERVICE CO. 7 effective July 5th and will show in your July 17th paychecks. Many companies are either shutting their doors or have suspended all pay increase activities. Many of our com- petitors are struggling and some have shut their doors. [United Site Services] is fortunate enough to have a di- verse business. When one line of business falters, an- other can help carry the load. We are lucky to work for a company that is still going to issue a merit increase in the face of uncertain times and challenging revenue per- formance. GC Exh. 2 at 7. There is no credited evidence that any of the eligible voters at the Keasbey facility saw this memorandum. On July 21, Yates issued another interoffice memoran- dum, this time specifically addressed to the Keasbey-fa- cility employees. It was posted on a bulletin board in the Keasbey drivers’ room and on the outside wall near the locker room. At the time, the Keasbey facility was the only United Site Services location where a petition for a representation election was pending. The July 21 memo- randum stated, in pertinent part: Our teams have done an outstanding job while dealing with the impact of COVID-19. Because of that focus I am happy to announce we will offer a merit-increase to eligible employees! There are some exceptions in order to be eligible. For example, you must not be part of a collective bargaining unit (i.e., Union) and you must have been employed over 90 days. The merit will be effective July 5th and will show in your July 17th paychecks. However, due to the pending NLRB election, we believe we must postpone implementing merit increases for Keasbey employees in job classifications who are eligible to vote in the elec- tion. The only reason we are delaying implementing these merit increases is because we are concerned it might be viewed as “vote buying” or give the appear- ance we are trying to influence the outcome of the up- coming election. After the election is over, all affected employees will re- ceive their eligible merit increases retroactive to July 5th regardless of the results of the election and regardless of how anyone votes in the upcoming election. Please let me know if you have any questions about this decision. Many companies are either shutting their doors or have suspended all pay increase activities. Many of our 3 The judge also concluded that the phrase “regardless of how anyone votes in the upcoming election” suggested the Respondent’s knowledge of individual votes factually amounting to the coercive impression of surveillance, and that the phrase, “[p]lease let me know if you have any questions about this decision,” factually amounted to coercive solicita- tion of grievances. The judge further claimed that these factual competitors are struggling and some have shut their doors. [United Site Services]is fortunate enough to have a diverse business. When one line of business falters, another can help carry the load. We are lucky to work for a company that is still going to issue a merit increase in the face of uncertain times and challenging revenue performance. GC Exh. 2 at 8. On July 22, the Regional Director for Region 22 di- rected that a mail-ballot election be conducted beginning August 5. The ballot count took place on September 14. The tally of ballots yielded 11 votes for and 23 votes against the Union, with 4 challenged ballots. On September 21, the Union filed two election objec- tions, the first of which was subsequently withdrawn. The second objection alleged that the July 13 and July 21 memorandums interfered with the election. On April 1, 2021, the Acting Regional Director for Region 22 sched- uled the second objection for a hearing and merged it with the ULP complaint in the instant case. At the hearing, the General Counsel withdrew the complaint allegation and related portion of the second objection with respect to the July 13 memorandum. Discussion The Majority’s Decision Despite essentially acknowledging that the language in the July 21 memorandum was generally consistent with Board precedent, my colleagues join the judge in faulting the Respondent because “these Board-sanctioned state- ments are interposed between language which places the onus for delaying the wage increase on Local 825 and is otherwise coercive pursuant to the objective analysis which the Board uses to evaluate such communications.” Specifically, they find that the exception present in both memos that “you must not be part of a collective bargain- ing unit (i.e., Union),” muddied the water and undermined the assurances given in the “Board-sanctioned language.”3 For the reasons that follow, my colleagues’ interpretation of the July 21 memorandum is neither consistent with Board law nor reasonable. Applicable Law To begin, it is well established that Board “representa- tion elections are not lightly set aside.” Safeway, Inc., 338 NLRB 525, 525 (2002) (quoting NLRB v. Hood Furniture Mfg. Co., 941 F.2d 325, 328 (5th Cir. 1991)). Next, it is clear that Board law establishing what employers may lawfully tell employees in scenarios such as the one pre- sented in this case is clear and well-settled: “while an determinations “reinforce[d]” her finding that the July 21 memorandum was unlawfully coercive. Although my colleagues fail to state the obvi- ous fact that the judge’s construction of the memorandum is erroneous in this regard, they at least “find it unnecessary to rely on the judge’s statements suggesting that the July 21 memorandum created the impres- sion of surveillance and/or solicitated grievances.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 employer is not permitted to tell employees that it is with- holding benefits because of a pending election, it may, in order to avoid creating the appearance of interfering with the election, tell employees that implementation of ex- pected benefits will be deferred until after the election— regardless of the outcome.” Noah’s Bay Area Bagels, LLC, 331 NLRB 188, 189 (2000) (internal citation omit- ted). Importantly, there are no “magic words” that must be used in granting those assurances. See Sam’s Club, 349 NRLB 1007, 1013 (2007).4 Finally, this legal standard is an objective one. See Multi-Ad Services, 331 NLRB 1226, 1227–1228 (2000) (observing that the legal standard “for evaluating whether there has been a violation of Sec- tion 8(a)(1) is an objective test, i.e., whether the conduct in question would reasonably have a tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights”), enfd. 255 F.3d 363 (7th Cir. 2001); Medcare Associates, Inc., 330 NLRB 935, 940 fn. 17 (2000) (observing that by objective standard, the Board “means that it does not take into account either the motive of the employer or the actual impact on the employee” (in- ternal citations omitted)). Analysis Lawfully “tell[ing] employees that implementation of expected benefits will be deferred until after the election . . . regardless of the outcome”—“in order to avoid creating the appearance of interfering with the election”—is pre- cisely what the Respondent did here. See Noah’s Bay Area Bagels, 331 NLRB at 189. Indeed, even my col- leagues acknowledge that the Respondent provided these assurances using “Board-sanctioned language.” Nonethe- less, my colleagues distort other portions of the July 21 memorandum beyond all recognition in support of their finding that the memorandum violated the Act and war- rants a new election. The crux of this case from my colleagues’ perspective is the exceptions language present in both the July 13 and July 21 memorandums stating that “you must not be part of a collective bargaining unit (i.e., Union).” They heav- ily, and nearly exclusively, rely on this language. Nota- bly, however, the General Counsel withdrew the com- plaint allegation asserting that this language was unlawful in the July 13 memorandum. Nevertheless, my colleagues adopt the judge’s view that this language “explicitly prem- ises ineligibility for the merit increase upon the presence of a union and an employee’s performing work encom- passed by a union-represented collective bargaining unit,” thereby impermissibly placing the onus for the delayed wage increase on the Union. The problems with this anal- ysis are manifold. Initially, my colleagues misapply the controlling legal standard, first by lowering the bar that the General 4 The majority’s attempt to distinguish Sam’s Club from the instant case is anchored on their specious reasoning that the July 21’s memoran- dum’s exception—“you must not be part of a collective bargaining unit Counsel must clear to demonstrate a violation, and second by introducing subjectivity into what my colleagues them- selves acknowledge is an objective analysis. The judge concluded that the “exceptions” language “could reasona- bly be construed to attribute the delay in [wage] increases for voting-eligible employees to the presence or activities of the Charging Party Union.” (Emphasis added.) But as the judge and my colleagues necessarily acknowledge, the applicable objective standard looks to whether the lan- guage “would reasonably have a tendency to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights.” See Multi-Ad Services, supra at 1228 (emphasis added). That the General Counsel might plau- sibly demonstrate that the language merely could be coer- cive under some circumstances is not enough. But under these circumstances, objectively reasonable employees would not—and could not—have reasonably understood the exceptions language in the memorandum to be coer- cive. The majority dismisses my insistence on applying the appropriate objective legal standard as “parsing,” before implicitly conceding the point by attempting to clean up the analysis set forth in the judge’s decision. They repeat- edly assure us both that the judge applied the correct ob- jective standard based on her “overall findings” notwith- standing the contrary language in the judge’s decision, and that they are appropriately finding that the July 21 memo- randum “would reasonably have a tendency” to coerce employees. Unfortunately, they contradict themselves im- mediately thereafter by asserting that their consideration of how the July 21 memorandum’s language could be in- terpreted by the Keasbey employees does not “depart[] from the applicable objective standard for assessing coer- civeness.” Citing Cintas, 372 NLRB No. 34, slip op. at 4 (2022), my colleagues observe that the standard for inter- preting the memorandum considers whether “objectively reasonable employees” would be coerced by it “even if there are other reasonable interpretations.” (Emphasis added). But this is not the standard they have applied here. Rather, my colleagues are interested in how “the Keasbey employees” might have subjectively interpreted the mem- orandum. To be unlawfully coercive, the July 21 memo- randum must be susceptible to an interpretation that “would reasonably have a tendency to . . . coerce employ- ees.” See Multi-Ad Services, supra at 1228. Neither my colleagues nor the judge can satisfy that standard because their interpretation of the phrase, “you must not be part of a collective bargaining unit (i.e., Union),” is manifestly unreasonable. Further, my colleagues endorse and attempt to bolster the judge’s analysis resorting to the “context” in which the July 21 memorandum was issued rather than considering (i.e. Union)”—undermined the assurances given in the “Board-sanc- tioned language.” For reasons explained below, their analysis is fatally flawed. RUSSELL REID WASTE HAULING & DISPOSAL SERVICE CO. 9 the challenged language in the context of the other lan- guage in the memorandum. The judge noted that “the vot- ing-eligible employees were concerned with the status of such merit increases during the summer of 2020, as evinced by their queries directed to [Manager] Robinson,” apparently owing to the fact that the Keasbey employees failed to receive the wage increase in their July 17 paychecks before seeing the July 21 memo explaining the delay. But again, the Board’s objective standard “does not take into account . . . the actual impact on the em- ployee.” See Medcare Associates, Inc., supra at 940 fn. 1 7 (emphasis added); see also Smithers Tire, 308 NLRB 72, 72 (1992) (“The test is not the actual intent of the speaker or the actual effect on the listener.”). By considering this “context,” my colleagues clearly cross the line from considering whether, based on all the facts, objectively reasonable employees would be coerced by the July 21 memorandum to instead considering whether the Keasbey employees were in fact coerced by the language and timing of the memorandum.5 If my col- leagues are truly concerned with context, then instead of the subjective impact on employees, they should consider the objective fact that there were at least two non-voter- eligible employees working at the Keasbey facility when the July 21 memorandum issued, which would help to ex- plain why the Respondent would have merely added the “Board-sanctioned language” regarding postponement of the wage increase for voter-eligible employees to the base language included in the July 13 memorandum issued to other facilities. Further, despite conceding that “the rec- ord contains some evidence that the voting-eligible em- ployees interacted and sometimes worked with the em- ployees in the IBT bargaining units,” the judge concluded that the exceptions language effectively foreclosed a con- struction of the July 21 memorandum that “would be rea- sonably interpreted as referring solely to” the Teamsters locals representing employees at other facilities. On the contrary, this interchange between already-represented Teamsters employees and the unrepresented, voter-eligi- ble Keasbey employees militates against the interpreta- tion—advanced by both the judge and my colleagues— that the memorandum was coercive. On these facts, ob- jectively reasonable employees would understand that the 5 The majority asserts that the judge “considered objective context, not subjective impact.” But simply referring to the judge’s analysis in this regard as “objective” does nothing to change the fact that the judge was influenced by the subjective impact of the July 21 memorandum on the particular Keasbey employees to whom it was directed. Similarly, my colleagues’ claim that they, as well as the judge, have merely consid- ered “surrounding circumstances” is not, in my view, an accurate char- acterization of their analysis. Instead, it is clear to me that, in finding the July 21 memorandum to be coercive, both the judge and my colleagues cross the line separating appropriate consideration of the perspective of objectively reasonable employees in the position of the Keasbey voters from improper consideration of the subjective impact of the July 21 memorandum on the actual Keasbey voters. 6 My colleagues reject the clear evidence of interchange between al- ready-represented Teamsters employees and the unrepresented Keasbey exceptions language plainly did not apply to the active- election situation of the Keasbey employees.6 Yet, both the judge and my colleagues fail to recognize that objectively reasonable employees in the position of the Keasbey voters would understand that, because they were not then an established collective-bargaining unit represented by the Union, they were not contemplated in the “collective bargaining unit (i.e., Union)” exceptions language. Parroting the judge, my colleagues claim that because “there were no represented employees at the Keasbey facility at the time of the July 21 memorandum,” this language “effectively conflates” extant union repre- sentation at other facilities “with representation by any un- ion,” including the Union’s prospective representation on the ballot at the Keasbey facility. This supposed confla- tion, my colleagues say, “conveys that any employees rep- resented by a union would not receive a merit increase.” But objectively reasonable employees involved in an ac- tive union campaign and mail-ballot election, as the Keasbey employees were, would plainly understand the distinction between their unrepresented status and the rep- resented status to which the challenged July 21 memoran- dum language was directed at the time of its issuance. Re- inforcing this conclusion is the interchange between al- ready-represented Teamsters employees and the unrepre- sented, voter-eligible Keasbey employees discussed above. Next, my colleagues err by overreading the “collective bargaining unit (i.e., Union)” exceptions language in light of the plain meaning of the “Board-sanctioned language” lawfully announcing the postponement of the wage in- crease for Keasbey voter-eligible employees until after the election to avoid any appearance of undue influence. In- deed, immediately after the general exceptions language that my colleagues find problematic, the July 21 memo- randum specifically addresses the Keasbey employees as follows: “However, due to the pending NLRB election, we believe we must postpone implementing merit in- creases for Keasbey employees in job classifications who are eligible to vote in the election.” Both here and throughout the language specific to the Keasbey employ- ees, the July 21 memorandum expressly and repeatedly ties the delay of the wage increases for those employees to employees, asserting that the evidence is not relevant because it rests on the unsupported assumption “that the voter-eligible Keasbey employees were familiar with the terms of the Respondent’s collective bargaining agreements with Locals 560 and 676 and would therefore have under- stood that employees subject to those agreements received annual wage increases pursuant to the agreements’ terms in lieu of the annual merit increase.” The majority’s assertion in this regard is a red herring. Con- trary to their suggestion, the relevance of the evidence does not turn on the extent to which the Keasbey employees were familiar with the par- ticular wage provisions of the Teamsters contracts. Rather, the evidence of interchange is relevant to understanding whether, at the time when the July 21 memorandum issued, objectively reasonable employees in the position of the Keasbey employees would have understood that the Teamsters-represented employees were represented by a union and that the voter-eligible Keasbey employees were not. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 “the pending NLRB election,” “the upcoming election,” and “the election,” not the Union. Buttressing this conclu- sion is the express language informing them that they will be receiving their eligible merit increases “retroactive to July 5th regardless of the results of the election and re- gardless of how anyone votes in the upcoming election,” which clearly contextualizes the language that my col- leagues and the judge find unlawful and demonstrates the folly in their interpretation. Undeterred, my colleagues turn to the final paragraph specific to the Keasbey employees, adopting the judge’s position that the memorandum’s use of the phrase “all af- fected employees” compounded” the “confusion” of Keasbey employees in light of the “collective bargaining unit (i.e., Union)” exceptions language that preceded the lawful “Board-sanctioned language.” Under this view as articulated by the judge, “[i]t would not be unreasonable for the voting-eligible employees to conclude that if they became ‘Union’ as a result of the impending election they would not in fact receive the merit increase, despite the Memorandum’s Board-approved language to the con- trary.” But a plain reading of this language demonstrates that “all affected employees” refers to those who are vot- ing in “the election” rather than those who are already “part of a collective bargaining unit.” Indeed, my col- leagues do not suggest that that phrase could reasonably be read to reference any group other than the employees voting in the election. And, in determining what “would not be unreasonable” for the Keasbey employees to con- clude, my colleagues once again endorse the judge’s con- sideration of how the July 21 memorandum’s language “could” be interpreted by the Keasbey employees rather than how it “would” be interpreted by objectively reason- able employees in their situation. Conclusion The majority in this case has flagrantly misapplied Board law and contravened the bounds of reason to reach an indefensible legal conclusion, the natural result of which will be to revive the Union’s failed organizing cam- paign with an opportunity for a second election. The Un- ion lost the first election decisively. By issuing today’s decision, my colleagues fail to respect either our precedent or the will of the unit voters in answering the question of representation. Accordingly, I must dissent. Dated, Washington, D.C. May 2, 2024 ______________________________________ Marvin E. Kaplan Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated 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 announce that a regularly scheduled wage increase will be delayed in a manner that blames Interna- tional Union of Operating Engineers, Local 825, for the delay and is otherwise coercive. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. RUSSELL REID WASTE HAULING & DISPOSAL SERVICE COMPANY, INC. The Board’s decision can be found at www.nlrb.gov/case/22-CA-263364 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. Tara Levy, Esq. and Chevella Brown-Maynor, Esq., for the Gen- eral Counsel. Jonathan E. Kaplan, Esq. (Littler Mendelson, P.C.), of Mem- phis, Tennessee, for the Respondent. Lauren Bonaguro, Esq. and Richard F. X. Regan, Esq. (DeCotiis, Fitzpatrick, Cole & Giblin, LLP), of Paramus, New Jersey, for the Charging Party. DECISION STATEMENT OF THE CASE LAUREN ESPOSITO, Administrative Law Judge. Based upon a charge filed on July 22, 2020, and amended on multiple RUSSELL REID WASTE HAULING & DISPOSAL SERVICE CO. 11 occasions1 by International Union of Operating Engineers, Local 825 (Local 825 or the Union), on March 31, 2021, the Regional Director for Region 22, issued a consolidated complaint and no- tice of hearing against Russell Reid Waste Hauling & Disposal Service Company, Inc. (Russell Reid or Respondent). The com- plaint alleges that Russell Reid violated Section 8(a)(1) of the Act by issuing a letter dated July 21, 2020, stating that a regularly scheduled wage increase would not be paid to certain employees in order to dissuade the employees from joining or supporting the Union.2 Russell Reid filed an answer on April 13, 2021, denying the complaint’s material allegations. Based upon a petition for a representation election filed by Local 825 on June 9, 2020, in Case 22–RC–261504, the Regional Director for Region 22, issued a Decision and Direction of Elec- tion dated July 22, 2020, with a mail ballot count conducted on September 14, 2020. The majority of the valid votes counted plus challenged ballots were not cast for the Union. On Septem- ber 21, 2020, the Union filed objections to conduct affecting the results of the election. On April 1, 2021, the Regional Director issued a report on objections, order consolidating cases, and no- tice of hearing, consolidating the Union’s Objection 2, which al- leged that Russell Reid’s July 13, 2020 and July 21, 2020 letters interfered with the representation election, with the complaint in Case 22–CA–263364. The Union seeks to have the election set aside and a rerun election conducted based upon its objection. This case was tried before me by videoconference on July 8 and 15, 2021, and on April 25, 2022. On the entire record, in- cluding my observation of the demeanor of the witnesses, and after considering the briefs filed by General Counsel, Respond- ent, and Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Russell Reid, a New Jersey corporation with an office and place of business located at 200 Smith Street, Keasbey, New Jer- sey, has been at all relevant times engaged in the operation of a nonhazardous waste management services business. Russell Reid admits, and I find, that it is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. Russell Reid also admits, and I find, that Local 825 is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Parties Russell Reid’s Keasbey location is part of the eastern region of United Site Services, which as of summer 2020 encompassed seven facilities in New Jersey and one in Lindenhurst, New York.3 (Tr. 253–254, 256, 342C343, 375; C.P. Exh. 8.) During the summer of 2020, Christopher Yates was the regional vice president for the eastern region, and Steven Bisbee was the east area manager responsible for the Keasbey facility. (Tr. 340–341, 344–345.) 1 The charge was amended in 2020 on July 29, October 14, December 15, and on January 28, 2021. 2 At the hearing, counsel for the General Counsel (General Counsel), withdrew the complaint’s allegation that a letter issued by Respondent on July 13, 2020, violated Sec. 8(a)(1) of the Act, as well as the portion of the Regional Director’s report on ojections, discussed below, address- ing the July 13, 2020 letter. (Tr. 114.) General Counsel also filed a motion to approve the withdrawal of this allegation on October 20, 2021, which I granted in an order dated November 1, 2021. Russell Reid provides two different types of services from its New Jersey facilities—portable sanitation, including portable toilets, bathrooms and other temporary sanitation services, and nonhazardous liquid waste management, including the transport and disposal of grease and servicing of large septic tanks. (Tr. 375–376.) Some of the Russell Reid employees working out of the Keasbey facility have for some years been represented by a labor union. Local 560, International Brotherhood of Teamsters (IBT), represents drivers working out of five of the eight east region facilities in New York and New Jersey, including the Keasbey facility. (Tr. 376.) Local 676, IBT, represents the non- hazardous liquid waste employees working out of the Dept- ford/Sewell, New Jersey facility. (Tr. 377.) The nonhazardous liquid waste employees working out of the Keasbey facility have never been represented by a labor union. (Tr. 378.) General Counsel did not present any witnesses in support of the complaint’s allegations and relies solely upon documentary evidence to establish the violation alleged. Charging Party called its Director of Special Projects Kevin Young, and also called Kenny Robinson, who was a field operations manager with responsibility for the Keaseby facility in the summer of 2020, and Christopher Yates, the regional vice president for the east region discussed above. (Tr. 43, 247, 249–251, 340–341.) Russell Reid did not call any witnesses to testify on its behalf. B. The Representation Election and Russell Reid’s Communi- cations Regarding the July 2020 Wage Increase Local 825 began organizing Russell Reid’s technicians, equipment specialists, and mechanics at the Keasbey facility in early May 2020. As discussed above, the Union filed a Petition for a representation election in this unit on June 9, 2020. (Tr. 45; GC Exh. 5(a).)4 The evidence establishes that, as Russell Reid asserted in its position statement during the investigation, United Site Services “has implemented annual wage increases during the summer (July or August) for all employees in the Tri-State Area,” its branches in New York, New Jersey, and Pennsylvania. (GC Exh. 2, p. 2.) These annual wage increases are provided only to “all non-bargaining unit employees,” and not to employees covered by Russell Reid’s collective bargaining agreements with Locals 560 and 676, which have their own provisions for annual wage increases. (GC Exh. 2, p. 2–3.) In July 2020, Yates sent an interoffice memorandum to east region employees, dated July 13, 2020, regarding the annual wage increase for that year. (GC Ex. 2, p. 7; R.S. Exh. 1.) Enti- tled “East Region Update,” the Memorandum begins by review- ing the overall impact of COVID 19 on the various components of United Site Services’ business in the east region. The memo- randum goes on to state as follows: Our teams have done an outstanding job while dealing with the impact of COVID-19. Because of that focus I am happy to an- nounce we will offer a merit-increase to eligible employees! 3 Russell Reid, which was purchased by United Site Services in 2018, remains the operative legal entity with respect to five locations in New Jersey, including the Keaseby facility at issue in this case. (Tr. 245– 246.) 4 The exhibits in this case originally contained two groups of docu- ments entered into evidence as GC Exh. 1—one consisting of the formal papers related to Case 22–CA–263364 and one comprised of the formal papers related to Case 22–RC–261504. Although General Counsel later remarked the exhibits pertaining to Case 22–RC–261504 as GC Exh. 5, they are still referred to in the transcript as GC Exh. 1 in some respects. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 There are some exceptions in order to be eligible. For example, you must not be part of a collective bargaining unit (i.e. Union) and you must have been employed over 90 days. The merit will be effective July 5th and will show in your July 17th paychecks. Many companies are either shutting their doors or have sus- pended all pay increase activities. Many of our competitors are struggling and some have shut their doors. USS is fortunate enough to have a diverse business. When one line of business falters, another can help carry the load. We are lucky to work for a company that is still going to issue a merit increase in the face of uncertain times and challenging revenue performance. (GC Exh. 2, p. 7) (emphasis in original). On July 14, 2020, Yates sent this Memorandum to east region area managers by email. Tr. 343–345; C.P. Exh. 9(a-b). In his e-mail, Yates asked the managers to “post at all branches, and make sure your employees are able to review” the Memorandum. C.P. Exh. 9(a). However, Yates told Bisbee that he would be “sending. . . something specific to” the Keasbey facility. C.P. Exh. 9(a). At the time, the Keasbey facility was the only United Site Services location where a petition for a representation elec- tion was pending.5 (Tr. 346.) On July 21, 2020, Yates issued another Inter-office Memoran- dum specifically addressed to the Keasbey facility employees. (GC Exh. 2, p. 8; R.S. Exh. 2.) This Memorandum began by reviewing some of the same information contained in the July 13, 2020, Memorandum regarding the impact of COVID on United Site Services’ business. The material addressing the an- nual wage increase, however, read as follows: Our teams have done an outstanding job while dealing with the impact of COVID-19. Because of that focus I am happy to an- nounce we will offer a merit-increase to eligible employees! There are some exceptions in order to be eligible. For example, you must not be part of a collective bargaining unit (i.e. Union) and you must have been employed over 90 days. The merit will be effective July 5th and will show in your July 17th paychecks. However, due to the pending NLRB election, we believe we must postpone implementing merit increases for Keasbey employees in job classifications who are eligible to vote in the election. The only reason we are delaying imple- menting these merit increases is because we are concerned it might be viewed as “vote buying” or give the appearance we are trying to influence the outcome of the upcoming election. After the election is over, all affected employees will receive their eligible merit increases retroactive to July 5th regardless of the results of the election and regardless of how anyone votes in the upcoming election. Please let me know if you have any questions about this decision. Many companies are either shutting their doors or have sus- pended all pay increase activities. Many of our competitors are struggling and some have shut their doors. USS is fortunate 5 Union Director of Special Projects Kevin Young testified that some of the voting-eligible employees at the Keasbey facility saw Yates’ July 13 Memorandum. Young, identified text messages to this effect with individuals that he asserted were Russell Reid employees, including a photograph of the July 13, 2020 memorandum. See Tr. 60–61, 67-68, 69–70, 76–77, 88, 122–124; C.P. Exh. 1, 5. However, Young was not a credible witness. He was combative and obstructive, and appeared to be more interested in expressing hostility toward Russell Reid’s counsel than providing accurate and truthful testimony. See, e.g., Tr. 65–66, enough to have a diverse business. When one line of business falters, another can help carry the load. We are lucky to work for a company that is still going to issue a merit increase in the face of uncertain times and challenging revenue performance. (GC Exh. 2, p. 8) (emphasis in original). This memorandum was posted only at the Keasbey facility, on a bulletin board in the drivers’ room and on the outside wall near the locker room. (Tr. 291–292.) On July 22, 2020, the Regional Director for Region 22, issued his Decision and Direction of Election, directing that a mail bal- lot election be conducted beginning August 5, 2020, in the fol- lowing unit of employees: INCLUDED: All full-time and regular part-time Bulk Techni- cians, Grease Technicians, Jet Rod Technicians, Master Ser- vice Technicians, Roll-Off Technicians, Septic Technicians, Equipment Specialists, Equipment Specialist Leads, Mechan- ics, and Mechanic Leads employed by the Employer at its fa- cility located at 200 Smith Street, Keasbey, New Jersey, and at a satellite facility located at 635 Delancey Street, Newark, New Jersey. EXCLUDED: All office clerical employees, managerial em- ployees, professional employees, guards and supervisors as de- fined in the Act, and all other employees. (GC Ex. 5(b, g).) The ballot count took place on September 14, 2020, and the tally of ballots yielded the following results: Approximate number of eligible voters 43 Number of void ballots 1 Number of votes cast for Petitioner 11 Number of votes cast against Petitioner 23 Number of valid votes counted 34 Number of challenged ballots 4 (GC Exh. 5(g).) Thus, a majority of valid votes counted plus challenged ballots were not cast for the Charging Party Union. On September 21, 2020, the Union filed two timely objections to conduct affecting the results of the election, the first of which was subsequently withdrawn. The second objection alleged that the July 21, 2020 letter interfered with the representation elec- tion. This objection was merged with the complaint in the instant case alleging that in the July 21, 2020 letter, Russell Reid stated that a regularly scheduled wage increase would not be imple- mented with respect to the voting-eligible employees, in order to dissuade them from supporting the Union. (GC Exh. 5(g).) DECISION AND ANALYSIS A. The Complaint’s Allegations Regarding the July 21, 2020 Memorandum The complaint alleges that in the July 21, 2020, Memorandum issued by Yates, Russell Reid announced that a regularly sched- uled wage increase would not be implemented with respect to employees eligible to vote in the upcoming election in order to 134–141, 143–147, 168–169, 174–176, 178, 182–184 (refusing to an- swer questions); Tr. 51-52, 157–159, 187–188, 207 (casting aspersions upon Russell Reid’s counsel). Young unfortunately exhibited no consid- eration whatsoever for the integrity of the proceeding or the fact-finding process. See Tr. 137–141, 157, 178, 207 (evincing a derogatory and con- temptuous approach to the hearing process itself). As a result, I do not credit his testimony, unless it is explicitly supported by other, reliable evidence. RUSSELL REID WASTE HAULING & DISPOSAL SERVICE CO. 13 dissuade those employees from joining or supporting Local 825, in violation of Section 8(a)(1) of the Act. For the following rea- sons, the credible evidence in the record substantiates this con- tention. For a number of years, the Board has applied a coherent set of principles regarding regular and planned wage and benefit ad- justments applicable to employees eligible to vote in an impend- ing representation election: An employer faced with a union organizing drive is required to proceed with an expected wage or benefit adjustment as if the union were not on the scene. However, an employer may post- pone such a wage or benefit adjustment so long as it makes clear to employees that the adjustment would occur whether or not they select a union and that the sole purpose of the adjust- ment is to avoid the appearance of influencing the election’s outcome. American Girl Place New York, 355 NLRB 479, 488 (2010), quoting Sam’s Club, 349 NRLB 1007, 1012 (2007) (internal quotations omitted); see also SNE Enterprises, 347 NLRB 472, 478–479 (2006), enfd. 257 Fed.Appx. 642 (4th Cir. 2007); Earthgrains Baking Cos., 339 NLRB 24, 28 (2003), enfd. 116 Fed.Appx. 161 (9th Cir. 2004). In communicating regarding such issues with the voting-eligible employees, an employer vi- olates Section 8(a)(1) by “attributing its failure to implement the expected wage or benefit adjustment to the presence of the un- ion” or by “disparaging or undermining the union by creating the impression that it impeded the granting of the adjustment.” Earthgrains Baking Cos., 339 NLRB at 28; see also Autozone, Inc., 315 NLRB 115, 122–123 (1994), enfd. 83 F.3d 422 (6th Cir. 1996) (employer’s statement must not place upon the union “the onus for the postponement,” or convey “that the union stands in the way of the employees getting the planned adjust- ment”). The Board analyzes employer statements which alleg- edly violate Section 8(a)(1) pursuant to an objective standard, evaluating the manner in which a reasonable employee would interpret the employer’s remarks given the pertinent context. See, e.g., Roemer Industries, 367 NLRB No. 133, slip op. at 1 fn. 3, and slip op. 6 (2019), enfd. 824 Fed.Appx. 396 (6th Cir. 2020), citing Westwood Health Care Center, 330 NLRB 935, 940, fn. 17 (2000) and Multi-Add Services, 331 NLRB 1226, 1228 (2000), enfd. 255 F.3d 363 (7th Cir. 2001). There is no dispute here that Russell Reid provided annual merit increases to employees who were not covered by its col- lective bargaining agreements with IBT Locals 560 and 676, and that such annual merit increases were typically implemented in July or August. Thus, the Board’s analysis as described above is applicable to the complaint’s allegation that the contents of Yates’ July 21, 2020 memorandum violated Section 8(a)(1). The July 21 Memorandum does reiterate the language prescribed by the Board’s decisions regarding the postponement of regularly implemented wage increases prior to a representation election. Thus, the memorandum’s statements that “due to the pending NLRB election, we believe we must postpone implementing merit increases for Keasbey employees in job classifications who are eligible to vote in the election,” and “The only reason we are delaying implementing these merit increases is because we are concerned it might be viewed as ‘vote buying’ or give the 6 Yates testified that he was generally responsible for employee rela- tions, including communications with employees regarding terms and conditions of employment. (Tr. 338–339.) Yates further testified that appearance we are trying to influence the outcome of the upcom- ing election,” comport with the Board’s requirements for law- fully communicating with employees regarding the status of a regular wage or benefit adjustment during the pre-election pe- riod. However, these Board-sanctioned statements are inter- posed between language which places the onus for delaying the wage increase on Local 825 and is otherwise coercive pursuant to the objective analysis which the Board uses to evaluate such communications. By including this latter material, the July 21 memorandum ultimately runs afoul of Section 8(a)(1). See Earthgrains Baking Cos., 339 NLRB at 25, 27–28 (“exculpatory effect” of permissible language regarding postponement of wage increase “eviscerated” by plant manager’s other remarks and ac- companying “extemporaneous gesture”); Atlantic Forest Prod- ucts, 282 NLRB 855, 858–859 (1987) (employer’s announce- ment regarding withholding of wage increase unlawful where in- itial permissible language “repudiated” by announcement’s “re- maining content”). First, language in the July 21 memorandum which precedes Yates’ explicit discussion of annual merit increases applicable to the employees eligible to vote in the upcoming election broadly exempts “Union” employees from the increase in a manner that could reasonably be construed to attribute the delay in increases for voting-eligible employees to the presence or activities of the Charging Party Union. Specifically, before Yates discusses the postponement of the annual merit increase for the voting-eligible employees, he states that “There are some exceptions in order to be eligible” for the merit increase, the first of which being, “you must not be part of a collective-bargaining unit (i.e., Union).” This statement explicitly premises ineligibility for the merit in- crease upon the presence of a union and an employee’s perform- ing work encompassed by a union-represented collective bar- gaining unit. Russell Reid contends that a “reasonable” employee eligible to vote in the upcoming election would have understood that Yates was referring in this statement solely to the existing bar- gaining units represented by IBT Locals 560 and 676, and only to those unions. Russell Reid asserts that such a reasonable em- ployee would not have construed this language as pertaining to the Charging Party Union Local 825, which would appear on the ballot and was the subject of the ongoing representation cam- paign. (Posthearing Br. at 10, 11–12, citing Tr. 378–384. I dis- agree. While the record contains some evidence that the voting- eligible employees interacted and sometimes worked with the employees in the IBT bargaining units, it cannot be presumed as a result that Yates’ statement in the July 21 Memorandum would be reasonably interpreted as referring solely to the latter, as Rus- sell Reid argues. See Tr. 382–383. Indeed, the Board has been careful to distinguish the perspective of a reasonable employee from the cognizance of a labor relations professional, particu- larly when the statements at issue involve nuanced or compli- cated issues of labor law.6 See Honeywell, Inc., 307 NLRB 278, 284 (1992), reconsideration granted on other grounds 310 NLRB 517 (1993) (“reasonable to conclude” that employees would have understood Human Resources Director’s statement as a “threat of discharge” as opposed to “a recitation of subtle legal distinctions” involving the impact of accretion in the absence of state “right-to-work” legislation). Furthermore, the issue could he had the opportunity to consult with Russell Reid’s counsel in connec- tion with his preparation of the July 21 letter. (Tr. 353–354.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 easily have been clarified by Yates’ specifically identifying in the Memorandum the unions that his statement purportedly re- ferred to – IBT Locals 560 and 676—or their collective bargain- ing units, which Yates chose not to do. Honeywell, Inc., 307 NLRB at 284 (Human Resources Director “could have articu- lated his meaning more clearly in the event he did not want to be misunderstood,” given his “considerable expertise in the field of labor relations”). Instead, Yates stated only that in order to receive the annual merit increase employees “must not be part of a collective bar- gaining unit (i.e., Union).” This language effectively conflates IBT Locals 560 and 676, which represented the established col- lective bargaining units, with any labor union, and therefore rea- sonably conveys that any employees represented by a labor un- ion would not receive a merit increase for that reason. In addi- tion, it is not plausible to assume that the employees eligible to vote in the upcoming election were familiar with the terms of Russell Reid’s collective-bargaining agreements with Locals 560 and 676 and would therefore have understood that employ- ees subject to such agreements received annual wage increases pursuant to the agreements’ terms in lieu of the annual merit in- crease. Instead, this language in the July 21 memorandum re- lates eligibility for the merit increase to union representation by dividing Russell Reid’s workforce into two separate groups – one group of employees which was eligible for the merit increase because the employees were “not . . . part of a collective bargain- ing unit (i.e., Union),” and a second group of employees which was not eligible for the merit increase because the employees were covered by a collective-bargaining agreement or associated with a labor union. This confusion is compounded by language later in the letter stating that after the election “all affected em- ployees will receive their eligible merit increases,” given that the letter has already defined eligibility as specifically excluding employees who are “part of a collective bargaining unit (i.e. Un- ion).” It would not be unreasonable for the voting-eligible em- ployees to conclude that if they became “Union” as a result of the impending election they would not in fact receive the merit increase, despite the memorandum’s Board-approved language to the contrary. As a result, the July 21 memorandum overall places the onus for Russell Reid’s foregoing the annual merit in- crease with respect to the voting-eligible employees on Local 825 in a manner which violates Section 8(a)(1). Earthgrains Baking Co., 339 NLRB at 28; Autozone, Inc., 315 NLRB at 122– 123. I further concur with General Counsel’s argument that certain statements in the July 21 Memorandum which follow the lan- guage specifically approved by the Board impermissibly raise the possibility that individual employee votes might be somehow implicated in the granting of merit increases and solicit individ- ual employee reactions to Russell Reid’s decision to withhold the annual merit increases, in a manner which renders the July 21 Memorandum coercive pursuant to Section 8(a)(1). After Yates’ Board-sanctioned language attributing the delay in imple- menting merit increases to a concern with the appearance of in- fluencing the upcoming election, the July 21 Memorandum 7 Given this language, I find the instant case distinguishable from the scenario at issue in Sam’s Club, 349 NLRB at 1012–1013, 1023. In that case, the Board found that the employer did not violate Sec. 8(a)(1) be- cause it neglected to specifically state that a merit increase would be re- instated after an election “regardless of how the employees voted,” in that its “promise” to reinstate the merit increase after the election was “unqualified and unconditional.” Sam’s Club, 349 NLRB at 1012–1013. states as follows: After the election is over, all affected employees will receive their eligible merit increases retroactive to July 5th regardless of the results of the election and regardless of how anyone votes in the upcoming election. Please let me know if you have any questions about this decision. (R.S. Exh. 2, p. 8) (emphasis added). In my view, the italicized language shifts the focus from the overall results of a vote of all eligible employees in the peti- tioned-for bargaining unit to individual employee voters. For example, the use of the word “anyone” most reasonably relates to individual voters, as opposed to the voting-eligible employees in the petitioned-for unit as a group. Thus, the language “regard- less of the results of the election” refers to the overall vote of the petitioned-for unit, and “regardless of how anyone votes in the upcoming election” refers to the votes of individual employees. Indeed, if the clause “regardless of how anyone votes in the up- coming election” did not refer to individual voting-eligible em- ployees, it would simply be redundant. I therefore find that this language would most likely be construed as referring to the em- ployees’ individual votes, and as such implies that Russell Reid might somehow know or discover how each individual employee voted in the election.7 Following immediately upon the clause “regardless of how anyone votes in the upcoming election,” the sentence “Please let me know if you have any questions about this decision” tends to solicit individual employee complaints re- garding Russell Reid’s withholding of the merit increase pending the results of the representation election. See DTR Industries, 311 NLRB 833, 836–837 (1993), enf. denied on other grounds 39 F.3d 106 (6th Cir. 1994) (employer violated Section 8(a)(1) when it “answered unlawfully solicited employee wage com- plaints by telling employees that raises were warranted as a result of its wage survey but could not be given because the Union’s campaign might make such increases appear to be bribes”). This is particularly the case in light of the confusion created by the language excluding from eligibility for the annual merit increase employees who were “part of a collective bargaining unit (i.e. Union),” discussed above. I further find that the context in which the July 21 memoran- dum was issued tends to reinforce a finding of its coercive na- ture. There is no dispute that United Site Services’ Tri-State Area Branches typically received annual merit increases in July or August of each year. The evidence establishes that the voting- eligible employees were concerned with the status of such merit increases during the summer of 2020, as evinced by their queries directed to Robinson. Tr. 258-260. However, there is no evi- dence that Russell Reid provided any explanation to the voting- eligible employees as to why they had not received the merit in- crease in their July 17 paychecks until the June 21 letter. Thus, the voting-eligible employees received their July 17 paychecks with no merit increase and no explanation, thereby leaving them on tenterhooks as to the status of their merit increase. Id. As the Board has noted, the exchange of wages for labor is a fundamen- tal component of the employment relationship. See New Mexico The language addressed by the Board in Sam’s Club more clearly refers to the result of the election and the overall vote of employees in the pe- titioned-for unit, and not to the votes of individual voting-eligible em- ployees. In addition, there is no evidence that the statements made by the employer representative in Sam’s Club otherwise placed the onus for delaying the merit increases on the Union. Id. RUSSELL REID WASTE HAULING & DISPOSAL SERVICE CO. 15 Symphony Orchestra, 335 NLRB 896, 898 (2001), quoting Oak Cliff-Golman Baking Co., 207 NLRB 1063, 1064 (1973), enfd. 505 F.2d 1302 (5th Cir. 1974) (issues involving wages “perhaps the most important element of the many in the employment rela- tionship which Congress remitted to the mandatory process of collective bargaining under the Act”); Bradford Coca-Cola Bot- tling Co., 307 NLRB 647, 663 (1992), enf. denied 27 F.3d 555 (3d. Cir. 1994) (wages and hours “the core terms of the employ- ment relationship”). As a result, the voting-eligible employees received the July 21 letter in a state of uncertainty and apprehen- sion—created by Russell Reid – as to this foundational compo- nent of the employment relationship. Such a context made Yates’ explanatory statements in the July 21 memorandum even more crucial. However, as discussed above, the memorandum itself did nothing to dispel the overall atmosphere of confusion regarding the topic. Instead, the memorandum placed the onus for delaying implementation of the merit increase for the voting- eligible Keasbey employees on the Union, raised the possibility that individual employee votes would not be confidential, and solicited individual employee opinions with respect to the status of the merit increase. Finally, General Counsel’s withdrawal of the Complaint’s al- legation that the July 13 Memorandum violated the Act does not render the July 21 Memorandum permissible by virtue of their identical language, as Russell Reid suggests. Post-Hearing Brief at 12. The July 13 Memorandum was not directed toward or de- liberately disseminated to the Keasbey employees. Therefore, while the July 13 Memorandum contains identical language stat- ing that in order to be eligible for the merit increase “you must not be part of a collective bargaining unit (i.e. Union),” that Memorandum was addressed and distributed to a different group of employees, employees who were not included in a petitioned- for unit scheduled to vote in an impending representation elec- tion. Consequently, the July 13 Memorandum did not contain the material regarding the postponed implementation of the merit increase for the voting-eligible employees, nor did it include the language indicating that the merit increase would be provided “regardless of how anyone votes in the upcoming election,” or “Please let me know if you have any questions about this deci- sion.” As a result, General Counsel’s withdrawal of the Com- plaint’s allegation regarding the July 13 Memorandum does not affect the analysis regarding whether the July 21 Memorandum violated Section 8(a)(1) of the Act in the manner alleged. For all of the foregoing reasons, the evidence establishes that Russell Reid’s July 21, 2020 Memorandum stated that a regu- larly scheduled wage increase would not be paid to the voting- eligible employees at the Keasbey facility in order to dissuade those employees from supporting the Union, in violation of Sec- tion 8(a)(1) if the Act. B. The Objection to Conduct Affecting the Results of the Election The Charging Party Union’s Objection 2 alleges that the July 21, 2020 Memorandum interfered with the results of the repre- sentation election. As discussed above, I have determined that the July 21 Memorandum violated Section 8(a)(1) of the Act by placing the onus on the Union for delaying the implementation of the annual merit increase in order to dissuade employees from supporting the Union, and by otherwise coercing the voting-eli- gible employees. It is well-settled that the Board typically di- rects a new election “whenever an unfair labor practice occurs during the critical period,” in that conduct which violates Section 8(a)(1) “is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election.” Union Tank Car Co., 369 NLRB No. 120, slip op. at 3 (2020), quoting Clark Equipment Co., 278 NLRB 498, 505 (1986) (internal quotations and citations omitted); see also Olympic Supply, Inc. d/b/a Onsite News, 359 NLRB 797 fn. 3 (2013). Because the election in the instant case was conducted by mail ballot, the critical period per- taining to potentially objectionable conduct began the date the petition was filed, June 11, 2020, and concluded on the date that the mail ballots were counted, on September 14, 2020. See E.L.C. Electric, Inc., 344 NLRB 1200, 1201 fn. 6 (2005). The July 21 Memorandum, which violated Section 8(a)(1) of the Act, therefore tainted the laboratory conditions during the critical pe- riod preceding the election. As a result, I will recommend that the Union’s Objection 2 be sustained, and that the results of the election be set aside. I shall further direct that a new election be held. Olympic Supply, Inc. d/b/a Onsite News, 359 NLRB at 797 fn. 3, citing La-Z-Boy Midwest, 241 NLRB 334, 335 (1979); see also Triec, Inc., 300 NLRB 743, 748–749, 750 (1990), enfd. 946 F.2d 895 (6th Cir. 1991) (setting aside election based in part upon unlawful threat that “wages would be frozen until after the election”). Russell Reid contends in its Post-Hearing Brief that any vio- lation committed via the July 21 Memorandum is de minimis, and therefore does not warrant setting aside the results of the election. (Posthearing Br. at 13–15), citing Mercy General Hos- pital, 334 NLRB 100 (2001). I disagree. As discussed above, the Board has long held that conduct which violates Section 8(a)(1) during the critical period “is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election.” Olympic Supply, Inc. d/b/a Onsite News, 359 NLRB at 797 fn. 3. The Board has stated that the only exception to this general rule involves circumstances where it is “virtually impossible” to find that the unlawful conduct at issue could have affected the results of the election. Id., citing Clark Equipment Co., 278 NLRB at 505. Furthermore, the evidence establishes that Yates’ July 21 memorandum was specifically directed to the Keasbey employees as a group and prominently posted in the Keasbey facility, thereby ensuring its dissemination throughout the unit of voting-eligible employees. Finally, the coercive na- ture of the July 21 memorandum involved wage increases, and thus implicated a fundamental component of the employment re- lationship. As a result, I find that the violation encompassed by the July 21, 2020 memorandum was not de minimis in terms of affecting the results of the election. For all of the foregoing reasons, the Union’s Objection 2 is sustained, the results of the election conducted from August 5, 2020, to September 14, 2020, shall be set aside, and I shall direct that a new election be conducted. CONCLUSIONS OF LAW 1. The Respondent, Russell Reid Waste Hauling & Disposal Service Company, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Charging Party International Union of Operating Engi- neers, Local 825, is a labor organization within the meaning of Section 2(5) of the Act. 3. By issuing a Memorandum on July 21, 2020, announcing that a regularly scheduled wage increase would be delayed in a manner which placed the onus for the delay on the Charging Party Union and was otherwise coercive, thereby attempting to dissuade the employees from supporting the Union, Respondent DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 violated Section 8(a)(1) of the Act. 4. The unfair labor practice described above affects com- merce within the meaning of Section 2(6) and (7) of the Act. 5. By the foregoing violation of the Act, which occurred dur- ing the critical period before the mail ballot election conducted beginning on August 5, 2020, and concluding on September 14, 2020, and by the conduct described by the Charging Party Union in its Objection 2, Respondent has prevented the holding of a fair election, and such conduct warrants setting aside the election in Case 22–RC–261504. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall order it to cease and desist and to take certain affirmative action designed to effectuate the Act’s poli- cies. On these findings of fact and conclusions of law, and on the entire record, I issue the following recommended8 ORDER Respondent, Russell Reid Waste Hauling & Disposal Service Company, Inc., Keasbey, New Jersey, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Informing employees that a regularly scheduled wage in- crease will be delayed for certain employees in a manner which placed the onus for the delay on the Charging Party Union and is otherwise coercive, thereby attempting to dissuade the employ- ees from supporting the Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectu- ate the policies of the Act. (a) Within 14 days after service by the Region, post at its fa- cility in Keasbey, New Jersey, copies of the attached notice marked “Appendix.” Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspic- uous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to ensure that the notices are not altered, defaced, or covered by any other material. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. If Respondent has gone out of business or closed the Keasbey, New Jersey facility, Respond- ent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by Respondent at any time since June 1, 2020. (b) Within 21 days after service by the Region, file with the Regional Director for Region 22 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that Respondent has taken to comply. IT IS FURTHER ORDERED that Case 22–RC–261504 is severed and remanded to the Regional Director for Region 22, for the purpose of conducting a second election. Dated, Washington, D.C. August 5, 2022 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your 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 announce that a regularly scheduled wage in- crease will be delayed in a manner which blames International Union of Operating Engineers, Local 825, for the delay and is otherwise coercive, thereby attempting to dissuade you from supporting the Union. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce you in the exercise of the rights listed above. RUSSELL REID WASTE HAULING & DISPOSAL SERVICE COMPANY,INC. The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/22-CA-263364 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. 8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.